ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2001) and S.C. Code Ann. § 1-23-310 et seq.
(Supp. 2001) upon filing of an application by Petitioner, April L. Smith, d/b/a Shine ABC Store, ("Petitioner") for a retail
liquor license for a location at 6630 S. Pine Street, Pacolet, South Carolina. After conducting its investigation, the South
Carolina Department of Revenue ("Department") denied Smith's application on the basis that Smith did not meet the
statutory requirements for the issuance of a license. Smith then requested a contested case hearing, whereupon the
Department transmitted the case to the Administrative Law Judge Division ("ALJD") for a hearing. After timely notice to
the parties and Protestant, a contested case hearing was held on April 2, 2002, at the ALJD in Columbia, South Carolina.
The Honorable Elaine O. Harris testified in opposition to the issuance of a license to Smith. Smith testified in support of
the application. Upon review of the relevant and probative evidence and applicable law, the application for a retail liquor
license is denied.
FINDINGS OF FACT
Having carefully considered all testimony 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:
- Notice of the time, date and place of the hearing was given to the Petitioner, Protestant, and Department.
- April L. Smith, on behalf of Shine ABC Store, seeks a retail liquor license for the proposed location of 6630 S. Pine
Street, Pacolet, South Carolina.
- As part of her application, Smith disclosed that she had been convicted of a misdemeanor for breach of trust in 1994.
Upon investigation, the Department discovered that Smith was convicted of breach of trust with fraudulent intent, a
misdemeanor, in Cherokee County, South Carolina, in August 1994. Based on its discovery and in keeping with the
Department's practice in such instances, the Department denied Smith's application.
- In addition, the Honorable Elaine O. Harris, Mayor of Pacolet, submitted a written protest regarding the issuance of a
retail liquor license to Smith. In addition, Mayor Harris submitted a petition signed by a number of her constituents
protesting the issuance of the license. Mayor Harris and her constituents are concerned that the proposed location is too
close to five churches, a daycare, and a school. Additionally, Mayor Harris and her constituents believe that the
presence of a liquor store in their town undermines the values of the town. Finally, Mayor Harris believes the police
force in Pacolet to be too small to maintain adequate patrol over a liquor store.
- April L. Smith, testified that her rights were violated when her application was denied. Smith was convicted of a
misdemeanor involving girl scout cookies that her daughter was selling. There is a Mexican restaurant seven tenths of a
mile from the proposed location that serves mixed drinks and that one of the churches Mayor Harris referred to was
actually across the street from the restaurant. Smith feels that the restaurant poses a greater threat to the community than
a liquor store.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
- S.C. Code Ann. § 1-23-600 (Supp. 2001) grants jurisdiction to the Administrative Law Judge Division to hear contested
cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2001) grants the
Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
- S.C. Code Ann. § 61-2-100 describes persons to whom the Department may not issue a liquor license. It provides that
the no license will be issued to any person unless the person (and all principals) are of "good moral character." S.C.
Code § 61-6-100(D) (2001).
- 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 moral character. SC DOR v. Burris, d/b/a Joseph Burris Liquors,
Docket No.: 96-ALJ-17-0201-CC (ALJD, July 26, 1996), citing 1969 Op. S.C. Att'y Gen No. 2709 at 159; 1989 S.C.
Op. Att'y Gen. No. 89-89 at 237. The crime of breach of trust with fraudulent intent is a crime of moral turpitude. See
in re Sipes, 297 S.C. 531, 377 S.E.2d 574 (1989)(attorney suspended after found guilty of misdemeanor breach of trust
with fraudulent intent after misappropriating Girl Scout cookie funds entrusted to her by her daughter's troop).
- Conviction for a crime of moral turpitude is prima facie evidence of bad moral character. See Burris, supra. However, a
conviction for a crime involving moral turpitude is not an insurmountable obstacle to establishing good moral character.
"Conviction of a crime does not, under all circumstances, constitute ineligibility for a license... . In evaluating an
applicant's fitness, consideration must be given to the circumstances of any conviction record as well as to the extent to
which rehabilitation has occurred." See Burris, supra, citing 48 C.J.S. Intoxicating Liquors § 105 (1981 & Supp. 1995).
- I conclude that the Department has established a prima facie case that Petitioner does not meet the statutory
requirements for the issuance of a retail liquor license. To overcome that prima facie case, Petitioner had to offer
evidence that she is fit despite the conviction. This Petitioner has utterly failed to do. Petitioner offered no details or
explanation for her conviction other than to state that it pertained to a Girl Scout cookie sale. Nor has Petitioner offered
any testimony, her own or anyone else's, that she has morally redeemed herself. In the absence of any evidence that she
has reestablished her good character, I have no choice but to deny Petitioner's application for a retail liquor license.
Because Petitioner's application is denied on other grounds, the suitability of the location need not be addressed.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Petitioner's application for a retail liquor license, is DENIED;
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
April 2, 2002
Columbia, South Carolina |
