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. 1995) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1995)
for a hearing pursuant to the application of David J. Bean, Seaboard Ventures, Inc., d/b/a Derriere's
(Petitioner or applicant) for an on-premise beer and wine permit (AI 103441) and an on-premise sale
and consumption ("mini-bottle") license (AI 103442) for the premises located at 804 Seaboard Street,
Myrtle Beach, Horry County, South Carolina (location).
A hearing was held on January 3, 1996, at the offices of the Administrative Law Judge
Division, Columbia, South Carolina. The issue considered was the moral character of the applicant
and James E. Stoltz, a co-stockholder of Seaboard Ventures, Inc.
The application was protested by the City of Myrtle Beach (Police Department). Testifying
at the hearing in opposition to the issuance of the permit and license was Captain Samuel M.
Hendrick of the Police Department. Also appearing but not testifying was Lt. Joseph Vella. The
South Carolina Department of Revenue and Taxation ("Department"), as set forth in its prehearing
statement and Motion to be Excused, took no position as to the issuance of the permit and license
and was excused from participating in the hearing.
The application request for an on-premise beer and wine permit is granted upon compliance
with S.C. Code Ann. § 61-9-410(4) (Supp. 1995) and the application request for an on-premise sale
and consumption ("mini-bottle") license is also granted.
EXHIBITS
Without objection, those certified copies of documents forwarded to the Administrative Law
Judge Division file from the department were made a part of the record.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony and having judged the
credibility of the witnesses, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all parties
and the protestant.
3. The applicant is seeking an on-premise beer and wine permit and an on-premise sale
and consumption license for a restaurant and lounge called Derriere's located at 804 Seaboard Street,
Myrtle Beach, Horry County, South Carolina.
4. The qualifications set forth in S.C. Code Ann. §61-9-320 (Supp. 1995) concerning
the residency and age of the Petitioner are properly established. Applicant is 42 years of age and he
has lived in the State of South Carolina since November, 1977. Furthermore, the Petitioner has not
had a permit or license revoked within the last two years and notice of the application was lawfully
posted both at the location and in a newspaper of general circulation (The Sun News).
5. The applicant is of good moral character. He is a college graduate with one year of
post-graduate training. Further, applicant is married and lives with his wife and their 11 year old son
in Charleston County, South Carolina. He and his wife are self-employed, operating and managing
their own rental properties.
6. Seaboard Ventures, Inc. (Seaboard) is a South Carolina Corporation. James E. Stoltz
is the President and a Director, owning 25% interest; the applicant is the Vice-President,
Secretary/Treasurer and a Director, owning 40% interest therein. Other stockholders who are also
Directors of Seaboard are Robert Manning Rogers (having 10% interest), Rodney Lee Rogers
(having 15% interest) and George Edward Rogers (having 10% interest).
7. All officers and directors of Seaboard are of good moral character.
8. The location is not located within 500 feet of any church, school, playground or
residence.
9. Applicant operates the location between the hours of 11:30 a.m. and 4:30 a.m.,
Monday through Friday and from 7:00 a.m. to 3:00 a.m. Saturday and Sunday.
10. Applicant and Mr. Stoltz own the Playhouse, Inc. (100% interest) and the Firehouse,
Inc. (98% interest), both of which are restaurants/lounges located in Charleston County, South
Carolina, where adult entertainment is offered in the form of women dancing topless.
11. Adult entertainment is provided at Derriere's also. However, female entertainers at
Derriere's perform totally nude.
12. Derriere's is located in an industrial park within the city limits of Myrtle Beach.
Located on one side is a moving company and on the other side is a steel fabricating company.
Across the street is a warehouse and within 200 to 300 feet is Kay's Cafe, a location permitted and
licensed for on-premise consumption of beer, wine and liquor.
13. Derriere's has a Class A restaurant license from the local health department and has
seating for 176 individuals. Meals are served during all operating hours and a luncheon buffet is
available between the hours of 11:30 a.m. and 2:00 p.m.
14. Mr. Stoltz has moved to the Myrtle Beach area, is at the location daily and is available
24 hours daily to assist management. Further, applicant is at the location at least one day each week
and every fourth weekend. Also, applicant has a full-time day shift manager and night shift manager.
15. The protest by the Myrtle Beach Police Department was based upon their concerns
as to the moral character of the applicant and Mr. Stoltz, specifically to the 1979 criminal acts by Mr.
Stoltz to which he pled guilty and received a period of incarceration, together with impending
obscenity charges against applicant and Mr. Stoltz.
