ORDERS:
ORDER AND DECISION
This matter comes before the Administrative Law Judge Division
on a citation issued to George Washington for a violation of
Alcoholic Beverage Control Commission (Commission) Regulation 7-17
J., permitting consumption of liquor by a non-member and a
violation of Section 61-13-410, hindering an inspection. Pursuant
to notice to the parties, a hearing was conducted on July 11, 1994.
SUMMARY OF TESTIMONY
Lunella Williams. She is an Alcohol Enforcement Unit Agent. On
Friday December 11, 1993 she and other agents were targeting
certain establishments. At 10:00 p.m. she entered the Club
Manhattan which is a private club. Some people entered the club
before her and they were five to ten feet in front of her. No one
was behind her and she entered the club alone. She was not
stopped. There were about ten people in the club. She went to the
bartender, Phillip Williams and ordered a rum and coke. She saw
the bartender pour the drink and she paid three dollars for it.
She did not talk to anyone. After paying for the drink she drank
a portion of it at the bar and then went into the dance area and
sat at a table. There was music playing. Ten to fifteen minutes
after she entered the club, she heard a commotion. She left her
table and went to see what was going on. The other agents had come
into the club. She did not talk to anyone while in the club and
did not see any signs about any special events for that night at
the club. Ms. Williams described the layout of the club and drew
a diagram. She wrote her report on December 14th and later amended
it. The only correction was changing "Saturday" to "Friday".
Lonnie P. Roberts, Jr. He is an Alcohol Enforcement Unit Agent.
In March 1991 he was assigned to the Walterboro area. Early Sunday
morning on November 20, 1993 about 12:30 a.m. he noticed a lot of
traffic around the club. He stopped and had a discussion with Mrs.
Washington. As a result of that conversation he stated he would be
checking back at the club. He assisted Mrs. Washington in an
application for a minibottle license. On December 11, 1993, he and
three other agents waited outside while Ms. Williams went inside.
After she was in the club for five to ten minutes the agents went
in. Roberts was first with his badge in his left hand. He opened
the door with his right hand. Mr. Washington, who was sitting at
the edge of the bar by the door, immediately closed the door. He
identified himself as a SLED agent and said he was coming in to
inspect the location. Washington told him to wait. Roberts
refused and proceeded inside the club still holding his SLED badge.
Washington grabbed him about his chest near his neck. Washington
was restrained by the other officers who were entering behind
Roberts. When Roberts entered the club, the disc jockey had not
yet set up. The disc jockey, named "Magic" is a popular
entertainer in the area. Roberts did not know Magic would be at
the club until after the citation was written. It took about 25 to
30 minutes to inspect the club. Roberts issued the citation.
Before its issuance he was persuaded by Agent Asbill not to cite
Washington for resisting arrest. The citation was written for a
violation of the Commission regulation, hindering an inspection and
a criminal charge for hindering inspection. The criminal charge
was dismissed by the magistrate. The magistrate dismissed the
charge for failure to prosecute because Roberts was not present
when the case was called. He tried to contact the magistrate to
say he was running late. The club has a dress code. He was
wearing black shoes, blue jeans, a sweatshirt and a baseball cap.
Before entering the club there is a two foot glass window where
someone sits. The door into the club is a single wooden door that
opens inward. No one was sitting at the window when he walked to
the door.
Alex Underwood. He is an Alcohol Enforcement Unit Agent. On
December 11, 1993 he approached the club with another agent and was
stopped. He was told how much it costs to enter the club. While
standing at the window he saw Agent Williams who gave him the
signal that she had completed "a buy" inside the club. He went
back to the car and radioed Agent Roberts and his partner. When
Roberts arrived the four agents approached the club, Roberts first
in line. Underwood did not have his badge but had the billfold
type credentials which were open in his left hand ready to display.
He heard Roberts identify himself as a SLED agent to Washington.
