ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C.
Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2002). The South Carolina Department of Revenue
(“Department”) contends that Respondent Blind Horse Saloon, Inc., d/b/a Blind Horse Saloon
(“Respondent”) permitted the sale of an alcoholic liquor drink to an individual that was neither a
member nor a bona fide guest of a member of its private club, in violation of 23 S.C. Code Ann.
Regs. 7-17(J) (Supp. 2002), for the third time in a three-year period. For this violation, Department
seeks revocation of Respondent’s sale and consumption (“minibottle”) license and a $500 penalty.
After timely notice to the parties, a hearing was conducted on August 11, 2003, at the Administrative
Law Judge Division (“ALJD”), Columbia, South Carolina.
STIPULATIONS
At the hearing on this matter, the parties stipulated that a violation of 23 S.C. Code Ann.
Regs. 7-17(J) (Supp. 2002) occurred at the subject location on March 9, 2003. The parties also
stipulated that two previous violations of the same offense have occurred within the past three years.
Finally, the parties stipulated that Administrative Law Judge Ralph King Anderson, III’s Amended
Final Decision and Order in the case of South Carolina Department of Revenue v. Marlboro Stations,
Inc., Docket No. 02-ALJ-0195-CC (Admin. Law Judge Div. June 26, 2003) controls in this matter.
Thus, the only issue before this tribunal is the penalty to be assessed for the instant violation.
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 holds a minibottle license (License No. 32002734-PSC) for its business
located at 1035 Lowndes Hill Road, Greenville, South Carolina.
2.On March 9, 2003, as stipulated by the parties, Respondent permitted the sale of an
alcoholic liquor drink to an individual that was neither a member nor a bona fide guest of a member
of its private club, in violation of 23 S.C. Code Ann. Regs. 7-17(J) (Supp. 2002). This was the third
time in a three-year period that Respondent violated 23 S.C. Code Ann. Regs. 7-17(J) (Supp. 2002).
3.Steve Lacatena, the general manager of the Respondent business, acknowledges that
Respondent has had problems with its door people. Respondent has operated a private club for
approximately eight years, and the only violations of the State’s alcoholic beverage laws it has
committed throughout that time have been violations of 23 S.C. Code Ann. Regs. 7-17(J) (Supp.
2002). Due to the difficulties Respondent has encountered, Respondent wishes to cease operating
as a private club and is in the process of applying to become a public restaurant.
CONCLUSIONS OF LAW
Based upon the above-listed findings of fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260
(Supp. 2002) grants the ALJD the authority to hear contested case hearings in matters governing
alcoholic beverages, beer, and wine.
2.The Department is charged with the responsibility of administering and enforcing the
laws and regulations governing alcoholic beverages. S.C. Code Ann. § 61-2-20 (Supp. 2002).
3.A minibottle license is neither a contract nor a property right. Rather, it is merely a
license to do what otherwise would be unlawful to do, and is to be enjoyed only so long as the
restrictions and conditions governing its continuance are complied with. Feldman v. S.C. Tax
Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). Accordingly, there are legal consequences for a
licensee’s noncompliance with the alcoholic beverage laws of this State.
4.S.C. Code Ann. §61-6-2600 (Supp. 2002) provides that “a person licensed to sell
alcoholic liquors pursuant to the provisions of this article who . . . violates any . . . provision of this
article must: . . . (3) for a third offense within three years of the first offense be fined not less than five
hundred dollars and have his license revoked permanently . . . .” However, S.C. Code Ann. § 61-6-4270 (Supp. 2002) provides that “[f]or violations of Articles 3, 5, 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.” In South Carolina Department of Revenue v. Marlboro Stations,
Inc., Docket No. 02-ALJ-0195-CC (Admin. Law Judge Div. June 26, 2003), which the parties
stipulate controls in this matter, Judge Anderson concluded that “the Department and consequently
the [ALJD] possesses the discretion to impose a monetary penalty in lieu of revocation for a violation
of Regulation 17-7(J) by an Article 5 licensee.”
5.In closing arguments, Respondent’s counsel requested that, rather than revocation of
Respondent’s license, this tribunal consider assessing a $1500 to $2000 fine and suspending
Respondent’s license for a period of 7 days, with the added provision that Respondent will voluntarily
surrender its license at the end of the suspension.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that Respondent shall pay a $1500 penalty and that
Respondent’s minibottle license should be suspended for a period of 7 days for violating 23 S.C.
Code Ann. Regs. 7-17(J) (Supp. 2002).
IT IS FURTHER ORDERED that Respondent shall voluntarily surrender his license at the
end of the suspension.
AND IT IS SO ORDERED.
_________________________________
C. DUKES SCOTT
Administrative Law Judge
August 11, 2003
Columbia, South Carolina |
