ORDERS:
FINAL ORDER
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. Section 61-5-55 (Supp. 1995) and S.C.
Code Ann. Sections 1-23-310, et seq. (1986 & Supp. 1995), upon request for a contested case
hearing by James D. Tesnar, DLP, Night Times, Inc. ("Respondent"). Respondent was cited with
an administrative violation of 23 S.C. Code Ann. Regs. 7-17(J) (Supp. 1995) for allegedly
permitting consumption of liquor by a nonmember on or about May 2, 1996. The South Carolina
Department of Revenue ("Department") seeks a fine of $500.00 for the alleged violation. The
Respondent stipulates to the violation and agrees to pay the fine on a payment plan set up by the
Department.
A hearing was held at the Spartanburg County Courthouse, Spartanburg, South Carolina, on
December 13, 1996. I find that a fine in the amount of $500.00 is the appropriate penalty in this
case to be imposed on the Respondent for the violation. I also find the Respondent has freely
and voluntarily consented to the violation and its payment.
Any issues raised in the proceedings or hearing of this case but not addressed in this Final
Decision are deemed denied, ALJD Rule, 29(B).
STIPULATIONS
The parties stipulate to the following:
1. This tribunal has jurisdiction of this matter.
2. Night Times, Inc., is a nonprofit private club, licensed pursuant to S.C. Code Ann. Section
61-5-50 (Supp. 1995).
3. On May 2, 1996, South Carolina Law Enforcement ("SLED") agent Aaron Jackson, entered
Night Times, Inc. He was not a member nor a bonafide guest of a member of the club.
4. Travis Hamblem, the bartender on duty, sold a liquor drink to Agent Jackson and allowed him
to consume the liquor drink. Agent Jackson told the bartender he was not a member of the club.
5. That the sale to and consumption by Agent Jackson of the liquor drink was a violation of Regs.
7-17(J).
6. That Respondent had a prior violation on April 1, 1996, for a violation of Reg. 7-17(J). He
paid a monetary penalty in the amount of $400.00 for this violation.
7. That the penalty of $500.00 is the appropriate penalty for this violation.
8. That the Respondent understands the imposition of the violation and freely and voluntarily
admits its occurrence. The Respondent agrees to pay the $500.00 penalty on a payment plan to
be set up by the Department.
FINDINGS OF FACT
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all parties.
3. Respondent James D. Tesnar, is the Designated Licensed Person, holding the private sales and
consumption license SC-709700, for the private club, Night Times, Inc., located at 200 D North
Pleasantburg, Greenville, South Carolina.
4. On May 2, 1996 SLED Agent Aaron Jackson, entered Night Times, Inc., he told the bartender
on duty, Travis Hamblem, that he was not a member of the club nor a guest of a member. Mr.
Hamblem allowed Agent Jackson to purchase and consume a liquor drink.
5. Respondent has had a prior violation of this nature. On April 1, 1996, he was cited for a
violation of Reg. 7-17-(J). He paid a monetary penalty in the amount of $400.00.
6. Respondent James D. Tesnar, stipulates to the violation of Reg. 7-17(J) as a result of the sale
and consumption by a nonmember. Attorney Culbertson also agrees.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact and Discussion, 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 Regs. 7-17(J) (Supp. 1995) prohibits a licensee holding a privated club, sales and
consumption license, from selling to or allowing consumption by a nonmember of the club. Such
act is a violation against the license and is grounds for suspension of the license or a monetary
penalty, or both.
4. S.C. Code Ann. Section 61-5-110 (Supp. 1995) provides that for violations of this article, on
second offenses within three years of the first offense, the fine shall be no less that two hundred
dollar nor more than five hundred or suspension for not more than one hundred eighty days, or
both.
5. All regulations promulgated by the Commission (now Department), effective on the date of the
Government Restructuring Act of 1993, remain in force until modified or rescinded by the
Department or the State Law Enforcement Division. 1993 S.C. Acts 181, §1604.
6. A licensee may be held liable for violations of liquor statutes and regulations committed by his
agent while pursuing the ordinary business entrusted to him. The licensee is liable even though
the violations are committed in his absence and without his knowledge, consent or authority. See
48 C.J.S. Intoxicating Liquors § 276 (1981).
7. 23 S.C. Code Ann. Reg. 7-2(I) provides the liability for any penalty imposed is both the
corporations and the named individual.
8. The evidence in the record, as stipulated to by the parties, shows that Respondent, through its
employee, permitted the consumption of liquor by a nonmember. The evidence further shows
Agent Jackson, who purchased and consumed the liquor drink was not a member nor a bonafide
guest of a member of the club.
9. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights or
property, but are rather privileges granted in the exercise of the police power of the State to be
used and enjoyed only so long as the restrictions and conditions governing them are complied
with. The Administrative Law Judge Division, as the tribunal authorized to grant the issuance of
a permit, is likewise authorized for cause to revoke or suspend the permit. See Feldman v. S.C.
Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
10. Accordingly, based upon the evidence, I conclude that the Respondent and/or his agent, for
whose action he is responsible, violated S.C. Code Regs. 7-17(J) (Supp. 1995) on May 2, 1996,
by permitting consumption of liquor by a nonmember.
11. S.C. Code Ann. Section 61-5-110 (Supp.1995) authorizes, for any violation of the provisions
pertaining to private clubs, in lieu of a suspension of the license, for second offenses, a monetary
penalty not less than two hundred dollars ($200.00) nor more than five hundred dollars ($500.00).
12. The fact-finder in a case has the authority to impose a penalty consistent with the facts
presented. Walker v. S.C. ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Accordingly,
based upon the evidence presented, I conclude that a monetary penalty of five hundred dollars
($500.00) is the appropriate in this matter and that the Respondent James D. Tesnar has
consented to pay same.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of law, it is hereby:
ORDERED that Respondent, James D. Tesnar, shall pay a monetary penalty in the amount of
five hundred dollars ($500.00), in accordance with a payment plan to be set up and administered
by the Department, for a violation of 23 S.C. Code Regs. 7-17(J) (Supp. 1995) as enumerated
above. If the Petitioner does not receive any of the funds as stated (that is any payment as
required or in a timely manner), any agent of the State Law Enforcement Division shall serve a
copy of this Order on Respondent and shall take possession of the sales and consumption license
issued to James D. Tesnar, DLP, Night Times, Inc. located at 200 D North Pleasantburg,
Greenville, South Carolina. Said agent shall hold the permit for fifteen (15) days. Upon
expiration of the fifteen (15) day suspension, said agent shall return the permit to Respondent.
During the period of this suspension, Respondent is ordered to post of copy of this Order at a
visible location at his place of business, and to cease and desist all sales of beer and wine.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
December 30, 1996 |
