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:
Cran H. Ohlandt, d/b/a Ohlandt's Liquors #3 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Cran H. Ohlandt, d/b/a Ohlandt's Liquors #3

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0782-CC

APPEARANCES:
For the Petitioner: O. Grady Query, Esquire

For the Protestants: No Appearance

For the Respondent: No Appearance
 

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


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court