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:
Wade J. Jenkins, d/b/a The Color of Money vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Wade J. Jenkins, d/b/a The Color of Money

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0185-CC

APPEARANCES:
Kenneth E. Allen, Pro se, for Petitioner

Arlene D. Hand, Esq., for Respondent,

Sheriff Herman W. Young, Protestant, No Appearance

James G. Branham, Protestant
 

ORDERS:

ORDER

I. Statement of the Case


The Petitioner, Wade J. Jenkins, d/b/a The Color of Money (Jenkins) of Columbia, South Carolina filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer and wine permit for Highway 21, Ridgeway, South Carolina. Sheriff Herman W. Young and James G. Branham filed protests seeking to prevent DOR from granting the permit. 23 S.C. Code Regs. 7-90 (Supp. 1996) requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1996). The relevant factors require denying the permit.

II. Issue


Does Jenkins meet the statutory requirements for a beer and wine permit?

III. Analysis

1. Positions of Parties:

Jenkins asserts he meets the statutory requirements. DOR states the applicant lacks good moral character and thus, a denial of the permit is required. The protestants assert the location is improper requiring a denial of the application.





2. Findings of Fact:

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

a. General

1. Jenkins filed an application with the Department of Revenue for an on-premises beer and wine permit.

2. The application is identified by DOR as AI # 112281.

3. The proposed business location and the place where the beer and wine permit will be utilized is Highway 21, Ridgeway, South Carolina.

4. The business will operate as a convenience store.

5. A protest to the application was filed by Sheriff Herman W. Young and James Branham disputing the suitability of the location.

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

7. The hearing was held June 9, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

b. Moral Character

8. Prior to 1989, Jenkins served in the military and was honorably discharged.

9. In 1989 Jenkins was convicted of trafficking in cocaine and was sentenced to three years confinement plus a $25,000 fine.

10. Jenkins satisfied the prison sentence by serving one and a half years and was released.

11. On June 4, 1996, Jenkins received a pardon for the conviction.

12. Jenkins has had no other violation of law.

13. Jenkins is employed by Wilbur Smith & Associates.

14. Jenkins is married and has one child.

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

16. Jenkins lacks good moral character sufficient to deny issuance of a beer and wine permit.

c. Legal Resident and Principal Place of Abode

17. Jenkins was born in South Carolina and has resided in South Carolina since his birth.

18. Jenkins holds a valid South Carolina driver's license.

19. Jenkins currently resides at 13 Tomafield Court, Columbia, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

20. Jenkins is a legal resident of the United States and South Carolina, has held such status for more than 30 days prior to the application, and has held a principal place of abode in South Carolina for more than 30 days prior to filing the application.

d. Prior Revocation Of Beer or Wine Permit

21. Jenkins has never had a beer and wine permit revoked.

e. Age

22. Jenkins's date of birth is May 12, 1956.

23. Jenkins is over twenty-one years of age.

f. Proposed Location

24. The proposed location has been operated by prior owners for approximately eleven years.

25. Other than noise disturbances during the previous eleven year period, no significant problems have resulted from the location.

26. The new owner intends to operate a business similar to that operated by former owners.

27. The proposed location will operate as a convenience store and will provide video poker machines for play by the public.

28. The hours of operation will be from 2:00 p.m. until 2:00 a.m. on Fridays with closing at midnight other days of the week with no operation on Sunday.

29. The area is a mixture of commercial and residential establishments.

30. Seven business establishments are within .2 of a mile of the proposed location and twenty residences within .3 of a mile.

31. The proposed location is not within an improper proximity to residences in the area.

32. A similar establishment, Runaway's, operates across the street from the proposed location with that location holding a beer and wine permit.

33. A second establishment, W. D. Gunter's, is approximately .2 of a mile from the proposed location and it also holds a beer and wine permit.

34. The area is adequately served by the traffic route of Highway 21.

35. Lebanon Presbyterian Church is approximately one mile from the proposed location.

36. The proposed location is not within an improper proximity to a church.

g. Notice

37. Notice of the Jenkins application was published in The State, a newspaper published and distributed in Fairfield County, with notice published on December 7, 9, and 16, 1996.

38. Notice of the Jenkins application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens.

39. Jenkins gave notice to the public by displaying a sign for fifteen days at the proposed business.

40. Jenkins gave notice of the application by the required advertising by newspaper and display of signs.

3. Discussion

a. Moral Character

The applicant must be of good moral character. S.C. Code Ann. § 61-4-520(1)(Supp. 1996). 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. 2709 Op. Att'y Gen. 160 (1969); 48 C.J.S. Intoxicating Liquors § 105 at 470 (1981).

