SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§ 12-60-450 and 12-60-460 (Supp. 1995) and S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1995) upon request for a contested case hearing by Respondent. Respondent was cited with a violation of S.C. Code Ann.

§ 61-9-410(5)(Supp. 1995) for allegedly permitting the possession or consumption of beer by a person during restricted hours on March 31, 1996. The South Carolina Department of Revenue (DOR) seeks a $400 fine for the alleged violation. A hearing was held October 23, 1997, at the Administrative Law Judge Division in Columbia, South Carolina. I find that the violation did occur. Respondent is ordered to pay a fine of Four Hundred Dollars ($400).

By a preponderance of the evidence, I find:

1. Notice of the time, date, place, and subject matter of the hearing was given to Respondent and DOR. Respondent holds an on-premises beer and wine permit for a business known as "Touch of Class" located at Route 4 Highway S35-55, Bennettsville, South Carolina.
2. On Sunday, March 31, 1996, at approximately 2:25 a.m., SLED Agent Lunella Williams entered the premises.
3. Respondent and her husband, Willie Odom, were present at the location at the time of Agent Williams' arrival.
4. At the time Agent Williams entered the location, there were four patrons at the bar who were in possession of and consuming beer.
5. Summonses were issued to patrons Anthony A. Pearson, Corey A. Jasper, Eugene Peterkin and Matthew Ford for possession of beer during restricted hours, and a citation for an administrative violation was issued to Respondent by Agent Williams at or about 2:30 a.m.
6. Patrons Pearson and Jasper were subsequently convicted of the criminal charges in Magistrate Court.
7. Respondent has no previous permit violations.

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. Pursuant to S.C. Code Ann. §§ 12-60-450 and 12-60-460 (Supp. 1995) and S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1995), the South Carolina Administrative Law Judge Division has jurisdiction in this matter.
2. Beer and wine 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. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
3. "No holder of a permit authorizing the sale of beer or wine or any servant, agent, or employee of the permittee shall knowingly . . . permit any act . . . which constitutes a crime under the laws of this State . . . ." S.C. Code Ann. § 61-9-410 (5)(Supp. 1995).
4. "Knowingly" includes not only actual knowledge of a fact, but also situations where a person has such information, or the circumstances are such, as would lead a prudent person to form a belief as to the fact, and if followed by inquiry would have disclosed its character. State v. Thompkins, 263 S.C. 472, 211 S.E.2d 549 (1975); Feldman v. South

Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943); Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990).

1. Any person who drinks or possesses beer or wine between midnight on Saturday and sunrise on Monday at any place licensed to sell beer or wine is guilty of a misdemeanor. S.C. Code Ann. § 61-9-110 (Supp. 1995).
2. The conviction in magistrate's court of patrons Pearson and Jasper for possession of beer during restricted hours at the licensed location on or about 2:25 a.m., Sunday, March 31, 1996, while the permittee and/or her servant, agent, or employee were on the premises, is prima facie evidence that the permittee or her servant, agent, or employee knowingly permitted an act which constitutes a crime under the laws of this State, in violation of S.C. Code Ann. § 61-9-410 (5)(Supp. 1995).
3. Double jeopardy does not apply in this case. This administrative action involves a citation against a beer and wine permittee. Even though it arises out of the same set of facts which formed the basis for the criminal convictions of the patrons for possession of beer during restricted hours, it is a separate and different action. See Beaufort County Dep't of Soc. Servs. v. Strahan, 310 S.C. 553, 426 S.E.2d 331 (Ct. App. 1992).
4. Respondent permitted the possession and consumption of beer during restricted hours on March 31, 1996, in violation of S.C. Code Ann. § 61-9-410 (5)(Supp. 1995).
5. S.C. Code Ann. § 61-1-80 (Supp. 1995) authorizes the discretionary imposition of a monetary penalty as an alternative to the suspension or revocation of a license or permit.
6. The fact-finder in a case has the authority to impose a penalty consistent with the facts presented. Walker v. South Carolina 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 four hundred dollars ($400.00) should be imposed upon the Respondent.

IT IS THEREFORE ORDERED that Ruby Odom pay a monetary penalty in the amount of Four Hundred Dollars ($400).

IT IS FURTHER ORDERED that if DOR does not receive payment of the assessed fine within fifteen (15) days from the date of this Order, the beer and wine permit held by Ruby Odom, d/b/a Touch of Class at Route 4 Highway S35-55, Bennettsville, South Carolina, shall be suspended for a period of fifteen (15) days. If the assessed fine is not paid within fifteen (15) days from the date of this Order, a SLED agent shall serve a copy of this Order on Ruby Odom and take possession of the permit. Upon service of the fifteen (15) days suspension, said agent shall return the permit to Respondent. Respondent and his agents are to cease and desist all sales of beer and wine at the location during the period of suspension.

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STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

November ___, 1997

Columbia, South Carolina