ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) on the application of Petitioner
Chunks, a partnership between Mark Walker and Horace Garlington, for an on-premises beer and
wine permit for an establishment located at 111 Branch Street in Abbeville, South Carolina. On
January 28, 2003, Respondent South Carolina Department of Revenue (Department) denied
Petitioner’s application based upon its conclusion that the applicants are not persons of good moral
character, as evidenced by their criminal records, and upon the protests filed against the application
by the City of Abbeville and Reverend Bobby Cutter. After timely notice to the parties and the
protestants, a hearing of this matter was held on June 18, 2003, at the Administrative Law Judge
Division in Columbia, South Carolina. Based upon the evidence presented regarding the character
of the applicants, particularly their criminal records, I find that Petitioner’s application for an on-premises beer and wine permit must be denied.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following Findings of Fact by a preponderance of the evidence:
1.On December 17, 2002, Mark Walker submitted an application to the Department for
an on-premises beer and wine permit for a café and lounge to be located at 111 Branch Street in
Abbeville, South Carolina. Mr. Walker submitted this application on behalf of a partnership known
as “Chunks,” in which he and Horace Garlington are equal partners. With the consent of the parties,
the application and the Department’s file on the application were made a part of the record by
reference.
2.The premises to be licensed are owned by Mr. Garlington and are located within the
city limits of Abbeville, South Carolina. The proposed location is situated near several other
businesses, including two that are licensed for the sale of alcoholic beverages, and there are no
churches, schools, or playgrounds within close proximity of the location. The sole residence in the
vicinity of the establishment is located across and slightly down Branch Street from the proposed
location.
3.Both Mr. Walker and his partner, Mr. Garlington, are at least twenty-one years of age
and are residents and citizens of the United States. Further, they reside and maintain their principal
places of abode in South Carolina, and did so for at least thirty days prior to making their application
for a beer and wine permit.
4.Notice of Petitioner’s application was published in The Press and Banner, a newspaper
of general circulation in the Abbeville area, for three consecutive weeks, and proper notice of the
application was posted at the proposed location for fifteen days.
5.Neither Mr. Walker nor Mr. Garlington had a beer and wine permit revoked within
the two years preceding the date of the instant application.
6.Applicant Mark Walker has been convicted of several crimes in the past seven years.
In particular, he was convicted of Criminal Domestic Violence of a High and Aggravated Nature on
August 21, 2002, and of Giving False Information to a Police Officer and Aiding and Abetting Any
Violation on June 3, 1996.
7.Horace Garlington, Mr. Walker’s partner in the proposed business, also has a criminal
record. Mr. Garlington was convicted of Malicious Injury to Property and Harassment on October
14, 1999.
8.On the Department’s “Application for Beer, Wine, and/or Liquor ” (Form ABL-901),
question seven of Section I.B., which pertains to applicant information for partnerships or limited
liability partnerships seeking alcohol permits and licenses, reads as follows:
7.Has any partner or member or person with management responsibilities been convicted of a crime in South Carolina or any other State? (You must reveal any convictions whether the partner or member went to jail or not. The S.C. State Law Enforcement Division will check for convictions, and your application may be denied if you do not correctly answer this question)
□ Yes □ NoIf yes, give details in Schedule A.
(Resp’t Ex. #2, at 3.) On the application in the instant case, Mr. Walker checked the “No” box in
response to this question, and did not list his convictions or those of his partner, Mr. Garlington, in
Schedule A or anywhere else in the application. (Resp’t Ex. #2, at 3.) Further, Mr. Walker signed
the application and attested to the validity of the information therein before a notary on December
16, 2002. (Resp’t Ex. #2, at 9.)
