ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Court
(ALC) pursuant to S.C. Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2004). Respondent
is alleged to have violated S.C. Ann. Reg. 7-401.4(J) (Supp. 2004) prohibiting
consumption of liquor by others than bona fide members and bona fide guests of
members on the licensed premises. The South Carolina Department of Revenue
(Department) seeks revocation of the Respondent’s minibottle license pursuant
to S.C. Code Ann. § 61-6-1830 (Supp. 2004) and a fine of $500.00. The
Department also seeks revocation of the Respondent’s beer and wine permit,
pursuant to S.C. Code Ann. § 61-2-140(E) (Supp 2004). A hearing was held
before me on June 15, 2005 at the offices of the ALC in Columbia, South Carolina.
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, I make the following
Findings of Fact by a preponderance of the 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, McCoy Fuller Jenkins,
VFW Post 5932, d/b/a VFW Post 5932 (VFW Post 5932), holds a beer and wine
permit for a nonprofit organization and also holds a sale and consumption
license of alcoholic liquors for its establishment located at 220 West Main
Street, Clinton, South Carolina.
3. “Agent T.A. Causey”, referred to in
Petitioner’s Final Determination Letter, is a typographical error. The actual
name of the SLED agent involved in this case is Agent Casey.
4. The Respondent contends
that this tribunal has the discretion to impose a monetary penalty in lieu of
revocation if it finds that the evidence supports that determination.
5. The Department contends that a
minibottle license must be revoked upon conviction of a third offense within
three years. The Department has the authority to suspend or revoke a minibottle
license for any violation of the regulations or statutes of the ABC Act
pursuant to S.C. Code Ann. Section 61-6-1830. The Department also argues that
the Respondent’s beer and wine permit must also be revoked in accord with S.C.
Code Ann. § 61-2-140(E) (Supp 2004). Finally, the Department seeks a $500.00
fine against the Respondent for this third violation.
Stipulation of Facts
6. The stipulations by the parties
stated on the record, once distilled, amount to an agreement that the violation
(sale to a nonmember) occurred. However, the parties disagree on exactly how
it occurred.
Mitigating Evidence
7. VFW Post 5932 has two previous
violations of S.C. Ann. Reg. 7-401.4(J) (Supp. 2004) (or its predecessor S.C.
Code Ann. Reg. 7-17(J)) regulating its sale and consumption license as a
nonprofit organization within three years of November 10, 2004, to wit on
November 10, 2001 and April 25, 2004. Both of those violations were for permitting
consumption of liquor by a person who is neither a bona fide member or a bona
fide guest of a member. Respondent points out that when the third violation
within three years occurred, the three year period would have expired less than
two weeks later.
8. The doorman at the licensed premises
refused to admit three persons who were in line in front of Agent Casey.
Hence, the Court infers that the licensee/respondent does attempt to exercise
some control over admissions to the licensed premises.
9. VFW Post 5932 staff members have gone
through Training for Intervention Procedures (T.I.P.S.) in Florence, South Carolina. VFW Post 5932 also plans to implement a logbook to ensure only members and
guests of members are allowed to enter the establishment.
10. Members of VFW Post 5932 are veterans
of U.S. Military Service in certain foreign countries.
11. Respondent admitted the violation by
its Stipulation, thus saving time for the Court and the litigants and saving
money for the taxpayers of this state.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I
conclude the following as a matter of law:
1. The Department is vested with the
authority to administer the provisions of Title 61 governing alcoholic
beverages, beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 2004).
S.C. Code Ann. § 1-23-600 (1986
& Supp. 2004) grants jurisdiction to the Division to hear contested cases
under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260
(Supp. 2004) grants the ALC the authority to hear contested case hearings in
matters governing alcoholic beverages, beer and wine.
2. Permits and licenses issued by this
State for the sale of liquor, beer and wine are privileges to be used and
enjoyed only so long as the holder complies with the restrictions and
conditions governing them. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49,
26 S.E. 2d 22 (1943).
3. VFW Post 5932 holds a sale and
consumption license as a “nonprofit organization.”
S.C. Code Ann § 61-6-20 (6) (Supp.
2004) provides that a “nonprofit organization” is “an organization not open to
the general public, but with a limited membership and established for social,
benevolent, patriotic, recreational, or fraternal purposes.” Nonprofit
organizations which are licensed by the Department under this article may sell
alcoholic liquors in minibottles. S.C. Code Ann § 61-6-1600 (Supp. 2004). Only
“bona fide members” or “bona fide guests of members of [nonprofit]
organizations 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).
