SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) on the application of Petitioner Latrisse B. Davis for the renewal of her seven day off-premises beer and wine permit for a convenience store located at 2599 Midland Park Road in North Charleston, South Carolina. The South Carolina Department of Revenue (Department) would have granted the permit but for the protests filed concerning the suitability of the proposed location; based on this position, the Department filed a motion asking to be excused from the hearing of this matter. The motion was denied by Order dated April 14, 2004. After timely notice to the parties and the protestants, a hearing was held on June 1, 2004, at the Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the proposed location, the moral character of the applicant’s husband, and upon the applicable law, I find that Petitioner’s application for the renewal of her off-premises beer and wine permit must be denied.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1.On February 6, 2004, Petitioner Latrisse B. Davis submitted an application to the Department for the renewal of the off-premises beer and wine permit for the premises located at 2599 Midland Park Road in North Charleston, South Carolina.

2.Petitioner is over twenty-one years of age, is a legal resident and citizen of the United States, and is a legal resident and citizen of the State of South Carolina. Further, Petitioner resides and maintains her principal place of abode in South Carolina, and did so for at least thirty days prior to making her application for a beer and wine permit.

3.Petitioner is a person of good moral character and has no record of any criminal convictions. Moreover, Petitioner has no record of violating the laws governing the sale of alcoholic beverages, and has not had a beer and wine permit issued to her suspended or revoked.

4.Petitioner currently holds an off-premises beer and wine permit for the convenience store. The location has had a beer and wine permit since 1998, and the Petitioner has held a license for the convenience store at the location since March 2003.

5.The convenience store is situated on Midland Park Road in North Charleston. There is a housing duplex across the street and a childcare facility 265 feet down the road. Ms. Jerome, the only Protestant to appear at the hearing, testified that many of the Protestants who did not appear are elderly and in ill health. She noted that there is a mobile home park behind the location, as well as two apartment complexes. She is concerned about the amount of trash in the area.

6.At the hearing, following the Petitioner’s testimony, the Petitioner’s husband, Tilal Abdelrahim was called to testify. Mr. Abdelrahim testified that he was employed as a manager at the store and assisted his wife with the day to day operations of the business. The Petitioner’s counsel referred several times to the “owners” of the business. In addition, the Petitioner submitted a letter from the landlord of the property which refers to “the business that Mr. Rahim [sic] is conducting at this location is a “TRUE ASSET” [sic] to the community.” Furthermore, on cross examination by the Department, Mr. Abdelrahim testified that he did not have a criminal record.

7.Based on this testimony, and the fact that the Petitioner had not listed Mr.

Abdelrahim on the renewal application, the Department requested that the record be held open to give the Department time to conduct a SLED check on Mr. Abdelrahim. Mr. Houston, as counsel to the Petitioner, did not object and indicated to Mr. Abdelrahim to provide the Department with his identification to assist in the investigation.

8.On June 7, 2004, the Department submitted a letter to the Court, copied to the

Petitioner’s counsel, indicating that based on Mr. Abdelrahim’s criminal record as reported by the North Charleston Police Department, the Department now opposed the issuance of the permit to the Petitioner. The Department cited S.C. Code Ann. § 61-2-100 (D) (Supp. 2003) which provides “[t]he department may not issue a license or permit . . . to any person unless the person and all principals are of good moral character, ” and S.C. Code Ann. § 61-4-520 (1) (Supp. 2003) which 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, or servant of the applicant to be employed on the licensed premises are of good moral character.” The report submitted by the Department found the following offenses for Tilal Abdelrahim:

8.Petitioner and her witness primarily attributed the Protestant’s objections to the renewal of the permit to a personal dispute between Petitioner and a friend of the Protestant who wanted to purchase the building prior to the Petitioner’s lease. I find that the convenience store’s permit should not be renewed based on the misrepresentations of the Petitioner on her renewal application and the lack of moral character of Mr. Abdelrahim.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1.Jurisdiction over this case is vested with the Administrative Law Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003).

2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).

3.The weight and credibility assigned to evidence presented at the hearing of a matter

is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990). As noted, Mr. Abdelrahim testified that he did not have a criminal record, and Mrs. Davis did not list Mr. Abdelrahim on her renewal application as someone involved in the day-to day operational management of the location.

4.S.C. Code Ann. § 61-4-520 (Supp. 2003) establishes the criteria for the issuance of a beer and wine permit. Among these criteria is the requirement that the holder of the permit be of good moral character. Specifically, this Section provides that “[n]o permit authorizing the sale of beer or wine may be issued unless: (1) [t]he 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.” S.C. Code Ann. § 61-4-520(1) (Supp. 2003).

5.In addition, S.C. Code Ann. § 61-2-100 (Supp. 2003) lays out the general requirements that all applicants for permits and licenses to sell alcoholic beverages must satisfy. Included in these requirements is the proviso that “[t]he department may not issue a license or permit under [Title 61] to any person unless the person and all principals are of good moral character.” S.C. Code Ann. § 61-2-100(D) (Supp. 2003).

