ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
§§ 1-23-310, et seq., (1986 & Supp. 1994) upon an application for an on-premises beer and wine
permit for 540 Longtown Road, Lugoff, South Carolina, by Leo Scott, filed with the South
Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was
held on October 3, 1995. Protestants Sheriff Stephen McCaskill and neighbor Curtis Lilly
testified against the application. The issues in controversy were: (1) the suitability of the
proposed business location; (2) the nature of the proposed business activity; and (3) the eligibility
of the applicant. The permit is granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner seeks an on-premises beer and wine permit for 540 Longtown Road,
Lugoff, South Carolina, having filed an application with DOR, AI #103803.
(2) Notice of the time, date, place, and subject matter of the hearing was given to
Petitioner, protestants, and DOR.
(3) DOR did not appear at the hearing; however, DOR filed the following statement with
the Court:
But for the unanswered question of suitability of location, the
Department would have issued this licenses/permit. As the department
has no evidence concerning suitability of this location it does not intend
to appear at the hearing. Its failure to appear at the hearing does not
indicate a waiver of its rights as a party to this action, and is not to be
considered a default under Rule 23 of the Administrative Law Judge
Division. If the Petitioner appeals the Court's decision in this matter,
and no additional parties have been admitted, the department will actively
participate as a party in the appeal.
(4) Petitioner is currently operating the proposed location as a convenience and general
store.
(5) The proposed location has been continuously operated as a general store since at least
1946, and has been licensed to sell beer and wine during that time.
(6) Petitioner leased and began management of the proposed location in June of 1995.
(7) Petitioner is a full-time employee at the DuPont plant in Kershaw County and only
opens the proposed location for business during his off-hours from the plant.
(8) Petitioner formerly held a beer and wine permit in his name while President of the
Camden Knights, a fraternal organization in Camden, South Carolina. No citations for alcoholic
beverage offenses were issued while he was permittee.
(9) The proposed location is located in a rural portion of Kershaw County, approximately
six miles from Lugoff.
(10) Protestants Curtis and Patricia Lilly live across Longtown Road from the proposed
location, approximately four hundred yards away.
(11) The Lilly's completed construction and moved into their new home on Longtown
Road in March, 1995, and were aware of the existence and operation of the proposed location at
the time of purchase and construction of their home.
(12) The Lilly's oppose the issuance of the permit because of concerns for their personal
safety and comfort.
(13) Mr. Lilly is disabled and uses a wheelchair.
(14) Sheriff McCaskill opposes the issuance of the permit based upon problems at the
proposed location while managed by a previous owner; the criminal record of Leo Scott; and the
potential traffic hazards on Longtown Road.
(15) According to the official records of the Kershaw County Sheriff's Office, Leo Scott
has been convicted of the following offenses:
Date Offense Disposition
6/5/68 Disorderly Conduct and Destroying Personal Property $100 fine
7/3/68 Public Intoxication $15 fine
4/21/81 Assault $50 fine
1/17/86 Fraudulent Check $20 fine
4/19/91 Breach of Peace $237 fine
(16) Petitioner is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
(17) Petitioner has never had a permit/license revoked.
(18) Petitioner is of good moral character.
(19) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three consecutive weeks and was posted at the proposed location for
fifteen days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
(1) S.C. Code Ann. § 61-1-55 (Supp. 1994) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(2) S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(3) S.C. Code Ann. § 61-9-320 (Supp. 1994) includes the requirement that a beer and
wine permit applicant be of good moral character.
(4) In South Carolina, there is no single criterion by which to determine whether a person
possesses good moral character. 1968-69 Op. Att'y Gen. No. 2709 at 159. Generally, a
conviction for a crime involving moral turpitude is considered evidence of poor moral character;
however, conviction of a crime does not under all circumstances constitute ineligibility for a
license. In evaluating the fitness of a person's moral character, consideration must be given to the
circumstances of any conviction of record as well as the extent to which rehabilitation has
occurred. 48 C.J.S. Intoxicating Liquors § 105.
(5) A crime of moral turpitude involves "an act of baseness, vileness, or depravity in the
private and social duties that a man owes to his fellow man or to society in general, contrary to
the accepted and customary rules of right and duty between man and man...." Smith v. Smith,
194 S.C. 247, 259 S.E.2d 584 (1940). Although all crimes involve some degree of social
irresponsibility, all crimes do not involve moral turpitude. State v. LaBarge, 275 S.C. 168,
268 S.E.2d 278 (1980).
(6) Under S.C.R.Evid. 608 and 609, evidence of conviction of a crime offered to attack
the credibility or character of a person is not admissible if ten or more years has elapsed since the
conviction or release from confinement.
(7) Disorderly conduct, breach of the peace, and public intoxication have been expressly
held not to be crimes of moral turpitude. State v. Morris, 289 S.C. 294, 345 S.E.2d 477 (1986);
State v. LaBarge, 275 S.C. 168, 268 S.E.2d 278 (1980).
(8) Considering the minor nature of the crimes for which Petitioner has been convicted,
the general lack of moral turpitude involved with those crimes, and the time which has elapsed
since the commission of most of the offenses, Petitioner possesses good moral character, and is a
suitable person to hold a beer and wine permit.
(9) As the trier of fact, an administrative law judge is authorized to determine the fitness
or suitability of the proposed business location of an applicant for a license/permit to sell liquor,
beer, and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC
Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
(10) The determination of suitability of a location is not necessarily a function solely of
geography. It involves an infinite variety of considerations related to the nature and operation of
the proposed business and its impact on the community within which it is to be located. Kearney
v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
(11) When the relevant testimony of those opposing the permit consists entirely of
opinions, generalities, and conclusions not supported by fact, the denial of the permit on the
ground of unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281
S.E.2d 181 (1981).
(12) The proposed location is suitable and proper, in light of the long history of the
location as a licensed premises, the existence of the proposed location (and previous permit) prior
to construction of the Lilly's home, the rural nature of the area, and the lack of relevant evidence
indicating unsuitability of the location.
(13) The proposed business activity is suitable and proper, in light of the fact that the
location is open only part time, the location has been continuously operated as a general store
since at least 1946, and beer and wine is sold along with other grocery and convenience items.
(14) Petitioner meets the statutory requirements for issuance of a beer and wine permit.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Petitioner the on-premises beer and
wine permit applied for.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 12, 1995
Columbia, South Carolina |
