ORDERS:
ORDER AND DECISION
This matter is before the Administrative Law Judge Division
(Division) pursuant to an administrative violation written against
the sale and consumption license of Harry D. Honeycutt for
permitting a person under the age of 21 to possess alcoholic
liquors in violation of ABC Regulation 7-9(A) on February 11, 1994.
A hearing was conducted after notice to the parties on June 13,
1994. Based upon a preponderance of the evidence and testimony
presented, I make the following:
FINDINGS OF FACT
1. On February 11, 1994 at 11:45 p.m., Clayton Pope, an
Alcohol Enforcement Unit agent entered the Dockside, Inc. club in
Lancaster for the purpose of checking for underage patrons.
Complaints had been received about this particular establishment
selling alcoholic beverages to persons under the age of 21. He was
approaching the bar when he saw a young lady holding cup which
contained what he thought was a mixed drink. She handed the cup to
a person behind her. The officer approached her, removed the drink
from the person to whom it was handed and determined that she had
was under 21 years of age with no identification on her and that
she was drinking a mixed alcoholic drink. The drink was called
"Sex on the Beach". She indicated that the manager of the bar sold
her the drink. Upon checking her identification which was located
in her purse in the car, the officer charged her with possession of
alcoholic beverages by a minor.
2. Julia Newton was born on October 24, 1975 and was 18
years old on February 11, 1994 when she went to Dockside, Inc. with
her boyfriend Chris Carter who is a member of the club. Upon
entering the club, she sat down to talk with friends. Later, she
approached the bar and ordered two drinks, "Sex on the Beach" and
"Crown and Coke". She was drinking the "Sex on the Beach" when the
officer approached her. The drinks were ordered from Mr. McInnis,
the bartender and manager of the location. She was located at a
table about three feet in front of the bar in view of the
bartender.
3. Chris Carter presented identification to become a member
of the club and was a frequent patron of the club. Carter would
come in with his girlfriend and usually ordered a Michelob beer and
a Mountain Dew soft drink with cherries for his girlfriend. On
February 11, 1994, the bartender and manager, Gerald McInnis, did
not check his membership card because the person at the door was
suppose to check it. It was the club policy to check the
identification at the door of all persons who looked underage and
to stamp their hands. McInnis testified that it was a busy night
with a crowd at the bar about "two to three deep". He and another
person were tending bar. He states that Chris Carter deviated from
his usual Michelob and ordered a "Sex on the Beach" drink. He
denies selling the drink to Julia Newton.
4. Both the officer and McInnis tried to locate Carter who
could not be found when the incident occurred. Newton testified
that Carter was not present at the hearing because he was in jail
for driving under suspension. Carter in reality was 19 years old
on the day of the hearing and was on probation on February 11, 1994
when the alleged violation occurred.
CONCLUSIONS OF LAW
1. 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).
2. 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.
3. The "Government Restructuring Act of 1993" provides that
all regulations promulgated by the Commission effective on the date
of the act remain in force until modified or rescinded by the
Department or the State Law Enforcement Division. 1993 Act No. 181
§1604.
4. Commission Regulation 7-9(A) states it is a violation
against a license 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 ...."
5. Section 61-5-60 of the S.C. Code also provides that the
license of a person amy be suspended or revoked for violating any
of the regulations promulgated by the Department. S.C. Code of
Laws § 61-5-60(b) (Supp. 1993).
6. The testimony by the agent and Julia Newton both
establish that the alcoholic beverages were sold to Ms. Newton.
After viewing the witnesses and judging their credibility I find
their testimony is credible and consistent. The evidence is
sufficient to establish that Julia Newton was in possession of
alcoholic beverages and that the employees knew that she was under
the age of twenty-one by the failing to check her identification to
verify her age or by refusing admission to the club because she had
no identification.
7. Although the manager argues that the club had certain
safeguards, the system employed by the club failed. The policy is
to check identification if the person looks underage. It is
difficult to establish strictly by appearance the age of any
individual. The policy of the club should be one of checking each
and every patron regardless of appearance. The practice of
stamping the hand of persons under the age of 21 is not without its
loopholes as well. The club should more rigorously enforce its
policies and establish policies which significantly reduce the
ability of persons under the age of 21 from gaining access to
alcoholic beverages.
8. The Department seeks a fine of $500 and revocation of the
license under Section 61-5-110 on the basis that this is the fourth
offense within three years. The evidence submitted reveals that
the first violation was written on January 18, 1991 more than three
years from February 11, 1994, the date the instant violation was
written. The second violation was written on September 28, 1992
and resulted in the payment of a fine on October 28, 1992. The
third violation was written on January 10, 1993 and was reversed in
an amended order by the circuit court on January 24, 1994. The
fourth violation is the one at issue in this case. There is only
one previous offense which can be used to enhance the penalty based
upon the three year standard set by Section 61-5-110(2), the
September 28, 1992 offense.
9. Section 61-5-110(2) provides for an offense under Chapter
5 dealing with sale and consumption of alcoholic beverages for a
"second offense within three years of the first offense [a fine]
not less than two hundred dollars nor more than five hundred
dollars or have his license suspended for not more than one hundred
eighty days, or both".
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
it is:
ORDERED AND ADJUDGED that Harry D. Honeycutt d/b/a Dockside,
Inc. pay monetary penalty in the amount of $500 for the offense
cited above. If the Petitioner does not receive a total of $500
within ten (10) days from the date of this Order, it is Ordered
that the Respondent's sale and consumption license be suspended for
a period of thirty (30) days. If the fine is not paid within the
prescribed time period, the Department shall take possession of the
license pursuant to law.
AND IT IS SO ORDERED.
____________________________
ALISON RENEE LEE
Administrative Law Judge
July __, 1994
Columbia, South Carolina |
