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SC Administrative Law Court Decisions

CAPTION:
Judith R. Rawlings, President, Bouquet Garni Ltd, Co., d/b/a Bouquet Garni vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Judith R. Rawlings, President, Bouquet Garni Ltd, Co., d/b/a Bouquet Garni

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0367-CC

APPEARANCES:
Scott Y. Barnes, Esquire for Petitioner

Arlene D. Hand, Esquire for Respondent
 

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


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