ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes before the Administrative Law Court (ALC or
Court) pursuant to S.C. Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2004). The
South Carolina Department of Revenue (Department) seeks a forty-five (45) day
suspension of Respondent’s beer and wine permit for its third administrative
violation involving the sale of beer or wine within the past three (3) years.
A hearing was held before me on March 15, 2006, at the offices of the Administrative Law Court in Columbia, South Carolina.
STIPULATIONS
OF FACT
At the hearing into this matter and pursuant to ALC Rule 25(C), the parties
entered the following written stipulations of fact into the Record:
1. Rio Grande, LLC d/b/a Las Palmas Restaurante Mexicano (“Rio Grande”) is the holder of an
on-premise beer and wine permit and restaurant mini-bottle license, for the
location at 1975 B-C Magwood Drive, in or near the town of Charleston, South Carolina.
2. On Sunday,
December 19, 2004, at approximately 11:50 a.m., Charleston City Vice Officer
Randy McBrayer entered Rio Grande in an undercover capacity and purchased on
12-oz. bottle of Coors Light beer from a waitress, employed by the Respondent,
for $2.70 in city issued funds.
3. The name of
the waitress that sold and delivered the beer to Officer McBrayer was Lornea
Pachuca and was an employee and/or agent of Rio Grande.
4. Rio Grande did not possess a valid Sunday License or Local Option Permit “LOP” that would
permit Rio Grande to sell beer on Sunday.
5. That the
foregoing constitutes a violation against the laws of the State of South Carolina, to wit: Sale of Beer during Restricted Hours (23 S.C. Code Ann. Reg. §
7-702.1).
6. Charleston
Vice Officer McBrayer issued a summons ticket #19583CW to Lorena Pachuca
charging her with the criminal offense of “Sale of Beer during Restricted
Hours”, in violation of S.C. Code § 61-4-120.
7. Lorena
Pachuca was determined to be guilty, on January 24, 2005, of the criminal
offense charged, to wit: “Sale of Beer during Restricted Hours”, in violation
of S.C. Code § 61-4-120.
8. Charleston
Vice Officer McBrayer issued summons ticket #19584CW to Jose Fuerte, the
manager of Rio Grande, charging him with the criminal offense of “Sale of Beer
during Restricted Hours”, in violation of S.C. Code § 61-4-120.
9. Jose Fuerte
was determined to be guilty, on January 24, 2005, of the criminal offense
charged, to wit: “Sale of Beer during Restricted Hours”, in violation of S.C.
Code § 61-4-120.
10. The foregoing
administrative violation is the one of three offenses involving the sale of
beer or wine that has been incurred within the past three (3) years. The
following two other offenses occurred during the past three years: “Permitting
the Purchase of Beer by a Person under the age of 21” – on or about December
15, 2004; and, “Permitting the Purchase of Beer by a Person under the age of
21” – on or about January 6, 2005.
11. Rio Grande paid a Five Hundred and no/100 ($500.00) Dollar Fine for the offense committed
on December 15, 2004.
12 Rio Grande paid a One Thousand and no/100 ($1,000.00) Dollar Fine for the offense
committed on January 6, 2005.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and taking into
consideration the burden of persuasion and the credibility of the witnesses, I
make the following findings of fact by a preponderance of evidence:
1. Notice of
the time, date, place and subject matter of the hearing was given to the
Petitioner, Protestant and the Respondent.
2. The
Respondent, Jose Fuerte, is the holder of a beer and wine permit for the
location at Las Palmas Restaurante Mexicano (Las Palmas) in Charleston, South Carolina.
3. Las Palmas has had two prior violations for selling beer to a person under the age of 21 within
a three (3) year time period of the violation in this case.
Mitigating
Evidence
4. Respondent contacted the Department of Revenue to inquire
about renewing his Sunday License. There was some confusion as to which
license Respondent
was inquiring about and he was ultimately told that he would receive notice of when
to renew his license through the mail. While Respondent knew of the impending
expiration of his Sunday License, he believed that he did not have to take any
action until he received notice from the Department of Revenue.