Here, the Respondent allowed Agent Casey,
who was neither a “bona fide member” nor a “bona fide guest of a member,” to
consume an alcoholic beverage upon its premises in violation of Regulation
7-401.4(J).
4. The primary rule of
statutory construction is to ascertain and give effect to the legislature's
intent. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975). In
ascertaining the legislature's intent, statutes that are part of the same act
must be read together. Burns v. State Farm Mut. Auto Ins. Co., 297 S.C.
520, 377 S.E.2d 569 (1989). Furthermore, “[e]ach part of a statute should be
given effect and each word given its plain meaning if this can be accomplished
by any reasonable construction.” Sea Island Scenic Parkway Coalition
v. Beaufort County Bd. of Adjustments and Appeals, 316 S.C. 231, 236, 449
S.E. 2d 254, 257 (Ct. App. 1994). Moreover, this tribunal must reconcile
conflicts if possible and is obligated to avoid a construction that would read
a provision out of a statute. Steinke v. S.C. Dep’t of Labor, Licensing and
Regulation, 336 S.C. 373, 520 S.E.2d 142 (1999); see also S.C. Code Ann. §
61-6-4000 (Supp. 2004) (providing that Article 13 of Title 61, which includes §
61-6-4270, is complementary to and not in conflict with existing laws governing
the sale of “beer, wines, and other vinous, fermented, or malt liquors”).
5. S.C. Code Ann. §
61-6-4270 (Supp. 2004) sets forth:
For violations of Articles 3, 5, 7, and 13 of this chapter,
or of Chapter 21 or 33 of Title 12, and for a violation of any regulation
pertaining to alcoholic liquors, the department may, in its discretion,
impose a monetary penalty upon the holder of a liquor license in lieu of
suspension or revocation. (Emphasis added). Articles 3, 5, 7, and 13 include
sections 61-6-10 through 61-6-4700 and thus include the statutes operative
here.
The most reasonable construction
which gives effect to 61-6-4270 is that this tribunal has discretion to impose
a monetary penalty, whenever the provisions of Articles 3, 5, 7, and 13 of
Title 61 set forth that the Department may revoke or suspend a license or
permit held under those provisions.
The Respondent violated 23 S.C.
Code Ann. Regs. 7-401.4 (J) (Supp. 2004). Section 61-6-4270 specifically
provides that a monetary penalty may be imposed in lieu of revocation for a
violation of the Department’s regulations. Therefore, I find that the
Department and consequently the ALC possesses the discretion to impose a
monetary penalty in lieu of revocation for a violation of Regulation 7-401.4
(J) by an Article 5 licensee.
Sanction
6. The Administrative Law Court, as the
trier of fact in contested cases under the Administrative Procedures Act, has
the authority to establish the facts supporting the imposition of a penalty for
a violation. Inherent in and fundamental to the quasi-judicial powers of an
Administrative Law Judge is the authority to decide the appropriate sanction
when such is disputed. Walker v. S.C. ABC Comm’n, 305 S.C. 209, 407 S.E.
2d 633 (1991). To that end, the Administrative Law Judge must consider relevant
evidence presented in mitigation. Mitigation is defined as a lessening to any
extent, great or small. It may be anything between the limits of complete
remission on the one hand and a denial of any relief on the other. In a legal
sense, it necessarily implies the exercise of the judgment of the court as to
what is proper under the facts of the particular case. 58 C.J.S. Mitigation p.
834-835 (1948). A legitimate as well as a significant consideration is whether
the alleged mitigating factor demonstrates reasonable cause to reduce the penalty.
Kroger Co. v. Dep’t of Revenue, 673 N.E. 2d 710 (Ill. 1996).
I find that consideration of the mitigating
evidence is justified in determining the appropriate sanction for the Respondent’s
violation of Regulation 7-401.4(J). In this case I find that a $1000.00 fine
is the appropriate penalty for this violation of Regulation
7-401.4 (J). However, I strongly caution the Petitioner
that further violations may result in permanent revocation.
ORDER
Based upon the foregoing Findings of Fact and
Conclusions of Law, IT IS HEREBY ORDERED that Respondent pay a fine of
one thousand dollars ($1000.00) to the South Carolina State Treasurer for
public school use (see S.C. Code Ann. § 61-6-4270 (Supp. 2004)) by delivery to
the Department within thirty (30) days of the date hereof.
AND IT IS SO ORDERED.
___________________________
John D. McLeod
Administrative Law Judge
June 21, 2005
Columbia, South Carolina |
