ORDERS:
ORDER AND DECISION
This matter comes before the Administrative Law Judge Division on the application by
Isham L. Rodgers for an on-premises beer and wine permit and for a mini-bottle license for Ike's
Restaurant located at Archer Road and Boundary Drive in Spartanburg, South Carolina. After
notice to the parties, a hearing was conducted on September 21, 1994. Based upon the evidence
and testimony presented, I make the following:
FINDINGS OF FACT
1. The applicant, Isham L. Rodgers, is a fifty-two year old resident of South Carolina.
He was convicted of embezzlement from the United Transportation Union in which he was a
secretary-treasurer while employed with Southern Railroad. He was convicted in federal court in
South Carolina in 1983 and was sentenced to restitution, a fine and six months imprisonment and
three years of probation. Since completing his sentence and the probationary period the applicant
has not been arrested or convicted of any crimes.
2. Rodgers has never held any licenses or permits for the sale of beer, wine or
alcoholic beverages and has never had any citations issued against him for violating liquor laws.
3. The proposed location is a restaurant/truck stop that was first operated by the
applicant's father beginning in 1960. It was licensed by the Alcoholic Beverage Control
Commission in 1973 and has been continuously licensed. In 1982, after the death of the elder Mr.
Rodgers, the applicant's brother, Thomas began operating the location. The location continued to
be licensed until three months ago when the applicant began operation. It has ten tables which
seat four people each. There are printed menus offering food and beverages and the establishment
has an "A" health rating from the Department of Health and Environmental Control. Ike's is open
Monday through Saturday, 11:00 a.m. to 12 midnight.
4. Notice of the applications were published in the Spartanburg Herald and posted
at the location for the required time period. The applicant also posted the bond required by the
Department of Revenue and Taxation.
5. The City of Spartanburg Police have only been called to the location three times in
over thirty years of operation. The last time was around 1982. There have been no complaints to
the police about the location.
6. There are three other people employed at Ike's on a part time basis to assist in the
preparation of food. At least one of the employees has been working in the business for many
years.
7. The location is not near any schools or playgrounds but is the subject of the only
protest by the Victory Christian Fellowship Church. The church is protesting because it feels that
the location is too close and the church fears that the sale of alcohol in such close proximity to the
church would be tempting to the youth and other members of the church. According to the map
prepared by the alcohol enforcement unit agent, the church is 600 feet from the location. The
Church concurs in the distance shown by the agent. The church moved to this location in March
1994. The parking lot of the church is behind the church further away from Ike's. The Church has
had no problem with Ike's. Services at the church are Tuesday and Thursday at seven p.m. and on
Sunday at 10:30 a.m. and 6:30 p.m.
CONCLUSIONS OF LAW
1. 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).
2. S.C. Code of Laws §61-9-320 (Supp. 1993) provides the statutory requirements
for the 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.
....
Section 61-9-320 (6), S.C. Code of Laws (Supp. 1993).
3. 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.
4. The applicant was convicted of embezzling money belonging to the union in 1983.
Since that time there have been no further arrests or convictions. The conviction is 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 his moral character and are not related to the licenses sought.
5. Section 61-9-320 also states that the location of the proposed place of business
must be a proper one, considering among other factors the location's proximity to schools,
churches, or playgrounds.
6. "Proper location" is not statutorily defined, "rather broad discretion is vested in the
[Division] 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).
7. The protestant objects because of the church's location to the establishment. Ike's
has been at this location for over thirty years. The church moved into the community near Ike's in
March 1994. The business has been licensed to serve alcoholic beverages since 1973. No
evidence was presented to show that the location is a threat to the church other than the fear that
people will be tempted to consume alcoholic beverages. There was no evidence regarding any
traffic problems, crime problems, or a change in the nature and operation of the business. The
location is therefore a proper one.
8. 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 and the applicant meets
all of them.
ORDER
Based upon the Findings of Fact and Conclusions of Law, the applicant, Isham
L. Rodgers meets the statutory requirements for the issuance of an on-premises beer and wine
permit and a sale and consumption (mini-bottle) license. It is therefore,
ORDERED, that the Department of Revenue and Taxation shall issue an on-premises
beer and wine permit and a sale and consumption license to Isham L. Rodgers for Ike's upon the
payment of the required fees.
AND IT IS SO ORDERED.
_____________________________________
ALISON RENEE LEE
Administrative Law Judge
October _____, 1994
Columbia, South Carolina |