CONCLUSIONS
OF LAW
Based upon the above
Findings of Fact, I conclude the following as a matter of law:
General
Conclusions
1. The
Department is vested with the authority to administer the provisions of Title
61 governing alcoholic beverages, beer and wine. S.C. Code Ann. § 61-2-20
(Supp. 2004). S.C. Code Ann. § 1-23-600 (1986 & Supp. 2004) grants
jurisdiction to the ALC to hear contested cases under the Administrative
Procedures Act. More specifically, S.C. Code Ann. § 61-2-260 (Supp. 2004)
grants the ALC the authority to hear contested case hearings in matters
governing alcoholic beverages, beer and wine.
2. Permits and
licenses issued by this State for the sale of liquor, beer and wine are
privileges to be used and enjoyed only so long as the holder complies with the
restrictions and conditions governing them. See Feldman v.
S.C. Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).
3. S.C. Code
Ann. § 61‑4‑120 (Supp. 2004) provides that:
It is unlawful for a person to sell or offer for sale wine or
beer in this State between the hours of twelve o'clock Saturday night and
sunrise Monday morning. However, an establishment licensed pursuant to Article
5 of Chapter 6 is authorized to sell these products during those hours in which
the sale of alcoholic liquors by the drink is lawful.
In addition, S.C. Code Regs.
7-702.1 (Supp. 2004) further sets forth that:
Any beer or wine sold, offered for sale or delivered to
anyone from any licensed place of business or the removal therefrom of any beer
or wine between the hours of twelve o'clock Saturday night and sunrise Monday
morning is a violation against the beer and wine permit and such permit will be
subject to suspension or revocation, or the South Carolina Department of
Revenue may accept a monetary penalty in lieu of suspension or revocation.
4. The
permittee is responsible for all acts of his servants, agents, or employees and
cannot seek to avoid the consequences of a violation for lack of personal
knowledge. Following that principle, the South Carolina Supreme Court upheld a
civil forfeiture of a corporation’s boat based upon an employee’s transporting
drugs even though the corporation claimed the use of the boat to transport
drugs was without its knowledge. South Carolina Law Enforcement Division v.
The "Michael and Lance,” 281 S.C. 339, 315 S.E. 2d 171 (Ct. App.
1984). The Court held that “[a] principal is affected with constructive
knowledge of all material facts of which its agent receives notice while acting
within the scope of his authority.” Id. at 173, citing Crystal Ice
Co. of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 257 S.E. 2d
496 (1979). Likewise, the license holder is responsible for the actions and
conduct of employees utilizing the permit upon the permitted premises. 48
C.J.S. Intoxicating Liquors § 259 (1981).
5. Where the
General Assembly authorizes a range of alternatives for an administratively
imposed penalty, the administrative fact-finder may set the amount of the
penalty after a hearing on the dispute. Walker v. South Carolina ABC
Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Here, the Department, and
therefore the ALC, has jurisdiction to “revoke or suspend permits authorizing
the sale of beer or wine.” S.C. Code Ann. § 61-4-590 (Supp. 2004). Furthermore,
in lieu of suspension or revocation, a beer and wine permittee may be fined not
less than twenty‑five dollars nor more than one thousand dollars for an
infraction against Title 61, Chapter 4 or “for a violation of any regulation
pertaining to beer or wine and wine.” S.C. Code Ann § 61-4-250 (Supp. 2004).
See also, S.C. Code Regs. 7-702.1. The fine may range from twenty-five dollars
to one thousand dollars for retail beer and wine licensees. Id.
Respondent
clearly violated Section 61‑4‑120. However, though Respondent knew
of the impending expiration of his Sunday License, he mistakenly believed that
the Department of Revenue would send him notice to renew the license. Nevertheless,
Respondent was previously fined One Thousand and no/100 ($1,000.00) Dollars for
its last violation. Therefore, I find that a fine is not an appropriate
penalty in this case.
ORDER
Based
upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that Respondent’s beer and wine permit be suspended for ten (10) days.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative
Law Judge
March 16, 2006
Columbia, South Carolina
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