ORDERS:
ORDER AND DECISION
This matter is before the Administrative Law Judge Division (Division) upon the issuance of a
citation by the South Carolina Department of Revenue (Department) to Affairs, Inc., Robert N.
Youngman, President, for violation of 23 S.C. Code Regs. 7-17(J)(1976), for "Permitting
consumption of liquor by a non-member", and S.C. Code Ann. § 61-5-20 (Supp. 1995), for "Sale
of liquor during restricted hours." The business is located at 712 Huger Street, Columbia, South
Carolina. After notice to the parties, a hearing was conducted on Wednesday, January 8, 1997 at
the Administrative Law Judge Division.
Based upon the evidence presented, the Respondent violated the regulation and statute cited. The
sale and consumption license of Affairs, Inc. is revoked. The beer and wine permit is not affected.
Any issues raised in the proceedings or hearing of this case and 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 perspective cases by a preponderance of the evidence and taking into account the
credibility of the witnesses:
1. The Division has personal and subject matter jurisdiction.
2. Robert N. Youngman, president and owner of Affairs, Inc., located at 712 Huger Street,
Columbia, South Carolina, holds a sales and consumption license, #SC-013122.
3. Affairs, Inc., has been in operation for over thirteen years as a private members only social
club.
4. The licensee was cited for sale of liquor during restricted business hours. The Department
imposed a fine of $400, which was paid.
5. The licensee, Robert Youngman, has two prior violations during the past three years.
a. January 26, 1995, the licensee was cited for selling alcohol to a non-member. The fine of
$200 was paid on March 3, 1995.
b. January 14, 1993, the licensee was cited for selling alcohol to a non-member. The fine
of $200 was paid on March 17, 1993.
6. On December 7, 1995, at approximately 2:00 a.m., two South Carolina Law Enforcement
Division (SLED) agents, Captain George Faulk and Agent J.B. Roland, entered the premises of
Affairs, Inc. Other agents waited outside.
7. Upon entering the premises, there was no one at the door to check membership status or
identification. The SLED agents were not questioned as to their membership status and they did
not identify themselves as SLED agents. They approached the bar. After a few minutes, the
bartender waited on them. The bartender did not inquire about their membership status. The
agents each ordered a drink containing alcoholic liquor. It was approximately 2:05 a.m. The
agents paid for the drinks and consumed a portion. During the next 10-15 minutes, the agents
observed other patrons purchasing alcoholic beverages.
8. At approximately 2:20 a.m., Agents Tanner, Williams, Stokes and Rhinehardt entered the
premises, identified themselves as SLED agents and issued violations against the licensee. Two
administrative violations were written: (1) sale of liquor during restricted business hours in
violation of S.C. Code Ann. § 61-5-20(4) (Supp. 1995); and (2) permitting consumption of
liquor by a non-member in violation of S.C. Code Regs. 7-17(J).
9. The violations were written and served upon the bartender, who at the time did not dispute the
citation for sale of liquor during restricted hours. At the time the citation was issued, the
bartender did not explain to the agents that the clock on the wall behind the bar was set ahead.
10. Lee Morgan was the bartender on duty on December 7, 1995. He testified that the clock on
the wall behind the bar is set 15-20 minutes fast in order to avoid the possibility of selling
alcoholic beverages after the restricted time.
11. Agents Faulk, Roland and Tanner all testified it was after 2:00 a.m. when Captain Faulk and
Agent Roland entered the club in an undercover capacity. The agents checked their watches
because they wanted to make sure it was after 2:00 a.m. because the purpose of the undercover
operation was to determine whether the sale of liquor would occur after hours. Agent Roland
testified the clock behind the bar stated it was 2:05 a.m. when they ordered their drinks. Agents
Faulk and Roland observed the bartender preparing drinks containing alcoholic liquors being
poured from minibottles until 2:20 a.m. when the other agents entered the club.
12. The bartender testified he did not ask the agents if they were members or guests of a member
because he believed they were guests of a person who was located at the bar next to the agents.