Commission of a crime involving moral turpitude demonstrates a lack of good moral character. 48 C.J.S. Intoxicating Liquors § 105 (1981). The crime of trafficking in cocaine is a crime of moral turpitude. In re Moseley, 302 S.C. 429, 396 S.E.2d 830 (1990). Thus, since Jenkins was convicted of trafficking in cocaine, Jenkins' conviction demonstrates a lack of good moral character. A conviction of a crime does not under all circumstances prevent obtaining a license since the fact-finder may consider the extent to which rehabilitation has occurred. 48 C.J.S. Intoxicating Liquors § 105 (1981). Accordingly, Jenkins has the duty of showing a rehabilitation since 1989. Jenkins attempts to meet this burden in two ways.

First, Jenkins asserts the pardon in 1996 demonstrates his good moral character has been restored. I cannot agree. Restoration of character is not within the power of a pardon; it forgives but does not erase. 67A C.J.S. Pardon & Parole §18 (1978) (while a pardon grants forgiveness, a pardon does not remove the fact that an act of moral turpitude occurred). The issue in the instant case is not whether Jenkins is forgiven but whether his past and current actions depict an individual of good moral character. Since the pardon does not restore good moral character, the past act of selling an illegal substance for personal gain must be considered in deciding the good moral character issue.

Second, Jenkins asserts his actions since the conviction demonstrate he possesses good moral character. The evidence establishes that Jenkins has a family, is employed and has not been charged with any violation of the law since 1989. While I believe Jenkins sincerely regrets his previous involvement in illegal drugs, I am unable to find the presence of the required good moral character imposed by the General Assembly. Trafficking in cocaine inflicts an enormous harm on society. See Whitner v. State, Op. No. 24468 (S.C. Sup. Ct. filed July 15, 1996) (expressing the fact that even the unborn cannot escape the ravages of cocaine). To place such harm on fellow members of society for the sole purpose of financial gain demonstrates a flagrant disregard of the public's welfare. The presence of such a disregard cannot be offset by a showing of compliance with the law since 1989. Further, while Jenkins is employed and has a family, such is not a sufficient showing of rehabilitation to establish good moral character. Accordingly, Jenkins has not established good moral character.

b. Proper Location

Under S.C. Code Ann. §61-4-520(6) (Supp. 1996), no beer and wine permit may be granted unless the proposed location is a proper location. In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Geography alone is not the sole suitability consideration, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

Here, the location would be proper with restrictions. An important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, for eleven years the location held a permit and created no significant problems except for noise. Another significant factor is whether there are already similar existing businesses in the area. Id. 261 S.C. 168, 198 S.E.2d 801 (1973). In the area of the proposed location, at least two establishments hold beer and wine permits. Finally, a location's proximity to residences or churches can be a proper ground by itself to deny a permit. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). In this case, however, the residences and the church do not present an improper proximity to the proposed location.

I do note that residents of the area are entitled to enjoy their property without excessive noise associated with establishments selling beer and wine. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits and licenses are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1996); 23 S.C. Code Regs. 7-88 (1976). Here, the location is proper only if its hours of operation are restricted to closing at midnight and providing live entertainment is prohibited.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. The applicant does not possess good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 1996).

2. The applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and has his principal place of abode in South Carolina. S.C. Code Ann. § 61-4-520(2) (Supp. 1996).

3. The applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-4-520(4) (Supp. 1996).

4. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1996).

5. No beer and wine permit may be granted unless the proposed location is a proper location. S.C. Code Ann. §61-4-520(6) (Supp. 1996).

6. Consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

7. Geography alone is not the sole suitability consideration, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

8. An important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

9. The prior eleven years history of former owners without any significant problems except for noise weighs in favor of finding the location proper when a noise and hour restriction is imposed.

10. A significant factor is whether there are already similar existing businesses in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

11. The location of two similar establishments holding beer and wine permits weighs in favor of finding the location is proper.

12 A location's proximity to residences or churches can be a proper ground by itself to deny a permit. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

13. With restrictions for noise and hours, the distance to residences and the church do not present an improper proximity to the proposed location.

14. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943).

15. Permits and licenses are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1996); 23 S.C. Code Regs. 7-88 (1976).

16. The location is proper only if its hours of operation are restricted to closing at midnight and providing live entertainment is prohibited.

17. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(8) and (9) (Supp. 1996).

18. The applicant does not meet the requirements for the issuance of a beer and wine permit.

IV. ORDER


DOR is ordered to deny to Jenkins an on-premises beer and wine permit at Highway 21, Ridgeway, South Carolina.

AND IT IS SO ORDERED.



RAY N. STEVENS

Administrative Law Judge

This 16th day of June, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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