SC Administrative Law Court Decisions

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 ("Department") seeks revocation of the Respondent's license for violating Alcoholic Beverage Control Act. A Hearing was held before the Administrative Law Judge Division in Columbia, South Carolina, on February 19, 1999.

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, 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 and the Respondent.

2. The Respondent, Robert R. Belton, holds an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization for Sports Club of Abbeville, Inc. ("The Club").

3. On March 21, 1998, the Abbeville Police Department received a call requesting that a police officer escort a patron out of the Club and Officer O'Bannon was dispatched to the location. As Officer O'Bannon arrived in the parking area, the front door to the club was closed. Officer O'Bannon went to the front door of the Club and knocked to gain entrance. The doorman delayed opening the door for approximately 30 seconds. When the doorman did open the door, he pushed Officer O'Bannon back as he attempted to enter. Officer O'Bannon thereafter pushed past the doorman and later assisted the patron out of the Club. The doorman was dismissed from employment by the Respondent after this incident.

4. The doorman, Demetrius Evans, was arrested for refusal to permit an inspection pursuant to S.C. Code Ann. § 61-4-230 (Supp. 1998). He was convicted of that offense by a trial in his absence on May 4, 1998. He is or has been incarcerated because of this offense and other unrelated offenses which are more serious in nature.

Based upon the above Findings of Fact, I conclude as a matter of law, the following:

1. S.C. Code Ann. § 61-2-260 (Supp. 1998) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverage, beer and wine permits.

2. S.C. Code Ann.§ 61-4-230 provides that: "[a] person who, upon demand of an officer or agent of the division:

(1) refuses to allow full inspection of the premises or any part of the premises which is licensed to sell beer or wine; or

(2) refuses to allow full inspection of the stocks and invoices of the licensee; or

(3) who prevents or in any hinders an inspection is

guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than sixty days, or both. A person found guilty of a violation of Section 61-6-4190 and this section may not be sentenced under both sections for the same offense." (Supp. 1998). 23 S.C. Code Reg. §7-51 also sets forth:

Any holder of . . . a retail beer license, or . . . a holder of a possession and consumption of alcoholic liquors permit, or any servant of such person, who shall, upon demand of any officer or agent of the Alcoholic Beverage Control Commission or of any peace officer, refuse to allow full inspection of the premises or any part thereof, or who shall hinder or in any wise delay or prevent such inspection, shall be deemed to have violated said license or licenses, and the Alcoholic Beverage Control Commission may suspend or revoke said license or licenses, or may impose a monetary penalty in lieu thereof with respect to licenses pursuant to provisions of law.

(Supp. 1998) (emphasis added).

3. S.C. Code Ann. § 61-4-580(5) provides that "No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder's permit: ...(5) permit any act, the commission of which tends to create a public nuisance or which constitutes a crime under the laws of this State...." (Supp. 1998).

4. S.C. Code Ann. § 61-6-1830 (Supp. 1998) provides that "[t]he department may suspend, revoke, or refuse to renew a license issued pursuant to subarticle 1 of this article upon finding that:

(1) the applicant no longer meets the requirements of Section 61-6-1820; or

(2) the applicant has violated since the issuance of the license any regulation; or

(3) the applicant has violated since the issuance of the license any provision of the ABC Act . . . ."

5. S.C. Code Ann.§ 61-6-4090 provides that if a "servant, agent, or employee of the permittee or licensee pleads guilty or nolo contendere to, or is convicted of a criminal offense which occurred on the licensed premises, the conviction or plea constitutes proof that the offense occurred and the record thereof is admissible in a contested case hearing before the administrative law judge

division." (Supp. 1998). This section establishes that the criminal conviction of an offense is admissible as proof of the commission of an offense in the administrative hearing. However, the fact that the evidence is admitted does not mean that the evidence is absolute proof. In this instance, Mr. Evans was found guilty in his absence of hindering an permit inspection. Though his conviction is evidence that the offense occurred, the conviction is not conclusive evidence that Mr. Evans hindered an inspection of the licensed premises.

6. Black's dictionary defines "inspection" as "[t]o examine; scrutinize; investigate;...or view for the purpose of ascertaining the quality, authenticity or conditions of an item, product...business, etc. Word has broader meaning that just looking, and means to examine carefully or critically, investigate and test officially, especially a critical investigation or scrutiny." Black's Law Dictionary 797 (6th ed. 1990) (emphasis added). In this case, Officer O'Bannon entered the Petitioner's premise not to ascertain whether any violation of the Alcoholic Beverage Control Act was occurring, but rather to simply escort an individual out of the Club. Therefore, I do not find that an inspection took place at the Club on March 21, 1998, pursuant to S.C. Code Ann.§ 61-4-230 and 23 S.C. Code Reg. 7-51.

Even if the actions of Officer O'Bannon amount to an inspection for purposes of triggering S.C. Code Ann.§ 61-4-230 and 23 S.C. Code Reg. § 7-51, Officer O'Bannon is not statutorily authorized to conduct such an inspection. S.C. Code Ann. § 61-2-20 states, "[t]he functions, duties and powers set forth in this title are vested in the department and the division. The department must administer the provisions of this title, and the division must enforce the provisions of this title." (Supp. 1998). Section 61-2-10(A) defines "Department" as the South Carolina Department of Revenue and "Division" as the South Carolina Law Enforcement Division. (Supp. 1998). Therefore, as a member of the Abbeville Police Department and not the South Carolina Law Enforcement Division, Officer O'Bannon was not authorized to conduct an inspection of the Club under the Alcoholic Beverage Control Act.

7. Since, Officer O'Bannon did not conduct an inspection of the Club, the Respondent

failed to show a violation of S.C. Code Ann.§ 61-4-230 or 23 S.C. Code Reg. § 7-51.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ORDERED

that this case be dismissed.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

March 16, 1999

Columbia, South Carolina