ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann.§ 61-1-55 (Supp. 1994) and
S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1994) upon request for a hearing by
Respondent after being cited for an alleged administrative violation of 23 S.C. Code Ann.
Regs. 7-9(B) (Supp. 1994) against his beer and wine permit occurring on or about October 13,
1994. The South Carolina Department of Revenue and Taxation (hereinafter referred to as
"DOR") seeks a fifteen (15) day suspension of Respondent's permit for the alleged violation. A
hearing was held on April 4, 1995. I find that a violation of permitting purchase of beer by a
person under twenty-one (21) years of age did occur. Respondent's beer and wine permit is
suspended for fifteen (15) days.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Respondent holds an on-premises beer and wine permit at 1734 Mobil Avenue, West
Columbia, South Carolina, at an establishment known as Ashley's, AI #99023.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
Respondent, and DOR.
(3) Respondent was absent from the proceedings, although he was represented by counsel
at the hearing. After a pretrial bench conference with counsel, the hearing commenced without
objection of Respondent's counsel.
(4) On October 13, 1994, an underage cooperating individual working in conjunction
with agents of the South Carolina Law Enforcement Division, Alcohol Enforcement Unit
(hereinafter referred to as "SLED"), entered the licensed premises with Agent John Tanner.
(5) Christopher Whitaker, whose date of birth is July 28, 1975, was the underage
individual working in cooperation with SLED.
(6) Christopher Whitaker, who testified at the hearing, is clean shaven and youthful in
appearance.
(7) Upon entering the licensed premises, Christopher Whitaker and Agent
John Tanner were not met at the door by an employee of the establishment, and they were not
asked for identification. Whitaker went to the bar and ordered a Budweiser beer from bartender
Joann Keough. Ms. Keough did not request identification from Whitaker and did not ask him his
age. Ms. Keough served a bottle of Budweiser beer to Whitaker and accepted payment from
Whitaker. When it was discovered that the bottle contained frozen contents, she exchanged the
frozen beer for another Budweiser beer. Whitaker and Agent Tanner then exited the licensed
location. Upon leaving the licensed location, Whitaker transferred the beer to SLED agents.
(8) Whitaker and Tanner then repeated the above process, except no frozen beer was
served the second time.
(9) Joann Keough was employed as a bartender at the licensed location at the time of the
offense.
(10) Christopher Whitaker's driver's license (a copy of which was admitted as Petitioner's
Exhibit #1) contains conspicuous language in the front, top right corner which reads "UNDER 21
until 07-28-1996."
(11) SLED Agents subsequently cited Ms. Keough and Respondent for the offense.
(12) Ms. Keough was cited for a criminal violation of selling beer to a minor and was
found guilty in magistrate's court in a jury trial.
(13) There is no evidence that John M. Gardener was present at the licensed location at
the time of the offense.
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. 1994) 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) Beer and wine 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 same
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).
(3) 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1994) prohibits a licensee from permitting or
knowingly allowing the purchase or possession of beer by a person under the age of twenty-one
(21) years on the licensed premises. A violation constitutes grounds for suspension or revocation
of the beer and wine permit.
(4) Christopher Whitaker was nineteen (19) years of age at the time he purchased the beer.
(5) Bartender Joann Keough knew or should have known from Christopher Whitaker's
physical appearance that Whitaker was under the age of twenty-one (21), and/or should have at
requested proper identification with proof of age prior to serving Whitaker beer. Inspection of
Christopher Whitaker's driver's license would have indicated that he was under the age of twenty-one (21). Keough permitted Whitaker's purchase of beer, nonetheless. Respondent, through the
actions of his employee, violated Regs. 7-9(B).
ORDER
IT IS THEREFORE ORDERED that the on-premises beer and wine permit held by
John M. Gardener, d/b/a Ashley's, be suspended for a period of fifteen (15) days for the offense of
permitting the purchase of beer by a person under the age of twenty-one (21) years. A SLED
agent shall serve a copy of this Order on Respondent and take possession of the permit. Upon
service of fifteen (15) days suspension, said agent shall return the permit to Respondent.
Respondent and his agents are to cease and desist all sales of beer and wine at the location during
the suspension period.
_________________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
April 6, 1995
Columbia, South Carolina |