The bartender also testified that a member called him and said he was bringing guests to the club.
13. According to the agents, no one entered the club before them or after them. While seated at
the bar, they did not talk with any of the customers seated next to them.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the 1976
Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this
matter.
2. Affairs, Inc. operates as a non-profit organization with limited membership, not open to the
general public, serving alcoholic beverages to its members and their guests pursuant to S.C. Code
Ann. § 61-5-20(3) (Supp. 1995).
3. S.C. Code Regs. 7-17(J) provides that "[o]nly bona fide members and bona fide guests of
member of [private clubs] may consume alcoholic beverages sold in [minibottles] upon the
licensed premises."
4. Agents Faulk and Roland were neither members nor bona fide guests of members of the club.
They were never identified as or asked if they were members or guests of a member. The
bartender took no steps to verify their membership status. By failing to do so, the bartender took
the risk that he would serve alcoholic beverages to a non-member.
5. Agents Fault and Roland were permitted to enter the licensed premises and were served an
alcoholic beverage from a minibottle on December 7, 1995, in violation of Regulation 7-17(J).
6. In addition, the bartender's testimony that the clock at the club was set 10-15 minutes fast is
not credible in the face of testimony by three different officers that it was after 2:00 a.m. when
they entered the bar and testimony that the clock behind the bar indicated 2:05 a.m. It is also
unlikely that watches of the three agents would coincide with the time on the clock behind the bar.
Further, the testimony of the agents revealed that the bartender continued to serve liquor until
2:20 a.m. when the other agents entered the club. This is certainly after the "grace period" the
bartender allowed himself.
7. The evidence establishes a violation of S. C. Code Ann. § 61-5-20(4) (Supp. 1995) which
provides that alcoholic liquors shall be sold and consumed between the hours of 10:00 a.m. and
2:00 a.m. the following morning.
8. Liquor licenses are neither contracts nor property rights. They are mere permits, issued or
granted in the exercise of the State's police power and to be enjoyed only so long as the
restrictions and conditions governing their continuance are complied with. The same tribunal
authorized to grant the issuance of a license is likewise authorized, for cause, to revoke it.
Feldman v. S.C. Tax Comm'n 203 S.C. 49, 26 S.E.2d 22 (1943).
9. For a third offense of any of the provisions of Article 1, Chapter 5, Title 61, within three years
of the first offense, a minibottle license shall be revoked permanently and a fine of not less than
Five Hundred Dollars ($500) shall be assessed pursuant to S.C. Code Ann. § 61-5-110 (Supp.
1995).
10. A license may be suspended or revoked upon violation of any provision of the Alcoholic
Beverage Control Act or any regulations promulgated by the Department pursuant to S.C. Code
Ann. § 61-5-60 (Supp. 1995).
11. The citations were properly issued by the Department and constitute the third violation of the
Alcoholic Beverage Control Act and regulations promulgated. Pursuant to the law, revocation of
the sale and consumption license is appropriate. The Department has waived the imposition and
collection of an additional $100.
ORDER
Based upon the foregoing Findings of Fact and Conclusion of Law, Affairs, Inc. and Robert N.
Youngman violated the provisions of S.C. Code Regs. 7-17(J) and S.C. Code Ann. § 61-5-20
(Supp. 1995) on December 7, 1995. It is therefore,
ORDERED that the sale and consumption of liquor license, (#SC-013122) held by Robert N.
Youngman is revoked.
IT IS FURTHER ORDERED, that the appropriate law enforcement officer as designated by the
Department shall serve a copy of this Order on the Respondent and take possession of the license
cited above. Respondent is ordered to post a copy of this order at a visible location at the
licensed premises and to cease and desist all liquor sales. The beer and wine permit held by Mr.
Youngman is not affected.
AND IT IS SO ORDERED.
______________________________
ALISON RENEE LEE
Administrative Law Judge
January _____, 1997
Columbia, South Carolina |
