South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Mitchell H. Bailey, Mickey's Silver Bullet

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Mitchell H. Bailey, Mickey's Silver Bullet
 
DOCKET NUMBER:
95-ALJ-17-0373-CC

APPEARANCES:
For the Petitioner: Nicholas P. Sipe, Esquire

For the Respondent: Kenneth E. Allen, Jr., Esquire
 

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


 

 

 

 

Copyright © 2025 South Carolina Administrative Law Court