ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq.
(1986 & Supp. 2001) for a contested case hearing. Stephen M. Hughes, on behalf of Petitioner Norvell-Campbell, Inc.,
seeks an off-premises beer and wine permit for an upscale antique furniture store and wine shop located at 269-273 East
Bay Street, Charleston, South Carolina. The Department of Revenue (Department) would have granted the permit but for
the protests filed by local residents regarding the suitability of the store's location. Accordingly, the Department was
excused from the hearing of this matter. After notice to the parties and the protestants, a hearing was held on January 15,
2002, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence presented
regarding the suitability of the proposed location and the applicable law, Petitioner's application for an off-premises beer
and wine permit is hereby granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into
account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. Applicant Stephen M. Hughes submitted an application for an off-premises beer and wine permit to the Department on
July 19, 2001, for the premises located at 269-273 East Bay Street, Charleston, South Carolina.
2. This application is incorporated into the record by reference.
3. The applicant and other principals of the business are persons of good moral character and have no record of any
criminal convictions.
4. The applicant is at least twenty-one years of age, a legal resident of the United States, and a legal resident of South
Carolina. Further, the applicant has maintained his principal residence in South Carolina for at least thirty days prior to the
date of his application for the beer and wine permit.
5. The applicant has never been cited for any violations of the alcoholic beverage control laws and has not had a beer and
wine permit or alcoholic beverage license suspended or revoked.
6. Notice of the application appeared in The (Charleston, S.C.) Post and Courier once a week for three consecutive weeks,
and proper notice of the application was posted at the proposed location for fifteen days.
7. There are no churches, schools, or playgrounds within close proximity to the proposed location.
8. The proposed location is situated along a major thoroughfare running through downtown Charleston in an area that
includes both commercial and residential structures. Specifically, the rear of the property on which the proposed location
sits abuts a historic residential community known as Ansonborough. Established in the 1740s, this community is
Charleston's oldest residential neighborhood, is home to the Rhett House, one of Charleston's oldest houses, and is one of
the oldest residential neighborhoods in the United States.
9. For the past three years, Petitioner Norvell-Campbell has operated a store named "Wine & Pine" on King Street in
downtown Charleston. Wine & Pine is an upscale retail establishment, offering the sale of furniture, wine, and wine-related accessories. The only intoxicating beverage sold at Wine & Pine is wine, and those sales are exclusively for off-premises consumption. After a transition period, Petitioner intends to transfer its Wine & Pine store from King Street to
the proposed location, where it will operate in conjunction with "Acquisitions," an antique store owned by Petitioner and
located in the building adjoining the proposed location.
10. Petitioner intends to operate Monday through Saturday, closing by 7:00 p.m. each day. Further, Petitioner intends to
sell only bottled wine for off-premises consumption, and does not intend to sell beer, at the proposed location.
11. Several protestants testified in opposition to the issuance of the permit in question. As justification for denial of
Petitioner's permit, the protestants contend that introducing an establishment that sells alcoholic beverages into the heart of
their community will change the character of their neighborhood and will further infringe upon the tranquility of their
neighborhood, which is already threatened by tour buses, carriage tours, delivery trucks, and other traffic. The protestants
are also concerned that the introduction of an alcohol-related business into their neighborhood will set a precedent upon
which other such businesses might enter their community. Additionally, the protestants complained of Petitioner's failure
to be a "good neighbor," as most noticeably evidenced by Petitioner's failure to address the disturbance created by the
emptying of the dumpster behind Acquisitions in the early morning hours.
12. I find that the nature of Petitioner's business as proposed will not have an adverse impact on the protestants'
community, as the introduction of wine for sale for off-premises consumption, in the context of a store selling antiques and
other furniture, including wine-related furniture, does not greatly change the nature and operation of Petitioner's current
retail establishment. However, this tribunal also finds that this location is not suited for an on-premises beer and wine
permit. The sort of parking and traffic concerns, noise problems, loitering, and merrymaking that accompany an
establishment with an on-premises beer and wine permit, such as a restaurant, would not allow for the harmonious
coexistence of the establishment and the adjoining residential neighborhood. But, as noted above, Petitioner's operations
are markedly different from such an establishment: Petitioner's customers will not consume any alcoholic beverages on or
near the premises, Petitioner will close its store in the early evening, and Petitioner's customers will likely patronize the
store throughout the day as individuals or in small groups, rather than congregate at the establishment in the evening in
larger groups. In sum, the issuance of the permit to Petitioner will not adversely affect the character of the neighborhood,
as the conducting of Petitioner's business will not be detrimental to the general welfare of the community or a significant
departure from the current operations of Acquisitions, Petitioner's furniture store located in the same building.
