South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Kayco, Inc., d/b/a Twisters

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Kayco, Inc., d/b/a Twisters
 
DOCKET NUMBER:
00-ALJ-17-0588-CC

APPEARANCES:
Carol I. McMahan, Esquire, for the Petitioner

John Hawkins, Esquire, for the Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This contested case is before the South Carolina Administrative Law Judge Division pursuant to the Respondent's request for review of the Petitioner's Final Determination in which the Petitioner alleges the Respondent violated 23 S.C. Code Ann. Regulation 7-17(J) by permitting consumption of liquor by a non-member. The Petitioner seeks a $500.00 fine and revocation of the Respondent's license. A hearing on this matter was held on April 19, 2001 at 2:00 p.m. at the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

  • Notice of the time, date, place and subject matter of the hearing was given to all parties in a timely manner.
  • Kayco, Inc., operates Twisters, a private club located at 197 East St. John Street, Spartanburg, South Carolina.
  • Prior to the incident at issue in the present case, the Respondent paid two other violations within the last three years, both involving violations of S.C. Code Ann. Regulation 7-17(J) The first incident occurred on August 21, 1998, and the Respondent paid a $400.00 fine. The second incident occurred on January 15, 1999, and the Respondent paid an $800.00 fine.
  • Presently, the Respondent maintains an alphabetical list of all members, including birthdates. The Respondent also utilizes two people at the door to ensure that only members gain entrance.


CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

    • S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the ALJD to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the ALJD the authority to hear contested cases in matters involving alcoholic beverages, beer and wine.
    • S.C. Code Ann. Reg. 7-17 addresses non-profit organizations "with limited membership to which the sale of alcoholic beverages is incidental to the main purpose of the organization." Reg. 7-17(J) provides: "[O]nly bona fide members and bona fide guests of members of such organizations may consume alcoholic beverages sold in sealed containers of two ounces or less upon the licensed premises."
    • In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1999). The Department is the party asserting the affirmative in this case; therefore, the Department must prove by a preponderance of the evidence that Respondent violated S.C. Code Ann. Reg. 7-17(J). See Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998) (standard of proof in an administrative proceeding is preponderance of the evidence).
  • The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge, who observes a witness is in the better position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
  • In this case, the Petitioner sought a $500.00 fine and revocation of the Respondent's sale and consumption license pursuant to South Carolina Department of Revenue Procedure 95-7 (setting forth the applicable penalties for violations of the Alcoholic Beverage Licensing statutes). Internal Department policies call for the imposition of this penalty. The Respondent contends this penalty is excessive given the facts in this matter. In the case at bar, the Respondent has shown it takes steps to ensure only members are able to purchase alcohol. The penalty to be imposed is within the sound discretion of the Administrative Law Judge. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). I find that under the facts and circumstances of this case, revocation of the Respondent's sale and consumption license is excessive. I find that the monetary penalty of $500.00 alone is sufficient.


ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that the Respondent pay a penalty in the amount of Five Hundred ($500.00) Dollars to the South Carolina Department of Revenue within thirty (30) days from the date of this Order.



AND IT IS SO ORDERED.



__________________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

May 15, 2001

Columbia, South Carolina


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