ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and S.C. Code Ann.
§§ 1-23-310 et seq. (Rev. 1986 and Supp. 2000). The South Carolina Department of Revenue
(Department) seeks to impose a $400 penalty on Respondent for an alleged violation of S.C. Code Ann.
§ 61-4-580(6) (Supp. 2000) by possessing alcoholic liquors on its premises. Accordingly, the
Department seeks to impose a $400 fine against Respondent for this first violation of 23 S.C. Code
Ann. Regs. 7-9(B) (Supp. 2000).
After timely notice to the parties, a hearing was conducted on May 2, 2001, at the Administrative Law
Judge Division (ALJD or Division), Columbia, South Carolina. Based upon testimony and the evidence
presented, the Department's request to fine Respondent $400 for violating 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) is granted. Upon review of the evidence and testimony presented, this tribunal
concludes that the preponderance of the evidence supports the imposition of a $400 fine upon
Respondent.
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. Respondent holds an on-premises beer and wine permit but does not hold a license allowing the
possession or consumption of liquor on the premises.
2. On November 12, 2000, at approximately 12:40 a.m., South Carolina Law Enforcement Division
(SLED) Agent Cresswell conducted an unannounced inspection of Respondent's premises. He
discovered two partially full 1.75 liter bottles of liquor on a table in the bar area of the premises.
3. Mr. Randolph, manager of Café 301, contends that the event was a private party. In support, he
submitted into evidence a copy of the flyer advertising the event on the night in question. Female
dancers were presented as entertainment; they worked solely for tips from the patrons and were not paid
by Café 301. The advertising flyer states, "Dress Code Strictly Enforced," "Adult Only 21 and Over,"
"doors open at 9pm," and "Free Drinks." The flyer does not indicate that admission is by invitation
only. The only indication of who sponsored the event is "The Original Hot Spot presents . . ." at the top
of the flyer, and the location "Café 301 Cave Club Located on 301 South, Allendale, SC," in the lower
right corner. See Respondent's Exhibit 1.
4. Respondent gave away drinks (liquor) to the patrons.
5. Further, Mr. Randolph contends that, based on telephone conversations with multiple unidentified
Department employees and the Allendale County Sheriff's Department, he was led to believe that the
possession of liquor on the premises for a private party was legally acceptable and would not constitute
a violation of Café 301's beer and wine permit.
6. The record does not support the conclusion that the event on the night in question was private.
Rather, the evidence indicates that the event was open to the general public and presented by
Respondent. See Respondent's Exhibit 1.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law.
In the present case, the Respondent is permitted to sell beer and wine on its premises. Respondent,
however, is not authorized to possess liquor on its premises. Under S.C. Code Ann. § 61-4-580(6)
(Supp. 2000), the Respondent, as a holder of a beer and wine permit, is not authorized to possess liquor
on its premises without a liquor license. To possess means "to have the actual dominion, control, care
and management of the liquor." 48 C.J.S. Intoxicating Liquors §266 at 783 (1981). Here, Respondent
does not deny that it authorized the distribution of alcoholic liquors and gave free drinks to the patrons.
Rather, it contends that it relied on purported authorization from the Department that providing liquor to
individuals at a private party held at its location was legally proper.
This tribunal does not find credible evidence in the record to support Respondent's assertion that the
events held at the premises constituted a private party. Nonetheless, even if the party was a private
affair and was not open to the general public, nothing in the law authorizes Respondent to possess
liquor on its premises.
Respondent's manager, Bill Randolph, alleges that, in response to his inquiries, employees of the
Department informed him that he was permitted to possess liquor on the premises if the event was a
private party. The record does not reveal to whom Mr. Randolph spoke at the Department.
Nevertheless, even if he had a record of this information, it would be of no consequence. It is a long-established principal of law that a state agency cannot be estopped from the legitimate exercise of its
police power because of unauthorized or erroneous statements of its agent that has been relied on by a
third party to his detriment. See S.C. Coastal Council v. Vogel, 292 S.C. 449, 357 S.E.2d 187 (1987);
Texaco, Inc. v. Wasson, 269 S.C. 255, 237 S.E.2d 75 (1977); Colonial Life & Accident Ins. Co. v. S.C.
Tax Comm'n, 248 S.C. 334, 149 S.E.2d 777 (1966); One Hundred Second Calvary Officers v. Heise,
201 S.C. 68, 21 S.E.2d 400 (1942). Thus, even if someone at the Department gave Respondent
erroneous information regarding the possession of liquor on Respondent's premises, this fact would not
excuse Respondent from complying with the restrictions of S.C. Code Ann. § 61-4-580(6) (Supp.
2000).
The facts are undisputed that Respondent holds a beer and wine permit and that Respondent possessed
liquor on the premises without a liquor license. Consequently, Respondent is subject to a monetary fine
for the violation of S.C. Code Ann. § 61-4-580(6) (Supp. 2000). S.C. Code Ann. § 61-4-250 (Supp.
2000) provides that for a violation of the beer and wine laws, Respondent is subject to a penalty of "not
less than twenty-five dollars nor more than one thousand dollars. . . ." Under S.C. Code Ann. § 61-2-20
(Supp. 2000), the Department is charged with administering the laws governing alcoholic liquors, beer
and wine. The Department's imposition of a $400 monetary penalty on Respondent for a first violation
at this location is proper.
ORDER
THEREFORE, IT IS HEREBY ORDERED that Petitioner's request that Respondent be fined $400
for violating 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) is granted. Respondent shall remit $400 to
the Department within thirty (30) days of the date of this Order to satisfy the fine.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
May 22, 2001
Columbia, South Carolina
1. At the opening of the hearing, Nicolas Sipe, Attorney for the Department, objected to Mr. Bill
Randolph, the manager of Café 301, appearing for Respondent. ALJD Rule 9(A) provides in part: "[a]
partnership, corporation or association may be represented by any member, officer, director or duly
authorized employee." (Emphasis added.) The Department asserts that Café 301 is a sole
proprietorship owned by Patricia Thomas and thus not within the ambit of the above referenced
provision. Nonetheless, no evidence was presented as to the corporate form of Café 301. Further, Mr.
Randolph's presentation of the case as the manager familiar with the day-to-day operations of Café 301
was appropriate and caused no prejudice to the Department. Therefore, this tribunal allowed Mr.
Randolph to proceed in his representation as a duly authorized employee of Café 301. |