ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
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. (Rev. 1986 and Supp. 1995) upon the application of Leo Scott for
an on-premise beer and wine permit for Phase III located in Lugoff, South Carolina. After notice to
the parties, a hearing was conducted on June 12, 1996. The Kershaw County Sheriff's Department
and the owner of the real property at which the business is located appeared to protest the
application. The Department of Revenue and Taxation took no position with respect to the issues
raised and would have issued the permit but for the protest. Based upon the evidence presented, the
permit is denied.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases by a preponderance of the evidence, and taking into account the
credibility of the witnesses:
1. The applicant, Leo Scott, is over the age of twenty-one and is a legal resident of South
Carolina and the United States.
2. He was recently convicted of a first offense for driving under the influence but has no
other criminal record.
3. Scott holds a valid beer and wine permit which has not been suspended or revoked.
4. There are two partners in the venture with Scott, William Branham and Norman
Grant. The partners are providing the financial backing for the business. None of the partners intend
to operate the business on a daily basis. An employee-bartender will operate the location.
5. Scott is employed with DuPont and upon his retirement intends to be more active in
the business.
6. Branham was convicted of distributing cocaine and sentenced to five years probation.
Although Branham's testimony was that his conviction was in 1991 or 1992, and he has only one
more month of probation, Kershaw County records reveal that the conviction was in May of 1994
and that he was sentenced to five years probation from that date.
7. According to the Chief Deputy Sheriff, Branham would violate his parole by being
associated with a location that sells alcoholic beverages.
8. The owner of the location (Mrs. Helen Geddings through her son) indicated that the
property was leased to Branham with the understanding that he would operate the location. She was
also aware that Grant would be involved in the business. The owner does not know Leo Scott and
has not in the past leased the location for the sale of alcoholic beverages to anyone with whom she
was not familiar.
9. Mrs. Geddings returned the lease money to Grant after she learned that Scott was the
applicant and would be involved in the business.
10. The proposed location has been operated as a bar in the past and would be open six
days a week from 8:00 p.m. until 2:00 a.m. On Saturdays, the location would close at midnight.
11. The location is not near any schools or playgrounds. The Friendship Baptist Church
is located about 200 yards, or one-eighth of a mile, from the proposed location.
12. Notice of the application was posted at the location and published in the Chronicle-Independent for the time period required by law.
13. The Sheriff's Department is protesting the application because of the criminal record
of Branham, and because the development of the area in which the bar is located is alleged to no
longer be conducive to the continuance of this location as a bar.
14. On the notice of protest form, the Sheriff protested on the basis that "there is a silent
partner in this business venture with a questionable moral character." This form was sent to the
Department. One person protested based upon the location but withdrew the protest two days later.
15. At the time the file was transmitted to the Department, there was no protest relating
to the proposed location. The Department, based upon the protest from the Sheriff, failed to conduct
any inquiry of the business partners and, during its investigation of the applicant, failed to ascertain
whether Scott had any right to the use of the property.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law, the following:
1. The Administrative Law Judge is vested with the powers, duties and responsibilities
exercised by the former Alcoholic Beverage Control Commission and hearing officers pursuant to
Chapter 23 of Title 1. S.C. Code Ann. § 61-1-55 (Supp. 1995).
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the statutory requirements for the
issuance of beer and wine permits. It provides in part that the applicant, and any partner or co-shareholder of the applicant, must be of good moral character.
3. 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 conduct shown are
sufficient in themselves or as an index to character to disqualify an applicant. 1969 Atty. Gen. Op.
2709; 48 C.J.S. Intoxicating Liquors § 105 (1981). A liquor license may be refused a person who
has been convicted of a crime or crimes, particularly a violation of the liquor laws. Wall v. S.C. ABC
Comm'n, 269 S.C. 13, 235 S.E.2d 806 (1977). A license may be refused to a person who has been
convicted of a crime involving moral turpitude. 48 C.J.S. Intoxicating Liquors § 105 (1981).
4. Possession of a controlled substance with intent to distribute is a crime of moral
turpitude [Porter v. State, 290 S.C. 38, 348 S.E.2d 172 (1986) (conviction for the sale of 3, 4-methylenedioxy amphetamine)] as is the possession of cocaine [State v. Major, 301 S.C. 181, 391
S.E.2d 235 (1990)]. "Moral turpitude" is anything done contrary to justice, honesty, principle, or
good morals and includes criminal acts which involve intentional dishonesty for purpose of personal
gain. See State v. Morris, 289 S.C. 294, 345 S.E.2d 477 (1986).
5. Although the distribution of cocaine has not specifically been determined to be a crime
of moral turpitude, the inference is that if simple possession of cocaine is classified as such then surely
the act of distributing cocaine "fosters the prosperity and the lucrative and destructive industry of
illicit cocaine manufacture and trafficking" and is no less a crime involving moral turpitude. State v.
Major, 391 S.E.2d at 237 (citation omitted).
6. Braham's conviction for distribution of cocaine raises serious questions about his
moral character particularly while the probationary period is still in effect, and while his connection
with a business selling alcoholic beverages is prohibited by his probation. Mr. Branham cannot
overcome the challenges to his character at this point. He is not of suitable moral character.
7. No significant protest was made about the proposed location. No evidence was
presented to demonstrate that the sale of beer and wine for on-premises consumption would have an
adverse impact on the neighborhood or create a strain on law enforcement. Therefore, the location
is a suitable one for the issuance of an on-premise beer and wine permit.
8. The location is suitable; however, since Branham is not eligible to be associated with
the business because he is not of good moral character and is the person to whom the lease was
granted, no permit may be issued for the location at this time.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED, that the application of Leo Scott for Phase III in Lugoff, is DENIED.
AND IT IS SO ORDERED.
______________________________
ALISON RENEE LEE
Administrative Law Judge
June _____, 1996
Columbia, South Carolina |
