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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Margie G. Leopard, d/b/a 123 Embers, Inc. vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Margie G. Leopard, d/b/a 123 Embers, Inc.

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-0047

APPEARANCES:
n/a
 

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


Brown Bldg.

 

 

 

 

 

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