ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge
Division pursuant to S.C. Code Ann. 61-1-55, et seq. (Supp.
1995) and S.C. Code Ann. 1-23-310 et seq. (1986 and Supp.
1995) for a hearing pursuant to the application of Gregory M.
Thomas d/b/a Pioneer Club ("applicant") for an on-premise beer
and wine permit (AI 108721) for the premises located at 3340
Lamar Highway, Darlington County, South Carolina ("location").
A hearing was held on October 9, 1996, at the offices of the
Administrative Law Judge Division, Columbia, South Carolina. The
issue considered was the moral character of the applicant.
The application was not protested; however, the South
Carolina Department of Revenue ("Department") denied applicant's
request for issuance of the permit. In the transmittal form and
also in respondent's prehearing statement, the Department takes
the position that the petitioner is not a suitable person to hold
an on-premises beer and wine permit based upon his criminal
record.
The application request for an on-premise beer and wine
permit is denied.
EXHIBITS
Without objection, those certified copies of documents
forwarded to the Administrative Law Judge Division file from the
department were made a part of the record.
FINDINGS OF FACT
After consideration and review of all the evidence and
testimony and having judged the credibility of the witnesses, I
make the following findings:
1. This Division has personal and subject matter
jurisdiction.
2. Notice of the date, time, place and nature of the
hearing was timely given to all parties.
3. The applicant is seeking from the department an on-premise beer and wine permit and an on-premise sale and
consumption license for a nightclub to be called Pioneer Club,
located at 3340 Lamar Highway, Darlington County, South Carolina.
4. The qualifications set forth in S.C. Code Ann. 61-9-320 (Supp. 1995) concerning the residency and age of the
applicant are properly established. Applicant is 32 years of
age, is a citizen of and has lived in the State of South Carolina
all his life. Furthermore, applicant has not had a permit or
license revoked within the last two years and notice of the
application was lawfully posted both at the location and in a
newspaper, The News and Press, Inc., which has a general
circulation in the community where the club is to be located.
5. The applicant is single and lives at 11 Fox Run, an
apartment complex in the City of Columbia. He has been employed
for the last eight years as an extruder operator at Southern
Plastics in West Columbia. He works four days and then is off
four days at his place of employment.
6. Applicant intends to operate the club in Darlington
County as a sole proprietorship.
7. The location property is owned by applicant's uncle.
The physical structure is of stone, has three bathrooms and is
fronted by a paved street. It is outside the city limits of
Darlington and has previously been operated as a club by other
individuals.
8. The nearest church is approximately one half mile in
distance. Any schools or playgrounds are farther in distance
from the club than the church. The nearest residence is some 200
yards away.
9. Applicant intends to operate the club during the four
days he is off from his employment at Southern Plastics. He
intends to rent a room the several days he is in Darlington
County each week operating the club. The days the club will open
weekly will change depending on his job requirements at Southern
Plastics. Applicant intends to close the club at 2:00 a.m. on
the days it is open.
10. Applicant intends to operate the club with the
assistance of friends who will serve as doormen and patrol
outside. Applicant has never operated a club and is unfamiliar
with the laws and regulations in South Carolina which govern
their operation.
11. On July 18, 1988 applicant was charged with possession
of cocaine, possession of a controlled substance and possession
of marijuana by the Darlington County Sheriff's Department. He
subsequently pled guilty to possession of cocaine (a felony) and
to possession of controlled substances, and was sentences to one
year of service, suspended upon the service of 6 months or the
payment of a $500.00 fine.
12. On April 6, applicant was charged with soliciting for
prostitution, a misdemeanor, by the Richland County Sheriff's
office. Subsequently he pled guilty to the charge and was
sentenced to thirty (30) days of service, suspended upon the
payment of a fine of $279.00 and upon fifty (50) hours of
community service.
13. The objection by the Department is based upon its
concerns about the moral character of the applicant and
specifically the criminal acts by applicant to which he pled
guilty. The objection by the Department based upon a 1982 DUI
conviction is not relevant; that charge took place more than 10
years ago and is stale.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a
matter of law, the following:
1. Pursuant to S.C. Code Ann. 61-1-55 (Supp. 1995) and
Chapter 23 of Title 1 of the 1976 Code, as amended, the South
Carolina Administrative Law Judge Division has jurisdiction in
this matter.
2. S.C. Code Ann. 61-9-320 (Supp. 1995), which sets
forth the requirements for the issuance of a beer and wine
permit, provides in part:
No permit authorizing the sale of beer or wine may be
issued unless:
- The applicant, any partner or co-shareholder of
the applicant, and each agent, employee and
servant of the applicant to be employed on the
licensed premises, are of good moral character.