9.Both the Department and the City of Abbeville contend that Petitioner’s permit
application should be denied because the criminal records of the applicants indicate that they lack the
good moral character required of applicants for beer and wine permits. Protestant Reverend Bobby
Cutter opposes the issuance of Petitioner’s requested permit because of what he believes to be the
negative spiritual and economic consequences of the consumption of alcohol for society. Reverend
Cutter not only has a general moral aversion to the sale of alcohol, but also believes that the
consumption of alcohol, through traffic accidents, addiction, and other effects, imposes significant
economic costs on this State. Accordingly, the Department and the protestants stipulated that the
only issues in dispute in this matter are the good moral character of the applicants and Reverend
Cutter’s opposition to the permit based upon the spiritual and economic costs of the consumption of
alcohol. Consequently, the suitability of the proposed location is not in dispute in the instant case.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.This tribunal has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260
(Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002).
2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C.
Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see
also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
3.The weight and credibility assigned to evidence presented at the hearing of a matter
is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co.,
308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d
854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as finder of fact, “has the authority
to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate
the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157
(1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
4.S.C. Code Ann. § 61-4-520 (Supp. 2002) establishes the criteria for the issuance of
a beer and wine permit. Among these criteria is the requirement that the holder of the permit be of
good moral character. Specifically, this Section provides that “[n]o permit authorizing the sale of
beer or wine may be issued unless: (1) [t]he applicant, any partner or co-shareholder of the applicant,
and each agent, employee, or servant of the applicant to be employed on the licensed premises are
of good moral character.” S.C. Code Ann. § 61-4-520(1) (Supp. 2002).
5.In addition, S.C. Code Ann. § 61-2-100 (Supp. 2002) lays out the general
requirements that all applicants for permits and licenses to sell alcoholic beverages must satisfy.
Included in these requirements is the proviso that “[t]he department may not issue a license or permit
under [Title 61] to any person unless the person and all principals are of good moral character.” S.C.
Code Ann. § 61-2-100(D) (Supp. 2002).
6.In South Carolina, there is no single criterion by which to determine whether or not
one is possessed of good moral character so as to satisfy the alcoholic beverage licensing laws. See
1969 Op. S.C. Att’y Gen. No. 2709. Generally, however, to have good moral character one must
possess all of the elements essential to make up that character, including common honesty and
veracity and simple adherence to the law. Id.; see also Zemour, Inc. v. State Div. of Beverage, 347
So. 2d 1102, 1105 (Fla. Dist. Ct. App. 1977) (defining “good moral character” for the purposes of
a liquor licensing statute as “not only the ability to distinguish between right and wrong, but the
character to observe the difference; the observance of the rules of right conduct, and conduct which
indicates and establishes the qualities generally acceptable to the populace for positions of trust and
confidence”); Lowe v. Herrick, 223 P.2d 745, 747 (Kan. 1950) (noting that, with regard to a retail
liquor license application, “[w]hat constitutes good moral character is not easy to determine or define,
but upon general principles one who does that which is forbidden and penalized by the law of the land
does not possess the character and fitness required by the statute”); Emery v. City of New Orleans
through Rochon, 473 So. 2d 877, 880 (La. Ct. App. 1985) (stating, in a liquor licensing matter, that
the term “good moral character” is “widely accepted and understood as a concise and meaningful
description of an attribute of a desirable citizen”).
7.Further, while good moral character cannot be simply and narrowly defined, certain
specific traits have been identified as indicating a lack of good moral character. See 1989 Op. S.C.
Att’y Gen. No. 89-89. In particular, courts have found that acts of moral turpitude are antithetical
to what is considered good moral character, and have therefore concluded that the commission of
such acts of moral turpitude implies the absence of good moral character. Id.
8.South Carolina courts have defined moral turpitude as “an act of baseness, vileness,
or depravity in the private and social duties which a man owes to his fellow man, or to society in
general, contrary to the accepted and customary rule of right and duty between man and man.” State
v. Horton, 271 S.C. 413, 414, 248 S.E.2d 263, 263 (1978). Further, “[a]n act in which fraud is an
ingredient involves moral turpitude.” Id. In determining whether a crime is one involving moral
turpitude, courts focus primarily on the duty to society and fellow man that is breached by the
commission of the crime. Alex Sanders et al., Trial Handbook for South Carolina Lawyers § 13:13,
at 484 (2000).
