ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§§61-1-55, et seq. (Supp. 1995) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1995) for
a contested case hearing. The Petitioner, Cran H. Ohlandt, seeks a retail liquor license for Ohlandt's
Liquors #3. A hearing was held on February 20, 1996 at the Administrative Law Judge Division,
1205 Pendleton Street, Columbia, South Carolina. Cran Ohlandt elected to be the individual
responsible under the license and subject to the provisions and penalties of the Alcoholic Beverage
Control Act. See, S.C. Code Ann. § 61-1-125 (Supp. 1995). The caption is amended to reflect that
election.
The License requested by the Petitioner is approved.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, considering the burden of persuasion by the Parties or Protestants, I make the
following Findings of Fact by a preponderance of evidence:
1. The Petitioner seeks a retail liquor license for Ohlandt's Liquors #3 at
Remount Village Shopping Center, North Charleston, South Carolina.
The Petitioner and his father currently have an interest in three retail
liquor stores. However, the Petitioner intends to close the retail liquor
store in which he holds an interest at Fabian Shopping Plaza before
opening the store at the Remount Village Shopping Center.
2. Notice of the time, date, place and subject matter of the hearing was
given to the Applicant, Protestants, and South Carolina Department
of Revenue and Taxation ("Department').
3. The qualifications set forth in S. C. Code Ann. § 61-3-420 (Supp.
1995) concerning the residency and age of the Petitioner are properly
established. Furthermore, the Petitioner has not had a permit or license
revoked within the last two years and notice of the application was
lawfully posted both at the location and in a newspaper of general
circulation.
4. The Petitioner is of sufficient moral character to receive a retail liquor
license.
5. Neither the Department nor any Protestants appeared to contest the
issuance of the Petitioner's license.
6. The Petitioner's business is located in a commercial area of
Charleston County. The proposed location is not within 500 feet of
any church, school or playground.
7. The proposed location is suitable for a retail liquor license.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1995) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the
Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1995) grants to the Administrative
Law Judge Division the powers, duties and responsibilities as hearing
officer in protested and contested matters governing alcoholic
beverages, beer and wine.
3. S.C. Code Ann. §§ 61-3-420 through -480 (Supp. 1995) set forth the
requirements for the issuance of a retail liquor license.
4. No new licenses may be granted if the place of business is within 300
feet of any church, school, or playground if the business is in a
municipality or within 500 feet if the business is outside the
municipality. S.C. Code Ann. § 61-3-440 (Supp. 1995).
5. "No person, directly or indirectly, individually or as a member of a
partnership or an association, as a member or stockholder of a
corporation or as a relative to any person by blood or marriage within
the second degree, shall have any interest whatsoever in any retail
liquor store licensed under this section except the three stores covered
by his retail dealer's license, as provided for in § 61-3-460." S.C. Code
Ann. § 61-3-461 (Supp. 1995).
6. Whether there is adequate and proper police protection for an
intended retail liquor store is also a proper consideration. Terry v.
Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972).
7. Although "proper location" is not statutorily defined, broad discretion
is vested in the trier of fact in deciding the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 595, 281
S.E.2d 118, 119 (1981).
8. As the trier of fact, the Administrative Law Judge is authorized to
decide the fitness or suitability of the proposed business location of an
applicant for a permit to sell beer and wine using broad, but not
unbridled, discretion. Byers v. South Carolina ABC Commission, 281
S.C. 566, 316 S.E.2d 705, (Ct. App. 1984).
9. The determination of suitability of location is not necessarily a
function solely of geography. It involves an infinite variety of
considerations related to the nature and operations of the proposed
business and its impact upon the community within which it is to be
located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335, (1985).
10. Without sufficient evidence of an adverse impact on the community,
the application must not be denied if the statutory criteria are satisfied.
The fact that Protestant objects to the issuance of the permits is not
a sufficient reason by itself to deny the application. See 45 Am. Jur.
2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating
Liquors § 119 (1981).
11. In considering the suitability of a location, it is relevant to consider the
previous history of the location and to decide whether the testimony
opposing the granting of a permit is based on opinions, generalities
and conclusions or whether the case is supported by facts. Smith v.
Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al.,
261 S.C. 168, 198 S.E.2d 801 (1973).
12. The Petitioner meets all the statutory requirements for holding a retail
liquor license at the proposed location.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Cran H. Ohlandt for a retail liquor license be granted upon
the Petitioner closing his store at Fabian Shopping Plaza.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue a retail
liquor license upon payment of the required fee and cost by the Applicant.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
February 21, 1996
Columbia, South Carolina |