ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 &
Supp. 1995), upon request for a contested case hearing by Respondent. Respondent was cited
with an administrative violation of 23 S.C. Code Ann. Regs. 7-9(B) (1976) for allegedly
permitting or knowingly allowing the purchase of beer by a person under twenty-one years of
age on or about December 6, 1996. Respondent was cited for a violation of S.C. Code Ann.
§ 61-5-110 (Supp. 1995) for refilling mini-bottles. A hearing was held on the merits on
January 7, 1998, in Columbia, South Carolina. For the alleged violations, the South Carolina
Department of Revenue (DOR) seeks a fine of One Thousand Dollars ($1,000); revocation of
the on-premises beer and wine permit; and revocation of the sale and consumption (mini-bottle)
license.
Petitioner's motion to dismiss the alleged violation regarding sale of beer to a minor is
granted. Upon review of the relevant and probative evidence and the applicable law, I find that
the refilling of mini-bottles violation occurred. Respondent is ordered to pay a total fine of Two
Hundred Fifty Dollars ($250), and her mini-bottle license and beer and wine permit are
suspended for a period of fifteen (15) days.
FINDINGS OF FACT
I find by a preponderance of the evidence:
The Administrative Law Judge Division has personal and subject matter
jurisdiction in this case.
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 (Permit Number
BW850023) and a sale and consumption license (License Number SB854896) for Mae's Place,
located at Johnson and 2nd Street, Estill, South Carolina.
In a promotional venture, Respondent refilled 68 mini-bottles from liquor
purchased at a retail liquor store.
The refilled mini-bottles were given away as prizes and were not resold.
Respondent has no previous permit or license violations.
Respondent's use of the refilled mini-bottles was not motivated by a design or
intent to avoid payment of taxes on the mini-bottles.
Taxes due the Department for 68 mini-bottles would total approximately
seventeen dollars ($17).
Respondent's admitted violation of S.C. Code Ann. § 61-5-110 (Supp. 1995) was
the result of ignorance rather than fraud.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
Pursuant to S.C. Code Ann. §§ 1-23-310, et seq., the South Carolina
Administrative Law Judge Division has jurisdiction in this matter.
S.C. Code Ann. § 61-5-110 (Supp. 1995) sets forth the applicable law for an
offense of possession or display of alcoholic beverage containers with broken seals:
[A]ny person who is licensed to sell alcoholic liquors . . . who has
in his possession on his licensed premises any alcoholic beverages
in containers other than sealed containers of two ounces or less . . .
or who displays such sealed containers when the seals are broken
. . . shall [be subject to the following penalty provisions]. . .
S.C. Code Ann. § 61-5-110 (Supp. 1995)
Respondent violated S.C. Code Ann. § 61-5-110 by possessing refilled mini-bottles and is therefore subject to the penalty provisions.
Section 61-5-110(1) dictates that the penalty for a first offense is a fine of not less
than two hundred dollars nor more than five hundred dollars or suspension of the license for not
more than thirty days, or both.
The penalty in § 61-5-110(4) is not applicable to these facts. This penalty dictates
that for a violation involving the avoidance of taxes, a fine of not less than one thousand dollars
and permanent revocation of the license shall be assessed. DOR has failed to establish that the
conduct of Respondent was motivated by a design or intent to avoid taxes.
A violation of any of the liquor laws is a ground for the revocation or suspension
of the holder's beer and wine permit. S.C. Code Ann. § 61-9-410 (Supp. 1995).
A fifteen-day suspension of the mini-bottle license and beer and wine permit and a
fine of $250 is reasonable under these facts and circumstances.
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).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Respondent shall pay a fine in the amount of Two
Hundred Fifty Dollars ($250) to the South Carolina Department of Revenue within fifteen (15)
days of the date of this Order.
IT IS FURTHER ORDERED that the sale and consumption license and beer and wine
permit for Mae's Place, located at Johnson and 2nd Street, Estill, South Carolina, shall be
suspended for a period of fifteen (15) days, effective fifteen (15) days from the date of this Order,
during which time Respondent and her agents are prohibited from selling liquor, beer and wine.
A
SLED agent shall serve a copy of this Order on Rena Garvin and take possession of the license
and permit.
IT IS FURTHER ORDERED that 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 Rena Garvin
and take possession of the license and permit. Upon service of an additional fifteen-day
suspension, for a total of thirty (30) days, said agent shall return the license and permit to
Respondent. Respondent and her agents are to cease and desist all sales of liquor and beer and
wine at the location during the period of suspension.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
February 19, 1998
Columbia, South Carolina |
