ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to an
administrative violation written against the beer and wine permit of Harold Woodberry, d/b/a Our
Place located at 1212 Fox Bay Road, Johnsonville, South Carolina. A citation was written against
Mr. Woodberry for permitting a criminal act pursuant to S.C. Code Ann. § 61-9-410(5) (Supp.
1995).
After notice to the parties, a hearing was conducted on Tuesday, September 10, 1996 at the
Administrative Law Judge Division. Based upon the testimony and evidence presented, I make the
following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
1. Harold Woodberry, d/b/a Our Place, holds an on-premises beer and wine permit, BW-725007. The premises is located at 1212 Fox Bay Road, Johnsonville, South Carolina.
2. Phillip Grimsley, of the South Carolina Law Enforcement Division ("SLED"),
conducted an investigation on Sunday, December 17, 1996 at 7:55 p.m. at the licensed location. The
agent observed the bartender, Elbert Davis, Jr., and another individual, Douglas Stuckey, in
possession of beer. Ernest Woodberry, brother of Respondent, was also observed in possession of
a drink containing alcoholic liquor. Both Stuckey and Woodberry were in plain view approximately
three feet from the bartender.
4. Agent Grimsley cited Davis and Stuckey with the criminal act of illegal possession of
beer in violation of S.C. Code Ann. § 61-9-110 (Supp. 1995). Ernest Woodberry was cited with the
criminal act of possession of liquor in violation of S.C. Code Ann. § 61-5-110 (Supp. 1995). All
were found guilty on December 28, 1995 and were each fined $68.00 by the magistrate.
5. An administrative citation was issued to Respondent, Harold Woodberry, on
December 17, 1995 for permitting a criminal act, in violation of S.C. Code Ann. § 61-9-410(5)(Supp.
1995).
6. Respondent Woodberry stated that the location was not open to the public, that there
was a private party going on, and no violation should have been issued. He was present at the
location earlier in the evening. When he left, Respondent passed Agent Grimsley in his automobile.
Respondent called the location to inform them that he had passed the SLED agent and to "get rid of
what was there."
7. Agent Grimsley saw the cars parked outside of the location and stopped to investigate.
The doors were not locked and he had no problems entering the premises. There were no signs or
notices stating that the location was closed or that a private party was being held. After he identified
himself as an alcohol enforcement agent, he was not told there was a private party being held. No
one produced documents or papers to show that the premises were being used for a private party.
8. Respondent, Woodberry, has been cited for violations in the past. On May 21, 1993,
he was cited for "unlawful possession of liquor." He was found guilty of the administrative violation
and fined $400.00.
9. The Department issued a Final Determination sustaining the violation written by Agent
Grimsley, and imposed a penalty of $800.00.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as matter of law, the following:
1. The Administrative Law Judge Division is vested with the powers, duties and
responsibilities exercised by the former Alcoholic Beverage Control Commission and hearing officers
pursuant to Chapter 23 of Title 1. S.C. Code Ann. §61-1-55 (Supp. 1995).
2. The South Carolina Department of Revenue ("Department") is charged, inter alia,
with the responsibility of administering and enforcing statutes and regulations governing alcoholic
beverages, include beer and wine. S.C. Code Ann. § 61-1-60 (Supp. 1995).
3. S.C. Code Ann. § 61-9-410(5) (Supp. 1995) makes it a violation for a permittee or
his servant, agent or employee to "permit any act, the commission of which tends to create a public
nuisance of which constitutes a crime under the laws of this State." Pursuant to S.C. Code Ann. §
61-9-110 (Supp. 1995), "any person who drinks beer or wine or possesses beer or wine in an open
container between the hours of twelve o'clock Saturday night and sunrise Monday morning at any
place licensed to sell beer or wine" is guilty of a misdemeanor punishable by a fine or imprisonment.
4. When a conviction of a criminal offense on the licensed premises has occurred, the
conviction constitutes proof that the offense occurred and the record of such conviction is admissible
in a subsequent administrative hearing. S.C. Code Ann. § 61-13-295 (Supp. 1995). Mr. Davis, the
bartender, and Mr. Stuckey were convicted of a criminal act which occurred on the licensed premises.
Therefore, this tribunal does not need to revisit whether the proscribed conduct occurred.
5. Respondent argues that the criminal act occurred without his consent. The persons
were present at the location with the knowledge and consent of Respondent. He was present when
beer was consumed and was aware that beer was being consumed. In addition, his employee (Mr.
Davis) participated in the criminal conduct and had knowledge that others were consuming beer.
When Woodberry left the location and saw the SLED agent, he attempted to hide the evidence by
telling his employee to get rid of the beer. This act did not remove the fact that he knowingly allowed
the acts to occur upon the licensed premises in violation of S.C. Code Ann. § 61-9-410(5) (Supp.
1995).
6. Woodberry alleges that he was informed by the SLED agent that he could possess beer
during restricted hours if it were a private function. S.C. Code Regs. 7-14 (1983) governs the lease
of a licensed premises for a private function. The holder of a permit or license may lease a separate
and private area of the licensed establishment to a specific individual or individuals for a function not
open to the general public. The terms of the lease agreement shall be reduced to writing and a copy
shall be retained by the licensee upon the licensed premises. In addition, the host or sponsor of the
function must purchase and deliver to the leased area any alcoholic beverages to be consumed during
the function and, when the function is concluded, must remove the alcoholic beverages from the
leased area. The function must conclude no later than two o'clock in the morning.
7. In the present case, Woodberry has not satisfied the requirements for leasing the
premises for a private function. There was no lease or any documents demonstrating that the
premises had been leased for a private function. The SLED agent was never informed that the
persons inside the location were having a private party. He has failed to establish any defenses to the
violation issued.
8. S.C. Code Ann. § 61-13-510 (Supp. 1995) provides in part that for all violations of
Chapter 9 of Title 61, the department in its discretion may impose a monetary penalty upon the holder
of any beer or wine permit in lieu of suspension or revocation. Here, the Department imposed an
$800.00 fine because this is a second violation. Woodberry was previously cited by the Department
for an administrative violation which resulted in the payment of a $400.00 fine. This violation is the
second one of a similar nature and the penalty imposed by the department is reasonable.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED,
that an administrative violation is issued against Harold Woodberry, d/b/a Our Place for permitting
a criminal act to occur on the licensed premises in violation of S.C. Code Ann. § 61-9-410(5) (Supp.
1995) and Harold Woodberry shall pay a monetary penalty of $800.00 within ten (10) days of the
date of this Order.
AND IT IS SO ORDERED.
______________________________
ALISON RENEE LEE
Administrative Law Judge
September _____, 1996
Columbia, South Carolina |
