ORDERS:
ORDER AND DECISION
p> This matter is before the Administrative Law Judge Division
(Division) pursuant to an administrative violation written against
the sale and consumption license and the beer and wine license of
Lewis C. Dunn d/b/a Newberry's for the failure to maintain an
"Class A" restaurant rating in violation of S.C. Code of Laws §
61-5-25 and for a violation of Alcoholic Beverage Control
Commission (Commission) Regulation 7-9(B) for permitting a person
under the age of twenty-one to purchase beer. Both violations
allegedly occurred on October 14, 1993.
Notice of the hearing was served upon all parties of interest.
The hearing was conducted before the Division on May 10, 1994. The
respondent failed to appear at the hearing. Based upon the
evidence presented, I make the following:
FINDINGS OF FACT
1. Lewis C. Dunn holds a beer and wine license and a sale
and consumption license for Newberry's, a bar on Newberry Street in
Aiken, South Carolina.
2. On October 14, 1993, Christopher Meetze, an underage
individual cooperating with the Alcohol Enforcement Unit of the
State Law Enforcement Division walked into Newberry's and ordered
a Budweiser Light beer from the bartender. He did not offer any
identification.
3. The bartender did not request any identification and gave
Meetze a beer. Meetze collected a sample of the beer for the
Alcohol Enforcement Officer.
4. Although no chemical analysis was presented on the sample
to verify its alcohol content, Meetze is a credible witness.
5. Meetze was born on December 12, 1973 and was nineteen
years old at the time he purchased the beer at Newberry's.
6. Agent Brian Mazyck had previously issued a warning to
respondent for the "Class B" restaurant license from the Department
of Health and Environmental Control (DHEC) and informed respondent
that DHEC needed to reinspect the facility.
7. On October 14, 1993, Newberry's still had a "Class B"
restaurant rating from the DHEC affixed to the door of the
establishment.
CONCLUSIONS OF LAW
1. Section 1-23-600 grants jurisdiction to the Division to
hear contested cases under the Administrative Procedures Act. S.C.
Code of Laws § 1-23-600 (Supp. 1993).
2. S.C. Code of Laws § 61-1-55 (Supp. 1993) grants to the
Division the powers, duties and responsibilities as a hearing
officer in protested and contested matters governing alcoholic
beverages, beer, and wine.
3. The "Government Restructuring Act of 1993" provides that
all regulations promulgated by the Commission effective on the date
of the act remain in force until modified or rescinded by the
Department or the State Law Enforcement Division. 1993 Act No. 181
§1604.
4. Commission Regulation 7-9(B) states it is a violation
against a license to "permit or knowingly allow a person under
twenty-one years of age to purchase ... beer ... in or
on a licensed establishment ...."
5. Section 61-5-25 of the S.C. Code provides that a holder
of a permit to sell beer or wine or any employee of the permittee
shall not knowingly sell beer or wine to a person under twenty-one
years of age. A violation of this section is a ground for the
revocation or suspension of the holder's permit. S.C. Code of Laws
§ 61-9-410 (Supp. 1993).
6. The evidence is sufficient to support the inference that
the employee knew that Meetze was under the age of twenty-one by
failing to request identification to verify his age.
7. Section 61-5-25 of the S.C. Code states that is does not
permit a "Class B Restaurant to sell, dispense, barter or trade in
minibottles in any form or fashion. The existing law controlling
Class B Restaurants in reference to the sale or dispensing of
alcoholic beverages shall not be affected." S.C. Code of Laws §
61-5-25 (Supp. 1993).
8. Only a business that is "bona fide engaged primarily and
substantially in the preparation and serving of meals" is permitted
to sell alcoholic beverages for on premises consumption. S.C. Code
of Laws § 61-5-20 (Supp. 1993). "Bona fide engaged primarily and
substantially in the preparation and serving of meals" refers to a
business issued a Class A restaurant license. S.C. Code of Laws §
61-5-10 (Supp. 1993).
9. Respondent failed to maintain a "Class A" license from
DHEC and is prohibited by law from selling or dispensing
minibottles and other alcoholic beverages.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of
Law, it is:
ORDERED that the respondent pay a fine in the amount of $200
to the Department within ten (10) days from the date of this Order
for the failure to maintain a "Class A" license from DHEC. If this
amount is not received by the Department within the time allowed,
it is Ordered that the sale and consumption license be suspended
for a period of ten (10) days; the Department shall take possession
of the license as provided by law.
It is FURTHER ORDERED that the respondent pay a fine in the
amount of $400 to the Department within ten (10) days from the date
of this Order for permitting the purchase of beer by a person under
the age of twenty-one. If this amount is not received by the
Department within the time allowed, it is Ordered that the beer and
wine permit be suspended for a period of fifteen (15) days; the
Department shall take possession of the permit as provided by law.
IT IS SO ORDERED.
___________________________
ALISON RENEE LEE
Administrative Law Judge
June __, 1994
Columbia, South Carolina |
