ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me on the citation issued by the South Carolina Department of
Revenue and Taxation against Louis J. Bishop for a violation of S.C. Code Ann. § 61-9-410(5)
(Supp. 1995) and S.C. Code Regs. 7-82 (1976) by permitting the possession of beer during restricted
hours and hindering inspection of the licensed location. After notice to the parties, a hearing was
conducted on May 17, 1996.
The sole issue in this case is whether Rusty Winterstein, an employee, was acting within the
course and scope of his employment at the time he returned to the location on September 3, 1995 and
whether his actions can be attributed to the license holder, Mr. Bishop, for purposes of issuing a
violation against the licensed premises.
Based upon the evidence presented, the Department failed to establish that the acts of the
employee are imputed to the licensee. The Department's request to revoke the license of respondent
is denied. Any issue raised in the proceedings or hearing of this case but not specifically addressed
in this Order are deemed denied. ALJD Rule 29(B).
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. This Division has personal and subject matter jurisdiction.
2. Louis J. Bishop d/b/a Lou's Bar and Grill, 100-B Red Bank Road, Goose Creek,
South Carolina, holds a beer and wine permit (BW-717561) issued by the South Carolina Department
of Revenue and Taxation.
3. On Sunday, September 3, 1995, at approximately 6:00 a.m., an Alcohol Enforcement
Unit agent from the State Law Enforcement Division (SLED) noticed several cars parked outside the
premises of Lou's Bar and Grill.
4. After noticing the cars at the premises, the SLED agent went to the premises with two
Berkeley County Sheriff deputies to determine what was occurring at the location.
5. The doors to the location were locked and upon peering through the closed curtains
at the window, the agent determined there were people inside the location. He saw a woman holding
a blue "koozy" with a bottle in it. She took two drinks from the bottle.
6. The Sheriff's deputy also peered through the curtain. He did not observe the woman
drink from the bottle although he did see her holding it.
7. The SLED agent knocked on the door and identified himself as an agent with the
Alcohol Enforcement Unit of SLED. There was no answer to the door.
8. Someone looked out of the window by pulling the curtain back and saw the Sheriff's
deputies. Still the door remained unanswered.
9. The SLED agent knocked again and repeated his identification and subsequently the
door was opened. Approximately two minutes lapsed from the time the agent first knocked on the
door until it was answered.
10. Inside the location, there were no signs that any alcoholic beverages were being
consumed. There were no beer bottles or cans in view. No one was consuming alcoholic beverages.
11. The officers checked the trash can and found the blue koozy with a 12 ounce bottle
of Michelob Light beer. The bottle was at least three-fourths full and was cool to the touch. There
was also one beer in a bucket of ice. It was opened but appeared to be full.
12. Rusty Winterstein identified himself as the person in charge. He stated that the
location was not opened for business.
13. As a result of the investigation by the SLED agent, a uniform traffic citation was
issued to Tracy Jean Winterstein for the consumption of beer during restricted hours in the licensed
location. Two citations were issued against Mr. Bishop for the administrative violations of hindering
inspection and allowing the consumption of beer during restricted hours.
14. No citation was issued to Mr. Winterstein for violating S.C. Code Ann. § 61-13-420
relating to hindering inspection of the licensed premises.
15. Bishop received notice of the violations on Sunday evening and immediately
terminated Winterstein employment.
16. Mr. Winterstein was employed as a bartender at the location. He had worked part
time for approximately one and one-half years at the time of this incident. At the time of his
employment, Mr. Winterstein had been counseled on the hours of operation of the bar and had been
given a key for the purposes of closing the location.
17. On September 2, 1995, Mr. Winterstein and Mr. Bishop were working at the location.
At midnight, Bishop closed the location, emptied the cash register, picked up some of the trash, and
locked the location.
18. Winterstein was outside of the location. Winterstein was not authorized to return to
the location for any purpose after the doors were locked on September 2, 1995.
19. At approximately 1:30 a.m., Winterstein returned to the location with friends to
practice for a pool tournament scheduled for Monday.
20. Mr. Bishop had no knowledge that Winterstein was returning to the location.
Winterstein was not authorized to return to the location. He was not being paid for any services
when he returned to the bar, nor was he conducting any business on behalf of Bishop when he
returned at 1:30 a.m.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. Section 1-23-600 (Supp. 1995) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. Section 61-1-55 (Supp. 1995) 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. §61-9-410(5) (Supp. 1995) prohibits a holder of a beer and wine
permit or any servant, agent, or employee of the permittee from knowingly permitting the commission
of any act which constitutes a crime upon the licensed premises. It is unlawful for a person to
consume beer or wine on a licensed premises between 12:00 midnight on Sunday morning and 10:00
Monday morning. S. C. Code Ann. § 61-9-110 (Supp. 1995).
4. If the agent is doing some act in furtherance of the principal's business, he will be
regarded as acting within the scope of his authority. On the other hand, a principal is generally not
liable when an agent is acting for his own independent purposes, wholly disconnected from
furtherance of his employer's business, his conducts falls outside scope of his employment.
Crittenden v. Thompson-Walker Co., Inc., 288 S.C. 112, 341 S.E. 2d 385 (Ct. App. 1986) (citations
omitted).
5. Also, where a violation of liquor laws is committed by an agent or servant, with
knowledge and consent of the principal or master, or in pursuance of his express command, or of a
general authority to the agent or servant, the principal or master is liable. 48 C.J.S. Intoxicating
Liquors § 276 (1981). Winterstein was acting without the knowledge and consent of Bishop, not
pursuant to any express command, and not under any general authority given to him to operate or
manage the location.
6. The license holder did not permit the possession of beer during restricted hours. This
violation was committed by an employee of the licensed premises, who was not acting within the
scope of his employment during commission of the violation. Moreover, the holder of the permit was
not present at the location.
7. The Department failed to establish that the employee acted within the course and
scope of his employment with Bishop and that Bishop is liable for the acts of Winterstein. Bishop
cannot be held liable for the administration violations. Based upon these conclusions the citations for
hindering inspection need not be addressed.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department's request to revoke Petitioner's beer and wine permit is
denied and no violations are issued.
AND IT IS SO ORDERED.
_______________________________
ALISON RENEE LEE
Administrative Law Judge
June ____, 1996
Columbia, South Carolina |
