ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code
Ann. §§61-1-55, et seq. (Supp. 1993) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp.
1993) for a contested case hearing. The Applicant, Fred C. McCary, seeks an on-premise beer
and wine permit for Fast Freddie's. A hearing was held on May 8, 1995, at the office of
Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The Permit requested by the Applicant is denied.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the Parties or
Protestants, I make the following Findings of Fact by a preponderance of evidence:
1. The court has subject matter jurisdiction of this contested case.
2. Notice of the time, date, place and subject matter of the Hearing
was given to the Applicant and the South Carolina Department of
Revenue.
3. The applicant seeks an on-premise beer and wine permit for his
video poker business located at 275 Meeting Street, West
Columbia, South Carolina.
4. The Petitioner was previously involved in a business known as the
Smoke and Bottle Shop. That business had a beer and wine permit
issued to the Petitioner's girlfriend, Teresa A. Hughes. After an
under-age individual was sold alcohol at that business location the
Petitioner paid the fine for that violation.
5. The Petitioner has been convicted for several relevant crimes. The
Petitioner was arrested for an open container violation on October
5, 1991 and later pled guilty to that crime on December 9, 1991.
Thereafter, the Petitioner was convicted of gambling on September
9, 1992. Finally, and notably, the Petitioner was arrested for
bookmaking on January 13, 1993 and pled guilty to that crime on
February 18, 1994.
6. The Applicant stated on his application that he had never been
"arrested, taken into custody, charged, paid a fine or posted a
bond" for any crime in South Carolina or any other state in the past
twenty (20) years. This statement was false and a material
misrepresentation.
7. The Petitioner's false misrepresentation upon his application and his
previous convictions make him unsuitable for a beer and wine
permit. I therefore find that the Applicant does not have the moral
character necessary to possess a beer and wine permit.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude as a matter of law the following:
1. Section 1-23-600 S.C. Code Ann. (Supp. 1994) grants jurisdiction
to the Administrative Law Judge Division to hear contested cases
under the Administrative Procedures Act.
2. Section 61-1-55 S.C. Code Ann. (Supp. 1994) grants to the
Administrative Law Judge Division the powers, duties and
responsibilities as hearing officer in protested and contested matters
governing alcoholic beverages, beer and wine.
3. Section 61-9-320 S.C. Code Ann. (Supp. 1994) sets forth the
requirement for the issuance of an on-premise beer and wine
permit.
4. The Court may deny a license or permit to "a person who has
previously been convicted of a crime or crimes, particularly a
violation of the liquor laws." Wall v. South Carolina Alcohol
Beverage Control Com'n. 269 S.C. 13, 235 S.E.2d 806 at 808
(1977). Specifically, there is no single criteria or standard for
determining the meaning of the term "good moral character" and
the licensing authority must judge whether the acts and/or conduct
shown are sufficient in themselves or as an index to character to
disqualify the Applicant. 2709 Op. Att'y Gen. 160 (1969).
5. "[A] misstatement under oath or a concealment of [a material] fact"
is sufficient basis to deny a beer and wine permit. Wall, supra at
808.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED AND ADJUDGED that the application of Fred C. McCary for this beer and
wine permit be denied.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
June 13, 1995 |