ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp.
2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq.
(2005) for a contested case hearing. Petitioner South Carolina Department of Revenue
(Department) contends that Respondent Mir, Inc., d/b/a Alley Gator Sports Bar and Grill,
allowed a person who was neither a member nor a bona fide guest of a member of Respondent’s
private club to consume liquor on the licensed premises in violation of 23 S.C. Code Ann. Regs.
7-401.4(J) (Supp. 2004). As this violation would be Respondent’s third violation against its
liquor license in as many years, the Department seeks to revoke Respondent’s private club
minibottle license and on-premises beer and wine permit and to impose a $500 monetary penalty
upon Respondent for the violation. In its defense, Respondent contends that the incident cited by
the Department did not constitute a violation of its liquor license because the non-member who
consumed the liquor in question was properly signed-in as a bona fide guest of a member of
Respondent’s private club at the time of the sale.
After timely notice to the parties, a hearing of this matter was held on April 26, 2005, at
the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the
testimony and evidence presented at the hearing, I find that Respondent did not commit a
violation of its private club minibottle license as alleged by the Department and, thus, should not
be subject to any administrative penalty.
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 Mir, Inc., is a South Carolina non-profit corporation that operates a
private club known as Alley Gator Sports Bar and Grill at 115 Pelham Road in Greenville, South
Carolina. Mir, Inc., holds a private club minibottle license and an on-premises beer and wine
permit for the location in question. Rehan Mir is the owner and president of Mir, Inc.
2.On June 17, 2004, South Carolina Law Enforcement Division (SLED) agents
Bradley Godfrey and Ashley Asbill conducted a sting investigation of Alley Gator Sports Bar
and Grill with the assistance of an underage cooperating individual (UCI). At approximately
10:00 p.m. on the night in question, Agent Godfrey and the UCI entered the Alley Gator club
and approached the bar. As no employee was attending the door at the time they entered, neither
Agent Godfrey nor the UCI had to produce proof of age or of membership in the private club
upon entering the building. At the bar, the UCI ordered an alcoholic beverage from the
bartender on duty, Michelle Mogavero, who requested proof of age from the UCI. The
testimony of the witnesses at the hearing was unclear on whether the UCI produced
identification in response to Ms. Mogavero, but all witnesses agree that no sale of an alcoholic
beverage was made to the UCI and that the UCI left the establishment shortly after the sale was
denied.
3.Subsequently, Agent Godfrey ordered a shot of Jägermeister and a Bud Light
beer. During the transaction, the bartender asked Agent Godfrey for proof of age, which he
provided, and inquired as to whether he was a member of the private club. When Agent Godfrey
indicated that he was not a member of the club, a member of the club who was sitting next to
him at the bar signed Agent Godfrey in as his guest. While the member was not acquainted with
Agent Godfrey prior to the night in question, the two had been engaged in a conversation about
sports before the member signed Agent Godfrey in as his guest. After Agent Godfrey was
signed in, Ms. Mogavero provided him with his drink order, including his shot of liquor, of
which he consumed a small portion and collected the remainder as evidence.
While the witnesses who testified at the hearing concurred in the basic outline of the
transaction between Ms. Mogavero and Agent Godfrey as set forth above, there was conflicting
testimony on several of the details of the transaction. For example, Agent Godfrey testified that
he ordered both his liquor and beer drinks at the same time and that Ms. Mogavero solicited the
member sitting next to him at the bar to sign him in as a guest. Ms. Mogavero, however,
testified that Agent Godfrey ordered the beer and liquor separately, with the beer order occurring
first, and that the member sitting next to Agent Godfrey volunteered to sign him in as a guest
upon learning that he was not a member. Further, while Agent Godfrey could not distinctly
recall whether he was signed in at the bar or at the front of the establishment, both Ms.
Mogavero and Lea Noel, a manager at Alley Gator who witnessed the transaction at issue,
testified that Agent Godfrey accompanied the member who signed him in to the entrance of the
establishment, where he was signed in as a guest at a computer containing membership
information.
In addressing these conflicts in the testimony, I do not question the veracity and integrity
of Agent Godfrey, Ms. Mogavero, or Ms. Noel, as I found them all to be credible and forthright.
