ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (“Division”) pursuant to
S.C. Code Ann. §§ 61-2-260, 1-23-310, and 1-23-600 (Supp. 2002) for a contested case hearing.
Charlie Gilliam, d/b/a C & D Lounge, 1512 S. Main Street, Greenwood, South Carolina,
(“Applicant/Petitioner”) seeks an on-premises beer and wine permit.
The Greenwood Police Department (“Protestant”), filed a protest to the application with the
South Carolina Department of Revenue (“Department”) on April 10, 2003, based upon the moral
character of the Applicant and his employees and the business reputation of the Applicant. Because
of the protest, the hearing was required. The Department filed a Motion to be Excused setting forth
that but for the protest, this permit would have been issued. However, this motion was denied.
The hearing was held on August 14, 2003, at the offices of the Division at 1205 Pendleton
Street, Columbia, South Carolina. The Petitioner, Department, and the Protestant appeared at the
hearing. Evidence was introduced and testimony was given. After carefully weighing all the
evidence, this tribunal finds that the on-premises beer and wine permit should be granted with
restrictions.
FINDINGS OF FACT
Having carefully considered the credibility of the testimony and accuracy of the evidence
presented at the hearing and taking into consideration the burden of persuasion by the Petitioner and
the Protestant, I make the following findings of fact by a preponderance of the evidence:
1.The Division has personal and subject matter jurisdiction.
2.Notice of the time, date, place, and nature of the hearing was timely given to
Petitioner, Protestant, and the South Carolina Department of Revenue.
3.The Applicant, Charlie Gilliam, applied for an on-premises beer and wine
permit on March 14, 2003, for the premises located at 1512 S. Main Street, Greenwood, South
Carolina, which is located inside the Greenwood city limits. Applicant intends to operate this location
as a lounge and grill.
4. The Applicant is over the age of twenty-one.
5. The Applicant has been a legal resident of the state of South Carolina for the past
forty-nine years, and has maintained his principal place of abode in the State of South Carolina for
the same length of time.
6. Notice of this application appeared at least once a week for three consecutive
weeks in The Index-Journal, a newspaper of general circulation in the local area where the Petitioner
would operate. Notice of the application was also given by displaying a sign for a minimum of fifteen
(15) days at the location.
7. Applicant has not had a beer or wine permit issued to him revoked within the past
two years.
8. The proposed location is suitable for the sale of beer and wine on premises with the
restrictions set forth below.
9. Protestants question the moral character of Applicant and his employees, and object
to the issuance of a permit to the Applicant because they believe that issuing the permit could result
in a large volume of criminal activity at that location based on the reputation of the Applicant’s prior
business.
10. Applicant has two criminal convictions on his record. In 1989, Applicant was convicted
of “assault and battery,” the charge for which arose out of Applicant disciplining his teenage stepson,
Darnell Smith, by spanking him. The stepson’s father reported the incident to the Department of
Social Services, which subsequently brought this charge against Applicant. Applicant did not spend
any time in jail for this offense. In 1999, Applicant was also convicted on a misdemeanor charge of
“malicious injury to personal property.”
11. Applicant previously operated and held an on-premises beer and wine permit and a
private club minibottle license for an establishment called “Club Weekend,” which was located outside
the Greenwood city limits at 2408 72/221 Highway E., Greenwood, South Carolina. The club was
open Thursday through Sunday and had approximately 100 members. Each member had guest
privileges, and at times there were crowds of up to 250 people at the club. Applicant managed the
club and his daughter, Lateshia Gilliam, often worked the door and behind the bar. Applicant’s
stepson, Darnell Smith, was also present at the club a good portion of the time during its operation.
12. Major Carlton Tony Davis from the Greenwood County Sheriff’s Department
testified that there were frequent problems both inside the club and in the parking lot at Club
Weekend, including incidences such as shootings, assault and battery, and complaints about loud
music. One of these incidences resulted in a homicide, with the gunshots coming from an adjacent
parking lot. Major Davis also testified, however, that most of these problems occurred between the
hours of 3:00 a.m. and 4:00 a.m.. Applicant does not intend to operate his new establishment into
the early morning hours. Applicant also only expects approximately 15 people to be at the
establishment at any time. In addition, Major Davis testified that almost every time an incident
occurred at Club Weekend, Applicant’s stepson, Darnell Smith was present. This establishment was
closed down by Consent Order, signed by The Honorable Wyatt T. Saunders, Circuit Court Judge,
dated January 6, 2003. Afterwards, the club was reopened by a different person, and another
shooting incident occurred there.
