SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000), S.C. Code Ann. § 1-23-600(B) (Supp. 2000) and S.C. Code Ann. § 1-23-310 (Supp. 2000). The Petitioner, South Carolina Department of Revenue ("Department"), issued two Administrative violations against the Respondent, Marian Basden, d/b/a North 21 General Store. The first citation was for violating provisions of 23 S.C. Code Ann. Regs. 7-82 (1976) by hindering an inspection of premises licensed for the sale of beer and wine. The second citation was for violating S.C. Code Ann. § 61-2-80 by failing to comply with a stipulated restriction on the beer and wine permit to control loitering at the licensed location. Ms. Basden was also given a criminal citation for Refusal to Permit/Hindering an Inspection pursuant to S.C. Code Ann. § 61-4-230 (Supp. 2000). The Department seeks revocation of the Respondent's beer and wine permit. After notice to all parties, a hearing was conducted on February 16, 2001 at the Administrative Law Judge Division (ALJD) in Columbia, South Carolina.

FINDINGS OF FACT

Having carefully considered the testimony and the arguments of both sides, and taking into account the credibility of the evidence and witnesses, I find by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to all parties in a timely manner.

2. The Respondent is the business owner of North 21 General Store located at 6216 North Main Street, Columbia, South Carolina in Richland County. Respondent holds an on-premise beer and wine permit (#BW-002365) for this location, which was issued to her by the Department on May 9, 1989. That permit contains the condition that the licensee "must control loitering outside of building."

• In July 1999, Respondent paid a $400.00 penalty to the Department for a violation of S.C. Code Ann. § 61-2-80 - violating a permit condition by permitting loitering on the property.

4. On July 6, 2000, Special Agents Keith Stokes and Gary Rheinhart of the South Carolina Law Enforcement Division's (SLED) Alcohol Enforcement Unit conducted an inspection of the North 21 General Store.

5. When the Agents arrived at the location, approximately twenty people were loitering in the vicinity of the parking lot and front entrance of the licensed location. Some of these individuals were drinking alcohol and some were sleeping or lying on the ground. The Agents instructed the individuals to leave the premises or to go inside the licensed location.

6. Next, the Agents entered the licensed location and asked Ms. Basden if they could see her beer and wine permit. Ms. Basden, upset that the Agents had ordered her customers to leave the premises, used profanity. Ms. Basden delayed their inspection of her beer and wine permit.

7. After the Agents inspected the beer and wine permit, they issued two Administrative citations: (1) violating 23 S.C. Code Ann. Regs. 7-82 (1976) by hindering an inspection of premises licensed for the sale of beer and wine, and (2) violating S.C. Code Ann. § 61-2-80 by failing to comply with a stipulated restriction on the beer and wine permit. The stipulated restriction on Respondent's permit stated that the licensee "must control loitering outside the building." Also, the Agents issued a criminal citation to Ms. Basden for Refusal to Permit/Hindering an Inspection pursuant to S.C. Code Ann. § 61-4-230.

8. On August 15, 2000, Ms. Basden was convicted in Magistrate's Court on the criminal charge of Refusal to Permit/Hindering an Inspection. Ms. Basden paid a $425.00 fine.

CONCLUSIONS OF LAW

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 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 case hearings in matters governing alcoholic beverages, beer, and wine.

2. The Respondent pleaded guilty to a violation of S.C. Code Ann. § 61-4-230 (Supp. 2000) and paid a $425.00 fine. That code section provides:

A person who, upon demand of an officer or agent of the division:

(1) refuses to allow full inspection of the premises or any part of the premises which is licensed to sell beer or wine; or

(2) refuses to allow full inspection of the stocks and invoices of the licensee; or

(3) who prevents or in any way hinders an inspection is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than sixty days, or both.

• S.C. Code Ann. § 61-6-4090 (Supp. 2000) states that :

If a permittee or licensee, or servant, agent, or employee of the permittee or licensee pleads guilty or nolo contendre to, or is convicted of a criminal offense which occurred on the licensed premises, the conviction or plea constitutes proof that the offense occurred and the record thereof is admissible in a contested case hearing before the Administrative Law Judge Division.4. The Respondent violated 23 S.C. Code Ann. Reg. 7-82 (1976) which provides:

Any holder of . . . a retail beer license, or a retail or wholesale beer and wine permit . . . who shall, upon demand of any officer or agent of the Alcoholic Beverage Control Commission or of any peace officer,refuse to allow full inspection of the premises or any part thereof, or who shall hinder or in any wise delay or prevent such inspection, shall be deemed to have violated said license or licenses, and the Alcoholic Beverage Control Commission may suspend or revoke said license or licenses, or may impose a monetary penalty in lieu thereof . . . ." (Emphasis added)

The Respondent's conviction of a violation of the crime of hindering inspection and the doctrine of collateral estoppel provide that when an issue of ultimate fact has been determined by a valid judgment, that issue cannot be again litigated between the same parties in future litigation. "When an issue of fact or law is actually litigated and determined to be a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or different claim." Palm v. General Painting Co., Inc., 302 S.C. 372, 396 S;E;2d 361 (1990). The issue of whether Ms. Basden hindered or delayed the SLED agents' inspection of the premises was conclusively answered in the criminal charges against her. In Bennett v. S.C. Department of Corrections, 305 S.C. 310, 408 S.E.2d 230 (1991) the South Carolina Supreme Court held that a state employee who failed to seek judicial review of a ruling by the State Grievance Committee abandoned his only opportunity to gain a favorable ruling on this issues involving his termination. The Court found that he was barred by the doctrine of res judicata from filing a separate action in circuit court alleging the termination was based on his filing a workers compensation claim. Ms. Basden had the opportunity to appeal the decision of the magistrate in the criminal proceeding to the circuit court. Her failure to do so makes the finding of the Magistrate determinative on the issue of whether she hindered or delayed the SLED agents' inspection of the licensed premises. The finding of the magistrate is thusres judicata on that issue in this proceeding.

The doctrine of res judiciata extends to bar not only the relitigation of issues decided by judicial bodies, but those of administrative bodies as well. "It is well settled that under the doctrines of res judicata and collateral estoppel, the decision of an administrative tribunal precludes the relitigation of issues addressed by that tribunal in a collateral action." Perry v. SLED, 310 S.C. 558, 426 S.E.2d 334, 336 (1992). Thus a conviction for violating § 61-4-230 constitutes a violation of Reg. 7-82.

• Respondent violated S.C. Code Ann. § 61-2-80 by violating a stipulated restriction

on the beer and wine permit of the licensed location. The Respondent's license has a specific restriction that requires her to "control loitering outside of building." When Agents Stokes and Rheinhart arrived at the licensed location they found approximately 20 individuals loitering in the area immediately around the location. Included in this group were numerous individuals who were drinking alcoholic beverages in public and even sleeping. Although the condition on the license is vague, there can be little doubt that 20 people drinking and sleeping in the immediate vicinity of the building is excessive loitering.

However, the penalty 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).

ORDER

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

ORDERED that the Respondent pay a monetary fine in the amount of Five Hundred ($500.00) dollars to the South Carolina Department of Revenue within thirty days of the date of this Order.

AND IT IS SO ORDERED.

__________________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

April 18, 2001

Columbia, South Carolina