ORDERS:
ORDER
STATEMENT OF THE CASE
On August 10, 2006, this Court issued an oral Order summarily
suspending the beer and wine permit and restaurant liquor by the drink license
of Club Rio, Inc., d/b/a Club Rio (Respondent), pursuant to S.C. Code Ann. §
1-23-370(c) (2005). A written Order was issued the following day setting forth
the reasons for the summary suspension of Respondent’s permit and license.
Afterwards, Respondent sold beer, wine and/or liquor at Club Rio on August 11
and 12, 2006. The South Carolina Department of Revenue then moved this Court
for a Rule to Show Cause hearing as to why Respondent and/or it’s attorney should
not be held in contempt.
FACTUAL
BACKGROUND
On Friday, August 11,
2006, after receiving my Order temporarily suspending Respondent’s beer and
wine permit and liquor by the drink license, John Mobley, attorney for the
Respondent, filed a motion for a Temporary Restraining Order (TRO) in the Court
of Common Pleas. In an effort to have the motion immediately heard that
afternoon, Mr. Mobley spoke with the law clerk for the Fifth Circuit Chief
Administrative Judge who informed him that the Judge was not in his office and
he did not know if, or when, he would be returning that day. Mr. Mobley then
attempted to contact another resident judge, but her law clerk stated that she
would probably not be returning that afternoon.
After his unsuccessful
attempts at reaching either of the Richland County Judges in their chambers,
Mr. Mobley retained Todd Rutherford as co-counsel to assist him in obtaining a
TRO. Mr. Rutherford then contacted a resident circuit court judge at her home
at 5:45 p.m. on Friday afternoon. He later met with her at her home and
obtained a signature on the TRO at approximately 6:30 p.m. All of the above
actions were done with no valid attempt by Mr. Mobley to contact anyone at
Petitioner’s office until after the TRO was issued.
Once the TRO was
issued, Mr. Mobley contacted the owner’s of Club Rio and informed them that
they could serve alcohol that night. At some point, Mr. Mobley also attempted
to call Dana Krajack, attorney for the Department of Revenue, at his office,
but spoke with no one and left no message. He then contacted Captain Dodson of
the Columbia Police Department to inform him that the TRO had been issued and
that Club Rio was planning to open at 10:00 p.m. on Friday night. Captain
Dodson asked whether Mr. Mobley had spoken with Dana Krajack and Mr. Mobley
responded that he had not. Captain Dodson then requested that a copy of the
TRO be sent over to the Police Department. Following his conversation with
Captain Dodson, Mr. Mobley contacted Captain Michael Johnson of the Columbia
Police Department, who also requested a copy of the TRO be sent to his
attention at the Police Department.
Lastly, Mr. Mobley
spoke with John Meadors, Assistant Solicitor to the Fifth Judicial Circuit, who
informed him, well before Club Rio opened that night, that he believed there
was a July change in the statutes in which the appellate jurisdiction of cases
appealed from the Administrative Law Court no longer rested with the Circuit
Court. Mr. Mobley did not take any further action to determine whether or not
this claim was true, but rather relied upon the version of S.C. Code Ann §
1-23-380 (A) he had found upon the “South Carolina Bar Casemaker Library.”
Respondent subsequently
sold beer, wine and/or liquor at Club Rio on August 11 and 12, 2006.
ANALYSIS/LAW
Generally, S.C. Code
Ann. §1-23-630 (Supp. 2005) grants Administrative Law Judges the same power in
chambers or in an open hearing as circuit court judges, along with the power to
issue those remedial writs as are necessary to give effect to its
jurisdiction. “The power to punish for contempt is inherent in all courts; its
existence is essential to the preservation of order in judicial proceedings,
and to the enforcement of the judgments, orders, and writs of the courts, and
consequently to the due administration of justice.” Ex Parte Robinson, 86 U.S. 505, 510 (1873). See also State v. Bevilacqua, 316 S.C. 122,
128, 447 S.E.2d 213, 216 (Ct. App. 1994) (“Courts have no more important
function to perform in the administration of justice than to ensure their
orders are obeyed.”). “Nevertheless, contempt is an extreme measure and the
power to adjudge a person in contempt is not to be lightly asserted.” Bevilacqua,
447 S.E.2d at 216.
The Department seeks to
have Respondent and/or its attorney, John Mobley, held in contempt and
sanctioned for violation of this Courts Order. Indeed, “[c]ontempt results
from a willful disobedience of a court order.” Lindsay v. Lindsay, 328
S.C. 329, 345, 491 S.E.2d 583, 592 (Ct. App.1997). An act is willful if “done
voluntarily and intentionally with the specific intent to do something the law
forbids, or with the specific intent to fail to do something the law requires
to be done; that is to say, with bad purpose either to disobey or disregard the
law.” Spartanburg County Dep't of Soc. Serv. v. Padgett, 296 S.C. 79,
82-3, 370 S.E.2d 872, 874 (1988) ((quoting Black's Law Dictionary 1434
(5th ed.1979)).