13. Detectives Jeramiah Atkins and Chris Gray, both from the Greenwood City Police
Department, expressed concern about the moral character of Applicant and his stepson, Darnell
Smith. According to police records, Darnell Smith has numerous convictions, including two counts
of Criminal Domestic Violence, two counts of felony Malicious Injury to Personal Property, three
counts of Driving Under Suspension, Fraudulent Check, and Simple Assault and Battery. The police
department has become aware that Darnell Smith intends to take part in the operation of the new
location.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and Chapter 23 of Title 1 of
the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction
in this matter.
3. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v.
S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an
administrative law judge is authorized to determine the fitness of an applicant for alcohol permits and
licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984).
4. The weight and credibility assigned to evidence presented at the hearing of a matter
is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co.,
308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d
854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority
to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate
the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157
(1996).
5. S.C. Code Ann. § 61-4-520 (Supp. 2002) sets forth the requirements for the issuance
of a beer and wine permit. Specifically, this Section provides that “[n]o permit authorizing the sale
of beer or wine may be issued unless: (1) [t]he 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 Ann. § 61-4-520(1) (Supp. 2002).
6. In South Carolina, there is no single criterion by which to determine whether or not
one is possessed of good moral character so as to satisfy the alcoholic beverage licensing laws. See
1969 Op. S.C. Atty. Gen. No. 2709.
7. Permits and licenses issued by the State of South Carolina for the sale of liquor, beer,
and wine are not property rights, but are privileges granted in the exercise of the police power of this
state to be used and enjoyed only so long as the restrictions and conditions governing them are
complied with. The Administrative Law Judge Division, as the tribunal authorized to grant the
issuance of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman
v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
8. Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (effective June 27, 2003) authorizing
the imposition of restrictions on permits, provides:
Any written stipulation and/or agreement which is voluntarily entered into by an
applicant for a permit or license between the applicant and the Department, if
accepted by the Department, will be incorporated into the basic requirements for the
enjoyment and privilege of obtaining and retaining the permit or license and shall have
the same effect as any and all laws and any and all other regulations pertaining to the
permit or license.
Knowing violation of the terms of the stipulation or agreement shall constitute
sufficient grounds to revoke said license.
9. Although the Applicant has two criminal convictions on his record, the court finds that
neither of these charges rise to the level of character defects sufficient to warrant a denial of the
Applicant’s application for an on-premises beer and wine permit.
10. However, Darnell Smith, Applicant’s stepson, has numerous convictions on his
record, several of which are felonies. The offenses for which Smith was convicted are not indicative
of good moral character, and, therefore, this court concludes that based upon his police report, he
is not of sufficient moral character. Based upon information pertaining to his criminal record and the
belief that Darnell Smith intends to take part in the operation of the new location, the court finds
that as a condition of granting this permit, Darnell Smith must not participate in the operation of or
be present at the location at any time.
11. The Applicant meets the statutory requirements for holding an on-premises beer and
wine permit at the proposed location with the restrictions set forth below.
ORDER
IT IS HEREBY ORDERED that the application for an on-premises beer and wine permit
for the location known as “C&D Lounge,” which is located at 1512 S. Main Street, Greenwood,
South Carolina, is GRANTED in the name of Charlie Gilliam subject to the restrictions below:
RESTRICTIONS
1.The business can open no earlier than 1:00 p.m. and must close no later than 11:30
p.m.
2.Darnell Smith is barred from the location. Darnell Smith is prohibited from
participating in any manner in the operation of this location, including participation
as an employee, agent, or servant of Applicant’s business.
3.Applicant shall, at a minimum, contract with a bonded security company to employ
at least one uniformed security guard to patrol the inside area and the parking lot of
the proposed location. The security guard shall prohibit public disturbances of any
kind at the location. Loitering in the parking lot area shall be prohibited and the
security guard must ensure that all vehicles leave the parking lot at the closing time
of the business. The security guard must be at the location during all hours of its
operation.
IT IS FURTHER ORDERED that the permit shall only be issued by the Department upon
Charlie Gilliam signing a written statement to be filed with the Department agreeing to the restrictions
as set forth in this order.
IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be
considered a violation against the permit and may result in a fine, suspension, or revocation of the
permit.
AND IT IS SO ORDERED.
____________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
August 21, 2003
Columbia, South Carolina |
