ORDERS:
ORDER
STATEMENT OF CASE
This matter comes before me upon request for a Hearing by the Respondent after being cited
for an administrative violation against his beer and wine permit. The South Carolina Department of
Revenue and Taxation ("Department") seeks sanctions against the Respondent's permit for violating
23 S.C. Code Ann. Regs. 7-9(b) (Supp. 1994).
A Hearing was held before the Administrative Law Judge Division in Columbia on June 22,
1995. I find the Department failed to prove the Respondent guilty of violating Regulation 7-9(b).
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. The court has subject matter jurisdiction of this case.
2. The Respondent holds an on-premise beer and wine permit for the
Carriage House Inn at 5511 Forest Drive, Columbia, South Carolina.
3. Notice of the time, date, place and subject matter of the Hearing was
given to the Petitioner and the Respondent.
4. South Carolina Law Enforcement Division (SLED) Agent, Aaron
Jackson, entered the Carriage House Inn at 9:00 p.m. on September
8, 1994. Agent Jackson asked the doorman if Nicky, whose formal
name is Sonya Gale Oddie was working that night. The doorman
informed him that indeed she was working.
5. Agent Jackson went to the table where Ms. Oddie was seated, and in
the course of conversation with her, asked what she was drinking.
Ms. Oddie informed Agent Jackson that she was drinking a wine
cooler. The beverage that Ms. Oddie was drinking indeed, upon
testing by SLED, proved to be wine pursuant to S.C. Code Ann. §
61-9-10 (Supp. 1994).
6. Janet Isenhoward ("Petitioner") was the supervisor of Ms. Oddie. The
Petitioner was on the premises on September 8, 1994, when Agent
Jackson found Ms. Oddie in possession of the wine cooler.
7. Ms. Oddie, who on September 8, 1994, was 19 years old, was in
possession of a wine beverage in violation of S.C. Code Ann. § 20-7-370 (Supp. 1994).
8. The Department contends that the Petitioner either permitted or
knowingly allowed Ms. Oddie to possess a wine beverage in
violation of the Alcoholic Beverage Control Act. However, the
Department failed to establish that the Petitioner knew of or permitted
the possession of wine by Ms. Oddie. For instance, the Department
did not show that Ms. Oddie was in sight of the Petitioner or her
bartender. Nor, did the Department establish constructive knowledge
of Ms. Oddie's possession of wine.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 61-1-55 (Supp. 1994) grants the Administrative
Law Judge Division the powers, duties and responsibilities as Hearing
Officer in contested matters governing alcohol beverages, beer and
wine.
2. Permits and licenses issued by this state for the sale of liquor, beer and
wine are not property rights. They are, rather, privileges granted in
the exercise of the state's police power to be used and enjoyed only so
long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Judge Division, being the
tribunal authorized to grant the issuance of a license, is likewise
authorized for cause to revoke or suspend the license. See Feldman
v. S.C. Tax Commission, 203 S. C. 49, 26 S. E. 2d, 22 (1943)
3. Permitting or knowingly allowing a person under the age of 21 to
purchase or possess beer upon the license premises is a violation
against a license or a permit. Such a violation constitutes grounds for
either suspension or revocation of the beer and wine permit. 23 S. C.
Code Ann. Regs. 7-9(B) (Supp. 1994).
4. Respondent, Janet W. Isenhoward d/b/a Carriage House Inn , is
charged with violating 23 S. C. Code Ann. Regs. 7-9(B) (Supp.
1994), which provides:
To permit or knowingly allow a person under
twenty-one years of age to purchase or
possess or consume beer and wine in or on a
licensed establishment which holds a license or
permit issued by the South Carolina Alcoholic
Beverage Control Commission is prohibited
and constitutes a violation against the license
or permit. Such violation shall be sufficient
cause to suspend or revoke the license or
permit by the Alcoholic Beverage Control
Commission.
5. It is well established that, in interpreting a regulation, the sole
function of this tribunal is to determine and give effect to the
intention of the drafter, with reference to the meaning of the
language used and the subject matter and purpose of the
regulation. See State v. Ramsey, ___ S.C. ___, 430 S.E.2d
511 (1993). However, words must be given their plain and
ordinary meaning without resort to subtle or forced
construction to limit or expand the regulation's operation. See
State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991);
Higgins v. State, 307 S.C. 446, 415 S.E.2d 799 (1992 ). No
evidence was presented to this tribunal to show that the
Department had established a longstanding interpretation of
23 S.C. Code Ann. Reg. 7-9(B) (Supp. 1994).
6. Black's Law Dictionary defines "permit" as: "(1) To suffer,
allow, consent, let; (2) to give leave or license; (3) to
acquiesce, by failure to prevent, or to expressly assent or
agree to the doing of an act." Black's Law Dictionary 1140
(6th ed. 1990).
7. In the definition of "constructive knowledge," Black's Law
Dictionary provides "if one by exercise of reasonable course
would have known a fact, he is deemed to have had
constructive knowledge of such fact." Black's Law Dictionary
314 (6th ed. 1990). In William v. Jefferson Standard Life
Insurance Co., the court stated that "it seems plain that one
cannot be held to have constructive notice [knowledge] of
facts from which the presumption of notice arises, who is
wholly ignorant of those facts, and a knowledge of which is
necessary in influence of his conduct . . . ." William v.
Jefferson Standard Life Insurance Co., 187 S.C. 103, 196 S.E.
519, 524 (1938). The Court further stated that "constructive
notice, strictly speaking, is ineffective unless there is a statute
providing therefor." Id. at 524.
8. Penal statutes are strictly construed against the state and any
doubt must be resolved in favor of the Petitioner. Feldman v.
South Carolina Tax Commission 203 S.C. Code 49, 26 S.E.
2d 22 (1943).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
ORDERED, this case against Janet W. Isenhoward, Carriage House Inn, alleging the
possession of wine by a person under the age of twenty-one on September 8, 1994, be dismissed.
______________________________________
Ralph King Anderson, III
Administrative Law Judge
August 23, 1995
Columbia, South Carolina |