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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Charles A. Curran, Secretary, Sand Pipers, d/b/a Sand Pipers

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Charles A. Curran, Secretary, Sand Pipers, d/b/a Sand Pipers
 
DOCKET NUMBER:
96-ALJ-17-0426-CC

APPEARANCES:
Arlene D. Hand, Esquire for Petitioner

David E. Belding, Esquire for Respondent
 

ORDERS:

ORDER AND DECISION

This matter is before the Administrative Law Judge Division pursuant to an administrative violation written against the club sale and consumption license of the Respondent, Charles Curran, Secretary, Sand Pipers, d/b/a Sand Pipers, located at 4883 Hwy. 17 Bypass, Murrells Inlet, South Carolina. The citation was issued to Charles Curran for violation of S.C. Code Regs. 7-17(J) for permitting the consumption of an alcoholic beverage on the licensed premises by a nonmember. For the alleged violation, the South Carolina Department of Revenue ("Department") seeks a monetary penalty of $500 and revocation of the Respondent's license for the sale and consumption of liquor. After notice to the parties, a hearing was held on Friday, January 10, 1997 at the Administrative Law Judge Division.

Based upon the evidence presented, the Respondents violated the regulation and are fined $500. The sale and consumption license of Sand Pipers is revoked. 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. Charles A. Curran, Secretary of Sand Pipers, is the designated license person, holding the private sales and consumption license, SC #844776 for Sand Pipers, located at 4883 Hwy. 17 Bypass, Murrells Inlet, South Carolina.

3. On June 28, 1996, Julius Duke, II, a cooperating individual (CI), with the Alcohol Enforcement Unit of SLED entered Sand Pipers. Upon entering the premises, there was no one at the door to check membership status or identification.

4. Mr. Duke proceeded to the bar area where he ordered a mixed alcoholic drink (vodka and orange juice) from the bartender, Mr. Brad Belleview. Belleview asked Duke if he was a member. He informed Belleview that he was not.

5. The bartender asked Duke if he was interested in buying a membership. Duke asked the bartender if purchasing the membership would allow him to purchase drinks that evening. The bartender indicated that it would. Duke purchased a membership for $5.00.

6. Duke observed the bartender open a minibottle, pour it into a cup and proceed to mix the drink. Duke consumed a portion of the drink.

7. Shortly, thereafter, Agent Rhett Holden and Agent Snow entered the location. They identified themselves as SLED agents. After speaking with Duke about what transpired, a citation was issued for permitting consumption of liquor by a non-member.

8. The licensed premises has three prior violations during the past three years.

a. July 15, 1995, permitting the consumption of liquor by a non-member.
b. January 26, 1996, permitting consumption of liquor by a non-member and for permitting possession and consumption of liquor by a person under the age of twenty-one (21) years of age. (Order of Violation issued on February 7, 1997, Docket No.: 96-ALJ-17-0413-CC).
c. May 3, 1996, permitting consumption of liquor by a non-member. (Order of Violation issued on February 7, 1997, Docket No.: 96-ALJ-17-0416-CC).

CONCLUSIONS OF LAW

Based upon the 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. S.C. Code Ann. § 61-5-20 establishes when the consumption of alcoholic beverages is lawful and, therefore, by the inverse, when it is not. Subsection (3) permits service by the kind of nonprofit organization such as the Respondent. Only members and their guest are permitted to consume alcoholic beverages on the premises.

3. Sand Pipers 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).

4. S.C. Code Regs. 7-17 states that it is "the intent of § 61-5-20(3) of the Code that a [sale and consumption] license shall not be granted to or held by an organization which is, or has been, organized and operated primarily to obtain or hold license to sell alcoholic beverages....." S.C. Code Regs. 7-17(A). "The bona fide non-profit organization must have a definite fixed method of electing persons on an individual basis to membership in the organization; such method ..... must bear some reasonable relation to the object and purpose of the organization." S.C. Code Regs. 7-17(B).

5. S.C. Code Regs. 7-17(J) provides that "[o]nly bona fide members and bona fide guests of members of [private club] may consume alcoholic beverages sold in [minibottles] upon the licensed premises."

6. Mr. Julius Duke was neither a bona fide member nor a bona fide guest of member of the club. Duke was permitted to enter the licensed premises, purchase a membership without any election by the organization, and was served an alcoholic beverage on June 28, 1996, in violation of Regulation 7-17(J).

7. 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 Liquor § 276 (1981).

8. A violation of any regulation or code section of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the license pursuant to S.C. Code Ann. § 61-5-60 (Supp. 1995).

9. 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 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).

10. For the third offense of a provision of Article I, Chapter 5, Title 61, within three years of the first offense, a person shall be fined not less than five hundred dollars and have his license revoked permanently pursuant to S.C. Code Ann. § 61-5-110 (Supp. 1995).

11. The citation was properly issued by the Department and constitutes the fourth violation of the Alcoholic Beverage Control Act and regulations promulgated. Pursuant to the law, revocation of the sale and consumption license and monetary penalty of $500 is appropriate.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, Sand Pipers and Charles A. Curran violated the provisions of S.C. Code Regs. 7-17(J) and S.C. Code Ann. § 61-5-20 (Supp. 1995) on June 28, 1996. It is therefore,

ORDERED that the sale and consumption of liquor license, (SC#844776) held by Charles A. Curran, Secretary, is revoked pursuant to S.C. Code Ann. § 61-5-110 (Supp. 1995) and a $500 fine imposed which must be paid within ten (10) days of the date of this Order.

AND IT IS SO ORDERED.



______________________________

ALISON RENEE LEE

Administrative Law Judge

February 10, 1997

Columbia, South Carolina


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