SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (Division) pursuant to a citation issued against Jerry Arnette d/b/a Jerry's Place for a violation of ABC Regulation 7-82 by hindering an inspection and a violation of Section 61-5-190 by violating a condition of his license to close on Friday night by 1:00 a.m. After notice to the parties, a hearing was conducted on June 13, 1994. Based upon the testimony and evidence presented, I make the following:

The facts are basically undisputed. It is the inferences drawn from the facts that give rise to the dispute in this case. Jerry's Place is located in Green Sea, South Carolina in Horry County. Jerry Arnette agreed to certain restrictions when his minibottle license was issued. These conditions were to close at 12 midnight Monday through Thursday and Saturday, to close at 1:00 a.m. on Friday night, and to have live bands on Friday and Saturday night only. Between 1:15 and 1:50 a.m. on January 15, 1994 an Alcohol Enforcement Unit agent drove past the club and saw about 12 cars in the parking lot. He had complaints in the past about the club being open after the time restricted on the license. He approached the club but the door was locked. He knocked on the door and was told by someone on the other side that the club was closed. The person did not open the door. He identified himself as "State Police" and told the person to open the door. Another person also told him the place was closed. The officer repeated his identification and requested entrance. After some delay the door was opened.

The explanation given for the delay in opening the door was that the lock sometimes sticks and it is difficult to unlock the door. When the lock was tried while the office was present it did not stick and there was no difficulty opening the door. While waiting for the door to be opened, the officer heard cans and bottles being thrown away.

Upon entering the club, there were 10 to 18 people in the bar. According to the officer everyone was just sitting at the bar. Arnette was behind the bar. The officer observed several beer bottles in the trash can behind the bar. The beer bottles had condensation drops on them. No one was drinking when the officer came in and no alcohol, beer, or wine was on the bar.

According to the employees, there were four employees, one friend of the owner who helped out whenever he was visiting the area, one customer waiting for his transportation, Arnette, and several of the band members inside the club when the officer arrived. The employees state that the officer arrived shortly after the bar closed and the time the citation was written was 1:50 a.m. The employees were cleaning the bar, emptying the ashtrays and throwing away the cans and cups while the band members were disassembling the equipment. Two of the six band members had already left when the officer arrived. No music was being played.

According to the employees, when they heard the knocking one employee said the bar was closed and did not open the door. When the knocking continued, the co-owner was emerging from the bathroom and repeated that the bar was closed. Upon hearing the identification of the officer, she tried to open the door and it was stuck. When the door was finally open a discussion ensued about the door. The officer informed her she could be arrested for hindering an inspection. The co-owner said she knew the club closed at 1:00 because there is a clock located in front of bar which is kept five minutes fast and she kept a close eye on the time because of the restrictions on the license. Arnette had planned to ask to have the restrictions lifted and they did not want any violations against the license.

In the past people would come to the door when the club was closed and would say they were police or sheriff department or use some other gimmick to get management to open the door. She stated she never heard the term "State Police" used by any law enforcement person and she thought it was just another trick.

I find the testimony of the employees of the club to be credible.

Section 1-23-600 grants jurisdiction to the Division to hear contested cases under the Administrative Procedures Act. S.C. Code of Laws § 1-23-600 (Supp. 1993). S.C. Code of Laws § 61-1-55 (Supp. 1993) grants to the Division the powers, duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer, and wine.

The "Government Restructuring Act of 1993" provides that all regulations promulgated by the Alcoholic Beverage Control Commission (Commission) effective on the date of the act remain in force until modified or rescinded by the Department of the State Law Enforcement Division. 1993 Act No. 181 §1604. Commission Regulation 7-82 provides in part that a holder of a sale and consumption license who refuse to allow full inspection of the premises or who hinders, delays, or prevents an inspection upon demand of an officer or agent of the Commission is deemed to have violated the license. The Commission may suspend or revoke the license, or may impose a monetary penalty.

The Department of Revenue and Taxation (Department) also seeks to impose sanctions against the license of Arnette for violating Section 61-5-190. This section states in part:

The department is the sole and exclusive authority empowered to regulate the operation of all retail locations authorized to sell beer, wine, or alcoholic beverages and is authorized to establish such conditions or restrictions which the department in its discretion considers necessary before issuing or renewing any license or permit.

S.C. Code of Laws Section 61-5-190 (Supp. 1993).

The Department's position is that Arnette hindered an inspection by delaying the opening of the door, thereby allowing time to dispose of any beverages that were being consumed after 1:00 a.m. To support their theory they rely on the officer's testimony that after repeatedly knocking at the door and identifying himself, the door was not opened and he heard bottles and cans being thrown away. The officer's testimony is rebutted by Arnette's witnesses who explain that tricks had been played on them when people wanted to gain access to the club after hours, two different people went to the door causing some delay, the door had gotten stuck, and the other employees at the club were cleaning up which was the sound of the cans and bottles.

With respect to the violation of the conditions imposed on the license, the officer testified that the front door of the club was locked, the employees who answered the door did not open it and indicated the club was closed, there were a few people at the club, no one was consuming any beverages when he entered, and the band was moving equipment. This evidence indicates that the club was not open for business when he arrived and no sale or consumption of any alcoholic beverages was occurring.

The Department has failed to carry its burden by a preponderance of the evidence to establish that Arnette violated Regulation 7-82 and Section 61-5-190.

Based upon the Findings of Fact and Conclusions of Law, the citation issued by the Department of Revenue and Taxation for violating Regulation 7-82 for hindering an inspection and Section 61-5-190 for violating a condition of the license is hereby DISMISSED.

IT IS SO ORDERED.

__________________________

ALISON RENEE LEE

Administrative Law Judge

Columbia, South Carolina

July __, 1994.