16. In 1979 Mr. Stoltz pled guilty to aggravated assault and battery and strong armed
robbery, both charges arising from an incident with his then employer. He received 18 months on
each plea which were suspended to 6 months each. The sentences were served concurrently,
beginning January 29, 1980. The sentence imposed has been served. The age of these 1979
convictions and pleas render them stale and too remote to affect the determination of the moral
character of Mr. Stoltz.
17. Subsequent to Mr. Stoltz serving a period of incarceration in 1980, the South Carolina
Alcoholic Beverage Control Commission issued to him permits and licenses for the on-premise sale
of beer and wine and mini-bottle consumption at the Playhouse, Inc. and the Firehouse, Inc. locations
in Charleston County, South Carolina.
18. Applicant and Mr. Stoltz were indicted in Horry County on July 20, 1995, on
obscenity charges. The indictment states that they did knowingly and willfully aid in or procure
dancers to perform lewd or lascivious acts and permitted use of the business premises for such acts
in the presence of other persons. The charges were made by the Myrtle Beach Police Department
and are currently pending.
19. Applicant stipulated that upon a final resolution and court order defining the obscenity
standard, he will abide by that decision and interpretation of the law.
20. The Department offered no evidence challenging the moral character of the applicant
or Mr. Stoltz or the suitability of the location. In its Motion to be Excused, the Department stated
"there is no controversy between the Petitioner and the Respondent."
21. No evidence was presented showing that the applicant owed any state or federal taxes,
interest or penalties.
22. The proposed location is suitable for the sale of beer, wine and alcoholic beverages
(mini-bottles) for on-premise consumption.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the
1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in
this matter.
2. S.C. Code Ann. § 61-9-320 (Supp. 1995), which sets forth the requirements for the
issuance of a beer and wine permit, provides 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.
2. The retail applicant is a legal resident of the United States and has been a
legal resident of this Sate for at least thirty days before the date of application
and has maintained his principal place of abode in South Carolina for at least
thirty days before the date of application.
3. The wholesale applicant is a legal resident of the United States and has
been a legal resident of the United States and has been a legal resident of this
State for at least thirty days before the date of application or has been licensed
previously under the laws of this State.
4. The applicant, within two years before the date of application, has not had
revoked a beer or a wine permit issued to him.
5. The applicant is twenty-one years of age or older.
6. The location of the proposed place of business of the applicant is in the
opinion of the department a proper one. The department may consider, among
other factors, as indications of unsuitable location the proximity to residences,
schools, playgrounds and churches.
7. Notice of application has appeared at least once a week for three
consecutive weeks in a newspaper most likely to give notice to interested
citizens of the county, city, or community in which the applicant proposes to
engage in business.
8. Notice has been given by displaying the required sign for fifteen
days at the site of the proposed business.
3. S.C. Code Ann. § 61-5-50 (Supp. 1995), which sets forth the requirements for the
issuance of a sale and consumption ("mini-bottle") license, provides as follows:
The Department may grant a license upon finding:
(1) The applicant is a bona fide nonprofit organization or the applicant
conducts a business bona fide engaged primarily and substantially in
the preparation and serving of meals or furnishing of lodging, as
described in § 61-5-10.
(2) The applicant, if an individual, is of good moral character or, if a
corporation or association, has a reputation for peace and good order
in its community, and its principals are of good moral character.
(3) As to business establishments or locations established after November
7, 1962, § 61-3-440 has been complied with.
(4) Notice of application has appeared at least once a week for three
consecutive weeks in a newspaper most likely to give notice to
interested citizens of the county, municipality, or community in which
the applicant proposes to engage in business. The department shall
determine which newspapers meet the requirements of this section
based on available circulation figures. However, if a newspaper is
published within the county and historically has been the newspaper
where the advertisements are published, the advertisements published
in that newspaper meet the requirements of this section. Applicants
for a beer and wine permit and an alcoholic liquor license may use the
same advertisement for both if it is approved by the department.
(5) Notice has been given by displaying a sign for fifteen days at the site
of the proposed business. The sign must:
(a) state the type of license sought;
(b) tell an interested person where to protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the department.
(6) The applicant is twenty-one years of age or older.
(7) The applicant is a legal resident of the United States and has been a
resident of this State for at least thirty days before the date of
application and has maintained his principal place of abode in South
Carolina for at least thirty days before the date of application.
