SC Administrative Law Court Decisions

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 a citation against the Respondent for violating provisions of 23 S.C. Code Regs. 7-9(A) (permitting the purchase or possession of liquor by a person under the age of twenty-one) and 7-9(B) (permitting the purchase or possession of beer by a person under the age of twenty-one). The Department seeks the imposition of a penalty of $400.00 for each violation, for a total of $800.00. The Respondent requested a contested case hearing, asking that the citation be vacated. After notice to all parties, a hearing was held in this matter on February 13, 2001 at the Administrative Law Judge Division, 1205 Pendleton Street, Suite 224, Columbia, South Carolina.

Having carefully considered the testimony and the arguments of both sides, and taking into account the credibility of the evidence and the witnesses, I find 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.
• The Respondent operates a bar known as the Dog House Raw Bar and Grill (Dog House) located at 9814 North Kings Highway, Myrtle Beach, Horry County, South Carolina.
• On August 13, 2000, at approximately 2:10 a.m., SLED agents followed up on a complaint for the service of alcohol during restricted hours at the Dog House.
• While inside the Dog House, the SLED agents observed two individuals who appeared to be under twenty-one consume alcoholic beverages. The two individuals were also approached by a waitress.
• Upon request by the SLED agents, the two individuals produced identification revealing that they were born in 1979 and 1981. ⁽¹⁾ The SLED agents also determined that the underage individuals were drinking alcoholic beverages. ⁽²⁾
• The SLED agents issued two violation reports to the Respondent, one for possession of beer by a person under twenty-one and one for possession of liquor by a person under the age of twenty-one.
• The Petitioner issued its Final Determination on November 29, 2000, upholding the violation reports.
• The Respondent filed its request for a contested case hearing on December 10, 2000.

Based upon the foregoing 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 Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. 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 Regs. 7-9(A) and (B), by selling beer and liquor to individuals under the age of twenty-one.. 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).

3. 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).

• The Department of Revenue contends the Respondent violated 23 S.C. Code Reg. 7-9(A) which provides:

To permit or knowingly allow a person under twenty-one years of age to purchase or possess or consume alcoholic beverages in or upon a licensed establishment which holds a license or permit issued by the [Department] for the sale and consumption of alcoholic beverages in sealed containers of two (2) ounces or less is prohibited and constitutes a violation against the license. Such violation shall be sufficient to cause to suspend or revoke the license or permit by the [Department].

• The sale of the liquor drink to the underage individual was a violation of 23 S.C. Code Ann. Reg. 7-9(A).

6. The Department of Revenue also contends the Respondent violated 23 S.C. Code Ann. Reg. 7-9(B) which provides:

To permit or knowingly allow a person under twenty-one years of age to purchase or possess or consume beer or wine in or on a licensed establishment which holds a license or permit issued by the [The Department] is prohibited and constitutes a violation against the license or permit. Such violation shall be sufficient cause to suspend or revoke the license or permit by [The Department].

7. The sale of the beer to the underage individual was a violation of 23 S.C. Code Ann. Reg. 7-9(B).

8. The amount of 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). Under the facts and circumstances of this case, I find that a total monetary penalty of $400.00 is appropriate.

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

ORDERED that the Respondent pay to the Department of Revenue a fine totaling Four Hundred ($400.00) Dollars within thirty days of the date of this Order.

AND IT IS SO ORDERED.

____________________________________ CAROLYN C. MATTHEWS

Administrative Law Judge

February 28, 2001

Columbia, South Carolina

1. This means that the individuals were ages 20 and 18 at the time of the violations.

2. One of the individuals was drinking a beer, and the other was drinking a liquor drink known as a "Sex on the Beach."