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 request for a hearing by
Respondent after being cited for alleged administrative violations against the club sale and
consumption license of James M. Unger occurring on or about February 12, 1994, and April 7,
1994. The South Carolina Department of Revenue and Taxation (hereinafter referred to as
"DOR") seeks revocation of Respondent's license for the alleged violations, as it would constitute
a third violation in three years. A hearing was held on July 12, 1994. I find that two violations
of permitting consumption of liquor by a non-member have occurred. Respondent's club sale and
consumption license is hereby revoked.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Respondent holds a sale and consumption liquor license at 920-24 Lady Street,
Columbia, South Carolina, at a private club and non-profit organization known as The Naked
Iguana.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
Respondent, the South Carolina Law Enforcement Division (hereinafter referred to as "SLED"),
and DOR.
(3) On February 12, 1994, at approximately 9:50 p.m., Agent Douglas Mazyck of the
SLED Alcohol Enforcement Unit was allowed entrance to The Naked Iguana by a doorperson
after paying a $5.00 cover charge and being given a slip of paper bearing the club's name and
logo.
(4) Agent Mazyck was asked at the door whether he was a member of the club, and he
responded in the negative.
(5) Agent Mazyck entered unescorted and ordered a gin and tonic from the bar, observing
the bartender open the minibottle and pour the drink.
(6) Agent Mazyck consumed a portion of the alcoholic beverage.
(7) On April 7, 1994, Agent Aaron Jackson of the SLED Alcohol Enforcement Unit was
allowed entrance to The Naked Iguana by a doorperson after paying a $5.00 cover charge and
being given a slip of paper (Exhibit P-1) bearing the club's name and logo.
(8) Agent Jackson was asked at the door whether he was a member of the club, and he
responded in the negative.
(9) Agent Jackson entered unescorted and ordered a gin and tonic from the bar, observing
the bartender open the minibottle and pour the drink.
(10) Agent Jackson consumed a portion of the alcoholic beverage.
(11) The By-laws of The Naked Iguana provide for a twenty-four hour waiting period for
applicants before being granted membership.
(12) Agent James Causey conducted an educational training seminar at The Naked Iguana
on November 29, 1993, for employees.
(13) Agent Causey and Lt. Evatt of SLED talked with club management personnel on
February 17, 1994, regarding problems at the club.
(14) Respondent committed a previous violation of the alcoholic beverage laws on June
18, 1993, by permitting the consumption of liquor by a non-member and paid a fine of $200
(Exhibit P-2).
(15) Respondent committed previous violations of the alcoholic beverage laws on
December 2, 1993, by permitting the consumption of liquor by a non-member and violating the
happy hour provisions and paid a fine of $500 for each violation (Exhibit
P-2).
(16) Respondent is in the process of divesting all of his interest in the business and
relinquishing all management responsibilities to prospective buyers.
(17) Petitioner seeks revocation of Respondent's sale and consumption license and a
monetary fine of $1000.
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) The Naked Iguana operates as a non-profit organization with limited membership, not
open to the general public, serving alcoholic beverages to its members and guests pursuant to S.C.
Code Ann. § 61-5-20(3) (Supp. 1993) as the holder of a sale and consumption license.
(3) 23 S.C. Code Ann. Regs. 7-17(J) and (K) (1976) provide that only bona fide members
and bona fide guests of club members accompanied by a member or for whom a member has
made prior arrangements with management to enter the licensed premises may consume alcoholic
beverages sold in minibottles on the premises.
(4) Respondent violated R7-17 and the by-laws of the non-profit organization on
February 12, 1994, by permitting consumption of liquor by a non-member on the licensed
premises.
(5) Respondent violated R7-17 and the by-laws of the non-profit organization on April 7,
1994, by permitting consumption of liquor by a non-member on the licensed premises.
(6) Liquor 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 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).
(7) A violation of any regulation or code section of the Alcoholic Beverage Control Act is
punishable by revocation or suspension of the license pursuant to S.C. Code Ann. § 61-5-60
(Supp. 1993).
(8) For the third offense of a provision of Article 1, Chapter 5, Title 61, within three years
of the first offense, a person shall be fined not less than five hundred dollars and have his license
revoked permanently pursuant to S.C. Code Ann.
§ 61-5-110 (Supp. 1993).
(9) The April 7, 1994, violation constitutes a third violation of Article 1, Chapter 5, Title
61 by Respondent in less than three years and a fourth violation of the Alcoholic Beverage
Control Act in less than two years.
(10) Pursuant to S.C. Code Ann. § 61-1-80 (Supp. 1993), a monetary penalty may be
imposed as an alternative to revocation or suspension in all cases in which revocation or
suspension is authorized. Payment of the monetary fine may be suspended in the discretion of the
court.
ORDER
IT IS THEREFORE ORDERED that the Sale and Consumption License held by James
M. Unger at 920-24 Lady Street Columbia, South Carolina, be revoked pursuant to S.C. Code
Ann. § 61-5-110(3) (Supp. 1993). Payment of the five hundred dollar fines for each violation
provided for in § 61-5-110(3) is suspended pursuant to S.C. Code Ann. § 61-1-80 (Supp. 1993).
A SLED agent shall serve a copy of this Order on Respondent and take possession of the license
cited above. Respondent is ordered to post a copy of this Order at a visible location at the
licensed premises, and to cease and desist all liquor sales.
___________________________
STEPHEN P. BATES
Administrative Law Judge
August 1, 1994
Columbia, South Carolina |