4. S.C. Code Ann. § 61-5-10 which defines "a business bona fide engaged primarily and
substantially in the preparation and serving of meals or furnishing of lodging" reads in part as follows:
As used in this article:
(1) "Bona fide engaged primarily and substantially in the preparation and serving of meals"
shall refer only to such a business which has been issued a Class A restaurant license prior to
issuance of license under this article and in addition provides facilities for seating not less than
forty persons simultaneously at tables for the service of meals.
(2) "Furnishing lodging" shall refer only to those businesses which rent accommodations for
lodging to the public on a regular basis consisting of not less than twenty rooms.
5. A permit may not be issued under S.C. Code Ann. § 61-3-730 (Supp. 1995) if the
applicant is not a suitable person to be licensed; the place of business is not a suitable place; or a
sufficient number of licenses have already been issued in the state, municipality or community.
6. S.C. Code Ann. § 61-3-440 (Supp. 1995) prohibits the issuance of a liquor license for
on-premise consumption to an applicant if the place of business (location), if located within a
municipality, is within three-hundred feet (300') of a church, school or playground. No churches,
schools or playgrounds are located within the prescribed proximity to render the proposed location
unsuitable.
7. 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.
South Carolina ABC Commission, 317 S.E. 2d 476 (S.C. App. 1984). As 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 permit to sell beer and wine using broad but not unbridled discretion.
Ronald F. Byers v. S.C. ABC Commission, 316 S.E. 2d 705 (S.C. App. 1984). It is also the fact
finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance
and weight of any testimony and evidence offered.
8. Although "proper location" is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 305
S.C. 243, 281 S.E.2d 181 (1981). 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. 335 (1985). Any evidence adverse to the location may be
considered. The proximity of a location to a church, school or residences is a proper ground by itself,
on which the location may be found to be unsuitable and a permit denied. Byers v. South Carolina
ABC Commission, 305 S.C. 243, 407 S.E. 2d 653 (1991). Further, the court can consider whether
"there have been law enforcement problems in the area." Palmer v. S.C. ABC Commission, S.C. 246,
317 S.E.2d 476 (Ct. App. 1984).
9. The denial of a permit to an applicant on the ground of unsuitability of location is
without evidentiary support when relevant testimony of those opposing the requested permit consists
entirely of opinions, generalities, and conclusions not supported by facts. Smith v. Pratt, 258 S.C.
504, 189 S.E.2d 801 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
10. The fact that the Myrtle Beach Police Department protests the issuance of the permit
and license is not sufficient reason by itself to deny the application(s). See 45 Am.Jur. 2d Intoxicating
Liquors §162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors §119 (1981).
11. In this instance, the testimony of the protestant consisted only of concerns of the moral
character of the applicant and Mr. Stoltz. No concerns were expressed about any excessive noise,
fighting, acts of disorderly conduct or traffic congestion. Thus, there was no evidence to show that
the granting of the permit and license at this location would impact upon the safety and well-being
of the citizens of Myrtle Beach or create any additional law enforcement problems.
12. Beer and wine permits and sale and consumption licenses are neither contracts nor
property rights, but mere permits issued or granted in the exercise of the State's police power, to do
what otherwise would be unlawful to do and, are to be enjoyed only so long as the restrictions and
conditions governing their continuance are complied with. Feldman v. S.C. Tax Comm'n, 203 S.C.
49, S.E.2d 22 (1943). The same tribunal authorized to grant the issuance of a license is likewise
authorized, for cause, to revoke it. Id.
13. S.C. Code Ann. §§ 61-9-320(1) and 61-5-50(2) (Supp. 1995) provide that in order
to obtain and maintain a beer and wine permit and sale and consumption license, the holder must be
of good moral character.
14. In South Carolina, there is no single criterion by which to determine whether or not
one is possessed of good moral character. S.C. Att'y Gen. Op. No. 2709, 1969 S.C. Att'y Gen. Ann.
Rep. 159. Generally, good moral character means that one should possess all elements essential to
make up that character, such as honesty and veracity. Id. See also Zemour, Inc. v. State Division
of Beverage, 347 So.2d 1102 (Fla. Dist. Ct. App. 1977); Broers v. Montana Dept. of Revenue, 773
P2d 320 (Mont. 1989).
15. Moral turpitude is "an act of baseness, evilness, or depravity in the private and social
duties which man owes to his fellow man or society in general, contrary to the customary and
accepted rule of right and duty between man and man." State v. Perry, 294 S.C. 311, 364 S.E.2d 201
(1988). Acts of moral turpitude are antithetical to what is considered good moral character. S.C.
