SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§ 61-1-55 (Supp. 1995), the Administrative Procedures Act, §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1995), and § 12-60-1320 (Supp. 1995) of the Revenue Procedures Act, upon the application of Loretta Ingram and Puff Management, Inc., for an on-premises beer and wine permit and a nonprofit private club mini-bottle license at Club 112 located at 3040 McNaughton Drive, Columbia, Richland County, South Carolina. Friends of Windsor Lake Park, consisting of individuals residing near the proposed location, protested the application and intervened in the action. After notice to the parties and protestors, a contested case hearing was conducted on April 25, 1997. Based upon the evidence presented, the application is DENIED. Any issues raised or presented in the proceeding of this matter not specifically addressed in this Order are deemed denied. Administrative Law Judge Division Rule 29.ISSUES PRESENTED

The issues presented are (1) whether the proposed location is suitable for the issuance of a beer and wine permit or a nonprofit private club mini-bottle license and (2) whether each agent, employee, and servant of the applicant to be employed on the licensed premises are of good moral character.

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. Petitioner is 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.
2. Petitioner has maintained her principal place of abode in South Carolina for at least thirty days before the date of application.
3. Petitioner has never held any type of permit for the sale of beer, wine, or alcoholic liquors and therefore has not had such a permit revoked.
4. Petitioner is over the age of twenty-one.
5. Petitioner submitted an application, received by the Department of Revenue on November 1, 1996, to apply for an on-premises beer and wine permit as well as a nonprofit private club mini-bottle license.
6. Notice of application appeared in the Star Reporter on November 7, 14, and 21, 1996, and was posted at the proposed location for fifteen days.
7. The Department of Revenue issued a Final Department Determination on March 5, 1997, denying the application because, inter alia, Pearlie Lee Ingram, the husband of the applicant who is an agent, employee, or servant of the applicant, lacked good moral character.

SUITABILITY OF LOCATION

1. The proposed location is a nightclub for members of Club 112 at 3040 McNaughton Drive, Columbia, Richland County, South Carolina. It is situated at the corner of McNaughton Drive and Berkshire Road.
2. McNaughton Drive is only a few blocks long and is a commercially zoned district on which several businesses and one residence are located.
3. At the end of McNaughton Drive is Trenholm Road Extension. Access onto Trenholm Road at this intersection is restricted to one direction only away from the Windsor Lake Park area.
4. Across Trenholm Road extension is the Windsor Lake Park community.
5. Primary access to Club 112 is via Berkshire Road, a winding two lane road connecting Two Notch Road to the proposed location and eventually to Windsor Lake Park community. Near the proposed location, Berkshire Road features a sharp (almost 90⁰) curve.
6. Neither Berkshire Road nor McNaughton Drive has sidewalks, and parking on the shoulders in the right of way is prohibited. Signs were recently posted on Berkshire Road to notify persons of the prohibition.
7. The facility is 8,700 square feet, and its capacity is 720 patrons. It is one of the two largest clubs in Richland County. Most clubs are between 1500 to 2000 square feet in size.
8. Membership in Club 112, according to the by-laws, is restricted to a maximum of 2000 persons. The club currently has approximately 210 members.
9. According to the Richland County Sheriff, experience has demonstrated that most problems with large clubs occur after patrons leave the facility. With large clubs, there are numerous patrons, and it is difficult for law enforcement to control a crowd of one hundred or more people.
10. The large size of the facility and the number of patrons it accommodates makes it difficult for law enforcement to be able to control a crowd in the event of a disturbance.
11. The Richland County Sheriff's Department is not able to provide sufficient manpower to protect patrons, the adjoining businesses, or residents for a large club such as this one.
12. Petitioner plans to operate on Thursday, Friday and Saturday nights, closing no later than 3:00 a.m.
13. There are approximately 35 parking spaces for the proposed location. Of those, approximately 12 lined spaces are located on the McNaughton Drive side of the proposed location, and approximately 12 lined spaces are located on the Berkshire Road side of the proposed location.
14. Almost all of the businesses located in this industrial park object to the increased traffic created by the location and object to the use of their parking lots by the club membership. The businesses do not want a large crowd in the area because they believe it increases the possibility of vandalism to their businesses.
15. One business which has a telephone support center near the proposed location has employees that work on the premises until early morning.
16. A one-story brick residence, inhabited by a couple with three small children, is located two doors from the proposed location on McNaughton Drive. It is not enclosed or protected by any type of fence. A wooded area adjoins the residence. There is no outside lighting around the residence.
17. One of the parents living at the residence works at night and is concerned about the family's safety.
18. Any guests or patrons leaving Club 112 and making a wrong turn onto Berkshire Road would likely drive through the Windsor Lake Park community.
19. Approximately 320 patrons and guests attended a New Year's Eve party at the proposed location on the evening of December 31, 1996, through the early morning hours of January 1, 1997.
20. During the New Year's Eve party, persons attending the club littered properties of the surrounding businesses with beer bottles, beer cans, and liquor bottles, and vandalized at least one business by tearing down "No Parking" signs.
21. During the New Year's Eve party, patrons or guests of Club 112 parked cars in areas belonging to some businesses without permission from the owners of the parking areas. They also parked in the road across from the residence.
22. In addition, during the New Year's Eve party, cars were parked along McNaughton and Berkshire Roads on the shoulders and in the right of way, requiring pedestrians to walk in the street. This created a traffic danger to pedestrians and to other vehicles.
23. Although the New Year's Eve party was promoted as a charitable event, Club 112 has never made a charitable donation from the proceeds received.
24. Adjoining businesses have expressed their desire not to have patrons of Club 112 park on their property.
25. The proposed location does not have adequate parking for a club its size.
26. The proposed location is not near any churches, schools or playgrounds.
27. The closest facility licensed to sell beer or wine or alcoholic liquors is the Holiday Inn, a hotel located at the intersection of Two Notch Road and Berkshire Road.
28. The Windsor Lake Park community is the closest residential area and is located across Trenholm Road Extension.
29. The petitioner and Mr. Ingram have invested considerable financial resources into the operation of the proposed location.
30. The five-year lease for the proposed location requires a monthly rent of $4000 for the first year and $5000 for the remainder of the lease term. Currently, the proposed location is not operating.

