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:
James E. Stoltz, d/b/a Firehouse, Inc. vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
James E. Stoltz, d/b/a Firehouse, Inc.

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0280-CC

APPEARANCES:
James H. Harrison, Esq. for Petitioner

Arlene D. Hand, Esq., for Respondent
 

ORDERS:

ORDER

The Petitioner, James E. Stoltz, d/b/a Firehouse, Inc. (Stoltz) of Conway, South Carolina, filed with the South Carolina Department of Revenue (DOR), the Respondent, a renewal application for an on-premises beer and wine permit and a minibottle license for a business located at 4350 Dorchester Road, Charleston, South Carolina. DOR denied the renewals on the ground that Stoltz lacked the required good moral character for a beer and wine permit and for a minibottle license. 23 S.C. Code Regs. 7-3 (Supp. 1996) requires a hearing and presents a contested case under the authority of § 1-23-310 (Supp. 1996). Considering all factors the permit and license must be denied.

II. Issue


Does Stoltz have the required good moral character needed for a beer and wine permit and a minibottle license?

III. Analysis

1. Positions of Parties:

DOR states the applicant's conviction for knowingly and wilfully aiding in or procuring another to perform lewd and lascivious acts and permitting the use of a business premise for such acts constitutes a crime of moral turpitude. DOR further argues that such a crime demonstrates a lack of good moral character. Stoltz asserts he has the requisite good moral character. He argues the conviction is not persuasive of a lack of good moral character since the conviction is on appeal and the conviction only reflects the standard of decency in Horry County rather than the required state-wide determination of "good moral character."

2. Findings of Fact:

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

a. General

1. Stoltz seeks a renewal from DOR of an on-premises beer and wine permit and a minibottle license.

2. Both renewals were denied by DOR.

3. The business location and the place where the beer and wine permit and the minibottle license will be utilized is 4350 Dorchester Road, Charleston, South Carolina.

4. The business provides topless dancing by on-stage female employees and provides pool tables and video games.

5. DOR seeks to deny the permit on the ground the applicant lacks good moral character.

6. The hearing was held on April 28, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant and DOR.

b. Moral Character

7. On January 9, 1996, Stoltz was convicted of violating S.C. Code Ann. § 61-15-365 by knowingly and wilfully aiding in or procuring another to perform lewd and lascivious acts and permitting the use of a business premises for such acts.

8. The conviction is on appeal and is pending in the South Carolina Court of Appeals.

9. Stoltz has no other violation of law.

10. The jury that convicted Stoltz was drawn from the Myrtle Beach and Horry County area.

11. The applicant's actions demonstrate a lack of good moral character.

12. Stoltz lacks the good moral character needed for the issuance of a beer and wine permit and a minibottle license.

3. Discussion

For permits and licenses applied for prior to January 1, 1997, (such as is the case here) the amendments made by Act 415, 1996 Acts (new law) are inapplicable. While no significant differences exist in the new law versus the prior law, prior law governs this matter. In this case the only issue in both the beer and wine dispute as well as the minibottle dispute is whether Stoltz has good moral character. S.C. Code Ann. § 61-9-320(1) and § 61-5-50(2) (Supp. 1995). In making such a determination, no single standard can be applied and the licensing authority is allowed to judge whether the acts and conduct shown are sufficient in themselves or as an index to character so as to disqualify an applicant. 1969 S.C. Op. Att'y. Gen. 159; 48 C.J.S. Intoxicating Liquors § 105 at 470 (1981).

a. Moral Turpitude

In making a decision on moral character, a factor is whether the applicant has committed a crime involving moral turpitude. Such acts are indicators of a lack of good moral character. 48 C.J.S. Intoxicating Liquors § 105 (1981); 1989 S.C. Op. Att'y. Gen. 237. 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).

Here, Stoltz was convicted of aiding in the performance of lewd entertainment. Aiding in the performance of lewd entertainment is a crime of moral turpitude. 58 C.J.S. Moral (1948). Thus, Stoltz's actions demonstrate a lack of good moral character.

