ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division on a citation issued by the
South Carolina Department of Revenue (DOR) against Frances C. Culbreath, President, Culbreath
Enterprises, Inc., d/b/a Culbreath's Package Store, for having a person not of good moral character
serving as a principal of Culbreath Enterprises, Inc. For the violation, DOR seeks revocation of the
Respondent's retail liquor license. The Respondent sought review of the DOR determination,
arguing that DOR failed to properly charge the Respondent as it cited the wrong statutory provision
in the Agency Final Determination. After notice to the parties, this matter was heard at the
Greenwood County Courthouse on February 5, 1999. Any issues raised or presented in the
proceedings or hearing of this case not specifically addressed in this Order are deemed denied.
ALJD Rule 29(C).
FINDINGS OF FACT
I make the following Findings of Fact, taking into account the burden on the parties to
establish their respective cases by a preponderance of the evidence and taking into consideration
the credibility of the witnesses:
Frances C. Culbreath holds a retail liquor license on behalf of Culbreath Enterprises,
Inc., which does business as Culbreath's Package Store.
Sidney D. Culbreath is a member of the Board of Directors and an employee of
Culbreath Enterprises, Inc.
On or about October 10, 1996, while working for Culbreath's Package Store and
while located on its premises, Sidney D. Culbreath sold crack cocaine to an individual who was
cooperating with the Ninety-Six Police Department.
Under a warrant, police searched Culbreath's Package Store and found crack cocaine
and marked bills used by the cooperating individual to purchase crack cocaine from Sidney D.
Culbreath in the cash register and on Sidney D. Culbreath's person.
On April 21, 1997, Sidney D. Culbreath pled guilty to possession of crack cocaine
with the intent to distribute and was sentenced to three years confinement and a $10,000 fine.
On July 31, 1998, DOR issued a final determination revoking the Respondent's
license for having a principal of Culbreath Enterprises, Inc. not of good moral character.
Sidney D. Culbreath lacks moral character.
Sidney D. Culbreath is not of good repute.
Culbreath Enterprises, Inc., d/b/a Culbreath's Package Store, is unsuitable for a retail
liquor license.
DISCUSSION
The Respondent does not dispute the essential facts, namely that a member of the Board of
Directors of Culbreath Enterprises, Inc., d/b/a Culbreath's Package Store, was convicted of
possession of crack cocaine with the intent to distribute. Rather, the Respondent argues that
because DOR cited the incorrect statute in its Final Agency Determination, the Respondent was not
properly charged. DOR argues that the Respondent's due process rights were not violated as the
Respondent received notice that DOR sought revocation as well as its reasons therefor.
DOR erred in citing the statutory provisions relating to mini-bottle licenses rather than the
provisions relating to retail liquor licenses. Although DOR cited the wrong statute, the Final
Agency Determination was sufficient for Respondent to understand the nature of the violation and
the penalty sought by DOR. Such an error did not prevent the Respondent from being fully
informed of the nature and the cause of the accusation. Under the circumstances of this case,
DOR's citation of the incorrect statutory provision does not violate the South Carolina Constitution.
Further, the licensee is unsuitable to hold a retail liquor license because a principal of the
corporation is a person who lacks moral character and is not of good repute.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
The Division has personal and subject matter jurisdiction.
Licenses issued by the State for the sale of liquor, beer, and wine are not rights or
property, but are rather privileges granted in the exercise of the police power of the State to be used
and enjoyed only so long as the restrictions and conditions governing them are complied with. The
tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke or deny
it. Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
DOR may revoke a retail liquor license if it determines that "the licensee is not a
suitable person to hold the license . . . ." S.C. Code Ann. § 61-6-920 (Supp. 1996); cf. Wall v.
South Carolina ABC Comm'n, 269 S.C. 13, 235 S.E.2d 806 (1977) (liquor license may be denied
if, in the opinion of the fact finder, the applicant is not a suitable person to be licensed).
As a general rule, "all corporate powers must be exercised by or under the authority
of, and the business and affairs of a corporation must be managed under the direction of, a board
of directors." S.C. Code Ann. § 33-8-101.
The lack of good repute of a member of a board of directors of a corporate licensee
renders the licensee unsuitable to hold a retail liquor license. "[N]o person is eligible for a license
. . . if he or the person who will have actual control and management of the business . . . is not of
good repute . . . ." S.C. Code Ann. § 61-6-110 (Supp. 1997).
Moral character is a component of reputation. See South Carolina Dep't of Revenue
and Taxation v. Burris, 96-ALJ-17-0201-CC (July 24, 1996).
Although there is no single criterion by which to determine if a person is of good
moral character, commission of a crime involving moral turpitude implies the absence of good
moral character. 1969 Op. S.C. Att'y Gen. No. 2709 at 159; 1989 S.C. Op. Att'y Gen. No. 89-89
at 237.
Moral turpitude is "an act of baseness, vileness, or depravity in the private and
social duties which man owes to his fellow man or society in general, contrary to the customary and
accepted rule of right and duty between man and man." State v. Perry, 294 S.C. 311, 364 S.E.2d
201 (1988).
Possession with intent to distribute a controlled substance is a crime of moral
turpitude. Porter v. State, 290 S.C. 38, 348 S.E.2d 172 (1986).
DOR's incorrect citation of S.C. Code Ann. § 61-6-1820 (Supp. 1996) as the
provision Respondent violated is not fatal to its petition. Rather, DOR's Final Determination
allowed the Respondent to understand the nature of the violation and the penalty sought.
Accordingly, this does not violate the prohibition against warrants that do not fully inform the
accused of the nature and the cause of the accusation, which violate Article 1, § 18, of the South
Carolina Constitution. See State v. Randolph, 239 S.C. 79, 121 S.E.2d 349 (1961); McConnell v.
Kennedy, 29 S.C. 180, 7 S.E. 76, 80 (1888).
Because one of its principals is not of good repute and lacks good moral character,
Culbreath Enterprises, Inc., d/b/a Culbreath's Package Store, is unsuitable to hold a retail liquor
license under S.C. Code Ann. § 61-6-920 (Supp. 1996).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the South Carolina Department of Revenue revoke the retail liquor license
held by Frances C. Culbreath, President, Culbreath Enterprises, Inc., d/b/a Culbreath's Package
Store.
AND IT IS SO ORDERED.
__________________________________
ALISON RENEE LEE
Administrative Law Judge
February 22, 1999
Columbia, South Carolina |