Based upon the testimony presented, I find that the preponderance of the evidence suggests that,
regardless of what sequence Agent Godfrey ordered his drinks in or who first suggested that
Agent Godfrey be signed in as a guest of the member at the bar, Agent Godfrey was properly
signed in as a bona fide guest of a member of Respondent’s private club prior to consuming
liquor at Alley Gator. In short, I find it plausible that the member who was engaged in
conversation with Agent Godfrey would, upon learning that he was not a member of the club,
freely sign him in as a bona fide guest and that this signing in would take place at the club’s
membership computer at the entrance to the establishment, under the club’s normal procedures.
4.Upon completing the sale for the liquor and consuming a portion of it, Agent
Godfrey notified Agent Asbill of the transaction. Agent Asbill, who had been waiting outside
the establishment, then entered Alley Gator, whereupon he and Agent Godfrey collected the
evidence of the sale of liquor and issued an administrative citation to Respondent for the alleged
violation. In a Final Agency Determination dated October 7, 2004, the Department found that
Respondent had violated Regulation 7-401.4(J) by serving liquor to Agent Godfrey and that this
violation was Respondent’s third violation of its minibottle license within the past three years.
Accordingly, the Department seeks the imposition of a $500 fine upon Respondent and the
revocation of Respondent’s alcoholic beverage permit and license as a penalty for the violation.
Respondent now challenges that determination before this Court.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.The Department is charged with the responsibility of administering the laws and
regulations governing the manufacture, distribution, and sale of alcoholic beverages in South
Carolina. See S.C. Code Ann. §§ 61-2-20, 61-2-80 (Supp. 2004). The Department’s
responsibilities include the prosecution of administrative violations against alcoholic beverage
licensees. See, e.g., S.C. Code Ann. § 61-6-1830 (Supp. 2004) (authorizing the Department to
suspend, revoke, or refuse to renew a minibottle license where the licensee has violated any
provision of the Alcoholic Beverage Control Act or any regulation promulgated thereto).
2.This Court has jurisdiction over this contested case matter pursuant to S.C. Code
Ann. § 61-2-260 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann.
§§ 1-23-310 et seq. (2005).
3.The weight and credibility assigned to evidence presented at the hearing of a
matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel.
& Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492,
502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as finder of
fact, “has the authority to determine the weight and credibility of the evidence before him”).
Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s
demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v.
Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553,
556, 389 S.E.2d 448, 450 (Ct. App. 1990).
4.A nonprofit private club minibottle license allows a nonprofit organization to sell
alcoholic liquors in minibottles to its members and guests of members, who may consume the
liquor on the licensed premises between the hours of ten o’clock in the morning and two o’clock
the following morning. S.C. Code Ann. § 61-6-1600(A) (Supp. 2004). Accordingly, the
Department’s regulations provide that, when a nonprofit organization operates under such a
license, “[o]nly bona fide members and bona fide guests of members of such organization[] may
consume alcoholic beverages sold in sealed containers of two ounces or less upon the licensed
premises.” 23 S.C. Code Ann. Regs. 7-401.4(J) (Supp. 2004). These “bona fide guests” are
defined by regulation as “those who accompany a member onto the premises or for whom the
member has made prior arrangements with the management of the organization.” 23 S.C. Code
Ann. Regs. 7-401.4(K) (Supp. 2004). The resolution of this case turns upon whether Agent
Godfrey was such a bona fide guest of the member who signed him in to Alley Gator at the time
he consumed the liquor in question. For, if Agent Godfrey was, in fact, a bona fide guest of a
member of Respondent’s private club at the time he consumed his liquor drink, Respondent has
committed no violation of its minibottle license. See S.C. Code Ann. § 61-6-1600(A); 23 S.C.
Code Ann. Regs. 7-401.4(J).
5.The determination of Agent Godfrey’s guest status under Regulation 7-401.4(K)
depends upon two questions, one narrow and technical, the other broader and more general.
First, it must be determined whether Agent Godfrey “accompanied” the member who signed him
in “onto the premises” of Respondent’s private club.