STIPULATIONS
In order to promote favorable consideration of its application and to address the concerns of the protestants, Petitioner
voluntarily stipulated to placing the following restrictions on its permit:
1. Wine & Pine will only provide wine for sale for off-premises consumption and will not offer beer for sale.
2. Wine & Pine will not operate after 7:00 p.m., daily.
3. Wine & Pine will cordon off its parking lot from the close of business each night until 7:00 a.m. the following morning
to prevent its dumpster from being emptied during the night.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Jurisdiction over this case is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260
(Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001).
2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or
official to whom the duty of issuing it is committed[.]" Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246,
248, 317 S.E.2d 476, 477 (Ct. App. 1984).
3. S.C. Code Ann. § 61-4-520 (Supp. 2001) establishes the criteria for the issuance of a beer and wine permit. Included in
the criteria is the requirement that the proposed location be a suitable one. See id. § 61-4-520(6)-(7).
4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness
or suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118
(1981).
5. The determination of suitability of location is not necessarily a function solely of geography. Rather, it involves an
infinite variety of considerations related to the nature and operation of the proposed business and its impact on the
community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C.
Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6. "[A] liquor license or permit may be properly refused on the ground that the location of the establishment would
adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment
would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be
conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 (1981).
7. However, without sufficient evidence of an adverse impact on the community, a permit application must not be denied if
the statutory criteria are satisfied. The fact that the issuance of a permit or license is protested is not a sufficient reason, by
itself, to deny the application. See id. § 119.
8. Here, Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an
off-premises beer and wine permit. In reaching a decision in this matter, this tribunal is constrained by the record before it
and the applicable statutory and case law. The objections raised by the protestants must be considered in the context of the
other factors related to the nature and operation of Petitioner's business. The proposed location is situated in a commercial
area and the proposed business activities, i.e., the selling of fine wines and wine accessories in conjunction with antiques
and other furniture, will not likely increase foot traffic in the area or otherwise affect the character of the area.
In requesting this tribunal to deny Petitioner's permit because of aspects of Petitioner's business that are common to any
retail business, e.g., receiving deliveries by truck or having dumpsters emptied, the protestants are in essence asking this
tribunal to effectuate zoning, the ultimate purpose of which is to confine certain classes of buildings and uses to certain
localities. 101A C.J.S. Zoning and Land Planning § 101 (1979). However, such authority is vested solely in the
protestants' local government. Moreover, the protestants' concern about the precedential value of the granting of
Petitioner's permit is simply too attenuated a ground upon which to deny Petitioner a permit for which it otherwise
qualifies. Further, this tribunal has made a specific finding that, while the proposed location is suitable for Petitioner's
wine sales for off-premises consumption, the location is not suitable for an establishment offering the on-premises
consumption of alcoholic beverages.
Nonetheless, Petitioner has agreed to certain restrictions which will likely alleviate many of the concerns raised by the
protestants. As a result, Petitioner is subject to compliance with these restrictions for continued licensure. An alcohol
permit is neither a contract nor a property right. Rather, it is merely a permit, issued or granted in the exercise of the police
power of the state to do what otherwise would be unlawful to do, and to be enjoyed so long as the restrictions and
conditions governing its continuance are complied with. Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
As such, the stipulations submitted by Petitioner will be incorporated into the basic requirements for the enjoyment and
privilege of obtaining and retaining the beer and wine permit. 23 S.C. Code Ann. Regs. 7-88 (1976).
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that Petitioner's application for an off-premises beer and wine permit is GRANTED with
restrictions.
IT IS FURTHER ORDERED that the Department incorporate the stipulations contained herein as restrictions upon
Petitioner's permit.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
January 22, 2002
Columbia, South Carolina |