Roberts had his badge in his hand and he verbally identified
himself. Washington put his hand on Roberts' chest as if to grab
him. Underwood, who is over six feet tall, restrained Washington
who was not a threat to him. Another agent handcuffed Washington
who was then taken outside. There was no music playing inside the
club. Underwood was dressed in jeans, a pull over type shirt and
loafer type shoes.
Bennie Webb. He is an Alcohol Enforcement Unit Agent. On December
11, 1993 he was support for Agent Williams. Williams went in the
club at 10:00, he waited until 10:15 before he went in with the
other agents. As Roberts was entering the club Washington closed
the door on him. Again Roberts entered and was trying to get the
words out to identify himself when Washington grabbed him. Webb
was at the end of the line of agents entering the club. He could
not see if the others were showing identification or credentials.
He was wearing khaki pants, a blue jacket, dark shoes. Once Webb
got into the club he displayed his credentials to two people who
started toward the door while Washington was being restrained. The
disc jockey was setting up when they entered. Before entering the
club with the other agents, he and Underwood tried to go in. They
were stopped at the door and told what the cover charge was. They
decided not to enter. There was an internal SLED investigation of
the agents. A complaint had been made about the conduct of the
agents.
Anderson Grant, Jr. He is a regular patron of the club. There is
a dress code which states no caps, tee shirts, shorts or sneakers.
The dress is usually casual. Mr. Washington usually sits at the
door to check the membership of patrons. Members are required to
sign in and the member's guest must also sign in. On December 11,
1993 he was at the club. He signed in. Several others were inside
the club. He was sitting at the end of the bar farthest from the
door. Agent Williams was sitting on the last stool at the same end
of the bar. She was already there when he arrived and did not see
her purchase her drink. As he was sitting there, someone tried to
burst into the club. Washington said "You can't come in here like
that" and pushed the door. An identification badge fell on the
counter and an altercation ensued. Three people entered the door
at once. The three men were dressed like "hoodlums" - something
less than casual. Because they burst in so suddenly there was no
opportunity to ask them to pay. Washington did not hit, strike, or
grab anyone. Grant did not hear the agents identify themselves.
When Washington was being restrained his wife came around the bar
and told the agents that he had a broken arm which could not be
bent behind him and asked them not to handcuff him. Agent Williams
was still at the bar and could see the whole thing. When Roberts
opened the door you could see his face and Washington would be able
to see it.
Marvilyn Holmes. She was a bartender at the club that night. She
was arriving at the club at the same time Roberts pulled up. His
car sped around the corner and pulled up to the door. Several
agents got out and Roberts said, "I got her." She followed them
into the club. She knew Roberts and knew he was an ABC agent. The
group of agents pushed the door open. She could not see if any
identification was shown. Her uncle is George Washington. She
heard him say, "You can't come into the club like that". Roberts
badge was on the side of his pants waistband. You could see it
plainly. The door was pushed open forcefully. A scuffle took
place. She could not see much because she was so short. The
agents were aggressive and rude. Agent Williams called Holmes a
name. The entrance to the club was well lit similar to the hearing
room.
George Washington. He has operated the Manhattan Social Club since
1940. There has never been any problem with the ABC Commission.
No citations or violations have ever occurred. He did not know
these agents. He met Roberts one time when introduced by his wife.
She did not identify him as an ABC agent at the time. On December
11, 1993 the disc jockey came to set up. It is the club policy to
let the disc jockey set up before they start to collect any money
at the door. He sits at the door to check for the proper attire
and to collect any membership fees. The disc jockey told him he
was expecting a lady friend. A lady walked in and asked, "Has
Magic come yet?". He told her it would be five dollars if she was
not a member of the club. Her response was she was going to see
Magic and started walking toward the dance area where Magic was
setting up. Washington let her go. He did not stop her to
determine if she was Magic's guest but let her in. Later some of
the agents came to the door and wanted to come in. He told them
they were not dressed appropriately and pointed to the dress code
sign over the door. The next time the agents came to the door he
repeated that they were not dressed properly. They threw the door
open pinning him between the wall and the door. No badges or
identification were shown to him. He did not put his hands on any
of the agents. Because of an injury during the war and subsequent
surgeries, he cannot raise his arm above a certain height and
cannot put it behind him. The agents were trying to handcuff him
in the back and his arm would not reach. His wife intervened to
get the agents to stop twisting his arm. He is able to raise his
arm to Roberts' nose.
