ORDERS:
ORDER AND DECISION
This matter is before the Administrative Law Judge Division
(Division) pursuant to an administrative violation written against
the beer and wine permit of the respondent Rosa M. Hopkins. The
citation was issued for a violation of Alcoholic Beverage Control
Commission (Commission) Regulation 7-86 sale of beer during
restricted hours. A hearing was conducted on July 11, 1994. Based
upon the testimony and evidence, I make the following:
FINDINGS OF FACT
On Sunday January 16, 1994 at 1:00 a.m., two Alcohol
Enforcement Unit agents entered the Flamingo Lounge located in St.
Matthews, South Carolina. They approached the bartender and
requested two Michelob beers. The licensee, Rosa Hopkins, was the
bartender. She served the two agents and accepted the money for
the beers. The agents consumed a portion of the beers before other
agents entered to issue the citation.
Ms. Hopkins has held the permit for the lounge for 14 years.
The bar closes at 12:00 midnight but continues to be open until
2:30 a.m. She admits selling the beer on that night but her sole
purpose for appearing at the hearing was to have the proposed fine
reduced. Her testimony is that the money she receives from the
operation of the business does not justify from a business
standpoint the payment of the fine requested by the Department of
Revenue and Taxation. It has requested a fine of $800 because this
is a second offense within three years. The previous citation was
issued on April 5, 1991. After a hearing in that case the $600
fine was reduced to $300 which was paid on July 5, 1991.
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of the act remain in force until modified or rescinded by the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 7-86 states that any beer sold to
anyone from a licensed establishment between the hours of twelve
o'clock Saturday night and sunrise Monday morning is a violation
against the beer and wine permit subjecting the permit to
suspension or revocation. A monetary penalty may be accepted in
lieu of suspension or revocation.
5. The Department policy is to increase monetary fines for
second and subsequent offenses. There is no specific statutory
authority mandating the increase. Section 61-13-510 allows the
Department to impose a fine instead of revocation or suspension of
a license after a hearing within certain parameters. The maximum
penalty which can be imposed by the Department is $1000. This
statute does not require the imposition of greater fines for a
second or subsequent offense, in fact, the statute does not address
second or subsequent offenses. However, it is within the
discretion of the Department to increase the penalty based upon a
previous violation.
6. There is sufficient evidence to find a violation of
Regulation 7-86.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
it is:
ORDERED AND ADJUDGED that Rosa M. Hopkins d/b/a Flamingo
Lounge pay a monetary penalty in the amount of $600 for the offense
cited above. If the Petitioner does not receive a total of $600 by
close of business on July 29, 1994, it is Ordered that the
Respondent's beer and wine permit 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
Columbia, South Carolina
July __, 1994. |