ORDERS:
ORDER AND DECISION
This matter came before the Administrative Law Judge Division
on the application of Margie G. Leopard for an on-premise retail
beer and wine permit and a sale and consumption license. After
notice to the parties, a hearing was conducted on May 11, 1994.
The two files of the Department of Revenue and Taxation regarding
the applications were made a part of the record. Based upon the
evidence and the testimony, I make the following:
FINDINGS OF FACT
Margie Grace Leopard has been a resident of South Carolina for
over eighteen years and is a legal resident of the United States.
She is over the age of 21 and currently operates another restaurant
and lounge in the Greenville. There has never been any problem
with that establishment and her licenses have never been suspended
or revoked. The proposed location is 2545 North Pleasantburg Drive
(Highway 291) in Greenville. This location has been licensed
previously by the Alcoholic Beverage Control Commission for
thirteen to fourteen years. The restaurant and lounge, named
Leeg's, seats between 35 to 60 people. There is a full kitchen
from which meals are served to patrons. The applicant was
convicted of gambling and possession of open liquor in October 1983
for which she paid fines. There have been no other criminal
violations since that time.
Mr. David Ponder previously applied for licenses for this
location which were denied on February 8, 1994 because he failed to
appear at the hearing. Mr. Charles Lee Reeves, the owner of the
property, did not renew Ponder's lease because he did not like the
way he operated the business. Reeves is working with the applicant
who is leasing the property from him based on her "track record" at
the other establishments she has operated.
There are no schools, playgrounds, or churches in the vicinity
of the location. There are approximately seven other locations
within a one mile radius that are licensed for the sale and/or
consumption of alcoholic beverages. The Greenville County
Sheriff's Department does not protest the issuance of the license.
The location is within Area 2 for purposes of police coverage which
is a higher crime area generally so more officers patrol this area
of the county.
The only protestant is a resident of the area who submitted a
letter from the Sheriff's Department showing the number of incident
reports and the crime involved for the address of the proposed
location for the entire year of 1993. A total of 8 incident
reports were made for 2545 North Pleasantburg Drive for 1993.
Three of these were for "alarms" and two involved violent crimes.
No testimony was presented to explain the incidents or the results
of any police investigations. The officer who testified did not
have any knowledge of the incidents. Although incidents of
criminal activity are relevant, the incidents in question are vague
and without support to adversely reflect on the operation of the
business by this applicant. Therefore, less weight and credibility
are given to this testimony and evidence.
The protestant complained of the potential for increased crime
particularly drunk driving and an increase in the traffic of the
area. I find that the licensing of the location would not have any
effect on increasing traffic in the area nor would it increase
crime.
The applicant has provided the required bond to the Department
as well as the Articles of Incorporation for 123 Embers, Inc.
Notice of the application was published in a newspaper of general
circulation in Greenville County for three consecutive weeks and
was posted at the location.
CONCLUSIONS OF LAW
The Administrative Law Judge Division is vested with the
powers, duties and responsibilities exercised by the former
Alcoholic Beverage Control Commission and hearing officers pursuant
to Chapter 23 of Title 1. S.C. Code of Laws § 61-1-55 (Supp.
1993). S.C. Code § 61-9-320 (Supp. 1993) provides the statutory
requirements for this issuance of beer and wine permits. It states
in part:
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.
... .
S.C. Code § 61-9-320 (6) (Supp. 1993).
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 § 135 (b) at 243. 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 (S.C. 1977). The Division
would not be justified in refusing a license based simply upon a
"moral appraisal", or because the previous misconduct is not
relevant to the conduct of the business for which the license is
sought. 1969 Atty. Gen. Op. 2709 at 160.
The applicant was convicted of violating the open container
law and gambling in 1983. Since that time there have been no
further arrests or convictions. The conviction are over ten years
old and since that time the applicant has been a law abiding
citizen. The convictions have become stale and do not affect her
moral character.
Section 61-9-320 also states that the location of the proposed
place of business is a proper one, considering among other factors
the location's proximity to schools, churches, or playgrounds.
Although "proper location" is not statutorily defined, "rather
broad discretion is vested in the Commission in determining the
fitness or suitability of a particular location." Fast Stops, Inc.
v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (S.C. 1981). This
determination of suitability is not solely a function of geography,
but involves an infinite variety of considerations related to the
nature and operation of the proposed business and its impact upon
the community where it is to be situated. Kearney v. Allen, 287
S.C. 324, 338 S.E.2d 335 (S.C. 1985); Schudel v. S.C. ABC
Commission, 276 S.C. 138, 276 S.E.2d 308 (S.C. 1981).
There are no churches, schools, or playgrounds in the vicinity
of the proposed location. The protestant objects because of the
number of similar establishments in the area and because of the
potential increase in traffic and criminal activity. While these
concerns are relevant to the issuance of a license, the location is
on Highway 291 which is a heavily travelled highway. The ABC
Commission previously issued licenses for this location. No
evidence was presented to show a change in the number of
establishments selling beer, wine, or alcoholic beverages to show
the area is more saturated.
The potential for increased crime is no greater than for the
other establishments currently operating in the area. The police
are not protesting this application and the incident reports
submitted by the protestant were for 1993 before this applicant
signed the lease. In addition, the reports do not provide any
details on the investigations or the suspected criminal activity
only the fact that a call was received by the sheriff's department.
The remaining criteria set forth in Section 61-9-320 have been
met by the applicant. Section 61-5-50 provides when a license may
be granted to a person for the sale and consumption of alcoholic
beverages. There are seven criteria listed, many of which overlap
with the criteria for the sale of beer and wine. The applicant
meets these criteria as well.
ORDER
Based upon the Findings and Fact and the Conclusions of Law,
the applicant meets the statutory requirements for the issuance of
an on-premises beer and wine permit and a sale and consumption
license. It is therefore,
ORDERED, that the Department shall issue an on-premises beer
and wine permit and a sale and consumption license to Margie G.
Leopard for Leeg's upon the payment of the requisite fees.
AND IT IS SO ORDERED.
____________________________
ALISON RENEE LEE
Administrative Law Judge
June __, 1994
Columbia, South Carolina |