SC Administrative Law Court Decisions

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). Initially, after considering the factors then known, the permit and license were denied by an order issued July 8, 1997.

However, in a motion of July 17, 1997 as supplemented on July 23, 1997, Stoltz asked for a reconsideration primarily on the ground that Stoltz's conviction of a crime involving moral turpitude had been reversed by the Court of Appeals on July 21, 1997. See State v. Bean and Stoltz, Opinion No. 2699. A Writ of Certiorari was requested from the South Carolina Supreme Court seeking to reverse the Court of Appeals. As a result, an order of August 8, 1997 was issued by the Administrative Law Judge Division, holding that no decision on the Motion for Reconsideration would be made until the Writ of Certiorari was decided.

On February 20, 1998, the Writ of Certiorari was denied. Accordingly, the reconsideration is granted, and the original order of July 8, 1997 is vacated in its entirety with this Order On Reconsideration being the final order in this matter. DOR is directed to grant the renewal applications.

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 argues Stoltz lacks good moral character. Stoltz asserts he has good moral character and further argues that no evidence demonstrates a lack of the requisite good moral character except for the prior but now reversed conviction for knowingly and wilfully aiding in or procuring another to perform lewd and lascivious acts. Accordingly, Stoltz argues that the reversal of that conviction by the Court of Appeals on July 21, 1997 and the denial of Certiorari by the Supreme Court on February 20, 1998 removes any evidence that he lacks 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 sole ground that the applicant lacks good moral character.

6. The original hearing in this matter 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 at the trial level 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. On appeal, the South Carolina Court of Appeals in State v. Bean and Stoltz, No. 2699 (S.C. Ct. App. July 21, 1997) reversed the conviction and Certiorari was denied on February 20, 1998.

9. Stoltz has no other violation of law.

10. No other evidence persuasively demonstrates a lack of good moral character.

11. The applicant's actions do not demonstrate a lack of good moral character.

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 here. 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).

Thus, the issue is whether the preponderance of the evidence demonstrates good moral character. Stoltz demonstrated he has not violated any law, and no evidence has been presented of any illegal activities engaged in by Stoltz. Thus, Stoltz has presented a level of evidence establishing the presence of good moral character. To counter Stoltz's evidence of good moral character, DOR relies upon Stoltz's conviction of S.C. Code Ann. § 16-15-365 (Supp. 1995) on January 9, 1996. That conviction, however, has been reversed by the Court of Appeals, which held the State failed to produce any evidence on the "knowingly" element of the statute. State v. Bean and Stoltz, No. 2699 (Ct. App. July 21, 1997; Certiorari denied February 20, 1998). Since an applicant who is ultimately acquitted of a potentially fatal violation cannot have the disputed violation used as a basis for denying a permit or license (see 48 C.J.S. Intoxicating Liquors § 105 (1981)), Stoltz cannot have his overturned conviction used as the sole basis for denying his renewals.

Accordingly, since the overturned conviction does not defeat Stoltz's affirmative evidence of good moral character and since DOR has not demonstrated other sufficient evidence to discredit Stoltz's evidence of good moral character, Stoltz has proven sufficient good moral character to obtain the renewal he seeks. Thus, the renewals must be issued.

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. A conviction of aiding in the performance of lewd entertainment is a crime of moral turpitude and demonstrates a lack of good moral character. 58 C.J.S. Moral (1948).

7. Stoltz's conviction in January of 1996 of violating S.C. Code Ann. § 16-15-365 (Supp. 1995) was reversed on appeal. State v. Bean and Stoltz, No. 2699 (Ct. App. July 21, 1997; Certiorari denied February 20, 1998).

8. An applicant who is ultimately acquitted of a potentially fatal violation cannot have the disputed violation used as a basis for denying a permit or license. See 48 C.J.S. Intoxicating Liquors § 105 (1981).

9. 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 Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

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

11. The evidence is sufficient to demonstrate Stoltz possesses the good moral character sufficient to warrant a renewal of a beer and wine permit and a minibottle license. S.C. Code Ann. § 61-9-320(1) and § 61-5-50(2) (Supp. 1995).

12. The applicant meets the requirements for the issuance of a beer and wine permit and a minibottle license.

DOR is ordered to grant 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 25th day of February, 1998

Columbia, South Carolina