ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and S.C. Code Ann. §§ 1-23-310 et seq.
(Rev. 1986 and Supp. 2000). The South Carolina Department of Revenue (Department) contends that Respondent Ron
Jons, Inc., d/b/a Ron Jons (Respondent) permitted or knowingly allowed an underage person to possess beer in
Respondent's licensed establishment located at 3218 Waccamaw Boulevard, Myrtle Beach, South Carolina. Accordingly,
the Department seeks to impose a $800 fine against Respondent for this would-be second violation of 23 S.C. Code Ann.
Regs. 7-9(B) (Supp. 2000).
After timely notice to the parties, a hearing was conducted on October 11, 2001, at the Administrative Law Judge Division,
Columbia, South Carolina. Based upon testimony and the evidence presented, the Department's request to fine Respondent
$800 for violating 23 S.C. Code Ann. Regs. 7-9(B) is denied and the matter is dismissed.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into
account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the
evidence.
1. Respondent holds an on-premises beer and wine license (#32023387-PBW) for the restaurant located at 3218
Waccamaw Boulevard, Myrtle Beach, South Carolina.
2. On March 30, 2001, at approximately 1:00 a.m., Kenneth Samuel Holt, an officer with the Horry County Police
Department, responded to a call that a fight was in progress in the parking lot of Ron Jons. By the time Officer Holt
arrived, at least two other officers present on the scene had gotten the fight under control. At that time, one of the officers
informed Officer Holt that he had seen a female who appeared to be underage emerging from Ron Jons. The officers then
entered Ron Jons to look for underage drinkers. Prior to entering Ron Jons, Officer Holt observed that there was an
employee of Ron Jons checking IDs at the door. Upon entering Ron Jons, the officers were joined by the owner/operator of
Ron Jons, Ron Schwitzer, who accompanied the officers as they walked around. Officer Holt estimated that approximately
200 persons were present in the parking lot and inside Ron Jons.
3. Inside Ron Jons, in a booth with four or five other persons, Officer Holt spotted a female who appeared both youthful
and intoxicated. On the booth's table in front of each person seated in the booth was an assortment of drinking
paraphernalia, with one beer, a number of empty shot glasses, and an empty pitcher directly in front of the youthful female.
4. Officer Holt approached the table and began asking each of the individuals seated there for identification. The
youthful female, who identified herself as Daniel (pronounced "Danielle") Lee Neal, produced no identification but told
Officer Holt that she was twenty years old and that she had snuck into Ron Jons by hiding behind a large group of people
whose IDs were being checked by Ron Jons' doorman, identified as Mack Doug Spane. 5. Officer Holt observed that Ms. Neal smelled of alcohol and was having difficulty standing up straight. In addition, Ms.
Neal's speech was slurred. Based on his observations, Officer Holt concluded that Ms. Neal was intoxicated. Officer Holt
also concluded that the beer and empty beer containers located on the table directly in front of Ms. Neal belonged to her.
Upon cross-examination, Officer Holt admitted he never witnessed Ms. Neal holding a beer or drinking from a beer. In
addition, Officer Holt admitted that Ms. Neal could have become intoxicated somewhere other than Ron Jons. When
questioned whether Ms. Neal revealed where she got the beer, Officer Holt admitted that she would not say. Finally,
Officer Holt admitted that he neither witnessed any employee of Ron Jons serve Ms. Neal nor any other person at the booth
where she was seated.
6. After interviewing her at the table, Officer Holt escorted Ms. Neal out of Ron Jons, arrested her, and wrote her a
ticket for Minor In Possession of Beer in violation of S.C. Code Ann. § 20-7-8920. Officer Holt then called the Police
Department's Shift Supervisor to alert him to the arrest and to suggest that the State Law Enforcement Division (SLED) be
contacted.
7. After receiving a complaint from the Horry County Police Department that an alcohol violation had just occurred at
Ron Jons, SLED Agent Steve Wright arrived on the scene at approximately 1:30 a.m. on March 30, 2001. Agent Wright
spoke with Ms. Neal, who repeated that she snuck into Ron Jons past the doorman. Agent Wright testified that Ms. Neal
was very youthful in appearance. After interviewing Ms. Neal and the officers on the scene, Agent Wright wrote and
issued an Administrative Violation to Ron Jons for violating 23 S.C. Code Ann. Regs. § 7-9(B) (Supp. 2000) for permitting
the possession of beer by a minor. The Administrative Violation was then forwarded to the Petitioner. During cross-examination, Agent Wright admitted that he was unaware that any of the beer allegedly possessed by Ms. Neal had been
taken by the charging officer as evidence. He did note, however, that it was not necessary that a sample be taken.
8. Officer Edward R. Anderson, III, who had arrived at the scene pursuant to the same call to which Officer Holt responded,
stayed outside to control the crowd while Officer Holt and the others went inside Ron Jons. Once Officer Holt emerged
with Ms. Neal, he informed Officer Anderson that he was charging Ms. Neal with Minor In Possession of Beer and asked
Officer Anderson to transport Ms. Neal to the Horry County Jail. Officer Anderson observed that Ms. Neal appeared very
youthful, even younger than her stated age of twenty years.