Conviction of a crime does not always prevent the convicted party from obtaining a permit or a license since the fact-finder may consider the extent to which rehabilitation has occurred. 48 C.J.S. Intoxicating Liquors § 105 (1981). Here, however, the conviction is too recent (1996) to allow sufficient time for Stoltz to adequately demonstrate a rehabilitation of character. Further, nothing in the evidence is sufficiently persuasive to demonstrate a change of character from that demonstrated by the 1996 conviction. Accordingly, in the absence of any persuasive off-setting factors, Stoltz lacks the needed good moral character to obtain a beer and wine permit or a minibottle license.

b. Off-setting Factor of Appeal

Stoltz argues his moral character should be viewed by considering the fact that his conviction is under appeal. The appeal, in my view, is insufficient to alter my conclusion that Stoltz lacks good moral character. A conviction is not an interim or temporary decision, but rather a conviction, in its legal sense, is the determination of guilt in a criminal prosecution. See South Carolina State Bd. of Dental Examiners v. Breeland, 208 S.C. 469, 38 S.E.2d 644 (1946). An appeal does not eliminate the conviction during the pendency of the appeal but only serves to allow a second body to review the conviction to determine if an error occurred. Accordingly, the appeal of the conviction is not a persuasive off-setting factor.

c. Off-setting Factor of Local Standards

Section 16-15-365 (Supp. 1995) establishes that "[a]ny person who wilfully and knowingly exposes the private parts of his person in a lewd and lascivious manner and in the presence of any other person, or aids or abets any such act, or who procures another to perform such act, or any person who as owner, manager, lessee, director, promoter, or agent, or in any other capacity knowingly hires, leases or permits the land, building or premises of which he is owner lessee, or tenant, or over which he has control, to be used for purposes of any such act, is guilty of a misdemeanor and, upon conviction, must be imprisoned for not more than six months or fined more than five hundred dollars or both." Stoltz violated this statute.

Stoltz argues his conviction depended upon the community standards of the Myrtle Beach area. Since community standards vary across the state, Stoltz argued variable standards should not be used to measure his moral character. I cannot agree with Stoltz's argument.

First, the argument is misplaced. A violation of S.C. Code Ann. § 61-15-365 is not based on varying community standards. Here, Stoltz was convicted of knowingly and wilfully aiding in or procuring another to perform lewd and lascivious acts and permitting the use of a business premises for such acts. The violation did not depend upon a community standard. Rather, the violation concerned whether the dancers procured by Stoltz performed a "lewd and lascivious" act.

The terms "lewd and lascivious" are not based upon a community standard, but, on the contrary, are capable of a definite and defined meaning applicable state-wide. See State v. Hardee, 279 S.C. 409, 308 S.E.2d 521 (1983) (the terms "lewd and lascivious" are "commonplace terms . . . easily found in dictionaries and other source books.") A "lewd and lascivious" act is one tending to excite lust in a sexually immoral context. State v. Stamper, 615 So.2d 1359, 1363 (La. App. 1993). Thus, since Stoltz argues his conviction depends upon a community standard and since no community standard is imposed, Stoltz's argument is invalid.

Second, even if community standards were to apply in this case, the argument is unpersuasive. The granting of a beer and wine permit and a minibottle license is the granting of a privilege that the State may restrict as it sees fit. See Wall v. S.C. Alcoholic Bev. Control Comm'n, 269 S.C. 13, 235 S.E.2d 806 (1977); Feldman v South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). As a part of the State's restrictions, the applicant must have good moral character. § 61-9-320(1) and § 61-5-50(2) (Supp. 1995). Whether a lack of good moral character is demonstrated by violating a state-wide statute based on a local community standard or a state-wide statute based upon commonly understood terms, the end result is still the same. The applicant's violation is evidence of a lack of good moral character.

The issue is whether the preponderance of the evidence demonstrates good moral character. While an applicant could attempt to minimize the weight accorded the violation by proving the violation was under a community standard far more stringent than that of the "typical community standard," I do not have such evidence before me. In fact, while no evidence demonstrated what a "typical community standard" is, I note the violation was from a jury representative of the Myrtle Beach and Horry County area. In short, a lack of good moral character is demonstrated by Stoltz's crime involving moral turpitude. 48 C.J.S. Intoxicating Liquors § 105 (1981). Nothing in this case persuades me that the evidence of a lack of good moral character is off-set by any other factors so as to warrant a finding of 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 only issue contested is whether the applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) and § 61-5-50(2) (Supp. 1995).