23 S.C. Code Ann. Regs. 7.401.4(K). A
narrow reading of this regulation that requires the member and his guest to step across the
threshold of the establishment together in order for the guest to be “bona fide” would lead to an
absurd result. Under such an overly literal reading, a member and his long-time friend who
arrange to meet at an establishment, but who arrive at and enter the establishment separately,
would be required to exit the premises and re-enter the business in order to establish the friend as
a bona fide guest of the member. Similarly, a member who befriends a person who is not a
member or guest of a member while on the licensed premises would be required to exit the
establishment with that new friend and re-enter the premises with the friend in order to register
that person as his guest. In must be emphasized that nothing in the law precludes a person who
is not a member or a guest of a member of a private club from entering the club’s premises;
rather, such persons are only precluded from consuming the liquor sold by the club. See S.C.
Code Ann. § 61-6-1600; 23 S.C. Code Ann. Regs. 7-401.4. Therefore, to read Regulation 7-401.4(K) as requiring such a person to formally exit and re-enter the premises when a member
desires to sign that person in as his bona fide guest would be to read the regulation as imposing
an absurd and purely symbolic requirement upon members of private clubs and their guests.
Rather, a more natural and rational interpretation of this provision is that the member
must simply be physically present on the licensed premises to “sponsor” his guest in order for
the person to be a “bona fide” guest. Regulation 7-401.4(K) is not aimed at setting forth certain
formalities for how guests must enter a club’s premises, but at ensuring that persons who claim
to be guests of club members are, in fact, bona fide guests of members. Accordingly, Regulation
7-401.4(K) does not require a member and his guest to walk into the premises arm-in-arm in
order to validate the guest’s status, but merely requires that the guest’s status be verified by the
sponsoring member, either by the member accompanying his guest when he signs in as a guest
or by the member making prior arrangements with the club’s management to register his guest.
That is, the regulation precludes a private club from accepting the “word” of an individual that
he is a guest of a member without verification from the member, but allows the club to accept a
person as a bona fide guest if his status is confirmed by the presence or prior notification of a
member, regardless of how he physically enters the club’s premises. In the instant case, Agent
Godfrey was physically accompanied by a valid member of Respondent’s private club on the
licensed premises when he signed in as a guest of that member, whether that signing in took
place at the bar or at the entrance to the establishment.
6.Second, beyond the technicalities of Regulation 7-401.4(K), it must be
remembered that the general aim of the regulation is to determine when a person is a “bona fide
guest” of a member. This language does not require that the member and his guest be
longstanding friends since childhood or even prior acquaintances of several meetings, but rather
only that the member genuinely, sincerely, and without fraud or deceit, intends a person to be his
guest at the club, even if he has only just met the person. See Black’s Law Dictionary 168 (7th
ed. 1999) (defining “bona fide” as meaning “[m]ade in good faith; without fraud or deceit” and
“[s]incere; genuine”). Here, while Agent Godfrey and the member who signed him in were not
previously acquainted with each other, they had become engaged in a conversation about sports,
a pursuit where initial strangers oft times become friends. When the member learned that his
conversation partner was not a member of the club, but wished to order a drink, he agreed to
sponsor Agent Godfrey as his guest. While it is unclear whether he was asked to sponsor Agent
Godfrey or whether he volunteered to sponsor Agent Godfrey without prompting, there is
nothing in the record to suggest that his decision to sign Agent Godfrey in as his guest was
deceitful or fraudulent or that he intended anything other than to register Agent Godfrey as a
genuine guest.
Therefore, I find that, on the night in question, Agent Godfrey was a “bona fide”
guest of the member who signed him into Alley Gator.
7.In the case at hand, at the time he consumed the liquor served by Respondent,
Agent Godfrey was signed in to Respondent’s private club as a bona fide guest of a valid
member of the club who was with Agent Godfrey on the licensed premises. Consequently,
Respondent did not commit a violation of S.C. Code Ann. § 61-6-1600(A) or 23 S.C. Code Ann.
Regs. 7-401.4(J) by allowing Agent Godfrey to purchase and consume a liquor drink.
Respondent should not, therefore, be subject to any administrative penalty in this matter.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that, because Respondent did not commit the violation of
Regulation 7-401.4(J) alleged by the Department, the Department’s request for the imposition of
a $500 fine upon Respondent and the revocation of Respondent’s nonprofit private club
minibottle license and on-premises beer and wine permit is DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
May 31, 2005
Columbia, South Carolina |