6.In South Carolina, there is no single criterion by which to determine whether or not one is possessed of good moral character so as to satisfy the alcoholic beverage licensing laws. See 1969 Op. S.C. Att’y Gen. No. 2709. Generally, however, to have good moral character one must possess all of the elements essential to make up that character, including common honesty and veracity and simple adherence to the law. Id.; see also Zemour, Inc. v. State Div. of Beverage, 347 So. 2d 1102, 1105 (Fla. Dist. Ct. App. 1977) (defining “good moral character” for the purposes of a liquor licensing statute as “not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence”); Lowe v. Herrick, 223 P.2d 745, 747 (Kan. 1950) (noting that, with regard to a retail liquor license application, “[w]hat constitutes good moral character is not easy to determine or define, but upon general principles one who does that which is forbidden and penalized by the law of the land does not possess the character and fitness required by the statute”); Emery v. City of New Orleans through Rochon, 473 So. 2d 877, 880 (La. Ct. App. 1985) (stating, in a liquor licensing matter, that the term “good moral character” is “widely accepted and understood as a concise and meaningful description of an attribute of a desirable citizen”).

7.Further, while good moral character cannot be simply and narrowly defined, certain specific traits have been identified as indicating a lack of good moral character. See 1989 Op. S.C. Att’y Gen. No. 89-89. In particular, courts have found that acts of moral turpitude are antithetical to what is considered good moral character, and have therefore concluded that the commission of such acts of moral turpitude implies the absence of good moral character. Id.

8.South Carolina courts have defined moral turpitude as “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, 271 S.C. 413, 414, 248 S.E.2d 263, 263 (1978). Further, “[a]n act in which fraud is an ingredient involves moral turpitude.” Id. In determining whether a crime is one involving moral turpitude, courts focus primarily on the duty to society and fellow man that is breached by the commission of the crime. Alex Sanders et al., Trial Handbook for South Carolina Lawyers § 13:13, at 484 (2000). Mr. Abdelrahim’s conviction for a fraudulent check charge in 2001 would be a crime of moral turpitude.

9.In the case at hand, I find that Petitioner’s permit application must be denied because Mr. Abdelrahim, as evidenced by his criminal record, has not demonstrated the good moral character required of a beer and wine permittee under the alcoholic beverage licensing statutes.

12.In addition to the criminal record of Mr. Abdelrahim, the failure of the applicants to provide truthful information about Mr. Abdelrahim’s convictions on the permit application, or even to include Mr. Abdelrahim, is a sufficient ground, in itself, for the denial of the requested permit. S.C. Code Ann. § 61-4-540 (Supp. 2003) provides that “[a] misstatement or concealment of fact in an application is a sufficient ground for the revocation of the permit.” Inherent in this power to revoke a beer and wine permit because of false information provided in the permit application is the power to deny a permit application on that same ground. Here, Mr. Abdelrahim was not mentioned on the initial permit renewal application. This “concealment of fact” in the application is a ground for the denial of the requested permit. Furthermore, this failure to provide truthful information in the permit application is, itself, evidence of a lack of good moral character on the part of the Petitioner, and provides another ground for the denial of the permit. See, e.g., Duren, Inc. v. City of Lakewood, 709 P.2d 74 (Colo. Ct. App. 1985) (holding that renewal of an alcoholic beverage license was properly denied on the ground that the applicant was not of good moral character where the applicant had made false statements and had misrepresented its ownership on previous applications); 7455, Inc. v. Or. Liquor Control Comm’n, 800 P.2d 781 (Or. 1990) (upholding the denial of a renewal of a liquor license on the ground that the applicant was not of good moral character where the applicant made material false and misleading statements to state officials and in its applications); see also Gentile v. Dep’t of Prof’l Registration, Bd. of Med. Exam’rs, 448 So. 2d 1087, 1090 (Fla. Dist. Ct. App. 1984) (noting, in a medical licensing matter, that “[o]bviously, making false or misleading statements on his application is relevant to whether [the applicant] is of good moral character”).

13.As the trier of fact, the issuance or denial of a permit rests within the sound discretion of this tribunal. Inherent in the power to issue a permit or license is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the permit in the instant case is compelled because of the lack of good moral character on the part of the applicants, as evidenced by Mr. Abdelrahim’s criminal record, and the failure of the applicants to provide truthful information on their permit renewal application.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that Petitioner’s application for the renewal of her off-premises beer and wine permit for the premises located at 2599 Midland Park Road in North Charleston, South Carolina, is DENIED.

AND IT IS SO ORDERED.

______________________________

Carolyn C. Matthews,

Administrative Law Judge

July 8, 2004

Columbia, South Carolina