South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Route 11 Pub & Grub, Inc. vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Route 11 Pub & Grub, Inc.

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
04-ALJ-17-0093-CC

APPEARANCES:
Petitioner & Representative:
Route 11 Pub & Grub, Inc., Pro se

Respondent & Representative:
South Carolina Department of Revenue, Nicholas P. Sipe, Esquire

Parties Present:
Petitioner present, Respondent excused, Protestants present.
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case


Shannon McGaugh (McGaugh) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for Route 11 Pub & Grub, Inc. located at 5600 N. Hwy. 14, Landrum, South Carolina. Protests were filed by numerous residents of the community seeking to prevent DOR from granting the requested permit.


In this matter, not all of the requirements for obtaining a beer and wine permit are disputed. Rather, the granting or denying of the permit turns upon the disputed matter of whether McGaugh meets the requirements of providing a proper location.


Protests were filed pursuant to S.C. Code Ann. § 61-4-525 resulting in a contested case before the Administrative Law Court (ALC) under S.C. Code Ann. §§ 61-2-260 (Supp. 2003), 1-23-600(B) (Supp. 2003) and 1-23-310 (Supp. 2003). The evidence and relevant factors require denying the on-premises beer and wine permit.




II. Issue


Does McGaugh meet the requirements for an on-premises beer and wine permit in light of an allegation that the location is improper?


III. Analysis


A. Findings of Fact


Based on the preponderance of the evidence, the following findings of fact are entered:


On or about October 13, 2003, McGaugh filed an application with DOR for an on-premises beer and wine permit with the application identified by DOR as AI # 32032316-4. The applicant and the location were investigated by SLED, and the investigating agent drew a map generally depicting the immediate area surrounding the proposed location of 5600 N. Hwy. 14, Landrum, South Carolina.

Within the immediate area is the First Baptist Church of Gowensville at a distance from the proposed location of 690 feet. While the proposed location's building is visible from the church, the church and the building are separated by a road and a field with the field having significant vegetation. The church activities primarily occur on Sunday and Wednesday but activities also occur on other nights of the week.


The area is a mixture of residences and retail businesses. The closest residence to the proposed location is 659 feet with a second at a distance of 670 feet, and a third at 719 feet from the proposed location. In addition to the few residences, the area is also home to a Spinx Gas Station and Convenience Store, the Junction Home Cooking restaurant, Somebody House Antiques, and the Gowensville Community Center.


Within the immediate area, only one beer and wine permit exists, an off-premises permit at the Spinx Gas Station and Convenience Store. Unlike the convenience store, McGaugh’s business will utilize an on-premises beer and wine permit. The business will operate as a restaurant providing meals and beer and wine during lunch and dinner hours. While other foods will be served, the typical menu will consist of hamburgers, hotdogs, onion rings, and french fries. The operation will provide seating for approximately 75 people with that number including seating at a bar area at which patrons will receive meals and beer and wine.


While patrons may be afforded parking at the rear of the property, primary vehicle parking will be at the front of the building. Vehicle ingress and egress to the parking area will be from Highway 11 and Highway 14 near the intersection of Highway 11 and Highway 14. At that intersection, the speed limit is 40 miles per hour on both highways with a flashing red light at a four-way-stop intersection.


From the building’s front door to the center line of Highway 14 is 58 feet. Likewise, the distance from the front door to the center line of Highway 11 is 120 feet.


Traffic along each highway includes the frequent presence of logging trucks since the route is a normal course of transit to and from a nearby timber company. Further, the vehicle traffic count on Highway 14 is approximately 3,600 vehicles per day and on Highway 11 is approximately 2,100 vehicles per day.


Travel along the two highways presents a history of accidents. While no fatalities or accidents are pinpointed at the intersection here in dispute, over the length of Hwy 11 and Hwy 14 in both Spartanburg and Greenville counties, fatalities and accidents have occurred. One fatality occurred on Hwy 11 during 2003 and during 2004, Hwy 11 and Hwy 14 witnessed four fatalities. The 2003 fatality on Hwy 11 involved alcohol. Over that same length in both counties, during 2003, 35 accidents occurred on Hwy 11 and 230 accidents occurred on Hwy 14.


Law enforcement for the area is provided by the Greenville County Sheriff. From 7 a.m until 7 p.m., two deputies have responsibility for a 215 square mile area that includes the location under review. From 7 p.m. until 7 a.m. only one deputy is assigned to the area. Due to the area covered and the number of deputies available in the area, the typical response time by the Sheriff to an emergency call at the location is 15 to 20 minutes.


B. Conclusions of Law


Based on the foregoing Findings of Fact, I conclude the following as a matter of law:


1. Law of Location Applied to Location Facts


Under S.C. Code Ann. § 61-4-520 (Supp. 2003), no beer and wine permit may be granted unless the location of the place of business is a proper location. In making that determination, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).


a. Protected Interests


A significant factor in determining whether the location of the place of business is a proper location is that of examining the proximity of the location to residences, churches, schools, and playgrounds. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Indeed, the sole factor of an improper proximity to any one of these activities and institutions is a proper basis for denying a beer and wine permit. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).


