SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1995) upon an application for an on-premises beer and wine permit for 302 Boyce Street, Manning, South Carolina. A hearing was held on May 8, 1996 and June 6, 1996. The issues considered were the suitability of the proposed business location for the sale of beer and wine and the moral character of the Petitioner. Upon careful consideration of the evidence presented, the location is suitable; however, Petitioner failed to prove he possesses the requisite moral character for issuance of a permit. The application for a beer and wine permit is hereby denied.

The hearing in this case was conducted in two parts: (1) on May 8, 1996, evidence was presented on the issue of suitability of the proposed location; and (2) on June 6, 1996, evidence was presented on the issue of the moral character of the Petitioner. Protestant Rev. Halbert L. Tucker, Pastor of Manning Church of Christ, opposes issuance of the permit on the grounds that the location is unsuitable because of its proximity to his church and that the Petitioner is not of good moral character. The South Carolina Department of Revenue and Taxation a (hereinafter referred to as "DOR") also opposes issuance of the permit on the suitability of location issue and on the ground that Petitioner lacks the requisite moral character to be licensed because of a conviction for a crime of moral turpitude. Petitioner asserts that the location, which is and has been licensed for many years, is suitable for the sale of beer and wine. Petitioner also claims that, while the conviction of a crime of moral turpitude is prima facie evidence of bad moral character, he has presented evidence to overcome that presumption and is of adequate moral character to be issued the permit sought.

Suitability of the Proposed Location

The proposed location is located in the Town of Manning, on the corner of E. Boyce Street (U.S. Highway 521) and Barfield Street. It has been operated as a gas and food store, licensed to sell beer and wine for on-premises consumption for many years, most recently as Welch's Quick Stop. Its regular customers include many local law enforcement officers. The Clarendon County Law Enforcement Center is on the same block of E. Boyce Street, approximately 300 feet from the proposed location. Manning Police Department First Sergeant Darrell Walker and SLED Alcohol Enforcement Unit Agent Wally Scott testified that the establishment is clean, well lighted, and free of crime problems. Sgt. Walker, who performs street patrol in the area, lives approximately 300 yards from the proposed location.

The Manning Church of Christ is also on the same block as the proposed location, with entrances on Barfield and E. Keith Streets. The Barfield Street entrance is 192 feet from the front door of the proposed location. The church and proposed location are separated by a chain link fence. The proposed location existed and was licensed to sell beer and wine before the church was constructed in 1979. Since Rev. Tucker became Pastor of the church two years ago, the church has suffered vandalism, burglary, littering, and loitering; however, only the littering can be directly attributed to the operation of the proposed location. There are at least four other licensed locations in the general vicinity of the proposed location. Based upon the past history of the location, the proximity and availability of law enforcement, and the fact that the church was built

while the location was already licensed to sell beer and wine, I find the location suitable to sell beer and wine for on-premises consumption.

Moral Character of Petitioner

DOR and Protestant Rev. Halbert Tucker assert that Petitioner's conviction of a crime of moral turpitude renders Taylor necessarily ineligible for the permit sought, as he lacks good moral character. Rev. Tucker also asserts that Petitioner's moral character is further sullied by the fact that Taylor presently sells beer and wine under the permit of the store's former owner and that Taylor offered to make a donation to the Manning Church of Christ if the church withdrew its protest to his application.

An applicant for a beer and wine permit is required, among other things, to be of good moral character and a fit person to sell beer and wine. S.C. Code Ann. §§ 61-9-320 and 340 (Supp. 1995). Although there is no single criterion by which to determine if a person is of good moral character, commission of a crime involving moral turpitude implies the absence of good moral character. 1969 Op. S.C. Atty. Gen. No. 2709 at 159; 1989 S.C. Op. Atty. Gen. No. 89. Mail fraud is a crime of moral turpitude. In the Matter of Parker, 313 S.C. 47, 437 S.E.2d 37 (1993).

On August 15, 1994, Petitioner pleaded guilty in U.S. District Court to one count of felony mail fraud, and was sentenced to one year probation with special conditions. He successfully completed the terms of his probation on August 14, 1995. The plea and conviction resulted from Petitioner's involvement with a scheme to help an employee's girlfriend in need of money. At the woman's request, Petitioner arranged to have her automobile sold for parts and then have her report it stolen, enabling her to make a fraudulent insurance claim for theft. Petitioner did not seek financial gain for himself from the transaction, but knowingly assisted the woman in a scheme he knew to be illegal. Petitioner's willingness to take part in the scheme causes the Court great concern. It shows poor judgment, dishonesty, bad faith, and a disregard of the law.

Petitioner presented evidence to attempt to prove that, in spite of the conviction, he is of good moral character and is fit to hold a beer and wine permit. The 1994 mail fraud conviction is the only blemish on Petitioner's record. Jan Horton, a former co-worker of Petitioner from the South Carolina Department of Social Services, and Petitioner's pastor, Rev. Steve Shugart of First United Methodist Church of Manning, testified on his behalf. Both testified that they were aware of the conviction, but believe Petitioner to be a generous, hard working, and honest person who admitted wrongdoing and regrets his actions.

