ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division
pursuant to a charge brought by Petitioner against the Respondent
for a violation of Regulation 7-9(B) and SC Code Ann. § 61-13-287.
The petitioner made a timely request for a hearing on these
charges and a hearing was held before the Administrative Law Judge
Division in Columbia, South Carolina on January 16, 1995. Notice
of the time, date, place and nature of the hearing was timely given
to all parties.
I find the respondent guilty of the alleged violation and
assess a fine of $50.00.
SUMMARY OF THE EVIDENCE
At the hearing on the matter, the undersigned was informed the
parties had reached an agreement whereby the Respondent would plead
guilty to the charge brought by Petitioner, and the Petitioner
would recommend a fine of no less than $25.00 and no greater than
$400.00. The Court accepted the plea entered by Respondent, and
agreed to hear evidence as to mitigating circumstances as to the
fine to be imposed.
The Petitioner testified that he is 67 years old and has
operated two restaurants in Sumter, South Carolina since the mid-1940's with no ABC violations. According to his testimony, the
location where the violation occurred is a family-style restaurant
as opposed to a bar or sports bar. In addition, he testified that
the waitress who committed the violation had been an employee of
his business for over twenty-five years with no history of
alcoholic beverage violations.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following
findings:
1. This Division has personal and subject matter
jurisdiction over this matter.
2. James Karvelas, d/b/a Big Jim's Drive-In, 451 Broad
Street, Sumter, South Carolina holds a beer and wine permit issued
by the South Carolina Department of Revenue and Taxation.
3. On July 27, 1994, an agent of the Respondent sold a beer
to a person under twenty-one years of age, as stipulated to by both
parties.
4. The Court was impressed with and finds the Respondent to
be sincere and credible. This finding was based upon a history of
no ABC violations ever previously written against him in all the
years he has been permitted. Further, the employee who sold the
beer to the underage agent has been with him for twenty-five years
with no violations.
Further, I find that the profitability of Respondent's
restaurant is based upon food sales as opposed to alcoholic
beverage sales.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a
matter of law the following:
1. SC Code Ann. Section 1-23-600 (Supp. 1993) grants
jurisdiction to the Administrative Law Judge Division to hear
contested appeals under the Administrative Procedures Act.
2. SC Code Ann. Section 61-1-55 (Supp. 1993) grants to the
Administrative Law Judge Division the powers, duties, and
responsibilities of a hearing officer in protested and contested
matters governing alcoholic beverages, beer and wine.
3. ABC Regulation 7-9(B) prohibits a permit holder from
permitting a person under twenty-one years of age to possess beer
in a licensed establishment.
4. S.C. Code Ann. Section 61-13-510 (1990) authorizes, in
lieu of suspension or revocation of a permit, the imposition of a
monetary fine of not less than twenty-five dollars nor more than
one thousand dollars for the violation of any regulation
promulgated by the Department.
5. After considering the evidence and considering the
mitigating circumstances presented by the Respondent, it concluded
that a fair and reasonable penalty for this violation would be the
payment of a fine by the Respondent to the Petitioner.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
it is hereby:
ORDERED AND ADJUDGED that James Karvelas pay a monetary
penalty in the amount of $50.00 for the offense cited above. If
the Petitioner does not receive a total of $50.00 from James
Karvelas within fifteen (15) days from the date of this Order, it
is Ordered that the beer and wine permit be suspended for a period
of fifteen (15) days. If the Petitioner does not receive the funds
as stated, any agent of the State Law Enforcement Division shall
serve a copy of this Order on Respondent and shall take possession
of the beer and wine permit issued to James Karvelas, d/b/a Big
Jim's Drive-In, 451 Broad Street, Sumter, South Carolina. Said
agent shall hold the permit for fifteen (15) days. Upon expiration
of the fifteen (15) day suspension, said agent shall return the
permit to Respondent. During the period of this suspension,
Respondent is ordered to post of copy of this Order at a visible
location at his place of business, and to cease and desist all
sales of beer and wine.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
January 31, 1995 |
