ORDERS:
ORDER
I. Statement of the Case
The South Carolina Department of Revenue (DOR) asserts Jacqueline Y. Wells (Wells) committed
a violation of § 61-9-410(5) (Supp. 1995) due to actions of her agent at the permitted premises of
Smiley's Pub and Grub (Smiley's) located at Murrells Inlet, South Carolina. The alleged violation
is that Wells' agent knowingly permitted the possession of beer during restricted hours. Based upon
the violation, DOR imposed a $400 penalty. Wells challenged the violation by seeking a contested
case hearing. Jurisdiction is vested in the Administrative Law Judge Division pursuant to S.C. Code
Ann. § 61-1-55 (Supp. 1995) with the hearing held October 2, 1996 under S.C. Code Ann. §§1-23-600(B) and 1-23-310 (Supp. 1995).
Wells did not appear at the hearing despite significant efforts to contact her. On March 15, 1996,
May 4, 1996, and June 25, 1996, Wells used P.O. Box 2284, Murrells Inlet as her address when
corresponding with DOR. On July 18, 1996, the ALJ mailed material to the Murrells Inlet address,
which material was apparently received since no return by the post office was made to the ALJD.
On August 14, 1996, Wells was mailed notice that she had failed to file a prehearing statement. The
notice, however, was returned by the postal service to the ALJD on August 24, 1996 with a note
stating the post office box had been closed without a forwarding address. In an effort to ensure Wells
received notice of the hearing, the ALJ issued an order on August 26, 1996 directing DOR to use its
best efforts to notify Wells of the hearing. At the request of DOR, SLED attempted to locate Wells
but was unsuccessful. SLED left notes with Wells' parents as well as attempting telephone contact.
Once requesting a hearing, Wells had an obligation to notify all necessary parties of her address.
Relative to the hearing, the ALJD received no correspondence and no telephone messages from
Wells. Her failure to communicate a change of address to the ALJD prohibited her receiving notice
of the hearing. Accordingly, Wells' actions constitute an abandonment of her challenge to the
violation. Further, DOR presented its case and proved the violation in issue. Thus, Wells is liable
for the penalty of $400.
II. Issue
Did Wells violate S.C. Code Ann. § 61-9-410(5) (Supp. 1995) by knowingly permitting an act on
the premises which constitutes a crime?
III. Analysis
Act Constituting A Crime
1. Positions of Parties
DOR asserts Wells, by way of an employee at the licensed premises of Smiley's Pub and Grub,
knowingly permitted the possession of beer during restricted hours in violation of S.C. Code Ann.
§ 61-9-110 (Supp. 1995).
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. Smiley's Pub and Grub is located in Murrells Inlet in Georgetown County.
2. At approximately 12:25 a.m. on the morning of Sunday, January 14, 1996, an inspection
of Smiley's was conducted by SLED.
3. The door to the location was closed and locked.
4. Special Agent Holden knocked on the door and was told by a gentleman located inside
Smiley's that the bar was closed.
5. The manager, also inside Smiley's, told Holden the bar was closed.
6. Agent Holden identified himself, and the manager allowed Holden entrance into the
location.
7. Upon entering the location, the agent observed two men drinking beer in the bar area.
8. One of the customers turned away from Agent Holden and finished drinking the beer in his
cup.
9. The other customer at the bar was holding an open 12 oz. can of Budweiser beer in his
hand.
10. At 12:25 a.m. on Sunday, January 14, 1996, the manager knew the two customers were in
possession of beer in open containers.
11. Criminal citations for unlawful possession of beer were written against both customers.
12. An administrative violation was issued to the permittee for permitting a criminal act on the
premises, i.e. permitting possession of beer during restricted hours.
3. Discussion
Beer and wine permit holders are responsible for the actions and conduct of their agents or employees
operating under the permit. 48 C.J.S. Intoxicating Liquors §168 (1981). Further, an employee
operating under the permit who knowingly permits a criminal act on the premises, creates a ground
for the suspension or revocation of the holder's permit. S.C. Code Ann. § 61-9-410(5) (Supp. 1995).
A criminal act constituting a misdemeanor occurs when any person either drinks beer or possesses
beer in an open container at a permitted location between the hours of twelve o'clock Saturday night
and sunrise Monday morning. S.C. Code Ann. § 61-9-110 (Supp. 1995).
Here, the manager was present the night of the inspection by SLED and knew the two customers
were in possession of open containers of beer. The manager was acting in her authorized capacity
as manager and was acting on behalf of Wells. Further, there is no evidence that the manager took
any steps to remove the beer from the customers at midnight. Rather, the manager knowingly
permitted two customers to continue to possess the beer in open containers even after 12:00 midnight
Saturday. Accordingly, Wells, through the actions of her manager, knowingly permitted a criminal
act on the premises and is subject to a penalty. S.C. Code Ann. § 61-9-410(5) and § 61-13-510
(Supp. 1995). The penalty of $400 is reasonable under the facts of this case.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1. A criminal act constituting a misdemeanor occurs when, between the hours of twelve
o'clock Saturday night and sunrise Monday morning, any person at a permitted location
either drinks beer or possesses beer in an open container. S.C. Code Ann. § 61-9-110
(Supp. 1995).
2. A permit holder is subject to revocation or suspension if the holder or an employee of
the licensed premises knowingly permits a criminal act on the premises. S.C. Code Ann.
§ 61-9-410(5) (Supp. 1995).
3. A monetary penalty may be imposed in lieu of revocation. S.C. Code Ann. § 61-13-510
(Supp. 1995).
4. The license holder is responsible for the actions and conduct of employees utilizing the
permit upon the permitted premises. 48 C.J.S. Intoxicating Liquors §168 (1981).
5. The manager was acting in her authorized capacity as manager and was acting on behalf
of Wells.
6. The manager, and thus, Wells as the permit holder, knowingly permitted a criminal act
on the premises and is subject to a penalty of $400. S.C. Code Ann. § 61-9-410(5) and
§ 61-13-510 (Supp. 1995).
IV. Order
Based upon the foregoing Findings of Fact, Discussion and Conclusions of Law, the following
ORDER is issued:
Wells abandoned her challenge to the violation. Further, DOR proved the basis for the violation.
Accordingly, the violation occurred and the $400 penalty must be collected by DOR from Wells.
AND IT IS SO ORDERED.
__________________________________
RAY N. STEVENS
Administrative Law Judge
This 3rd day of October, 1996
Columbia, South Carolina |
