ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§
1-23-310 (Supp. 2000), 1-23-600(B) (Supp. 2000), 61-2-20 (Supp. 2000), and 61-2-260 (Supp. 2000). The
South Carolina Department of Revenue (Department) seeks a forty-five suspension of the Respondent's beer
and wine permit for violation of 23 S.C. Code Ann. Regs. 7-9 (Supp. 2000) for permitting the purchase or
possession of beer by a person under the age of twenty-one. A contested case hearing was held before me on
February 21, 2001, at the offices of the Division 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, Spivey & Spivey, LLC, d/b/a Noizy Oyster, holds beer and wine permit No. BW177232
for the Noizy Oyster located at 101 South King's Highway in Myrtle Beach, South Carolina.
3. On the evening of April 19, 2000, an underage cooperating individual (UCI) working with the South
Carolina Law Enforcement Division (SLED) entered the Noizy Oyster and purchased a twelve ounce (12
oz.) bottle of Bud Light. Prior to entering the location, SLED Special Agent P.A. Williamson checked the
UCI and verified that he only possessed $5.00 in state provided funds and his South Carolina driver's licence
indicating an age of nineteen. The bartender did not request any identification from the UCI and sold him
the Bud Light for $2.50. Moreover, the Respondent admits to this violation of 23 S.C. Code Ann. Regs.
7-9(B) (Supp. 2000).
4. This is the Respondent's third violation against its beer and wine permit within the past three years at this
location. The Respondent previously committed the following violations and received the following
punishments:
a. Permitting the purchase of beer by an individual under the age of twenty-one on July 30, 1998. The
Respondent paid a $400.00 fine for that offense; and
b. Permitting the purchase of beer by an individual under the age of twenty-one on May 15, 1999. The
Respondent paid a $400.00 fine for that offense.
CONCLUSIONS
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the Division to hear contested cases under
the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the
Division 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 Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).
3. Holders of beer and wine permits are forbidden from permitting "any act, the commission of which tends
to create a public nuisance or which constitutes a crime . . . . " S.C. Code Ann. § 61-4-580(5) (Supp. 2000).
4. Permitting or knowingly allowing a person under the age of twenty-one to purchase or possess beer upon
the licensed premises is a violation against a license or a permit. Such a violation constitutes sufficient
grounds for either suspension or revocation of the beer and wine permit. 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 2000).
5. S.C. Code Ann. § 61-4-250(1) (Supp. 2000) authorizes the imposition of a monetary penalty of not less
than Twenty-five ($25.00) Dollars and not more than One Thousand ($1,000.00) Dollars. Because this is the
Respondent's third violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000), the Department is seeking a
forty-five day suspension of the Respondent's beer and wine permit. SeeRevenue Procedure 95-7.
6. Inherent in and fundamental to the powers of an Administrative Law Judge, as the trier of fact in
contested cases under the Administrative Procedures Act, is the authority to decide the appropriate sanction
when such is disputed. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E. 2d 633 (1991). The
Administrative Law Judge, as fact-finder, must impose a penalty based on the facts presented at the
contested case hearing. In the present case, the Respondent clearly violated the provisions of 23 S.C. Code
Ann. Regs. 7-9 (B) (Supp. 2000) by permitting the purchase of beer by an individual under the age of
twenty-one (21). Furthermore, the Respondent's evidence did not sufficiently establish any mitigating
factors regarding this violation. Accordingly, I find that the Department's proposed suspension of the
Respondent's beer and wine permit for forty-five (45) days is appropriate.
ORDER
Based upon the above Findings of Fact and Conclusions of Law it is hereby:
IT IS HEREBY ORDERED that the Respondent's beer and wine permit be suspended for forty-five (45)
days.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
April 19, 2001
Columbia, South Carolina |
