SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1999) for a contested case hearing on an alleged administrative violation of the alcoholic beverage laws. The South Carolina Department of Revenue (Department) contends that Respondent violated 23 S.C. Code Ann. Regs. 7-86 (1976) by selling beer during restricted hours in contravention of a basic requirement for the privilege of obtaining and retaining his beer and wine permit.

After timely notice to the parties, a hearing was conducted on September 19, 2000. The hearing date was noticed on July 24, 2000 and again in the order relieving Kenneth E. Allen as Respondent's legal representative on August 17, 2000, which this tribunal directed Mr. Allen to forward to Respondent. Respondent failed to appear, and the hearing was conducted in absentia.

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.

Respondent Brad Leonard was issued a beer and wine permit (#BW072094) for The Brew Haus, 1035 Johnnie Dodds Blvd, Mount Pleasant, South Carolina. While the Department charged Respondent with sale of beer and liquor during restricted hours on November 28, 1999, it only seeks to suspend his beer and wine permit. ⁽¹⁾ The evidence clearly indicates that Respondent, through his employee, sold a Budweiser beer and a Jim Beam and water mixed drink to an undercover agent for the South Carolina Law Enforcement Division, I. Rhett Holden, Jr. at 12:24 a.m. on November 28, 1999. Respondent has violated his beer and wine permit on two previous occasions. Respondent was charged with permitting the purchase of beer by a person under the age of twenty-one on August 20, 1998, and was fined $400. Respondent was charged with sale of liquor during restricted hours on May 23, 1999, and was fined $800. Respondent has failed to pay either of these fines, which are now in the tax lien stage.

The Department is charged with the responsibility of administering and enforcing the laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 1999). The Department is authorized to impose a penalty or suspension of the holder's permit for even a first violation of the laws pertaining to alcoholic beverages or any regulation promulgated thereto. See S.C. Code Ann. §§ 61-4-270 & 61-4-590 (Supp. 1999). Further, S.C. Code Ann. §61-4-580 states that "violation of any provision of this section is a ground for the revocation or suspension of the holder's permit." Here, the Department seeks to impose a 45-day suspension of permit for the violation pursuant to 23 S.C. Code Ann. Regs. 7-86 (1976). Regulation 7-86 provides:

Any beer or wine sold, offered for sale or delivered to anyone from any licensed place of business or the removal therefrom of any beer or wine between the hours of twelve o'clock Saturday night and sunrise Monday morning is a violation against the beer and wine permit and such permit will be subject to suspension or revocation, or. . . a pernalty in lieu of suspension, or revocation.

23 S.C. Code Ann. Regs. 7-86 (1976).

Because this is Respondent's third violation in three years, suspension of Respondent's permit for forty-five (45) days is consistent with the Department's Revenue Procedure 95-7; this procedure provides a $400 fine for a first violation, an $800 fine for a second violation, and a 45-day suspension for a third violation. By his actions at issue in this case, Respondent ignores that a beer and wine permit is neither a contract nor a property right. It is a "mere [permit] issued or granted in the exercise of the police power of the state to do what otherwise would be unlawful to do; and 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).

Hence, there are legal consequences for non-compliance with the alcoholic beverage laws. Accordingly, the Department shall suspend the beer and wine permit at issue for 45 days, which is consistent with its penalty guidelines for a third violation.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Department's 45-day suspension of Respondent's beer and wine permit is sustained.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

September 25, 2000

Columbia, South Carolina

1. The record does not reveal whether Respondent currently holds a valid minibottle liquor license. Respondent was charged with sale of beer and liquor, but the Department only seeks suspension of his beer and wine permit. See Petitioner's Exhibit 1, Final Determination, and Petitioner's Exhibit 6, Notice of Intent to Suspend. See also Pre-Hearing Statement of the Petitioner at 5.