ORDERS:
ORDER AND DECISION
This matter comes before the Administrative Law Judge Division
(Division) pursuant to notice to Jerry Smiling d/b/a Jerry's Place
for a violation of Section 61-9-410 by permitting an act which
constitutes a nuisance or is a crime under the laws of South
Carolina occurring on January 1, 1994. After notice to the
respondent a hearing was held on June 13, 1994. After judging the
witnesses credibility and demeanor and reviewing the evidence, I
make the following:
FINDINGS OF FACT
On January 1, 1994 in the early hours of the morning, a fight
erupted inside Jerry's Place located in McColl, South Carolina
which began between four or five women. By the time the fight
ended approximately fifteen people were involved. Both patrons and
management tried to break up the fight when it became, as one
witness described it, a "free for all". One of the women picked up
a box cutter that was on the floor. Smiling grabbed her arm and
took it from her. Another patron, Darryl Beam was trying to break
up the fight which involved his stepdaughter. The stepdaughter and
some of the others involved in the fight were escorted out of the
club and told to leave.
As the fight between the women was breaking up, the men began
to fight. Some of those involved were Darryl Beam and Eric
Locklear, another patron. The men began using the pool sticks to
fight. Jerry Smiling, the owner of the club, put on his gun and
also tried to disburse the fight with a short stick. During the
altercation between the men, Beam was struck in the back of his
head with a pool stick.
Ida Chavis, one of the bartenders and Smiling's mother, pulled
a gun from behind the bar and shot into the ceiling to divert
attention and stop the fight. When she did this, Smiling saw
Locklear pull out a gun. Smiling knocked Locklear to the floor and
obtained the gun. Smiling unloaded the gun, returned it to
Locklear and told him to leave.
At some point during the fight Beam, who lived nearby, went
home. He told his wife he had been hit in the head and was
"looking for someone". Who he was looking for was not known. He
grabbed his rifle and returned to the club, his wife following
behind. Beam walked into the bar with the gun. It was not pointed
at anyone. Only a few people were left inside as most of the crowd
was outside and people were leaving.
Smiling talked to Beam and seemingly calmed him down and told
him to go home. Beam, his wife, and Smiling walked outside.
Smiling was closing the door behind him. Beam was going to his
truck to leave when shots were fired. No one could see where the
shots were coming from or who fired them. Beam's wife who as
standing in front of Smiling told him to "do something" because
Smiling had a gun on him. As a result of the gunshots, Beam was
injured and later died.
No one inside the club called the police during the fight.
There is some question about whether there was a working phone on
the premises. Residents that lived nearby were not at home that
evening and the police could not be called from their residence.
Police from the Laurinburg, North Carolina Police Department
contacted the Marlboro County, South Carolina Sheriff's Department
upon learning from the local hospital in North Carolina that there
was a shooting at Jerry's Place. The Marlboro County Sheriff's
Department then investigated. The sheriff's deputies stated that
based upon the investigation, Smiling did no acts to permit or
encourage the fight and shooting. If anything was done by Smiling
to permit or encourage these activities it was by not moving the
people away from the scene. However, Smiling had asked people to
leave and had closed the door to the club when the shooting began.
Unknown to Smiling, earlier there were two additional
incidents outside of the club. In one incident, a patron was
leaving the club and saw people fighting around his truck. He was
struck by a beer bottle as he tried to get them to move away from
his vehicle. The patron was treated by Marlboro County EMS who
called the police. The second incident involved Beam. He saw two
teenagers getting ready to fight. One pulled a knife and Beam was
able to break it up before any injuries resulted. This incident
was not reported to the police at the time it occurred. Smiling
had no knowledge of either of these events.
No citations were issued by any Alcohol Enforcement Unit
agents.
CONCLUSIONS OF LAW
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 Department of Revenue and Taxation (Department) seeks to
revoke the license of Smiling for violating Section 61-9-410(5).
This section states:
No holder of a permit authorizing
the sale of beer or wine or any servant,
agent, or employee of the permittee shall
knowingly do any of the following acts
upon the licensed premises covered by the
holder's permit:
...
(5) permit any act, the
commission of which tends to create a
public nuisance or which constitutes a
crime under the laws of this State; or
....
A violation of any of the foregoing
provisions is a ground for the revocation
or suspension of the holder's permit.
S.C. Code of Laws Section 61-9-410 (Supp. 1993).
The question presented is whether Smiling knowingly did
anything to permit the events leading to the shooting. The
converse is whether he failed to do anything to prevent the events
which lead to the shooting. No one can control the acts of
another. Smiling can not be held accountable for the fight or the
shooting. However, did he have knowledge of the possession of
weapons in his establishment and did he encourage the possession of
weapons by failing to do anything to prevent patrons from being
armed. Out of all of the witnesses who testified, only one
indicated that she had ever seen weapons at the location in the
past. She testified that she frequented the club on a weekly basis
and that although she had seen people with weapons and feared for
her life, she went to the club anyway. This witness was also one
involved in the fight between the women and the stepdaughter of the
person who was killed. She was put out of the club by Smiling.
Her testimony is not very credible on this point.
The credible evidence clearly shows that Smiling had no
knowledge of people at the club that evening with any type of
weapon. He was not aware of the altercation between the two
teenagers outside involving the knife. He had no knowledge of the
patron who was hit with the beer bottle outside of the club.
Smiling did not know that Locklear had a gun on him until it was
drawn. Smiling immediately seized it, emptied the bullets, and
returned it to Locklear. He also asked Locklear to leave. When
Beam returned with a gun, Smiling talked to Beam and convinced him
to go home.
Smiling did not encourage the troublemakers to stay. Some of
the people involved in the fight were removed from the club and
told to leave. When the fight was over, people were leaving and
Smiling was closing the door to the club when the shooting
occurred.
Most of the witnesses who testified were related to Beam, the
deceased. They all felt the Smiling did not do enough to prevent
the fight and they all want the club closed. When asked what more
Smiling could have done to prevent the incident, the response was
to call the police. Smiling was involved in trying to stop the
fight. If there was not a working phone on the premises this would
have caused some problem. In the heat of the events, Smiling did
what a reasonable person would do under the circumstances. Calling
the police may have helpful, but the failure to do so immediately
is not an act allowing the incident to occur.
The death of Beam was a most unfortunate tragedy. Surely, in
the aftermath of reviewing all the events other steps might have
been taken to possibly avoid this incident, but there is no
evidence to establish that Smiling violated Section 61-9-410(5) by
knowingly permitting any acts creating a public nuisance or which
constitute a crime under the laws of the State.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of
Law, Jerry Smiling d/b/a Jerry's Place did not violate the
provisions of Section 61-9-410(5) and the violation issued by the
Department of Revenue and Taxation is hereby DISMISSED.
IT IS SO ORDERED.
__________________________
ALISON RENEE LEE
Administrative Law Judge
Columbia, South Carolina
July __, 1994 |