Plainly, a nearby church, the First Baptist Church of Gowensville, opposes the granting of the permit. As to the stance of the church in this matter, certainly, one must respect the moral grounds of an individual or group of individuals to abstain from the purchase and consumption of alcohol and the right not to be disturbed by those who do chose to buy and drink beer, wine, or liquor. Corwin v. Board of Liquor Control, 164 N.E.2d 412 (Ohio 1960) ("We would not imply that an objection to the issuance of a permit on moral grounds should be ignored by the director in determining the advisability of issuing the permit. The opposition of many religious denominations to the sale and use of intoxicants is a commendable one that should not be lightly regarded."). However, the suitability of a proposed location for the sale of alcoholic beverages cannot be found wanting based only on the religious convictions of opponents to an application. Rather, in South Carolina, the General Assembly has made the sale of alcoholic beverages a lawful enterprise with those enterprises subject to regulation by the State.


One aspect of that regulation is granting permits only to enterprises operating at a “proper location.” In this case, no improper proximity exists to the First Baptist Church of Gowensville. The church is over 600 feet from the proposed location and is separated from the location by a road and a field. Such a distance is not so close as to warrant a denial.


In the same manner, the presence of residences in the area is not a basis for denial. Here, the closest residences are 659 feet, 670 feet, and 719 feet from the proposed location. Further, the immediate area is not that of a high density residential area. Thus, no improper proximity to a residential area is shown here.


However, several other factors warrant denying the requested permit.


b. Safety and Law Enforcement Concerns


i. Safety Concerns


In appropriate circumstances, consideration must be given to the extent to which the highway traffic presents a location that is heavily traveled or creates a traffic danger. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Such is the case here since a combination of factors establishes that the location presents a traffic danger for one seeking to utilize an on-premises beer and wine permit.


Here, the location’s very limited front parking area requires parked vehicles to virtually abut the adjacent traffic routes. Indeed, both highway Hwy 11 and Hwy 14 converge in front of the location forming a four-way-stop intersection and presenting a building whose front door is only 58 feet from the center line of Highway 14 and only 120 feet from the center line of Highway 11.


Compounding the traffic dangers due to inadequate front parking at the location are the degree of traffic and the types of vehicles common to the location. For example, due to timber activities in the area, traffic frequently includes logging trucks. In addition, the two highways are plainly not little used routes. On the contrary, the traffic count on Highway 14 is 3,600 vehicles per day and on Highway 11 is 2,100 vehicles per day.


Finally, the traffic danger along Hwy 11 and Hwy 14 is not a matter of conjecture but is instead a current reality. While it is true that no evidence specifically pinpoints any fatalities or accidents at the intersection here in dispute, it is also true that no evidence refutes or even discounts the number and severity of accidents on the overall length of Hwy 11 and Hwy 14 in both Spartanburg and Greenville counties. For 2003 and 2004, Hwy 11 and 14 have produced five fatalities (at least one of which involved alcohol) and 265 accidents.


Accordingly, after considering all of the traffic safety factors (adequacy of front parking, proximity of parked vehicles to traffic arteries, types and numbers of vehicles carried on the traffic arteries, configuration of intersection, and history of fatalities and accidents), the location is improper due to it being in an area that creates a traffic danger and being incompatible with the granting of an on-premises beer and wine permit.


ii. Law Enforcement Concerns


A proper consideration for reviewing a beer and wine permit is examining the impact granting the permit will have upon law enforcement. Evidence that granting the permit will place a strain upon police to adequately protect the community must be weighed. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). For example, one measure of the strain is evidence of insufficient police to cover the location. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).


Here, police protection is provided by the Greenville County Sheriff. Essentially, during daylight hours, two deputies patrol a 215 square mile area that includes McGaugh’s location. However, at night only one deputy is available. Further, the typical response time by the Sheriff for an emergency call from the location is 15 to 20 minutes. Thus, the addition of an on-premises beer and wine permit presents a further demand on an already strained police coverage for the area and warrants denying the permit.


c. Similar Businesses and Permits


A denial of the permit due to safety and law enforcement concerns is bolstered by the general character of the immediate area. For example, a valid consideration in reviewing a permit is whether the surrounding area is substantially commercial and whether other similar businesses already sell beer and wine or alcohol within the area.. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).


In the instant case, the immediate area has only one beer and wine permit and that is an off-premises permit at the Spinx Gas Station and Convenience Store. The only other food preparation business in the area, the Junction Home Cooking restaurant, does not serve beer and wine. In addition, the other businesses in the area (Somebody House Antiques and the Gowensville Community Center) do not lend themselves to being outlets for beer and wine. Thus, granting the permit would change the character of the neighborhood since the surrounding area is not substantially commercial and no other on-premises businesses already sell beer and wine or alcohol within the area.


2. Ultimate Conclusion as to Location


I have considered all of the factors relevant to the proposed location and have given due weight to the evidence presented at the hearing. While the proposed location is not within an improper proximity to residences, schools, churches, and playgrounds, the permit must be denied as not presenting a proper location due to safety and law enforcement concerns and due to the area not being substantially commercial and not having other similar businesses present. S.C. Code Ann. § 61-4-520 (Supp. 2003). Accordingly, McGaugh's application seeks an on-premises beer and wine permit for a location that is not a proper location.


IV. Order


Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:


DOR is directed to deny Shannon McGaugh's application for an on-premises beer and wine permit at 5600 N. Hwy. 14, Landrum, South Carolina.



AND IT IS SO ORDERED.


_________________________________

RAY N. STEVENS

Administrative Law Judge


Dated: July 15, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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