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 notice by the South
Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR") to seek
suspension of the beer and wine permit of Respondent for an alleged administrative violation of
23 S.C. Code Ann. Regs. 7-9(b) (Supp. 1994), permitting the purchase of beer by a person under
the age of twenty-one (21) years on or about February 10, 1995. A hearing was held on June 28,
1995. Respondent did not appear at the hearing, and Petitioner moved for an order of default,
which is hereby granted. I find that a violation did occur, and I hereby suspend Respondent's
permit for a period of thirty (30) days.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Respondent holds a beer and wine permit at Brawley's Grocery, 5700 North Main
Street, Columbia, South Carolina, Permit #BW-602129.
(2) Prehearing Statements were ordered to be filed and served by each party by my Order,
dated May 9, 1995.
(3) Petitioner timely filed and served a Prehearing Statement which included allegations
that Respondent violated 23 S.C. Code Ann. Regs. 7-9(b) (Supp. 1994), by permitting the
purchase of beer by a person under the age of twenty-one (21) years on or about February 10,
1995. Petitioner also submitted certified copies of three (3) prior violations by Respondent.
(4) Respondent failed to file a Prehearing Statement, as ordered by this Court on May 9,
1995.
(5) Notice of the time, date, place, and subject matter of the hearing was given to
Respondent by certified mail, return receipt requested.
(6) Respondent, as evidenced by his signature on the return receipt, received notice of the
hearing on May 11, 1995.
(7) The hearing was scheduled for Wednesday, June 28, 1995, at 9:00 a.m. and
commenced at approximately 9:15 a.m.
(8) Respondent did not appear at the hearing and did not make any motion for
continuance or postponement of the hearing.
(9) Respondent permitted the purchase of beer by a person under the age of twenty-one
(21) years on or about February 10, 1995.
(10) Respondent committed the following previous violations:
a. Sale to underage person, August 8, 1991; $400 fine paid;
b. Sale to underage person, December 31, 1992; $1000 fine paid;
c. Sale of beer during restricted hours, May 29, 1994; $800 fine paid.
(11) Petitioner moves for an order of default against the Respondent for failure to file a
Prehearing Statement and failure to appear at the hearing. Petitioner also seeks suspension of
Respondent's beer and wine permit for a period of thirty (30) days.
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) Respondent violated 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1994), which prohibits a
licensee from 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.
(3) S.C. Code Ann. § 61-9-380 (Supp. 1994) provides that a beer and wine permit may
be revoked or suspended upon violation of any requirement of the permit.
(4) 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 or
suspend it. Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
(5) A party who fails to comply with an interlocutory order of an administrative law judge
or fails to appear at a hearing without prior consent of the judge is in default under ALJD
Rule 23. Accordingly, Respondent is in default. The contested case may be disposed of
adversely to the defaulting party upon motion of the other party.
ORDER
IT IS THEREFORE ORDERED that Respondent's beer and wine permit be suspended
for a period of thirty (30) days. SLED shall serve a copy of this Order on Respondent no sooner
than ten (10) days after the date of this Order and take possession of the permit. Upon service of
thirty (30) 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
June 30, 1995
Columbia, South Carolina |
