ORDERS:
ORDER
STATEMENT OF CASE
This matter comes before me upon request for a Hearing by the Respondent after being cited
for an administrative violation against his beer and wine permit. The South Carolina Department of
Revenue and Taxation (DOR) seeks a 30-day suspension of the Respondent's permit for violating 23
S.C. Code Ann. Regs. 7-9(B) (Supp. 1994).
A Hearing was held before the Administrative Law Judge Division in Columbia, South
Carolina, on July 21, 1995. I find the Respondent guilty of violating Regulation 7-9(B) and suspend
his beer and wine permit for seven (7) days from the service of this Order.
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 Respondent holds an on-premise beer and wine permit for
Mickey's Silver Bullet, located at 1020 N. Church Street,
Spartanburg, South Carolina.
2. Notice of the time, date, place and subject matter of the Hearing was
given to the Petitioner and the Respondent.
3. The Respondent currently has a "college night" on Mondays when
Spartanburg Methodist College is in session. The Respondent allows
underage individuals into his location after marking their hands with
an "X" to signify them as underage. He also takes possession of
their identifications until the individuals leave his establishment. The
waitresses are instructed not to sell beer or wine to underage persons
and to watch for the consumption of beer or wine by underage
persons. Furthermore, the bouncers are instructed to remove any
underage person found drinking beer or wine on the premise.
4. As a result of advice from Agent Melton Jones, the Respondent
instituted the above system of marking underage persons, having his
employees check for the mark and removing any underage person
found drinking beer or wine . However, Agent Jones emphasized the
importance of the waitresses and bouncers oversight in preventing
underage drinking at the location.
5. South Carolina Law Enforcement Division (SLED) Agent, Aaron
Jackson entered the Respondent's location on March 7, 1995. Agent
Jackson went to the location to discover if any underage individuals
were drinking within Mickey's. Shortly after arriving, he sat down at
a table where he observed Sharon Sample, Jennifer Christian and
Ronnie Jumper, all females under the age of twenty-one (21), drinking
beer. Though Ms. Jumper's hands were both marked with "X's,"
indicating that she was underage, she purchased a pitcher of beer
from a waitress and received an extra cup. Afterwards both she and
her two friends, Ms. Christian and Ms. Sample, drank beer within
open view of Mickey's employees. Ms. Jumper and Ms. Sample pled
guilty to the crime of underage drinking. Ms. Christian entered pre-trial intervention upon that charge.
6. Agent Melton R. Jones, who also entered Mickey's on March 7, 1995,
found Stephen Nathan Stanton, who was eighteen (18) years of age
on that date, in possession of beer. Mr. Stanton had purchased a beer
from a waitress at Mickey's though both his hands were marked with
"X's" indicating he was underage. Mr. Stanton sat in clear view of the
employees of Mickey's with his friends who were also under the age
of twenty-one (21) and who had also purchased beer. All of these
individuals openly drank beer in Mickey's on that night.
7. Since the Respondent has held this permit for Mickey's Silver Bullet,
the business has been caught by SLED on a previous occasion selling
beer/wine to a person under the age of twenty-one(21). This violation
occurred on November 12, 1993. The Respondent received a fine of
Four Hundred ($400.00) Dollars or a 15-day suspension for that
violation.
8. The Department contends that the Petitioner either permitted or
knowingly allowed the Respondent to possess beer in violation of
the Alcoholic Beverage Control Act.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 61-1-55 (Supp. 1994) 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 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)
3. Permitting or knowingly allowing a person under the age of twenty-one (21) to purchase or possess beer upon the license premises is a
violation against a license or a permit. Such a violation constitutes
grounds for either suspension or revocation of the beer and wine
permit. 23 S. C. Code Ann. Regs. 7-9(B) (Supp. 1994).
4. Respondent, Mitchell H. Bailey, d/b/a Mickey's Silver Bullet, is
charged with violating 23 S. C. Code Ann. Regs. 7-9(B) (Supp.
1994), which provides:
To permit or knowingly allow a person under
twenty-one (21) years of age to purchase or
possess or consume beer and wine in or on a
licensed establishment which holds a license or
permit issued by the South Carolina Alcoholic
Beverage Control Commission is prohibited
and constitutes a violation against the license
or permit. Such violation shall be sufficient
cause to suspend or revoke the license or
permit by the Alcoholic Beverage Control
Commission.
5. Black's Law Dictionary defines "permit" as: "(1) To suffer,
allow, consent, let; (2) to give leave or license; (3) to
acquiesce, by failure to prevent, or to expressly assent or
agree to the doing of an act." Black's Law Dictionary 1140
(6th ed. 1990).
6. In the definition of "constructive knowledge," Black's Law
Dictionary provides "if one by exercise of reasonable course
would have known a fact, he is deemed to have had
constructive knowledge of such fact." Black's Law Dictionary
314 (6th ed. 1990).
7. Penal statutes are strictly construed against the state and any
doubt must be resolved in favor of the Respondent. Feldman
v. South Carolina Tax Commission 203 S.C. Code 49, 26 S.E.
2d 22 (1943).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
The on-premise beer and wine permit held by Mitchell H. Bailey for Mickey's Silver Bullet
be suspended for a period of seven (7) days for the offense of permitting the possession of beer by
a person under the age of twenty-one (21) years. SLED agents shall serve a copy of this Order on
the Respondent and take possession of the permit. Upon service of the seven (7) day suspension, the
permit shall be returned to the Respondent. The Respondent and his employees are to cease and
desist all sales of beer and wine at the location during the suspension.
AND IT IS SO ORDERED.
______________________________________
Ralph King Anderson, III
Administrative Law Judge
September 5, 1995
Columbia, South Carolina |