South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Steven P. King, Sports Club of Abbeville, Inc., d/b/a Sports Club of Abbeville vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Steven P. King, Sports Club of Abbeville, Inc., d/b/a Sports Club of Abbeville

Respondents:
South Carolina Department of Revenue

Intervenors:
Patricia Gilbert and Broadus A. Beckwith
 
DOCKET NUMBER:
95-ALJ-17-0775-CC

APPEARANCES:
Paul L. Agnew, Esq., for Petitioner

Arlene D. Hand, Esq., for Respondent (Excused from Appearance)

Steven E. Mundy, Esq., for Intervenors
 

ORDERS:

ORDER

I. Statement of the Case


The Petitioner, Steven P. King, Sports Club of Abbeville, Inc., d/b/a Sports Club of Abbeville (King) of Anderson, South Carolina filed with the South Carolina Department of Revenue and Taxation (DOR), the Respondent, an application for an on-premises beer and wine permit and a mini-bottle license for a location at 500 Poplar Street, Abbeville, South Carolina. Patricia Gilbert and Broadus A. Beckwith filed a protest seeking to prevent DOR from granting the license. On February 1, 1996, a Motion to Intervene was received on behalf of the Protestants with an order granting intervention issued on February 5, 1996.

A hearing on the application is required since "[n]o application for [a] beer and wine permit will be approved by the Alcohol Beverage Control Commission [now DOR] unless a hearing is held in the matter when the issuance of the permit is protested by one or more persons." S.C. Code Regs. 7-90 (Supp. 1995). As to mini-bottles, the same rule applies under S.C. Code Regs. 7-3 (Supp. 1995). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the required hearing with such hearing held under the contested case provisions of S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1995).

After considering all of the evidence and relevant factors, the permit is granted. Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).

Prior to beginning the hearing, Beckwith moved for a continuance and stay until a pending matter in the circuit court is resolved. The circuit court matter concerns a suit by Beckwith against John V. Green and Steven P. King for which an amended complaint appears to have been filed on March 8, 1996. The matter in the circuit court involves damages for breach of contract, fraud, misrepresentation, conspiracy, intentional infliction of emotional distress, tortious interference of contract, and unfair trade practices. The motions for stay or continuance were denied.

The action before me is significantly different from the matter in the circuit court. Connecticut Nat. Bank v. Wilson, 284 S.C. 415, 326 S.E.2d 657 (1985) (stay not generally granted unless the actions are based upon same causes of action, involve the same issues, and seek the same relief). The only issue before me is whether the current applicant, King and the corporation of which he is the principal, are entitled to an on-premises beer and wine permit and a mini-bottle license based upon the evidence of moral character of King. None of the damages issues are present here. In addition, the matter before me had been set for a date certain with all parties and witnesses present. Crout v. S.C. Nat. Bank 278 S.C. 120, 293 S.E.2d 422 (1982) (prior setting of a case for a date certain militates against granting a continuance.) In addition, the matter had been previously continued at the motion of Beckwith.

The circuit court action seeks damages for a contractual dispute primarily involving John Green. I find the pursuit of the application by King does not unduly prejudice Beckwith, but that a continuance at such a late date would present a hardship on King by delaying his application. Further, nothing in this order limits Beckwith's right to establish his damages caused by King's or Green's actions. Accordingly, it was proper to proceed with the application hearing.

II. Issues


Does King and the corporation meet the statutory requirements of S. C. Code Ann. §§ 61-9-320 and 61-5-50 (Supp. 1995) for an on-premises beer and wine permit and a mini-bottle license for a private club?

III. Analysis

1. Positions of Parties:

King asserts he meets all the requirements of the statutes. DOR states that due to the protest, no permit or license can be granted and that were it not for the protest, DOR would have granted the permit and license. The intervenors assert King does not have the necessary good moral character since on prior occasions he sold beer and wine without the required licenses and permit.



2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about October 31, 1995, King filed an application with the Department of Revenue for an on-premises beer and wine permit and a mini-bottle license.

2. The application is identified by DOR as AI # 105587 and AI # 105588.

3. The proposed location of the business and the place where the on-premises beer and wine permit and mini-bottle license will be utilized is 500 Poplar Street, Abbeville, South Carolina.

4. The nature of the business is that of a private non-profit club operating as Sports Club of Abbeville, Inc.

5. A protest to the application was filed by Patricia Gilbert and Broadus A. Beckwith.

6. The hearing on this matter was held March 14, 1996, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

b. Moral Character

7. The State Law Enforcement Division (SLED) completed a criminal background investigation of the applicant.

8. The SLED report revealed no criminal violations.

9. The corporation, Sports Club of Abbeville, Inc. was established in October 1995, with King as the sole shareholder and principal officer.

10. During December 1995, King allowed Chi Lambda Sigma to hold a private party at the Sports Club.

11. There was no beer or wine permit and no alcoholic beverage license held by King, the location owner, or the sorority at the time and location of the private party on December 9, 1995.

12. King acquired the alcoholic beverages on behalf of a representative of the sorority with such representative being of legal age to possess and consume alcohol and beer and wine.

13. King arranged to have the alcoholic beverages at the party and arranged to have the beverages poured by bartenders at the location.

14. King and the sorority took measures to prevent the consumption of alcohol by persons under twenty-one by having at least two individuals check age identifications.

15. At least one person suspected of being under twenty-one was identified and prohibited from consuming beer, wine or alcohol at the party.

16. Persons attending the party were required to pay $5 if they were a guest, but otherwise, no charge was made to attend the party.

