ORDERS:
ORDER AND DECISION
This matter comes before the Administrative Law Judge Division on the citation issued by the
Department of Revenue and Taxation against William V. George d/b/a Money for a violation of S.C.
Code Reg. § 7-17(J). After notice to the parties, a hearing was conducted on April 3, 1995.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their cases by a preponderance of the evidence and taking into account the credibility of the
witnesses:
1. William V. George holds a sale and consumption license for Money, a private club
located on 110 South Cherry Road in Rock Hill, South Carolina.
2. On October 24, 1994 at 12:20 a.m. John Tanner and Gary Rinehart, both special
agents with the Alcohol Enforcement Unit of the State Law Enforcement Division, entered the club.
3. The person seated at the door asked if they were members of the club. Upon
responding in the negative, the doorman charged them five dollars and checked their identification.
4. The agents then entered the club and Tanner ordered a mixed alcoholic beverage from
the bartender, for which he paid and consumed a portion to make sure it contained alcoholic liquors.
5. The agents did not fill out any membership applications, did not make previous
arrangements with a guest of the club to attend, and were not asked by the doorman if they were
guests of members.
6. Two previous violations were written against William George on March 4. 1994. One
involved the sale of liquor to an underaged individual and the other involved the sale of liquor to a
non-member. These violation were adjudicated by the Department on separate dates resulting in the
payment of fines. Another violation submitted by the Department was more than three years old.
7. Money had procedures to follow to ensure that non-members would not be admitted
to the club. After the violation was written these procedures were rewritten to provide stricter
requirements for admission to the club when guests accompany members.
CONCLUSIONS OF LAW
1. S.C. Code Ann. § 1-23-600 grants jurisdiction to the Administrative Law Judge
Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1993) grants to the Division the powers, duties, and
responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages,
beer and wine.
3. The Government Restructuring Act of 1993 provides that all regulations promulgated
by the Alcoholic Beverage Control Commission effective on the date of the act remain in force until
modified or rescinded by the Department or the State Law Enforcement Division. 1993 Act No. 181
§1604.
4. Commission Regulation 7-17J. states: "Only bona fide members and bona fide guests
of members of such [nonprofit] organizations may consume alcoholic beverages sold in sealed
containers of two ounces or less upon the licensed premises."
5. Section 61-5-20 (3) provides that it is lawful for a person twenty-one years of age or
older to consume lawfully acquired alcoholic liquors in accordance with the provisions that members
or guest of members of certain non-profit organizations may consume alcoholic beverages sold in two
ounce containers upon the licensed premises during certain hours. S.C. Code Ann. § 61-5-20 (Supp.
1993).
6. A person who is licensed to sell alcoholic liquors pursuant to the provisions of Article
1, Chapter 5, Title 61 who violates other provisions of the article shall be sanctioned pursuant to
Section 61-5-110. S.C. Code Ann. § 61-5-110 (Supp. 1993). Based upon this code section, the
Department seeks revocation of the license for the third violation within a three year period.
However, the Department records submitted in support of its position clearly reveal that the two
violations were written on the same day. In addition, the violations were clearly within the three year
period from another violation written in 1991. The Department did not seek revocation of the license
at that time which raises the inference that it treated the March 4, 1994 violations as only one instead
of two violations. Further there is no evidence to suggest that the violations should not be treated as
arising out of the same transaction or occurrence. The Department clearly has the burden of
establishing that the violations were not arising out of the same facts or inspection of the premises.
The violations occurring on March 4, 1994 will be treated as one violation for the purposes of
imposing any sanction.
7. The evidence clearly supports that a violation occurred in this case. The statutes and
regulation do not require that the violation be "knowingly". The conflicting evidence presented by
the parties addresses solely the issue of whether the doorman believed that the agents were the guest
of a member who entered before the agents. This evidence is disputed by the Department. Even so,
the law does not require knowledge of the acts constituting the violation.
8. The remaining evidence presented by the respondent is offered to show that the
problems encountered with the procedure for checking memberships and admitting guests of members
have been corrected since this violation. This evidence is to mitigate any penalties imposed.
9. S.C. Code Ann. § 61-5-110 (2) provides that for a second offense within three years
of the first offense, the violator shall be fined not less than two hundred dollars nor more than five
hundred dollars or have his license suspended for not more than one hundred eighty days, or both.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is therefore
ORDERED, that a violation be issued against the respondent William V. George. The
respondent is fined $500.00 and the sale and consumption license is suspended for a period of fifteen
days beginning April 12, 1995. The fine must be paid to the Department of Revenue and Taxation
within ten days or the license will be suspended for a period of 45 days including the fifteen day
suspension cited above. The license shall be surrendered to the Department for the fifteen day
suspension on April 12, 1995 in a manner provided by the Department. A copy of this Order shall
be posted at the location during the period of suspension.
AND IT IS SO ORDERED.
_____________________________
ALISON RENEE LEE
Administrative Law Judge
April ____, 1995
Columbia, South Carolina |
