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 an alleged administrative violation against the club sale and consumption license
and beer and wine permit of Kenneth B. Johnson, d/b/a Crow's Nest, occurring on or about June 24,
1994. The South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR")
sought revocation of Respondent's license for the alleged violation, as it would constitute a fourth
violation in three years. A hearing was held on November 29, 1994. Respondent admitted the
violation occurred, but offered evidence in mititgation and requested a penalty less severe than
revocation. At the conclusion of closing arguments, counsel proposed a stipulated settlement of the
case. I find that a violation of permitting a non-member to consume liquor on the licensed premises
has occurred. Per agreement of the parties, a monetary fine is imposed with further stipulations.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Respondent holds a sale and consumption liquor license and on-premises beer and wine
permit at 829 Knox Abbott Drive, Cayce, South Carolina, at a private club and non-profit
organization known as Crow's Nest.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
Respondent and DOR.
(3) Respondent admits that an employee of the club sold and served an alcoholic beverage
to a non-member and allowed the non-member to consume the drink on the premises on June 24,
1994.
(4) Respondent became President and Manager of Crow's Nest in August, 1993.
(5) Prior to Respondent becoming manager and President of Crow's Nest, the club was cited
for the following violations and penalties imposed:
(a) August 4, 1991: permitting possession or consumption of liquor
during restricted hours; $200 fine.
(b) August 16, 1991: permitting consumption of liquor by a
non-member; $600 fine.
(c) September 13, 1992: permitting consumption of liquor during
restricted hours; 30-day license suspension.
(6) Respondent also owns and operates Tink's, in the St. Andrews section of Columbia, a
licensed location and nightclub.
(7) Respondent has been in the bar and restaurant business for approximately 20 years. The
only previous violation he has been cited for was in 1979 for selling alcohol to a minor.
(8) When Respondent assumed management of Crow's Nest, he was unaware of previous
violations at the location.
(9) Respondent has pending applications for a sale and consumption license and beer and
wine permit in his name individually, rather than as president of the non-profit corporation Crow's
Nest.
(10) Revocation of the license/permit for Crow's Nest would require surrender of
Respondent's license/permit at Tink's, as well.
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) Crow's Nest, 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 the license.
(3) S.C. Code Ann. Section 61-3-70 (Supp. 1993) authorizes the adoption of regulations
necessary and proper to enforce the provisions of Chapter 7, Title 61.
(4) Respondent violated 23 S.C. Code Ann. Regs. 7-17(J) (1976), which prohibits the
permitting the consumption of liquor on the licensed premises by a non-member.
(5) 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).
(6) 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).
(7) 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).
(8) 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.
STIPULATIONS OF PARTIES
In light of the evidence presented in mitigation by Respondent, the parties stipulated that a
violation occurred; that this matter be settled under the condition that a monetary penalty, in lieu
of revocation, be imposed upon Respondent; and, that this violation be considered a violation
against any future licenses Respondent may hold in his name as an individual. Petitioner
requested a $400 fine be imposed. Respondent requested a $200 fine.
ORDER
IT IS THEREFORE ORDERED that Respondent pay a monetary fine in the amount of
Four Hundred Dollars ($400). Failure of Respondent to pay the fine assessed in full within fifteen
(15) days of service of this Order shall result in automatic revocation of Respondent's sale and
consumption liquor license and on-premises beer and wine permit.
IT IS FURTHER ORDERED that this violation is considered a violation against any
future license held by Respondent, whether such license is in the Respondent's name individually
or in a representative capacity.
IT IS FURTHER ORDERED that Respondent establish a written, formalized procedure
for identifying and signing in non-member guests at the club and follow that procedure in
operating the licensed location.
___________________________
STEPHEN P. BATES
Administrative Law Judge
December 8, 1994
Columbia, South Carolina |
