SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division pursuant to administrative violations written against the club sale and consumption license of the Respondent Catherine O. Wilson, E.R., Inc. of Columbia, d/b/a East Room. Citations were issued to Ms. Wilson for a violation of S.C. Code Ann. § 61-5-30 (Supp. 1994) for selling liquor to an intoxicated person on July 19, 1994; for a violation of S.C. Code Ann. § 61-5-20(4) (Supp. 1994) for selling liquor during restricted hours on October 14, 1994; and for a violation of S.C. Code Ann. § 61-5-20(4) (Supp. 1994) for permitting the consumption of liquor during restricted hours on October 14, 1994. For the alleged violations, which would constitute the third, fourth and fifth violations within three (3) years, the South Carolina Department of Revenue and Taxation ("Department") seeks fines and the revocation of Respondent's license for the sale and consumption of liquor, pursuant to S.C. Code Ann. § 61-5-110(3) (Supp. 1994). Respondent stipulated to the violation of S.C. Code Ann. § 61-5-20(4) (Supp. 1994) for selling liquor during restricted hours on October 14, 1994, but denied the other two (2) alleged violations.

I find that the Respondent violated S.C. Code Ann. § 61-5-20(4) by selling liquor during restricted hours on October 14, 1994, but that she did not violate § 61-5-20(4) by permitting the consumption of alcoholic beverages during restricted hours on October 14, 1994. I further find that the Respondent violated S.C. Code Ann. § 61-5-30 by selling liquor to an intoxicated person on July 19, 1994. I find that the appropriate sanction for these violations is the temporary suspension of Respondent's license and the imposition of a fine; as set forth herein.

EXHIBITS

It was stipulated and agreed by both parties that the five (5) exhibits attached to Petitioner's Prehearing Statement dated January 24, 1995 become a part of the record.

SUMMARY OF THE EVIDENCE

State Law Enforcement Division ("SLED") agents Rayburn W. Lominack, James R. Causey and Aaron David Jackson testified for the Petitioner. Agent Lominack, a certified breathalizer operator and a veteran of law enforcement of seventeen to eighteen (17-18) years, during which time he made numerous driving under the influence arrests, testified that he went to the East Room in an undercover capacity on July 19, 1994, positioning himself at the bar area. He stated that there he observed three (3) individuals, two (2) males and one female. He testified that the older of the two males, Henry Taylor, had a young lady in his lap. He observed Mr. Taylor for approximately ten (10) minutes and then followed Mr. Taylor and his two companions outside. He stated Mr. Taylor appeared incoherent, unsteady on his feet and intoxicated, and he subsequently arrested him. While in the bar area, he witnessed Mr. Taylor consume one drink and a portion of another. Agent Causey, who was outside the club the same night, testified Mr. Taylor was "torn up", obnoxious and had slurred speech, and that summons were written charging him with disorderly conduct under S.C. Code Ann. § 16-17-530, and unlawful possession of liquor under S.C. Code Ann. § 61-5-110.

Agent Jackson testified that on October 14, 1994 he visited the East Room at 2:45 a.m. with Agent Tanner, observing individuals drinking mixed drinks. Violations were written against customers Jill Bates and Rodney McAllister.

Stephanie Lee McCormick, the bartender on the evening of July 19, 1994 (a Tuesday), testified that neither Mr. Taylor nor his two companions were intoxicated on that evening. They had been at the bar approximately forty-five (45) minutes and she had a conversation with them as well as Agent Lominack. She stated that as of July 19, 1994, she had bartended for one year, waitressed for two and a half (2 1/2) years and had observed many intoxicated customers, refusing to serve them alcoholic beverages. She had no recollections of Mr. Taylor having slurred speech the evening of July 19, 1994.

Marion Jordan, co-owner of the East Room, testified he observed Mr. Taylor thirty to forty-five (30-45) minutes the evening of October 14, 1994 and opined he was not intoxicated.

Beth Summers, a bartender for the past ten (10) years, testified that she was coming into the club at approximately the same time Mr. Taylor was leaving, that she observed him for approximately five (5) minutes and, based upon her years of evaluating individuals under the influence, he looked fine to her.

FINDINGS OF FACT

By a preponderance of the evidence, I make the following findings of fact:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties.

3. Catherine O. Wilson holds a sale and consumption license for a club (East Room) located at 3315 Broad River Road, Columbia, South Carolina.

4. Respondent and/or her agents sold liquor during restricted hours on Friday, October 14, 1994, in violation of S.C. Code Ann. § 61-5-20(4), as stipulated to by her attorneys at the hearing.

5. There was no evidence presented that Respondent and/or any of her agents or any agents of E.R., Inc. of Columbia consumed alcoholic liquors and beverages during restricted hours on October 14, 1994.

6. Although the evidence by both parties at the hearing was in conflict as to whether Mr. Henry Taylor was intoxicated on the evening of July 19, 1994, the more credible and believable evidence is the testimony of SLED agents Lominack and Causey, officers trained in law enforcement and dealing with intoxicated individuals. I find that Mr. Taylor was under the influence of alcoholic liquors and beverages and was intoxicated sufficiently that he created a disturbance, was arrested on a charge of disorderly conduct and ultimately found guilty.

7. Respondent Catherine O. Wilson had two previous violations of S.C. Code Ann. § 61-5-20(4), each being a sale of liquor during restricted hours, one on February 9, 1994 and one on April 14, 1994. See Petitioner's exhibits attached to its Prehearing Statement.

