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 23 S.C. Code Ann. Regs. 7-86 (1976) for allegedly permitting the sale of beer during restricted hours on December 15, 1996. The South Carolina Department of Revenue (DOR) seeks a $400 fine for the alleged violation. A hearing was held November 20, 1997, at the Administrative Law Judge Division in Columbia, South Carolina. I find that the violation was not proven by a preponderance of the evidence. The citation against Respondent is dismissed.

Respondent was cited with permitting the sale of beer during restricted hours. DOR's case is based completely upon circumstantial evidence. The uncontroverted evidence established that on Sunday, December 15, 1996, Vinton Martin exited Respondent's store and pulled a 16 oz. beer in a brown bag out of his coat pocket before getting into an automobile and leaving the location. A SLED agent observed the occurrence and pulled the car over. Only upon the SLED agent's discovering the open beer in the passenger compartment did Martin state that he had just bought the beer from Respondent. As a result of the traffic stop, Martin was cited and convicted for violation of the open container law.

No eye-witness testimony was offered to prove that a sale took place. Martin may have admitted to buying the beer from Respondent, but the price of the beer he claimed to have paid was less than the actual price Respondent charged. Even more troubling is the fact that Martin is now deceased, and thus unavailable to corroborate or contradict the statements attributed to him. Under Rule 804, S.C. Rules of Evidence, the statements of a declarant which is unavailable as a witness are inadmissible as hearsay unless it is former testimony, a statement under belief of impending death, a statement against interest, or a statement of personal or family history. No objection was made to Martin's statements, as related by SLED Agent Roberts; however, the court must assess the credibility of the evidence presented and weigh that which is relevant and probative. While Martin's alleged statement that he bought beer during restricted hours may be construed as a statement against interest since it could have subjected him to criminal or civil liability, and thus admissible and reliable, I do not view it as trustworthy. Respondent offered evidence that Martin stole the beer from store. If that is in fact true, Martin's statement that he bought the beer would have protected his interest.

I believe that Agent Roberts acted in good faith in issuing the violation citation and offered credible testimony of his own observations and actions. Agent Roberts' testimony alone, minus those statements attributed to the deceased, Vinton Martin, however, is insufficient to establish that Respondent violated 23 S.C. Code Ann. Regs. 7-86 (1976). DOR's case relies too heavily upon speculation and too little upon credible evidence. In short, DOR failed to provide adequate proof of its charge.

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.
2. Respondent holds a beer and wine permit for a business known as F & B Hobby & Snack Shop located at Route 1, Box 884, Highway 61, Cottageville, South Carolina.
3. Respondent was present and working as a cashier at the location on December 15, 1996.

1. On Sunday, December 15, 1996, at approximately 11:58 a.m., SLED Agent Lonnie Roberts was parked in front of F & B Hobby & Snack Shop.
2. From his vantage point, Agent Roberts could not see inside of the store.
3. From his car, Agent Roberts observed two males exit the location, and walk toward an automobile. As they approached the automobile, the passenger removed a small brown paper bag, which contained a 16 oz. Budweiser beer from his coat pocket.
4. As the automobile left F & B Hobby & Snack Shop Agent Roberts followed it down Highway 61 for approximately one-quarter of a mile before conducting a traffic stop.
5. During the traffic stop, Agent Roberts questioned the driver and passenger about any purchases made at F & B Hobby & Snack Shop. Both men denied making any purchases.
6. Agent Roberts instructed the men to exit the vehicle, at which time he observed a 16 oz. Budweiser beer can inside the car.
7. The beer can was cold to the touch, open, and contained beer.
8. Upon Agent Roberts' discovery of the beer can and subsequent questioning, the passenger, Vinton Martin, stated that he had just purchased the beer from Respondent for $1.00.
9. Agent Roberts issued a summons ticket to Vinton Martin for violation of S.C. Code Ann. § 61-9-87, for unlawful possession of beer in a moving vehicle, and Agent Roberts issued an administrative citation to Fred Ford for violation of 23 S.C. Code Ann. Regs. 7-86 (1976) for permitting the sale of beer during restricted hours.
10. Vinton Martin was subsequently convicted of the criminal charges in Magistrate Court in absentia.
11. The price of a 16 oz. Budweiser beer at F & B Hobby & Snack Shop was $1.30.
12. Respondent keeps a stack of brown paper bags in the rear of his store, near the beer and soft drink cooler.
13. During the time Vinton Martin was inside the store, there were approximately 10-12 other customers at the location.
14. Vinton Martin was a very frequent customer of F & B Hobby & Snack Shop and visited the location approximately 15-20 times daily.
15. On the date of this contested case hearing, Vinton Martin was not available as a witness because he is deceased.
16. During his testimony, Agent Roberts offered into evidence statements made to him by Vinton Martin on December 15, 1996.

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. 23 S.C. Code Ann. Regs. 7-86 (1976) provides:

Any beer or wine sold, offered for sale or delivered to anyone from any licensed place of business or the removal therefrom of any beer or wine between the hours of twelve o'clock Saturday night and sunrise Monday morning is a violation against the beer and wine permit and such permit will be subject to suspension or revocation.... Any delivery or removal of beer or wine between these restrictive hours shall be deemed prima facie evidence that a sale was made.

1. Agent Roberts' testimony that he saw Martin remove a can of beer from his jacket pocket soon after exiting the licensed location is not conclusive evidence that Martin removed the beer from the licensed location.
2. The conviction of Vinton Martin in magistrate's court for unlawful possession of beer in a moving vehicle under S.C. Code Ann. § 61-9-87, is not prima facie evidence that

Respondent permitted the sale of beer to Martin during restricted hours, in violation of

23 S.C. Code Ann. Regs. 7-86 (1976).

1. An out of court statement by a decedent is hearsay and inadmissible unless it fits under one of the exceptions of Rule 804, S.C. Rules of Evidence. While Martin's alleged statement that he bought beer during restricted hours may be construed as a statement against interest under Rule 804(b)(3), S.C. Rules of Evidence, because it could have subjected him to criminal charges for such sale, it is equally as likely that Martin's statement was false statement in order to protect himself from criminal prosecution for stealing the beer.
2. Although no objection was raised by Respondent to the hearsay statements, the trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Accordingly, Martin's statement is unreliable and not entitled to any evidentiary weight.
3. To warrant a conclusion sought to be established by circumstantial evidence, the facts and circumstances disclosed by such evidence must be such as, considered in the light of ordinary experience, would lead with reasonable certainty to such conclusion and not leave it to mere speculation or conjecture. Williams v. Ford, 233 S.C. 304, 104 S.E.2d 378 (1958). It must have sufficient probative value as to constitute grounds for a legal inference. Attaway v. One Chevrolet 5-P Truck, 228 S.C. 559, 91 S.E.2d 270 (1956).
4. DOR failed to prove by a preponderance of the evidence that the alleged sale took place. DOR 's circumstantial evidence lacked sufficient probative value to establish with reasonable certainty the conclusion it proposed. Respondent presented adequate evidence to overcome the prima facie evidence that a sale occurred. Accordingly, no violation is found, and this action must be dismissed with prejudice.

IT IS THEREFORE ORDERED that the citation against Respondent Fred Ford for a violation of 23 S.C. Code Ann. Regs. 7-86 (1976), permitting the sale of beer during restricted hours on December 15, 1996, is hereby dismissed with prejudice.

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STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

December ____, 1997

Columbia, South Carolina