South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Rosa M. Hopkins d/b/a Flamingo Lounge (AI04162)

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Rosa M. Hopkins d/b/a Flamingo Lounge (AI04162)
 
DOCKET NUMBER:
94-ALJ-17-0118-CC

APPEARANCES:
n/a
 

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.


Brown Bldg.

 

 

 

 

 

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