Allily Washington. She is the wife of George Washington and has
assisted in the operation of the club for over 23 years. She does
most of the book work. She met the ABC agents at one of the many
seminars she has attended about ABC laws. She also works at
Shoney's and would see Agent Roberts frequently. In November 1993
Roberts stopped by the club and talked with her about potential
violations. He told her she needed to talk with him about how to
keep her books on membership. They scheduled a meeting but never
met. She was working the bar on December 11, 1993. Her husband
told her about four teenagers who tried to come into the club. The
agents came to the door and Washington told them they were not
dressed appropriately and the cover charge was five dollars. She
saw Agent Williams come into the club. She asked where was Magic
and went to order a rum and coke which she paid for. Since Magic
told them he was expecting a lady friend, she thought Agent
Williams was that person. As Agent Williams was sitting at the
bar, Mrs. Washington saw her nod her head to someone. Two to three
minutes after she nodded her head the agents came in. When the
agents came through the door she did not see any identification.
She was standing behind the bar not far from the door when it
opened. She would have been able to hear any conversation. No one
identified themselves. She only saw Roberts' badge later not when
he first came through the door. Roberts had his badge hooked onto
his pants. He told Mrs. Washington, "I told you I'd be back." She
was surprised by Roberts tone of voice and by the way he treated
them. She reported their actions to their supervisor. She asked
the agents not to handcuff her husband behind his back and pleaded
with one of the agents not to treat him so gruffly and not to take
him to jail. She offered to go in his place.
FINDINGS OF FACT
On December 11, 1993 Agent Williams entered the Club
Manhattan. The disc jockey had not set up and a few others were in
the Club. No one ascertained whether she was a member of the club
or a guest. She purchased a rum and coke and consumed a portion of
it. A short time later, the SLED agents attempted to enter the
club to inspect the premises. Mr. Washington was seated on a bar
stool at the edge of the bar closest to the door. The door swung
open and Washington stopped it. He said "You can't come in here
like that" and closed the door. The agents repeated their
identification on the other side of the door. Washington did not
hear the agents identify themselves. When the door opened again it
swung back and Mr. Washington again tried to stop the agents by
putting his hand out to stop Roberts. It is not clear whether Mr.
Washington heard the officers even though they all stated that they
were identified. The agents restrained Washington and attempted to
handcuff him when Mrs. Washington came around and explained about
his arm. She asked that he not be handcuffed. Mr. Washington was
then handcuffed in front of his body and taken outside. Citations
were subsequently issued. Washington was not charged with
resisting arrest. The criminal charge of rendering an inspection
was dismissed for lack of prosecution.
CONCLUSION OF LAW
Respondent in closing arguments moved to dismiss the
violations on the basis the Department has not its burden of proof.
Since the motion comes at the end of the trial after all testimony
and evidence has been submitted, it is a motion for a directed
verdict. This is a civil matter. In civil cases the standard for
a motion to dismiss is to view all the evidence and any reasonable
inferences to be drawn therefrom in the light most favorable to the
non-moving party. W.E.Gilbert & Associates v. S.C. National Bank,
285 S.C. 421, 330 S.E.2d 307 (Ct. App. 1985). With respect to the
violation of Regulation 7-17 J., it states:
J. Only bona fide members and bona
fide guests of members of such
organizations may consume alcoholic
beverages sold in sealed containers
of two ounces or less upon the
licensed premises.
