ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division ("ALJD") pursuant to S.C. Code Ann.
§ 61-2-260 (Supp. 2000), S.C. Code Ann. § 1-23-310 (Supp. 2000) and S.C. Code Ann. § 1-23-600
(Supp. 2000) for a contested case hearing. Respondent Cap'n Harry's Blue Marlin Bar, LLC, d/b/a
Cap'n Harry's ("Respondent" or "Cap'n Harry's") requested a contested case hearing after being cited
for an administrative violation of S.C. Code Ann. § 61-4-580(2) (Supp. 2000). The Petitioner South
Carolina Department of Revenue ("Petitioner" or "Department") seeks to impose a penalty of four
hundred and 00/100 ($400.00) dollars. A hearing was conducted before me on April 26, 2001 at the
Administrative Law Judge Division (ALJD) 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 evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the parties.
- The Respondent is a bar/restaurant and holds on-premises beer and wine permit
No. PBW32000325. The bar is located at 39-D John Street, Charleston, South Carolina.
- Gino Calejo was the general manager of Cap'n Harry's on September 9, 2000;
however, he was not at that location at the time the incident, the subject of this contested case, occurred.
- Calejo testified that Cap'n Harry's is no longer in operation as of January 2001, but
that the closing of the business was not due to the events of September 9, 2000.
5. Corporal Randall McBrayer of the City of Charleston Police Department testified at the hearing.
McBrayer has been employed by the Charleston Police Department for eleven years and has been in
charge of the vice unit for three years. McBrayer and Officer Taylor of the City of Charleston Police
Department were conducting a routine bar inspection of Cap'n Harry's on September 9, 2000 while
working undercover.
- On September 9, 2000, at approximately 1:30 a.m., Corporal McBrayer and Officer
Taylor of the City of Charleston Police Department observed James Paul Carnes ("Carnes") enter Cap'n
Harry's. McBrayer testified at the hearing that the officers witnessed Carnes stumble on the stairs going
into the bar, speak in a loud and slurred speech, and order a beer from the bartender. Carnes appeared
to be intoxicated. The bartender, Michael Hessant ("Hessant"), accepted money from Carnes and
served him a beer. Hessant was an employee of Cap'n Harry's.
- Carnes was arrested for public intoxication. Hessant was issued a summons ticket
for the sale of beer to an intoxicated person, but was not incarcerated.
- Gino Calejo, general manager of Cap'n Harry's at that time, testified at the hearing
that Carnes had to go through two inspection points before ordering a beer. Calejo stated that there is a
doorman that checks for proper identification and a doorman that collects a cover charge before entering
the bar. Although Calejo was not in the bar at the time of the incident, he testified that Cap'n Harry's
was normally very busy on a weekend night such as September 9, 2000, and the bartender probably had
minimal contact with Carnes to determine whether he was intoxicated. Calejo did not deny that Hessant
served Carnes a beer.
9. On September 19, 2000, Carnes did not appear before the Municipal Court in Charleston and was
found guilty, in his absence, of public intoxication. Michael Hessant appeared before the Municipal
Court and pled guilty of the sale of beer to an intoxicated person.
- As a result of the foregoing, an administrative citation was issued to Cap'n Harry's
on September 30, 2000 for a violation of S.C. Code Ann. § 61-4-580(2) (Supp. 2000), sale of beer to an
intoxicated person.
- Agent Clarke, an employee of the South Carolina Law Enforcement Division,
Alcohol Enforcement Unit, testified at the hearing that he issued the administrative citation to Cap'n
Harry's on September 30, 2000.
- The Final Determination regarding the administrative citation was issued by the
Department on December 18, 2000. The Department sustained the violation of S.C. Code Ann. § 61-4-580(2) (Supp. 2000) and imposed a penalty of four hundred and 00/100 ($400.00) dollars.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
- S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act.
- S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the ALJD the responsibilities to
determine contested matters governing alcoholic beverages, beer and wine.
- Pursuant to S.C. Code Ann. § 61-4-580(2) (Supp. 2000) no employee of a
permittee authorized to sale beer may knowingly sell beer to an intoxicated person on the
licensed premises covered by the holder's permit.
4. The permittee is responsible for all acts of his servants, agents, or employees and cannot seek to
avoid the consequences of a violation for lack of personal knowledge. Following that principal, the
South Carolina Supreme Court upheld a civil forfeiture of a corporation's boat based upon an
employee's transporting drugs even though the corporation claimed the use of the boat to transport
drugs was without its knowledge. South Carolina Law Enforcement Division v. The "Michael and
Lance," 281 S.C. 339, 315 S.E. 2d 171 (Ct. App. 1984). The Court held that "[a] principal is affected
with constructive knowledge of all material facts of which its agent receives notice while acting within
the scope of his authority." Id. at 173, citing Crystal Ice Co. of Columbia, Inc. v. First Colonial Corp.,
273 S.C. 306, 257 S.E. 2d 496 (1979). Likewise, the license holder is responsible for the actions and
conduct of employees utilizing the permit upon the permitted premises. 48 C.J.S. Intoxicating Liquors §
259 (1981).
5. Pursuant to S.C. Code Ann. § 61-6-4090 (Supp. 2000), if an employee of the permittee pleads guilty
to a criminal offense which occurred on the licensed premises, the plea constitutes proof that the offense
occurred and the record of that offense is admissible in a contested case hearing before the ALJD.
6. On September 19, 2000, Michael Hessant, an employee of Cap'n Harry's, pled
guilty to S.C. Code Ann. § 61-4-580(2) (Supp. 2000) which occurred on the premises of Cap'n Harry's.
According to S.C. Code Ann. § 61-6-4090 (Supp. 2000), Hessant's plea in the Municipal Court is proof
that the offense occurred.
- It is a generally recognized principle of administrative law that the fact-finder has
the authority to impose an administrative penalty after the parties have had an opportunity to have a
hearing and be heard on the issues. See Ohio Real Estate Comm'n v. Aqua Sun Investments, 655 N.E.
2d 266 (Ohio 1995); Shadow Lake of Noel, Inc. v. Supervisor of Liquor Control, 893 S.W. 2d 835 (Mo.
App. S.D. 1995); Matter of Henry Youth Hockey Ass'n, 511 N.W. 2d 452 (Minn. App. 1994); Vermont
Agency of Natural Resources v. Duranleau, 617 A.2d 143 (Vt. 1992); City of Louisville v. Milligan,
798 S.W. 2d 454 (Ky. 1990); Com., Dept. of Transp. v. Slipp, 550 A.2d 838 (Pa. 1988); Dept. of
Transp. v. Miller, 528 A.2d 1030 (Pa. 1987); State Police v. Cantina Gloria's, 639 A.2d 14 (Pa. 1994).
ORDER
Under the facts and circumstances of this matter, I find that a monetary penalty of four hundred and
00/100 ($400.00) dollars is appropriate.
IT IS HEREBY ORDERED that Cap'n Harry's shall pay a penalty of four hundred and 00/100
($400.00) dollars.
AND IT IS SO ORDERED.
___________________________
C. Dukes Scott
Administrative Law Judge
June 20, 2001
Columbia, South Carolina |