Att'y Gen. Op. No. 89-89, 1989 S.C. Att'y Gen. Ann. Rep. 237. Moreover, acts of moral turpitude
imply the absence of good moral character. Id.
16. 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
Alcoholic Beverage Control Com'n, 269 S.C. 13, 235 S.E.2d 806 at 808 (1977). Specifically, 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/or conduct shown are sufficient in themselves
or as an index to character to disqualify the applicant. 2709 Op. Att'y Gen. 160 (1969).
17. Although a "suitable person" or a "fit person" is not statutorily defined, rather broad
discretion is vested in the trier of fact in determining the fitness or suitability of a particular applicant.
The rejection of an applicant may not be made arbitrarily or capriciously. Terry v. Pratt, 258 S.C.
177, 187 S.E.2d 884 (1972).
18. Strong armed robbery is a crime of moral turpitude. State V. Corn, 215 S.C. 166, 54
S.E.2d 559 (1949).
19. 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 to the extent to which rehabilitation has
occurred. 48 C.J.S. Intoxicating Liquors §105.
20. Rule 609(b) of the South Carolina Rules of Evidence adopted by the South Carolina
Supreme Court effective September 3, 1995, and made mandatory to APA contested case
proceedings by S.C. Code Ann. § 1-23-330, provides that the general rule for attacking the credibility
of a witness is through impeachment by evidence of a prior conviction of a crime. In this instance,
the Court concludes that more than ten years has elapsed since the date of the conviction of Mr.
Stoltz in 1979 of the two crimes. Further, based upon their specific facts and circumstances, such
convictions, in the interest of justice, are excluded from any consideration by this Court, the Court
finding such have no probative value.
21. Further, after Mr. Stoltz pled guilty to the two criminal acts in 1979, the Commission
issued to him both beer and wine permits and sale and consumption licenses. It could not have done
so without finding him to be of good moral character. In the absence of any proof to the contrary,
there is a presumption that the public officers of the Commission properly discharged their duties in
granting those permits and licenses. Accordingly, this Court is collaterally estopped from relitigating
the issue of Mr. Stoltz' moral character based upon his 1979 plea of guilty to criminal acts. Carman
v. S.C. ABC Commission, 451 S.E.2d 383 (S.C. 1994). Further, there have been no intervening
criminal convictions by or against Mr. Stoltz.
22. Although applicant and Mr. Stoltz have been charged with violations of local obscenity
statutes, they have neither pled to the charges nor have they been convicted of the charges.
Accordingly, such charges are given no weight in determining their credibility or moral character.
23. No holder of a beer and wine permit or any agent or employee of the permittee shall
knowingly permit lewd, immoral or improper entertainment, conduct or practices. This includes, but
is not limited to, entertainment, conduct or practices where a person is in a state of undress so as to
expose the human male or female genitals, pubic area or buttocks cavity with less than a full opaque
covering. S.C. Code Ann. § 61-9-410(4) (Supp. 1995). A violation of this provision is a ground for
the revocation or suspension of the holder's permit. S.C. Code Ann. § 61-9-410 (Supp. 1995).
24. S.C. Code Ann. § 61-3-425 (Supp. 1995) prohibits the issuance of a license unless the
Department and the Internal Revenue Service determine that the applicant does not owe the state or
federal government any delinquent taxes, penalties or interest. No evidence was presented showing
any taxes, penalties or interest was owed.
25. For all the reasons stated above, I conclude that the application requests for the on-premise beer and wine permit and the on-premise sale and consumption license (mini-bottle) should
be granted, subject to applicant's compliance with S.C. Code Ann. § 61-9-410(4) (Supp. 1995) prior
to the issuance of the on-premise beer and wine permit.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of David J. Bean, Seaboard Ventures, Inc., d/b/a Derriere's
for an on-premise beer and wine permit located at 804 Seaboard Street, Myrtle Beach, Horry County,
South Carolina is granted, subject to applicant's compliance with S.C. Code Ann. § 61-9-410(4)
(Supp. 1995) prior to the issuance of the permit by the Department. The Department shall issue the
permit upon payment of the required fees and evidence that Derriere's is complying with S.C. Code
Ann. § 61-9-410(4) (Supp. 1995). And, it is further
ORDERED that the application of David J. Bean for an on-premise sale and consumption
("mini-bottle") license at the same location is granted. The Department shall issue the license upon
payment of the required fees.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
January 10, 1996 |