8. Petitioner seeks revocation of the sale and consumption (mini-bottle) license issued to Catherine O. Wilson and fines of $1,500.00.

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. § 61-5-55 (Supp. 1993) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. S.C. Code Ann. § 61-5-20 establishes when the sale and consumption of alcoholic liquors and beverages is lawful, and therefore, by the inverse, when it is unlawful. Subsection (4) provides as follows:

(4) Except on Sunday, it shall be lawful to sell and consume alcoholic liquors and beverages in sealed containers of two ounces or less in any business establishment between the hours of ten o'clock in the morning and two o'clock the following morning, provided the establishment meets the following requirements:

(a) The business is bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging; and

(b) The business has a license from the Alcoholic Beverage Control Commission permitting the sale and consumption of alcoholic liquors and beverages, which is conspicuously displayed on the main entrance to the premises and clearly visible from the outside.

The statute prohibits only the sale (by a licensee) or consumption (by an individual) of alcoholic beverages during restricted hours. There is no language prohibiting a licensee from permitting the consumption of alcoholic beverages during restricted hours. The words of a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation. State v. Blackmon, 304 S.C. 270, 403 S.E. 2d 660 (1991). Had the legislature intended to prohibit licensees from permitting the consumption of alcoholic beverages during restricted hours, it could have inserted specific language in the statute to that effect, as has been done elsewhere in the Alcoholic Beverage Control Act. See, e.g., S.C. Code Ann. § 61-5-30 (Supp. 1994) (prohibiting persons for whose premises a license is required from knowingly allowing the possession and consumption of alcoholic beverages on their premises unless a license has been obtained).

3. S.C. Code Ann. § 61-5-30 (Supp. 1994) provides that "no person or establishment licensed to sell alcoholic beverages pursuant to this article shall sell such beverages to persons in an intoxicated condition..."

4. 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. 1994).

5. For the third violation 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 ($500.00) and his license revoked permanently pursuant to S.C. Code Ann. § 61-5-110 (Supp. 1994).

6. 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.

7. Liquor licenses are neither contracts nor property rights. They are mere permits, issued or granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. The tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it. Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).

8. I conclude that Respondent violated S.C. Code Ann. § 61-5-20(4) on October 14, 1994, as conceded by her counsel at the hearing, by selling alcoholic liquors or beverages during restricted hours.

9. I conclude that neither Respondent nor her agents violated S.C. Code Ann. § 61-5-20(4) on October 14, 1994 by "permitting the consumption of liquor during restricted hours." The statute imposes no restriction or responsibility upon the licensee to police, allow or deny the consumption of alcoholic beverages during the restricted hours. As discussed above, the statute provides only two prohibitions, one against the licensee selling alcoholic beverages during restricted hours and the other against individuals consuming alcoholic beverages during restricted hours.

10. I conclude that Respondent and/or her agents did violate S.C. Code Ann. § 61-5-30 on July 19, 1994 in that alcoholic beverages were sold to Mr. Taylor while he was in an intoxicated condition. Two SLED agents with training in recognizing individuals under the influence, observed, conversed with and eventually arrested him for his behavior. The evidence is clear Mr. Taylor was not in control of his faculties at the time Respondent and /or her agents sold him alcoholic beverages.

11. Although the violation of S.C. Code Ann. § 61-5-30 on July 19, 1994 and the violation of S.C. Code Ann. § 61-5-20(4) on October 14, 1994, (for selling alcoholic beverages during restricted hours) constitute the third and fourth violations against the license of the Respondent within a three year period, I do not find nor conclude they are sufficient indiscretions or evince that lack of control by the Respondent in the operation of her club which mandates a revocation of the license. S.C. Code Ann. § 61-1-80 authorizes as an alternative to revocation or suspension the imposition of a monetary penalty. I find and conclude that such is appropriate in this case.

12. Accordingly, I find and conclude that the Respondent will pay to the Department a fine of five hundred dollars ($500.00) and further, the license will be suspended for fifteen (15) days which suspension is to begin on the fifth day after the service of this Order on Respondent. The license will be returned to Petitioner on or before the date the suspension period begins and a copy of this Order will be posted at the club (location). Respondent will cease and desist from selling or allowing the consumption of all alcoholic liquors and beverages as the location during the suspension period.

13. I further find and conclude that Respondent must institute a written training policy for herself and all the staff at the club on the application of and knowledge of the Alcoholic Beverage Control Act, and must forward a copy of the policy to the Department before the expiration of the suspension period.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, Catherine O. Wilson, E.R. Inc., of Columbia, d/b/a East Room violated S.C. Code Ann. § 61-5-30 (Supp. 1994) and S.C. Code Ann. § 61-5-20(4) (Supp. 1994). It is therefore

ORDERED that the sale and consumption license be suspended for fifteen (15) days from the fifth day after service of this Order and,

IT IS FURTHER ORDERED that the Respondent, Catherine O. Wilson, shall pay to the South Carolina Department of Revenue and Taxation a monetary penalty of $500.00 within fifteen (15) days of service of this Order by a SLED agent and,

IT IS FURTHER ORDERED that a SLED agent shall serve a copy of this Order on the 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 cease and desist all liquor sales during the suspension period and,

IT IS FURTHER ORDERED that the Respondent shall prepare and maintain at the location a written training policy for all staff on ABC statutes, rules and regulations and shall provide a copy of the policy to the Department before the expiration of the suspension period.

AND IT IS SO ORDERED.

________________________________________________

Marvin F. Kittrell

Chief Administrative Law Judge

Columbia, South Carolina

May 12, 1995