ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to a request for a hearing by the Respondent after
being cited for an administrative violation against his sale and consumption license. The South
Carolina Department of Revenue and Taxation (DOR) seeks a permanent revocation of the
Respondent's license for violating 23 S.C. Code and Regs. 7-17 (J) (Supp. 1994). A hearing was held
before the Administrative Law Judge Division in Columbia, South Carolina on May 3, 1995. I find
the Respondent guilty of violating Regulation 7-17 (J) and suspend his sale and consumption license
for ninety (90) days from the service of this Order. I further order that the Respondent pay a $250.00
fine.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. The court has subject matter jurisdiction of this case.
2. The Respondent holds a sale and consumption license for Chat and
Chew, a private non-profit organization at 914 Whitehorse Road,
Greenville, South Carolina.
3. Notice of the time, date, place and subject matter of the Hearing was
given to the Petitioner and the Respondent.
4. The Chat and Chew operates a private, non-profit organization with
a limited membership. That organization holds a sale and
consumption license granted to non-profit organizations pursuant to
S.C. Code Ann. § 61-5-20(3)(Supp. 1994).
5. Sled Agent Alex Underwood entered the Chat and Chew on January
26, 1995. There Agent Underwood ordered and the bartender served
an alcoholic beverage to the Agent.
6. Agent Underwood was neither a member of the organization or
escorted by a guest of the organization.
7. Agent Underwood consumed a portion of the alcoholic beverage and
retained the remaining portion as evidence.
8. The Respondent, John Lewis, d/b/a Chat and Chew, has two previous
violations for permitting consumption of an alcoholic beverage by a
non-member. These violations occurred on September 16, 1993 and
October 14, 1993. The Respondent was fined $200 for each violation.
9. The Respondent violated 23 S.C. Code Ann. Regs. 7-17 (J) (Supp.
1994) by permitting Agent Underwood to consume an alcoholic
beverage at this non-profit organization.
10. The Respondent has taken steps to insure that non-members are not
served alcoholic beverages at the club. The Responent also posted the
names of all members on a wall that is readily visible to the bartender.
He further established a requirement that guests "sign-in" with a club
member before entering.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
1. Section 61-1-55, S.C. Code Ann. (Supp. 1993) grants the
Administrative Law Judge Division the powers, duties and
responsibilities as Hearing Officer in contested matters governing
alcohol beverages, beer and wine.
2. Permits and licenses issued by this state for the sale of liquor, beer and
wine are not property rights. They are, rather, privileges granted in
the exercise of the state's police power to be used and enjoyed only so
long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Judge Division, being the
tribunal authorized to grant the issuance of a license, is likewise
authorized to place restictions on or for cause to revoke or suspend
the license. See, Feldman v. S.C. Tax Commission, 203 S. C. 49, 26
S. E. 2d, 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88
(1976) authorizing the imposition of restrictions to permits, provides:
Any stipulation and/or agreement which is voluntarily
entered into by an applicant in writing for a beer and
wine permit between the applicant and the South
Carolina Alcoholic Beverage Control Commission, if
accepted by the Commission, will be incorporated into
the basic requirements for the enjoyment and privilege
of obtaining and retaining the beer and wine permit
and which shall have the same effect as any and all
laws and any and all other regulations pertaining to
the effective administration of beer and wine
permittees.
In the event that evidence is presented to this
Commission that any part of the stipulation or
agreement is or has been knowingly broken by the
permittee will be a violation against the permit and
shall constitute sufficient grounds to suspend or
revoke said beer and wine permit.
3. The Chat and Chew operates as a non-profit organization with limited
membership pursuant to S.C. CodeAnn. 61-5-20 (3) (Supp. 1994).
Under that statute the organization is not open to the general public
and only the members and guests of the club may consume alcoholic
beverages upon the premises.
4. 23 S.C. Code Reg. 17-7 (J) provides : "Only bonified members and
bonified guests of members of such organizations may consume
alcoholic beverages sold in sealed containers of two ounces or less on
the licensed premieses."
5. Section 61-5-110 S. C. Code Ann. (Supp. 1994) provides penalties
for those who violate the provisions of the Alcohol Beverage Control
Act. Section 61-5-110 (3) provides that a person's license shall be
revoked for three violations within one year. However, since the
Respondent's previous violations occurred within one month under the
facts of this specific case I choose to follow the statutory punishment
for a second violation within three years set forth under 61-5-110 (2).
6. Section 61-5-190 S. C. Code Ann. (Supp. 1994) grants the DOR the
authority to "establish such conditions or restrictions which the
Department in it's discretion deems necessary . . . ."
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the sale and consumption license held by John L. Lewis for Chat and Chew
be suspended for a period of ninety (90) days. Furthermore, that John L. Lewis pay a $250.00 fine
to the South Carolina Department of Revenue and Taxation within sixty (60) days of the service of
this Order. Sled agents shall serve a copy of this Order on the Respondent and take possession of
his license. Upon the service of the ninety-day suspension, the license shall be returned to the
Respondent. The Respondent and his employees are to cease and desist all sales of alcohol during
this suspension.
IT IS FURTHER ORDERED that the Respondent shall sign an Agreement within sixty (60)
days of the receipt of this Order that shall bind him to the following restrictions and conditions:
1. That the name of each and every member of the club shall either be
posted upon the wall or displayed in an area where the bartender can
readily access the names to insure those ordering alcoholic beverages
are members of the club.
2. That all guests of members of the club shall "sign in" upon entering
the club and be accompanied by the member at all times.
3. That every member of the club shall be notified by mail of the above
restrictions and the rules concerning the sale and consumption of
alcohol on the premises of a non-profit organization.
4. That the Respondent prepare and maintain at the location a written
training policy for all staff on the ABC Rules and Regulations and
provide a copy of that training policy to the Department within sixty
(60) days of the service of this Order.
IT IS FURTHER ORDERED that a violation of any one of the above conditions is
considered a violation against the license and may result in a fine, suspension or a revocation.
IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
May 19, 1994
Columbia, South Carolina |