ORDERS:
ORDER AND DECISION
This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. §
§ 1-23-310, et seq. (Rev. 1986 & Supp. 1996) and 61-2-260 on the application of Judith R. Rawlings,
President, Bouquet Garni Ltd. Co., d/b/a Bouquet Garni for an off-premises beer and wine permit
for a business located at 102 Church Street, Charleston, Charleston County, South Carolina. After
notice to the parties, a hearing was conducted on September 9, 1997. Based upon the evidence
presented, the beer and wine permit is GRANTED. Any issues raised in the proceedings or hearing
of this matter that are not addressed in this Order are deemed denied. ALJD Rule 29B.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases by a preponderance of the evidence, and taking into account the
credibility of the witnesses:
1. The applicant, Judith R. Rawlings is a citizen of the United States and is a resident
of South Carolina and has been a resident for the time period required by law.
2. She is over the age of twenty-one and is of good moral character. She has never been
convicted of a crime.
3. Ms. Rawlings has never held a beer and wine permit or other alcoholic beverage
license or permit and has not had one suspended or revoked.
4. The corporate applicant, Bouquet Garni Ltd., is a South Carolina limited corporation
whose purpose is to sell gifts and wares from France.
5. The proposed business is located at 102 Church Street. It was previously licensed as
a location for off-premise consumption of beer and wine from approximately 1940 until 1980. It has
not been licensed since 1980. The location is in a mixed residential and commercial area in
downtown Charleston.
6. Notice of the application was published in the Charleston Post and Courier and
posted at the location for the time period required by law.
7. The application was protested by a number of residents living in the vicinity of the
proposed location. Due to the protests, the Department of Revenue joined in the protest based on
the proximity of residences to the proposed location.
8. A map drawn by the SLED Alcohol Enforcement Agent depicts the neighborhood
of the proposed location as being a mixed residential and commercial area. Historic Charleston
typically in this vicinity has a number of structures in which the lower level is a commercial business
and the upper level is a residence. The closest residence to the proposed location is 40 feet as
depicted on the SLED map and the next closest residence is 50 feet from the proposed location. Both
of these are located across the street from the proposed business.
9. At the hearing none of the protesters appeared to protest the application and the
failure to appear is deemed to be a waiver of their protest.
10. The applicant also submitted evidence to demonstrate that there are no other locations
which are licensed to sell beer and wine that are located in areas that are more residential in nature
than commercial. These businesses are also located within the downtown Historic Charleston area.
11. The applicant submitted information from a zoning hearing to further demonstrate her
intention with respect to operation and use of the proposed location. This evidence supported her
contention that Bouquet Garni would sell products and wares from France and the intent to import
and sell classic French bottled wines for off-premises consumption only.
12. Parking in this area is not a problem because the traffic in this area consists of
pedestrian traffic. There is some metered parking. There are public parking lots available.
13. There have been no problems requiring law enforcement at the proposed location.
14. Some of the protests that were written concerned use of some space located outside
and to the rear of the proposed location. Residents were concerned that this area would be used to
allow on-premises consumption of beer or wine. The Petitioners indicate that there is no intent to
have any type of on-premise consumption of alcohol. The proposed space would be used as a garden
to grow herbs and other products that may be sold in the boutique.
15. The proposed business also has an agreement to sell French estate bottled wines.
Proposed prices on the wines will range anywhere from $10.00 to $15.00 a bottle. The sale of wine
is simply an adjunct to the other wares and products that would be sold by Bouquet Garni.
16. At the hearing, the Department was satisfied that the applicant met the requirements
for the issuance of the permit. Since the persons who protested that lived in the vicinity did not
appear and apparently abandoned their protest, the Department was also withdrawing its protest.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
1. The Administrative Law Judge is vested with contested case jurisdiction pursuant to
the S.C. Revenue Procedures Act (S.C. Code Ann. §§ 12-60-10 et seq.), the Administrative
Procedures Act (S.C. Code Ann §§ 1-23-310 et seq.) and S.C. Code Ann. § 61-2-260 (Supp. 1996).
2. S.C. Code Ann. §§ 61-2-90 and 61-4-520 (Supp. 1996) provide the statutory
requirements for the issuance of beer and wine permits. Section 61-4-520(6) provides that no permit
authorizing the sale of beer or wine may be issued unless "[t]he location of the proposed place of
business of the applicant is in the opinion of the department a proper one." "The department may
consider, among other factors, as indication of unsuitable location, the proximity to residences,
schools, playgrounds, and churches. . . ." S.C. Code Ann. § 61-4-520(7) (Supp. 1996).
3. Although "proper location" is not statutorily defined, broad discretion has been vested
in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops,
Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301
(1972); and Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
4. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness
or suitability of the proposed business location for a permit to sell beer and wine using broad, but not
unbridled, discretion. Byers v. S. C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5. The determination of suitability of the proposed location is not necessarily a function
solely of geography. It may involve 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).
6. The issuance of the permit would not have an adverse impact upon the surrounding
community.
7. Petitioner meets all statutory requirements for the issuance of an off-premises beer
and wine permit.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the application of Judith R. Rawlings, President, Bouquet Garni Ltd. Co.,
d/b/a Bouquet Garni for an off-premises beer and wine permit for a business located at 102 Church
Street, Charleston, Charleston County, South Carolina is GRANTED. The Department shall issue
an off-premises beer and wine permit upon the payment of the appropriate fees.
AND IT IS SO ORDERED.
___________________________
ALISON RENEE LEE
Administrative Law Judge
September 17, 1997
Columbia, South Carolina |