- The retail applicant is a legal resident of the
United States and has been a legal resident of
this Sate for at least thirty days before the date
of application and has maintained his principal
place of abode in South Carolina for at least
thirty days before the date of application.
- The wholesale applicant is a legal resident of
the United States and has been a legal resident of
the United States and has been a legal resident of
this State for at least thirty days before the
date of application or has been licensed
previously under the laws of this State.
- The applicant, within two years before the date
of application, has not had revoked a beer or a
wine permit issued to him.
- The applicant is twenty-one years of age or
older.
- The location of the proposed place of business
of the applicant is in the opinion of the
department a proper one. The department may
consider, among other factors, as indications of
unsuitable location the proximity to residences,
schools, playgrounds and churches.
- Notice of application has appeared at least
once a week for three consecutive weeks in a
newspaper most likely to give notice to interested
citizens of the county, city, or community in
which the applicant proposes to engage in
business.
- Notice has been given by displaying the
required sign for fifteen days at the site of the
proposed business.
3. The factual determination of whether or not an
application is granted or denied is usually the sole prerogative
of the executive agency charged with rendering that decision.
Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476
(Ct. App. 1984). As 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 Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984). It is also the fact finder's responsibility to judge
the demeanor and credibility of witnesses and determine the
relevance and weight of any testimony and evidence offered.
4. Although "proper location" is not statutorily defined,
broad discretion is vested in the judge in determining the
fitness or suitability of a particular location. Fast Stops,
Inc. v. Ingram, 305 S.C. 243, 281 S.E.2d 181 (1981). 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. 335
(1985). Any evidence adverse to the location may be considered.
The proximity of a location to a church, school or residences is
a proper ground by itself, on which the location may be found to
be unsuitable and a permit denied. Byers v. South Carolina ABC
Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court
can consider whether "there have been law enforcement problems in
the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d
476 (Ct. App. 1984). In this case, no evidence was offered
showing that the location is not suitable or was not a proper
location.
5. S.C. Code Ann. 61-9-320 (Supp.1995) provides that in
order to obtain and maintain a beer and wine permit, the holder
must be of good moral character.
6. In South Carolina, there is no single criterion by
which to determine whether or not
one is possessed of good moral character. 1969 Op. S.C. Att'y.
Gen. No. 2709 at 159. Generally, good moral character means
that one should possess all elements essential to make up that
character, such as honesty and veracity. Id.; See also Zemour,
Inc. v. State Division of Beverage, 347 So.2d 1102 (Fla. Dist.
Ct. App. 1977); Broers v. Montana Dept. of Revenue, 773 P. 2d 320
(Mont. 1989).
7. It is a generally recognized principle that an
alcoholic beverage permit may be refused to 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).
8. Possession of cocaine is a crime of moral turpitude.
State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990). "Moral
turpitude" is defined as anything done contrary to justice,
honesty, principle, or good morals and includes criminal acts
which involve intentional dishonesty for purpose of personal
gain. State v. Morris, 289 S.C. 294, 345 S.E.2d 477 (1986). It
is "an act of baseness, vileness, or depravity in the private and
social duties which a man owes to his fellow man, or to
society in general, contrary to the accepted and customary rule
of right and duty between man and man. State v. Horton, 241 S.C.
29, 310 S.E.2d 263(1982).
9. Mr. Thomas was convicted not only of the felony,
possession of cocaine, he has also pled guilty since then to
soliciting to prostitution. These convictions raise serious
doubts about his moral character and his ability to properly
administer the laws of this State relative to the sale of
alcoholic beverages, particularly in a club or lounge setting
such as he proposes. These convictions are relatively recent and
reflect a propensity on the part of applicant to commit serious
criminal offenses. Sufficient passage of time has not occurred
which would support the contention that he has rehabilitated
himself and possesses that character required by the State for
those to whom it issues these alcoholic permits.
10. Accordingly, considering all the evidence, I conclude
that the permit requested by the applicant should be denied.
ORDER
Based on the Findings of Fact and Conclusions of
Law, it is hereby:
ORDERED that the application of Gregory M. Thomas d/b/a
Pioneer Club for an on-premise beer and wine permit for the
premises located at 3340 Lamar Highway, Darlington County, South
Carolina is hereby denied.
AND IT IS SO ORDERED.
_____________________________________
MARVIN F. KITTRELL
Chief Judge
Columbia, South Carolina.
October 16, 1996 |
