ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me on the citation issued by the Department of Revenue and
Taxation for a violation of S.C. Code Ann. § 61-5-190 (Supp. 1994) for not complying with
restrictions placed on the license. After notice to the parties, a hearing was conducted on October
19, 1995. The Department has failed to establish that a violation occurred and therefore the request
to suspend the license of the Petitioner is DENIED and the citation is dismissed.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases by a preponderance of the evidence and taking into account the
credibility of the witnesses:
1. Illusions is a private social club located on South Irby Street in Florence, South
Carolina.
2. Genovle Samuel is the holder of the minibottle license issued to Illusions.
3. When the license was issued it contained various restrictions relating to the sale of
alcoholic liquors. One of the restrictions specified that the club would be open from 9:00 p.m. Friday,
Saturday and Sunday until 2:00 a.m. the following day for the sale of beer, wine, and alcoholic
liquors. The sale and consumption of these beverages shall cease at 2:00 a.m. The club was
prohibited from being open for the sale of beer, wine or alcoholic liquors any other hours.
4. The club is not prohibited from being open after 2:00 a.m. provided no sales or
consumption of beer, wine or alcoholic liquors occurs.
5. Some of the restrictions placed upon the licensed concerned Albert Smith. Albert
Smith is not permitted to: be an officer, member of Brother to Brother or Illusions social clubs; have
a financial interest in the business; and be on the premises of the location during the hours open for
sales.
6. On July 9, 1995, an alcohol enforcement unit agent entered Illusions at 2:45 a.m. He
observed no sales or consumption of any alcoholic beverages.
7. While inside the club, the agent saw Albert Smith standing just inside the door next
to the table where money is collected. The agent did not see Smith when he entered the club.
8. Albert Smith held a license for the sale of alcoholic beverages until 1993 and was
known to the agent through the prior business. The officer had seen Albert Smith at Illusions on two
prior occasions and issued a verbal and written warning about his presence at the location. The verbal
warning occurred at 3:00 p.m. in November 1994. The written warning was issued on December 2,
1994 at 10:00 p.m.
9. When the agent saw Albert Smith on July 9, 1995 at 2:45 a.m. he issued a citation to
Genovle Samuel for allowing Mr. Smith on the premises while the club was open.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude, as a matter of law:
1. The Administrative Law Judge Division has jurisdiction to hear contested cases under
the Administrative Procedures Act. S.C. Code Ann. § 1-23-600 (Supp. 1994).
2. S.C. Code Ann. § 61-1-55 (Supp. 1994) grants to the Administrative Law Judge
Division the powers, duties, and responsibilities as a hearing officer in protested and contested
matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. § 61-5-190 (Supp. 1994) states that the Department is the sole and
exclusive authority empowered to regulate the operation of locations for the sale of beer, wine, or
alcoholic liquors and is authorized to establish conditions or restrictions its considers necessary before
issuing or renewing a license or permit.
4. A license is issued under Title 61 for the purpose of regulating the sale of beer, wine
and alcoholic liquors. Any restrictions place on the license by the Department's exercise of its
authority must relate to circumstances surrounding the sale and consumption of these beverages. See
eg. S. C. Code Ann. §§ 61-3-70, 61-3-410(a), and 61-5-190 (Supp. 1994).
5. While the agent was on the premises there were no sales or consumption of alcoholic
beverages. The restrictions did not prohibit operation of the club for activities other than the sale and
consumption of alcoholic beverages.
6. The language of the conditions only restricted the presence of Albert Smith on the
premises during the hours open for the sale of beer, wine or alcoholic liquors. No restrictions were
placed upon his presence during other hours. Had this been intended, the restrictions plainly would
have stated that Albert Smith may not be on the premises at any time. They do not.
7. The Department did not establish that he was present while sales were occurring.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that suspension south by the Department of Revenue and Taxation for violating
S.C. Code Ann. § 61-5-190 (Supp. 1994) is denied and the citation issued by the Department against
Genovle Samuel for violating conditions and restrictions placed upon the sale and consumption
license for Illusions social club is DISMISSED.
AND IT IS SO ORDERED.
___________________________
ALISON RENEE LEE
Administrative Law Judge
October _____, 1995
Columbia, South Carolina |
