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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Janet W. Isenhoward, Carriage House Inn

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Janet W. Isenhoward, Carriage House Inn
 
DOCKET NUMBER:
95-ALJ-17-0278-CC

APPEARANCES:
For the Petitioner: Arlene H. Hand, Esquire

For the Respondent: Robert E. Kneece, Jr., Esquire
 

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


Brown Bldg.

 

 

 

 

 

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