ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and
S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon notice by the South
Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR") to seek
revocation of the beer and wine permit of Respondent for an alleged administrative violation of a
stipulation on or about February 18, 1994. A hearing was held on July 12, 1994. Respondent did
not appear at the hearing and is in default. I find that a violation of a stipulation for no on-premises consumption of beer and wine has occurred. Respondent's permit is revoked.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Respondent holds a beer and wine permit at Clark's Service Station, 3000 Locust Hill
Road, Taylors, South Carolina.
(2) Respondent entered into a stipulation and written agreement not to allow on-premises
consumption at the licensed location as a condition to being issued a beer and wine permit on
September 25, 1973, pursuant to an Order dated September 19, 1973, following a hearing before
the ABC Commission.
(2) Notice of the time, date, place, and subject matter of the hearing was given to
Respondent, the South Carolina Law Enforcement Division (hereinafter referred to as "SLED"),
and DOR.
(3) On February 18, 1994, Agent Guy A. Jenkins of the SLED Alcohol Enforcement Unit
entered the licensed premises along with local law enforcement officers for the purpose of serving
a search warrant and conducting a search of the premises.
(4) Agent Jenkins observed several patrons of the establishment drinking from open
containers of beer on the premises.
(5) Agent Jenkins confiscated from the patrons four open containers, each a 12 oz. can of
partially consumed beer.
(6) The operator of Clark's Service Station, Wayne Clark, the son of the licensee, was
present at the location with the patrons and open containers in his plain view.
(7) Also seized in the search by law enforcement officers were marijuana and illegal
liquor.
(8) Respondent neither appeared at the hearing nor made any motion for continuance or
postponement of the hearing.
(9) Petitioner moves for an Order of default against the Respondent and seeks revocation
of Respondent's beer and wine permit.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
(1) Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and Chapter 23 of Title I of the
1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in
this matter.
(2) 23 S.C. Code Regs. 7-88 (1976) provides that any written stipulation entered into
voluntarily by an applicant for a beer and wine permit is incorporated into the basic requirements
for the privilege and enjoyment of the permit. A knowing violation of a stipulation is grounds for
revocation of the permit.
(3) Respondent is bound by the September 25, 1973, stipulation and written agreement
not to allow on-premises consumption at the licensed location entered into as a condition to being
issued a beer and wine permit.
(4) Respondent violated the stipulation attached to his beer and wine permit prohibiting
on-premises consumption of beer or wine.
(5) Section 61-9-380 provides that a beer and wine permit may be revoked upon violation
of any requirement of the permit.
(6) Section 61-3-740 provides that any license may be revoked or suspended if the
licensee or the licensed location is deemed unsuitable.
(7) Because of the presence of open containers of beer, marijuana, and non-taxed liquor
on the premises, the business location is unsuitable for the sale of beer and wine for off-premises
consumption.
(8) Beer and wine licenses are neither contracts nor property rights. They are mere
permits, issued or granted in the exercise of the State's police power and to be enjoyed only so
long as the restrictions and conditions governing their continuance are complied with. The same
tribunal authorized to grant the issuance of a license is likewise authorized, for cause, to revoke it.
Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).
(9) A party who fails to appear at a hearing without prior consent of the judge is in
default under Rule 25, Administrative Law Judge Division Temporary Operating Procedures.
The contested case may be disposed of adversely to the defaulting party upon motion of the other
party.
(10) Respondent is in default, and upon motion of DOR, the affirmative relief sought by
DOR against the respondent may be granted.
ORDER
IT IS THEREFORE ORDERED that the beer and wine permit held by Leonard Clark,
at Clark's Service Station, 3000 Locust Hill Road, Taylors, South Carolina is hereby revoked. A
SLED agent shall serve a copy of this Order on Leonard Clark and take possession of the permit.
Leonard Clark and his agents are to cease and desist all sales of beer and wine at the location.
___________________________
STEPHEN P. BATES
Administrative Law Judge
July 15, 1994
Columbia, South Carolina |