MORAL CHARACTER

1. On her application, the applicant completed the portion that inquired whether " within the past ten years, someone with a financial interest in the business or someone to be employed with or without compensation has been convicted of a crime that carried a maximum sentence of two years or more."
2. Petitioner testified that Pearlie Lee Ingram would manage the proposed location.
3. DOR records reflect that Pearlie Lee Ingram, applicants' husband, was convicted of 16 counts involving violations of 18 U.S.C. § 1344 [bank fraud].
4. Pearlie Lee Ingram was originally sentenced to five years imprisonment on February 27, 1991, and ordered to pay restitution. On September 3, 1993, the sentence was amended to "30 months imprisonment on Count 1 and one year imprisonment on Counts 2 through 16, the sentences to run concurrently."
5. Pearlie Lee Ingram served approximately 26 months, was paroled on April 18, 1993, and was supervised until May 18, 1996.
6. Several witnesses, including Mr. Ingram's minister, testified of their belief that Ingram was of good moral character and had a good reputation despite his convictions.
7. Mr. Ingram manages or is involved in the operation of other nightclubs in the Columbia area. A SLED agent testified that those clubs have generally been operated without incident.

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 of hearing officers of 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 on-premises beer and wine permits. It provides in part that each agent, employee, and servant of the applicant to be employed on the licensed premises must be of good moral character and the location must be suitable.
3. S.C. Code Ann. § 61-5-50(1)(Supp. 1995) provides the statutory requirements for the issuance of nonprofit private club mini-bottle licenses.
4. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981), Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972), and Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
6. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve 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).
7. "[P]roximity of a location to a church, school or residence is a proper ground, by itself, on which the [fact finder] . . . may find the location to be unsuitable and deny a permit for the sale of beer or wine at that location." Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991)(construing S.C. Code Ann. § 61-9-320).
8. The proposed location is not suitable for the issuance of an on-premises beer and wine permit or a nonprofit private club mini-bottle license due to its proximity to residences. Although the residence on McNaughton Drive is located within an area zoned for commercial industrial use, the law allows no distinction based upon the zoning of an area. The proximity to the residence and the large number of persons patronizing the facility on a regular basis would adversely impact the lives of the family living in such close proximity to the facility. Further, persons patronizing the location who are unfamiliar with the general area could wind their way through the community seeking access to the major thoroughfares. The increased traffic, particularly late at night, would adversely impact the community.
9. The proposed location is not suitable for the issuance of an on-premises beer and wine permit or a nonprofit private club mini-bottle license because licensing the proposed location would create adverse circumstances for the businesses and the community surrounding the proposed location.
10. Traffic patterns in the area are relevant to the issuance of a license to sell beer, wine or alcoholic beverages. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
11. Law enforcement considerations are a factor in determining the suitability of a location. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); Palmer v. S.C. ABC Comm'n. supra.
12. The evidence clearly reveals that the large crowd at the facility and the lack of adequate parking create traffic hazards and safety problems. Access to and from the proposed location is by two lane roads that curve and wind. Any impaired driver or pedestrian poses a safety threat to others in the area. Further, there is not adequate law enforcement to provide protection to the patrons, the businesses, or the residents.
13. 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).
14. 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).
15. 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. 89-89 at 237.
16. "An act in which fraud is an ingredient involves moral turpitude." Matter of Sipes, 297 S.C. 531, 534, 377 S.E.2d 574, 576 (1989)(citing State v. Horton, 271 S.C. 413, 248 S.E.2d 263 (1970) ).
17. S.C. Code Ann. § 61-9-320 (Supp. 1995) requires that good moral character must be possessed by 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.
18. Pearlie Lee Ingram is not of good moral character so as to be employed or financially involved in a business that has been issued a beer and wine permit under S.C. Code Ann. § 61-9-320 (Supp. 1995). He has been convicted of acts or conduct that imply the absence of good moral character.
19. "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).
20. Pearlie Lee Ingram offers evidence of others' opinions of his moral character; however, such evidence alone does not indicate rehabilitation for the offending conduct involving 16 counts of bank fraud. Opinion evidence of moral character without more does not establish that Ingram's acts have been exculpated. Ingram's recent parole and release from supervision are relatively fresh and do not provide a sufficient basis to judge that he has been rehabilitated.
21. Based upon the record established, Pearlie Ingram lacks the requisite moral character for the issuance of a beer and wine permit.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the application of Loretta Ingram for an on-premises beer and wine permit and nonprofit private club mini-bottle license for Club 112 at 3040 McNaughton Drive, South Carolina, is DENIED.

AND SO IT IS ORDERED.

___________________________

ALISON RENEE LEE

Administrative Law Judge

June 18, 1997

Columbia, South Carolina