9.In the case at hand, I find that Petitioner’s permit application must be denied because
the applicants, Mark Walker and Horace Garlington, as evidenced by their criminal records, have not
demonstrated the good moral character required of beer and wine permittees under the alcoholic
beverage licensing statutes.
10.Mr. Walker was convicted of giving false information to a police officer in 1996. This
crime involves the sort of fraud and breach of basic societal duties that typify acts of moral turpitude,
and, not surprisingly, giving false information to law enforcement has been implicitly recognized as
a crime of moral turpitude. See State v. Joseph, 328 S.C. 352, 361 n.1, 491 S.E.2d 275, 279 n.1 (Ct.
App. 1997). Mr. Walker’s partner, Mr. Garlington, was convicted of causing malicious injury to
property in 1999. This crime, which involves the wilful, unlawful, and malicious injury to or
destruction of the personal property of another, has been explicitly identified as a crime of moral
turpitude by the South Carolina Supreme Court. See State v. Perry, 294 S.C. 311, 312, 364 S.E.2d
201, 202 (1988).
11.Beyond these acts of moral turpitude, both Mr. Walker and Mr. Garlington have been
convicted of offenses that, while not specifically identified by South Carolina courts as crimes of
moral turpitude, are not consistent with good moral character. Mr. Walker was convicted of criminal
domestic violence of a high and aggravated nature in 2000 and Mr. Garlington was found guilty of
harassment in 1999. These offenses, even if not considered acts of moral turpitude,
are not
indicative of good moral character, and one would be hard-pressed to conclude that an individual who
committed an assault upon a member of his own household or who repeatedly and unreasonably
intruded into the private life of another, causing that person mental distress, is a person of good moral
character. See S.C. Code Ann. §§ 16-25-20, 16-25-65, 16-3-1700, 16-3-1710 (2003).
12.In addition to the criminal records of the applicants, the failure of the applicants to
provide truthful information about their convictions on the permit application is a sufficient ground,
in itself, for the denial of the requested permit. S.C. Code Ann. § 61-4-540 (Supp. 2002) provides
that “[a] misstatement or concealment of fact in an application is a sufficient ground for the
revocation of the permit.” Inherent in this power to revoke a beer and wine permit because of false
information provided in the permit application is the power to deny a permit application on that same
ground. Here, Mr. Walker acknowledges that he provided false information regarding his criminal
history and that of his partner in the permit application. This “concealment of fact” in the application
is a ground for the denial of the requested permit. Furthermore, this failure to provide truthful
information in the permit application is, itself, evidence of a lack of good moral character on the part
of Mr. Walker, and provides another ground for the denial of the permit. See, e.g., Duren, Inc. v.
City of Lakewood, 709 P.2d 74 (Colo. Ct. App. 1985) (holding that renewal of an alcoholic beverage
license was properly denied on the ground that the applicant was not of good moral character where
the applicant had made false statements and had misrepresented its ownership on previous
applications); 7455, Inc. v. Or. Liquor Control Comm’n, 800 P.2d 781 (Or. 1990) (upholding the
denial of a renewal of a liquor license on the ground that the applicant was not of good moral
character where the applicant made material false and misleading statements to state officials and in
its applications); see also Gentile v. Dep’t of Prof’l Registration, Bd. of Med. Exam’rs, 448 So. 2d
1087, 1090 (Fla. Dist. Ct. App. 1984) (noting, in a medical licensing matter, that “[o]bviously,
making false or misleading statements on his application is relevant to whether [the applicant] is of
good moral character”).
13.As the trier of fact, the issuance or denial of a permit rests within the sound discretion
of this tribunal. Inherent in the power to issue a permit or license is also the power to refuse it. Terry
v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the permit in the instant case is compelled
because of the lack of good moral character on the part of the applicants, as evidenced by their
criminal records, and the failure of the applicants to provide truthful information on their permit
application.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that Petitioner’s application for an on-premises beer and wine
permit for the premises located at 111 Branch Street, Abbeville, South Carolina, is DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
June 27, 2003
Columbia, South Carolina |