The violation occurs when the liquor is sold for consumption
on the premises. In this case the violation occurred when the rum
and coke was sold to Agent Williams for consumption on the
premises. This is no dispute that the drink was sold to her and
that she consumed a portion of the drink while inside the club.
Respondent argues that Agent Williams held herself out as a guest
of the disc jockey who made prior arrangements with Washington for
his guest. Although the testimony is conflicting, it clearly shows
that Agent Williams was not a guest of the disc jockey, nor did she
hold herself out to be his guest. Washington simply assumed that
Williams was a guest of the disc jockey. He did not confirm it
with Magic nor did he specifically determine from Agent Williams
that she was a guest of Magic. Viewing the facts and inferences in
the light most favorable to the Department, the motion for a
directed verdict on the violation of Regulation 7-17 J. is denied.
Based upon the preponderance of the evidence, there was a
violation of Regulation 7-17 J. No prior arrangements had been
made with the disc jockey concerning Agent Williams. Mistaken
identity does not excuse Washington from his burden of complying
with the regulations and ascertaining bona fide guests of his
members. No attempt was made to satisfactorily determine that
Williams was a guest. According to his own testimony, Washington
asked if she was a guest of Magic. Her response was she was going
to see Magic. He did not stop her or check with Magic to obtain a
satisfactory resolution to the questions. The regulation clearly
requires that only bona fide members and bona fide guests of
members may consume alcoholic beverages on the licensed premises.
Intent is not an issue. The evidence clearly reveals the sale and
consumption to a non-member or a person who was not a guest of a
member.
The other issue is whether the Department established that
Washington violated the provisions of Section 61-13-410. This
section states that it is unlawful for a person to refuse to allow
inspection of a licensed premise or to hinder or in any way hinder
or prevent the inspection. The facts are disputed. All of the
officers except Agent Williams state that Roberts identified
himself verbally or was in the process of identifying himself when
the door was closed on him. Washington and his witnesses state
that none of the agents identified themselves and did not present
badges or other credentials until after the altercation. The
question with respect to hindering or preventing the inspection is
whether Washington heard the officers and knew the men to be
alcoholic beverage unit officers. Washington is a seventy four
year old man who with his wife has been running a club since 1940.
His wife was the person who knew the agents and worked with them;
his wife handled the books; and his wife completed the applications
for the various licenses. Washington interacted with the patrons
and collected the money. He testified he only met Roberts on one
occasion and did not know he was an ABC agent until his wife told
him later. It is reasonable to believe and consistent with the
other testimony that Washington did not hear the agent identify
themselves and was not aware of their status as agents. What
Washington saw on December 11, 1994 was four men coming into the
club who he felt entered inappropriately and who were not dressed
according to the club's dress code. He attempted to stop them
whether by closing the door or by physically placing his hands out
to block entrance or by putting his hand on the first agent through
the door who happened to be Roberts. While the officers' believe
they adequately identified themselves both verbally and
demonstratively, more weight is given to Washington's testimony
that he did not hear or see the identification. Based upon these
findings and conclusions of law the violation of hindering an
inspection is dismissed.
ORDER
Based upon the foregoing Findings of Fact and Conclusion of
Law, it is
ORDERED, that the Respondent's motion to dismiss the violation
of Regulation-17 J. is DENIED and a civil penalty of $200 is
imposed against the sale and consumption license of George
Washington. If the penalty is not paid within ten (10) days of the
date of this Order, the sale and consumption license is suspended
for a period of thirty (30) days. The Department shall send a law
enforcement agent to collect the license as provided by law. It is
FURTHER, ORDERED that the violation of Section 61-13-410 of
the S.C. Code of Laws is DISMISSED.
AND IT IS TO ORDERED.
_____________________________
ALISON RENEE LEE
Administrative Law Judge
Columbia, South Carolina
August __, 1994. |