The primary purpose of
this proceeding is to punish Respondent and/or its attorney for violating the
order of this Court summarily suspending Respondent’s beer and wine permit and
restaurant liquor by the drink license. “Where the primary purpose of the
proceeding is to preserve the court's authority and to punish for disobedience
of its orders, the contempt is generally considered criminal.” Bevilacqua,
447 S.E.2d at 217. Furthermore, the burden of proof for criminal contempt is
beyond a reasonable doubt. Id. Contemptuous conduct is also
classified as either direct contempt or constructive contempt. “Constructive
contempt is contempt that occurs ‘outside the presence of the court.’ In
contrast, direct contempt involves contemptuous conduct occurring in the
presence of the court.” State v. Kennerly, 337 S.C. 617, 619, 524
S.E.2d 837, 838 (1999) (citations omitted). “Charges of constructive contempt
are brought by a rule to show cause which must be based upon an affidavit or
verified petition.” Toyota of Florence, Inc. v. Lynch, 314 S.C.
257, 267, 442 S.E.2d 611, 617 (1994).
In this case, the
Department instituted this proceeding via a rule to show case. However, the
rule to show cause was not verified and did not have an affidavit attached.
Therefore, the only issue for this Court is whether or not the Respondent
and/or its attorney committed direct criminal contempt. A person may be found
guilty of direct contempt if the conduct interferes with judicial proceedings,
exhibits disrespect for the court, or hampers the parties or witnesses. State
v. Havelka, 285 S.C. 388, 389, 330 S.E.2d 288 (1985). Nevertheless, “South Carolina courts have always taken a liberal and expansive view of the ‘presence’ and
‘court’ requirements.” Kennerly, 337 S.C. at 620, 524 S.E.2d at 838. The
“presence of the court” extends beyond the mere physical presence of the judge
or the courtroom to encompass all elements of the system. Id.
Here, Club Rio opened under
the guise court order granting it the authority to serve beer, wine and alcohol.
Therefore, I do not find that Club Rio violated the order of this Court that it
not serve beer, wine or alcohol. Respondent’s attorney, however, is certainly
charged with knowing the laws of this state. S.C. Code Ann. § 1-23-380 (2005)
(as amended by Act 387, effective July 1, 2006) provides that:
A preliminary, procedural, or intermediate agency action or
ruling is immediately reviewable if review of the final agency decision would
not provide an adequate remedy. Except as otherwise provided by law, an appeal
is to the court of appeals.
Though Respondent’s
attorney sought and obtained a court order, he clearly obtained it from a court
that lacked jurisdiction to issue the order. He, nevertheless, contends that
his actions were not willful because he relied upon the “South Carolina Bar
Casemaker Library” (Casemaker). Indeed, the current version of Casemaker does
not have the provision of Section 1-23-380 (A) that “an appeal [of a preliminary
or intermediate order] is to the court of appeals.” Furthermore, Section 380
(A) was recently amended to add that provision to the statute. See Act
387 of 2006. However, of concern in addressing Respondent’s attorney’s
position is that not only is he an attorney, but he was placed on notice of the
potential unreliability of the law upon which he relied before Club Rio began
serving beer, wine and/or alcohol. Moreover, the purported stay of this
Court’s order was obtained without notifying the Department of his efforts. Nonetheless,
the evidence does not establish beyond a reasonable doubt that Respondent’s
attorney willfully sought to violate this Court’s Order.
ORDER
Based
upon the above, it is hereby:
ORDERED that the Department’s motion to find Club Rio and/or John Mobley in contempt
is denied.
AND
IT IS SO ORDERED.
_________________________________
Ralph
King Anderson, III
Administrative
Law Judge
August 22, 2006
Columbia, South Carolina
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