2. All other requirements for a beer and wine permit and a minibottle license are satisfied.

3. In making a determination on good moral character, no single standard can be applied and the licensing authority is allowed to judge whether the acts and conduct shown are sufficient in themselves or as an index to character so as to disqualify an applicant. 1969 Op. Att'y. Gen. 159; 48 C.J.S. Intoxicating Liquors § 105 at 470 (1981).

4. Committing a crime involving moral turpitude is an act indicating a lack of good moral character. 48 C.J.S. Intoxicating Liquors § 105 (1981); 1989 S.C. Op. Att'y. Gen. 237.

5 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).

6. Stoltz's conviction of aiding in the performance of lewd entertainment is a crime of moral turpitude and his actions demonstrate a lack of good moral character. 58 C.J.S. Moral (1948).

7. Conviction of a crime does not always prevent the convicted party from obtaining a permit or a license since the fact-finder may consider the extent to which rehabilitation has occurred. 48 C.J.S. Intoxicating Liquors § 105 (1981).

8. Here, however, the 1996 conviction is too recent to allow sufficient time for Stoltz to adequately demonstrate a rehabilitation of character and nothing in the evidence is sufficiently persuasive to demonstrate a change of character from that demonstrated by the 1996 conviction.

9. A conviction is not an interim or temporary decision, but rather a conviction, in its legal sense, is the determination of guilt in a criminal prosecution. See South Carolina State Bd. of Dental Examiners v. Breeland, 208 S.C. 469, 38 S.E.2d 644 (1946).

10. The appeal of the Stoltz conviction is not a persuasive off-setting factor sufficient to establish Stoltz possesses good moral character.

11. Any person who wilfully and knowingly exposes the private parts of his person in a lewd and lascivious manner and in the presence of any other person, or aids or abets any such act, or who procures another to perform such act, or any person who as owner, manager, lessee, director, promoter, or agent, or in any other capacity knowingly hires, leases or permits the land, building or premises of which he is owner lessee, or tenant, or over which he has control, to be used for purposes of any such act, is guilty of a misdemeanor and, upon conviction, must be imprisoned for not more than six months or fined more than five hundred dollars or both. § 16-15-365 (Supp. 1995).

12. A violation of S.C. Code Ann. § 61-15-365 is not based on varying community standards.

13. A violation of S.C. Code Ann. § 61-15-365 depends upon whether Stoltz's dancers performed a "lewd and lascivious" act.

14. The terms "lewd and lascivious" are not based upon a community standard, but are capable of a definite and defined meaning applicable state-wide. See State v. Hardee, 279 S.C. 409, 308 S.E.2d 521 (1983).

15. A "lewd and lascivious" act is one tending to excite lust in a sexually immoral context. State v. Stamper, 615 So.2d 1359, 1363 (La. App. 1993).

16. Since Stoltz argues his conviction depends upon a community standard and since no such community standard is imposed, Stoltz's argument based on community standards is invalid.

17. The granting of a beer and wine permit and a minibottle license is the granting of a privilege which the State may restrict as it sees fit. See Wall v. S.C. Alcoholic Bev. Control Comm'n, 269 S.C. 13, 235 S.E.2d 806 (1977); Feldman v South Carolina Tax Com'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

18. As a part of the State's restrictions, the applicant must have good moral character. § 61-9-320(1) and § 61-5-50(2) (Supp. 1995).

19. Even if an applicant's violation of a state-wide statute is based on a community standard, the applicant still demonstrates a lack of good moral character.

20. The evidence is insufficient to demonstrate the standard that constitutes the "typical community standard" for acts within § 16-15-365.

21. A lack of good moral character is demonstrated by Stoltz's crime involving moral turpitude. 48 C.J.S. Intoxicating Liquors § 105 (1981).

22. The lack of good moral character evidenced by the violation of § 16-15-365 is not off-set by any other factors so as to warrant a finding of good moral character.

23. The applicant does not meet the requirements for the issuance of a beer and wine permit or a minibottle license.

IV. ORDER


DOR is ordered to deny to Stoltz a renewal of his on-premises beer and wine permit and minibottle license at 4350 Dorchester Road, Charleston, South Carolina.

AND IT IS SO ORDERED.



RAY N. STEVENS

Administrative Law Judge

This 8th day of July, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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