The mail fraud conviction is not an insurmountable obstacle to establishing good moral character. "Conviction of a crime does not, under all circumstances, constitute ineligibility for a license....In evaluating an applicant's fitness, consideration must be given to the circumstances of any conviction record as well as to the extent to which rehabilitation has occurred." 48 C.J.S. Intoxicating Liquors § 105 (1981 & Supp. 1995). I am convinced that Petitioner regrets his actions leading to his conviction and will attempt to avoid participating in future illegal activity. Petitioner's efforts to rehabilitate himself and to re-establish his moral character appear sincere, but this Court is reluctant to find that his recent transgression has been completely exculpated. While Petitioner has fulfilled his probationary sentence, the 1993 illegal act and 1994 conviction are still relatively fresh. The ten months that have elapsed since the expiration of Petitioner's probation in August, 1995, do not provide a sufficient basis to judge whether Petitioner has morally redeemed himself. If, however, Petitioner reapplies for the permit after a greater lapse of time with no intervening convictions or other improprieties, he may be able to prove that his character has truly been rehabilitated.

The mail fraud conviction is prima facie evidence that Petitioner lacks good moral character. Petitioner offers compelling evidence in mitigation, but does not meet his burden in overcoming the prima facie proof against him. I find that Petitioner, at this time, lacks the requisite character to be issued a beer and wine permit.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

1. Applicant seeks an on-premises beer and wine permit for a location at 302 Boyce Street, Manning, South Carolina, having filed an application with the South Carolina Department of Revenue and Taxation, AI #105747.



2. Notice of the time, date, and location of the hearing was given to Petitioner, Protestant, and DOR.
3. The DOR file was made a part of the record without objection.
4. The proposed location is located in the Town of Manning, on the corner of E. Boyce Street (U.S. Highway 521) and Barfield Street.
5. The proposed location is in a mixed commercial and residential area.
6. The proposed location is currently operating as a gasoline and convenience store with a food counter and bar with seating for approximately ten persons.
7. It has operated as a gas and food store, licensed to sell beer and wine for on-premises consumption for many years, most recently as Welch's Quick Stop.
8. The proposed location's regular customers include many local law enforcement officers.
9. The Clarendon County Law Enforcement Center is on the same block of E. Boyce Street, approximately 300 feet from the proposed location.
10. Manning Police Department First Sergeant Darrell Walker, who performs street patrol in the area, lives approximately 300 yards from the proposed location.
11. The Manning Church of Christ is also on the same block as the proposed location, with entrances on Barfield and E. Keith Streets.
12. The Barfield Street entrance of the Church of Christ is 192 feet from the front door of the proposed location.
13. The church and proposed location are separated by a chain link fence.
14. The proposed location existed and was licensed to sell beer and wine prior to the construction of the church ten to twelve years ago.
15. Since Rev. Tucker became pastor of the church two years ago, the church has suffered vandalism, burglary, littering, and loitering; however, only the littering can be directly attributed to the operation of the proposed location.
16. There are at least four other licensed locations in the general vicinity of the proposed location.

1. Based upon the past history of the location, the proximity and availability of law enforcement, and the fact that the church was built while the location was already licensed to sell beer and wine, the location is suitable to sell beer and wine for on-premises consumption.
2. On August 15, 1994, Petitioner pleaded guilty in U.S. District Court to one count of felony mail fraud and was sentenced to one year probation with special conditions. He successfully completed the terms of his probation on August 14, 1995.
3. The plea and conviction resulted from Petitioner's assisting a woman sell her automobile for parts while reporting it stolen, enabling her to make a fraudulent insurance claim for theft.
4. Applicant is not of good moral character.
5. Applicant 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 one year.
6. Applicant has not had a permit/license revoked in the last five years
7. 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.

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. 1995) 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. 1995) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.
3. A permit or license must not be issued if an applicant does not meet the standards of

S.C. Code Ann. § 61-3-730 (Supp. 1995).

1. 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 permit to sell 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).

1. 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)
2. 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).
3. Based upon the past history of the location area, the commercial nature of the immediate vicinity, the existence of other licensed locations in the immediate vicinity, the proximity and availability of law enforcement, and the fact that the church was built while the location was already licensed to sell beer and wine, the proposed location is suitable to sell beer and wine for on-premises consumption. Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
4. An applicant for a beer and wine permit is required, among other things, to be of good moral character and a fit person to sell beer and wine. S.C. Code Ann. §§ 61-9-320 and 340 (Supp. 1995).
5. Although there is no single criterion by which to determine if a person is of good moral character, commission of a crime involving moral turpitude implies the absence of good moral character. 1969 Op. S.C. Atty. Gen. No. 2709 at 159; 1989 S.C. Op. Atty. Gen. No. 89.
6. Mail fraud is a crime of moral turpitude. In the Matter of Parker, 313 S.C. 47, 437 S.E.2d 37 (1993).

1. "Conviction of a crime does not, under all circumstances, constitute ineligibility for a license....In evaluating an applicant's fitness, consideration must be given to the

circumstances of any conviction record as well as to the extent to which rehabilitation has occurred." 48 C.J.S. Intoxicating Liquors § 105 (1981 & Supp. 1995).

1. Petitioner offers compelling evidence in mitigation of the conviction, but does not meet his burden in overcoming the prima facie proof against him.
2. The ten-month period which has elapsed since Petitioner completed service of his sentence does not provide an adequate basis for judgment of whether Petitioner has reformed. A greater period of time with no intervening convictions or other improprieties is necessary to determine whether his character has truly been rehabilitated.
3. Based upon the record at this time, Petitioner lacks the requisite good moral character for issuance of a beer and wine permit.

ORDER

IT IS THEREFORE ORDERED that the beer and wine permit sought by Petitioner is denied.

______________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

June 19, 1996

Columbia, South Carolina