17. Members of the sorority and guests could acquire beer and wine and alcoholic drinks as well as soft drinks by the use of tickets, with the tickets costing $3 each and purchased in groups of five for $15.

18. At some point after the private party, King met with an agent of the South Carolina Law Enforcement Division (SLED) to discuss the private party.

19. No violations or charges were filed by SLED or the DOR as a result of the party.

20. The applicant as an individual and as a principal of the corporation is of good moral character.

c. Reputation For Peace and Good Order In The Community

21. The corporation, Sports Club of Abbeville, Inc. was established in October 1995.

22. The corporation has not created a lack of peace nor created disorder in the community.

23. The reputation of the Sports Club of Abbeville, Inc. is one of peace and good order in the Abbeville community.

d. Legal Resident and Principal Place of Abode

24. King has resided in South Carolina since November 1989.

25. King holds a valid South Carolina driver's license.

26. King currently resides at 303 Pinckney St., Abbeville, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

27. King is both a legal resident of the United States and South Carolina and held such status for more than 30 days prior to the application, and has held a principal place of abode in South Carolina for more than 30 days prior to filing the application.

e. Prior Revocation Of Beer or Wine Permit

28. King has never had a beer and wine permit revoked.

f. Age

29. King' date of birth is December 15, 1956.

30. King is over twenty-one years of age.

g. Proposed Location

31. Prior businesses and clubs have operated at the existing location for over twenty years and during that time have sold both beer and wine as well as alcoholic beverages.

32. The applicant will continue to operate in a manner similar to prior tenants of the location.

33. No evidence of criminal activity at the proposed location was presented.

34. There is no evidence that the location is within 300 feet of a church, school or playground nor is it within a forbidden proximity to a church, school or residence in the area.

35. At least one other entity in the immediate area sells beer and wine.

36. The location is adequately served by the traffic route of Poplar Street.

h. Notice

37. Notice of the application was published in the Abbeville Press and Banner, a newspaper published and distributed in Abbeville County, with notice published on October 11, 18, and 25, 1995.

38. Notice of the application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Abbeville.

39. King gave notice to the public by displaying a sign for fifteen days at the site of the proposed business.

40. King gave notice of the application by way of required advertising by newspaper and display of signs.

3. Discussion

There is no factual dispute in this matter as to the applicant's satisfying the requirements of the statutes except for an assertion that King lacks good moral character. Under S.C. Code Ann. §61-9-320 (Supp. 1995), no beer and wine permit may be granted unless the applicant possesses good moral character. Under S.C. Code Ann. §61-5-50 (Supp. 1995) a principal of a corporate applicant must also possess good moral character. Generally, good moral character means one should possess all elements essential to make up that character, such as honesty and veracity. See Zemour, Inc. v. State Div. of Beverage, 347 So.2d 1102 (Fla. Dist. Ct. App. 1977). A determination must be made as to whether the acts and conduct shown are sufficient in themselves or whether the acts provide an index to character so as to disqualify an applicant. 48 C.J.S. Intoxicating Liquors § 105 (1981).

Here, the evidence does not demonstrate a lack of good moral character. While a questionable private party was held at the proposed location, the evidence shows the incident was made known to SLED. There is no evidence before me that SLED charged King with any violation. In fact, the evidence demonstrates King altered his practice to avoid future potential violations. In addition, there is no persuasive evidence that King lacks veracity or honesty. The landlord stated he had not encountered any problem with King and apparently rental payments are being timely made. I do not find sufficient evidence of a lack good moral character.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. The applicant operates a bona fide nonprofit organization. S.C. Code Ann. § 61-5-50(1) (Supp. 1995).

2. The applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995); § 61-5-50(2) (Supp. 1995).

3. The corporation has a reputation for peace and good order in the community. S.C. Code Ann. § 61-5-50(2) (Supp. 1995).

4. The applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and has his principal place of abode in South Carolina. S.C. Code Ann. § 61-9-320(2) (Supp. 1995); § 61-5-50(7) (Supp. 1995).

5. The applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-9-320(4) (Supp. 1995).

6. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995); § 61-5-50(6) (Supp. 1995).

7. The applicant's location is not within 300 feet of a church, school, or playground, nor within a forbidden proximity to a church, school, playground, or residence in the area. S.C. Code Ann. § 61-5-50(3) (Supp. 1995); § 61-3-440 (Supp. 1995); § 61-9-320(6) (Supp. 1995).

8. The existence of other similar businesses in the area is a factor in reviewing a permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

9. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-9-320(7) and (8) (Supp. 1995); § 61-5-50(4) and (5) (Supp. 1995).

10. Considering all relevant factors, the proposed location is a proper location for a beer and wine permit and a mini-bottle license. S.C. Code Ann. § 61-9-320(6) (Supp. 1995); § 61-5-50(3) (Supp. 1995).

11. The applicant meets the requirements for the issuance of a mini-bottle license pursuant to S.C. Code Ann. § 61-5-50 (Supp. 1995).

12. The applicant meets the requirements for the issuance of an on-premises beer and wine permit pursuant to S.C. Code Ann. § 61-9-320 (Supp. 1995).



IV. ORDER


DOR is ordered to grant King's application for an on-premises beer and wine permit and a mini-bottle license at 500 Poplar, Abbeville, South Carolina.

IT IS SO ORDERED.



____________________________

RAY N. STEVENS

Administrative Law Judge

This 19th day of March, 1996.


Brown Bldg.

 

 

 

 

 

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