ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to
S.C. Code Ann. §61-4-520 (Supp. 2002) for a contested case hearing. The Petitioner seeks an on-premises beer and wine permit for the location at106 Dean Swamp Church Road, Salley, South
Carolina. This matter is presently before the Division because of a protest by concerned citizens
concerning the suitability of the location. The Respondent moved to be excused since but for the
protests they would have issued the permit. This motion was denied. After notice to all parties
and Protestants, a hearing was conducted on March 5, 2003, at the Division in Columbia, South
Carolina. At the hearing, the parties and Protestants listed above were present.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and
having closely passed upon their credibility, I make the following Findings of Fact by a
preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit for the location known
as Club Shays, located at at106 Dean Swamp Church Road, Salley, South Carolina.
2. The Respondent, South Carolina Department of Revenue (Respondent or the
Department), determined that the location and the Petitioner met all statutory requirements.
3.The Protestants were concerned that the location was unsuitable due to the close
proximity of a residential area, cars blocking the roadway, drag racing, loud music emanating
from the club and litter scattered along the roadway in the Dean Swamp community. In addition,
the Protestants expressed concerns regarding drinking and driving in the area.
4. The applicant appears to be of good moral character. The State Law Enforcement
Division’s criminal background investigation revealed no criminal violations.
5. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the
State of South Carolina, and has maintained her principal residence in the State for at least thirty
days prior to the application.
6. Notice of the application appeared in The Aiken Standard, a newspaper
of general circulation in the area of the proposed location, once a week for three consecutive
weeks and notice was posted at the proposed location for fifteen days.
7. At the hearing, the Petitioner asked her husband, Charles Elwood Johnson, to
testify concerning the club. The Petitioner did not participate in the hearing other than to reply
that Mr. Johnson would be testifying about the club. Mr. Johnson then took the stand and
testified that he would be helping his wife run the business. He stated that Mrs. Johnson would
be responsible for the finances of the club, as well as the hiring and firing of the employees; his
role would be limited to cleaning up and assisting as needed. In spite of this testimony, it was
apparent that Mr. Johnson’s role would be much more involved. He testified about being present
at the club on a regular basis and about hiring and firing security guards. In light of this
testimony, and Mrs. Johnson’s complete silence on the issues, the Department of Revenue
moved that the record be held open for thirty days to allow the State Law Enforcement Division
(SLED) to conduct a criminal background check on Mr. Johnson. The Court granted this
motion, with the stipulation that under Rule 609(b) of the South Carolina Rules of Evidence, any
conviction more than ten years old would be excluded.
8.By letter received March 31, 2003, the Department transmitted the SLED report
which showed a conviction in 1993 for distribution of drugs in proximity to a school. Mr.
Johnson had testified to this conviction at the hearing, but was unsure of the date of conviction.
The SLED report also showed, a conviction of simple possession of marijuana in 1997, and
arrests in 1996 for alcohol and drug offenses; their disposition was not shown on the SLED
report. Based on this report, the Department revised its earlier position and indicated that it now
opposed the issuance of the permit.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1.The South Carolina Administrative Law Judge Division has jurisdiction over this
matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001).
2.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
3.Although “proper location” is not statutorily defined, broad discretion is vested in
the trier of fact to determine the fitness or suitability of the proposed business location of an
applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C.
593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit). The determination of suitability of a
location is not necessarily a function solely of geography. It involves 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. 335
(1985).
4. Any evidence adverse to the location may be considered. The proximity of a
location to a church, school or residences is a proper ground by itself, on which the location may
be found to be unsuitable and a permit denied. Byers v. South Carolina ABC Comm'n, 305 S.C.
243, 407 S.E.2d 653 (1991). Further, the court can consider whether "there have been law
enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984). In this case, no evidence was offered showing that the location is
not suitable or was not a proper location, despite the Protestants’ claims to the contrary.
5.It is also the fact finder’s responsibility to judge the demeanor and credibility of
the witnesses and determine the relevance and weight of any testimony offered.
6.S.C. Code Ann. § 61-4-520 (Supp. 2002), states that, “no permit authorizing the
sale of beer or wine may be issued unless: (1) The applicant, any partner or co-shareholder of
the applicant, and each agent, employee, and servant of the applicant to be employed on the
licensed premises are of good moral character.”
7. There is no single criterion or standard for determining the meaning of the term
"good moral character" and the licensing authority must judge whether the acts and conduct
shown are sufficient in themselves or as an index to character to disqualify an applicant. 1969
Atty. Gen. Op. 2709 at 160; 48 C.J.S. Intoxicating Liquors § 105 at 470 (1981). A liquor license
may be refused a person who has been convicted of a crime or crimes, particularly a violation of
the liquor laws. Wall v. S.C. ABC Commission, 269 S.C. 13, 235 S.E.2d 806 (1977). A license
may be refused to a person who has been convicted of a crime involving moral turpitude. 48
C.J.S. Intoxicating Liquors § 105 at 471.
8. Possession of a controlled substance with intent to distribute is a crime of moral
turpitude. Porter v. State, 290 S.C. 38, 348 S.E.2d 172 (1986) (conviction for the sale of 3,
4-methylenedioxy amphetamine). "Moral turpitude" is anything done contrary to justice,
honesty, principle, or good morals and includes criminal acts which involve intentional
dishonesty for purpose of personal gain. See State v. Morris, 289 S.C. 294, 345 S.E.2d 477
(1986).
9.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 a Protestant
objects to the issuance of a permit is not a sufficient reason alone to deny the application. 48
C.J.S. Intoxicating Liquors § 119 (1981).
10.S.C. Code Ann. § 61-4-525 (Supp. 2001) provides that a person residing in the
county in which a beer and wine permit is requested to be granted, or a person residing within
five (5) miles of the location, may protest the issuance of the permit if he files a timely written
protest.
11.Permits and licenses issued by the State are not rights or property, but are rather
privileges granted in the exercise of the police power of the State, and are to be used and enjoyed
only so long as the holder complies with the restrictions and conditions governing them. The
Administrative Law Judge, as the tribunal authorized to grant the issuance of a permit, may
likewise place restrictions or conditions on the permit or license. See Feldman v. South Carolina
Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
12.After considering all the relevant factors, pleadings, evidence and witnesses
before me, I find that the location is suitable for the on-premises sale of beer and wine. I also
find, however, that Mr. Johnson is not a suitable person to assist the Petitioner in this business
venture. Mr. Johnson was not completely forthcoming concerning his criminal record, and he
appears to be completely involved in the plans for this club. Even though the Petitioner
indicated that she would agree to restrictions on her license preventing Mr. Johnson from being
present at the club, I conclude that such a restriction would be impractical based on the
Petitioner’s lack of participation in the hearing and Mr. Johnson’s involvement in the plans for
this location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue DENY the Petitioner’s
application for an on-premises beer and wine permit.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
April 11, 2003
Columbia, South Carolina |