9. Ms. Neal pleaded nolo contendre to the charge of Minor In Possession of Beer before a local magistrate on April 16,
2001.
10. On March 22, 2001, Ron Jons received an Administrative Violation for violating 23 S.C. Code Ann. Regs. § 7-9(B) after an Underage Cooperating Individual (UCI) working with the Police Department purchased a beer at Ron Jons.
On June 6, 2001, Ron Jons paid the $400.00 fine imposed by the Petitioner for the March 22 citation.
11. An eight hundred ($800.00) dollar monetary fine is an appropriate penalty for a second violation pursuant to
Revenue Procedure #95-7.
12. During Respondent's case, Mr. Schwitzer testified that he was very concerned about curtailing underage drinking
in his establishment. Consequently, Ron Jons employs a doorman to check IDs. A sign is posted outside of the double
doors stating that no one under 21 is admitted after nine p.m. The right door stays locked so that the doorman can better
control entry into the establishment. Mr. Schwitzer was very upset about the incident because he had tried so hard to
prevent such occurrences. Upon cross-examination, Mr. Schwitzer admitted that Ron Jons had received an identical
violation on March 22, 2001, one that he freely admitted the establishment had committed.
CONCLUSIONS OF LAW
Based upon the 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.
- 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 that govern them.
See Feldman v. S.C. Tax Comm'n, 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).
- The Department is charged with the responsibility of administering and enforcing the
laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 2000).
- The Department alleges Respondent violated 23 S.C. Code Ann. Regs. § 7-
9(B)(Supp. 2000) by permitting or knowingly allowing a minor to possess beer while in Respondent's licensed
establishment. Regulation 7-9(B) provides:
To permit or knowingly allow a person under twenty-one years of age to purchase or possess or consume beer and wine in
or on a licensed establishment which holds a license or permit issued by the South Carolina Alcoholic Beverage Control
Commission 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 Alcoholic Beverage Control Commission.
23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) (emphasis added). To warrant a finding of a violation of 23 S.C. Code Ann.
Regs. 7-9(B) (Supp. 2000), the Department must establish that either Respondent or Respondent's servant, agent or
employee permitted or knowingly allowed a person under twenty-one years of age to possess beer from Respondent's
licensed establishment.
- It is well established that, in interpreting a regulation, the sole function of this
tribunal is to determine and give effect to the intention of the drafter, with reference to the meaning of the language used
and the subject matter and purpose of the regulation. See State v. Ramsey, 311 S.C. 555, 430 S.E.2d 511 (1993). When
the meaning of the language, the subject matter, and the purpose of the regulation are considered together, it becomes
apparent that the drafters of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) intended beer and wine permit holders to be
responsible for the actions and conduct of their agents or employees. See 48 C.J.S. Intoxicating Liquors § 168 (1981).
7. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 Am. Jur. 2d.
Evidence § 127 (2d ed. 1994); Alex Sanders et al., Trial Handbook for S.C. Lawyers § 9:3 Party With Burden, Civil Cases
(2000). The Department is the party asserting the affirmative in this case; therefore, the Department must prove by a
preponderance of the evidence that Respondent through its agent, servant, or employee permitted or knowingly allowed
Ms. Neal to possess beer while in the licensed establishment in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000).
8. Petitioner failed to show that any employee of Ron Jons permitted or knowingly allowed Ms. Neal to possess beer
while in the licensed establishment. To "permit" means "[t]o consent to formally" or "[t]o give opportunity for" or "[t]o
allow or admit of." Black's Law Dictionary 1160 (7th ed. 1999). This tribunal concludes that to "permit," according to
its common meaning, clearly requires knowledge. Officer Holt testified that he observed Mr. Spane standing outside of the
doors of Ron Jons, checking IDs. Mr. Schwitzer testified that the right door at the entrance of Ron Jons is kept locked so
that the doorman can control who enters. Both Officer Holt and Agent Wright testified that Ms. Neal admitted she went to
great lengths to enter Ron Jons by hiding behind other entering patrons, sneaking past Mr. Spane. Officer Holt also
testified that he never witnessed a Ron Jons employee serve the table where Ms. Neal was seated. Given the testimony of
the officers and Mr. Schwitzer, I cannot find that the Petitioner showed that either Mr. Schwitzer or his employees
permitted or allowed Ms. Neal to possess beer while in Ron Jons.
Arguments
At the hearing before the ALJD, counsel for Petitioner argued that the evidence showed that Ms. Neal had "constructive
possession" of the beer located on the table in front of her. In addition, counsel for Petitioner argued that Respondent failed
to take adequate steps to prevent underage drinking. Although Petitioner showed it was probable that Ms. Neal had
"constructive possession" of beer, Petitioner failed to show that Respondent "permitted or knowingly allowed" Ms. Neal to
possess the beer.
Because I find that Respondent failed to prove that Ron Jons violated S.C. Code Ann. Regs. 7-9(B) (Supp. 2000),
Petitioner's arguments need not be addressed.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that Petitioner's request that Respondent be fined $800.00 for a second violation of 23 S.C.
Code Ann. Regs. 7-9(B) (Supp. 2000) is DENIED. AND IT IS SO ORDERED.
_________________________________
C. DUKES SCOTT
Administrative Law Judge
October 12, 2001
Columbia, South Carolina |