ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before me upon a request by Travis D. Reese as President, Plum Crazy,
Inc., d/b/a Plum Crazy ("Respondent"), for a contested case hearing pursuant to an administrative
violation written against its on-premise beer and wine permit for the premises located at 6060 Rivers
Avenue, North Charleston, Charleston County, South Carolina ("location"). A citation/violation
report was issued to the permittee for violation of S. C. Code Ann. § 61-9-410 (4) (Supp. 1995)(1) for
permitting lewd, immoral, or improper entertainment, conduct or practices on its premises on
February 16, 1996. Based upon the alleged violation, the South Carolina Department of Revenue
("Department" or "Petitioner") seeks revocation of the Respondent's on-premise beer and wine
permit.
After notice to the parties, a hearing was held at the offices of the Administrative Law Judge
Division ("Division"), Edgar A. Brown Building, 1205 Pendleton Street, Columbia, South Carolina
on October 7, 1997.
I find that the Respondent violated S.C. Code Ann. § 61-9-410(4). I further find that the
appropriate penalty in this case is the suspension of the permit for a period of forty-five (45) days
and a fine in the amount of One Thousand and no/100 ($1,000.00) Dollars.
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). Further, the filing of a motion for reconsideration
is not a prerequisite to any party filing a notice of appeal of this Final Decision. ALJD Rule 29 (C).
ISSUES
1. Did the Respondent or his employees knowingly permit lewd, immoral, or improper
entertainment, conduct, or practices at the permitted location?
2. If the Respondent did commit the violation, what is the appropriate penalty?
EXHIBITS
The Department placed into evidence, without objection, seven exhibits as follows:
1. Copies of letters to James H. Harrison, Esq. and to Respondent dated June 25, 1997 which contained the Final Determination of the Department, together with a copy of the Violation Report dated February 16, 1996.
2. Letter from the office of James H. Harrison, attorney for the Respondent, requesting a hearing on the alleged violation.
3. Incident Report by the North Charleston Police Department dated
February 16, 1996 charging Rebecca Lynn Osuna and Kristi L. Davis with
indecent exposure at Respondent's location. The report was signed
by Officer David S. Cheatle.
4. A Supplementary Report dated February 16, 1997, prepared by Officer D. M. Singletary of the North Charleston Police Department.
5. A Supplementary Report dated February 15, 1997, prepared by Officer S. Kramitz of the North Charleston Police Department.
6. A Supplementary Report dated February 16, 1996, prepared by Officer K. A. Madrid of the North Charleston Police Department.
7. S.C. Revenue Procedure 95-7.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony and having judged the
credibility of the witnesses, by a preponderance of the evidence, I make the following findings:
1. The Administrative Law Judge Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all the
parties.
3. Plum Crazy, Inc., is a corporation owned by the Respondent, Travis D. Reese.
Respondent also serves as president of the corporation. The Respondent holds an on-premise beer
and wine permit issued by the Department for the business known as Plum Crazy, located at 6060
Rivers Avenue, North Charleston, Charleston County, South Carolina.
4. Respondent has held permits issued by the former Alcoholic Beverage Control
Commission and its successor, the Department of Revenue, for a period of approximately ten years.
5. At approximately midnight on the night of February 16, 1996, three officers of the
North Charleston Police Department entered the location. John Ramey, an agent with State Law
Enforcement Division ("SLED") since July 1, 1993, participated in the undercover operation along
with another SLED agent.
6. The location had advertised via radio a "Bare As You Dare" contest for that evening
at the club.
7. The club's disc jockey emceed the contest. Prior to the beginning of the contest, the
contestants were counseled by the disc jockey that they could not show private portions of their body,
no touching was allowed, and no "bottoms" could be taken off or removed. The contestants were
further told that if they violated the rules they were were immediately disqualified and were not
eligible for the prize of $200.00.
8. The interior of the lounge on February 16, 1996 had both a dance floor and a stage.
The contestants performed on the stage, which was at an elevation of approximately two feet, and
on the dance floor. Surrounding the dance floor was a railing approximately four feet high and six
inches wide.
9. The first contestant to perform in the contest was Rebecca Lynn Osuna. She was 23
years of age on the date in question.
10. Detectives David M. Singletary and Kelly Madrid, together with Officer Allan
Richard Kramitz of the North Charleston Police Department, observed Ms. Osuna's performance.
Officer Singletary has been employed with the Police Department for four years and is primarily a
narcotics investigator. Officer Kramitz has been with the Department since August of 1995 and
Officer Kelly Madrid came to the Department some four years ago from the Charleston Police
Department. She handles field community complaints.
11. Ms. Osuna, performing alone, danced around the stage floor twice in a sexually
oriented dance during which she gradually took off the top part of her clothing. Continuing with
her dance, she gradually moved the "g-string" (bottom portion) of her clothing below her knees,
exposing her pubic area, genitals and buttocks. At this point in time there was no covering
remaining over these areas of her body.
12. Three other contestants also performed in the contest. They were Stacey Buck,
Stephanie A. Bell and Kristi L. Davis. Their birthdates are September 29, 1966; March 2, 1972; and
January 13, 1971, respectively. They were 29, 23 and 25 years of age on the date of the contest.
13. All three of these contestants removed the top portion of their clothing , exposing
their breasts. However, Ms. Davis also pulled her g-string down below her knees, exposing her
pubic area, genitals and buttocks. She danced around the dance floor area showing this part of her
anatomy to onlookers.
14. Each contestant danced approximately three to four minutes, which is the
approximate length of a recorded song.
15. During the time each of the four contestants performed her dance routine, employees
wearing Plum Crazy t-shirts were walking throughout the club, intermingling with the customers.
16. The disc jockey was located at the top of the steps beside the dance stage. The
manager of Plum Crazy stood beside him during the time the four contestants performed their dance
routines. The contestants walked by them at a distance of approximately five to fifteen feet as they
went down to the dance floor.
17. While Ms. Osuna and Ms. Davis were performing, they pulled their g-strings down
to their knees on various occasions. At no point during their routines did the manager stop them
from dancing or have the disc jockey stop the music.
18. After the four contestants had finished their dances, the North Charleston Police
officers and the SLED agents talked with them in the office at the location.
19. Ms. Osuna and Ms. Davis were each charged with violating S.C. Code Ann. § 16-15-130 for Indecent Exposure and were given personal recognizance bonds. They were advised that
they must appear in the North Charleston Municipal Court on February 21, 1996. Ms. Buck and Ms.
Bell were not criminally charged.
20. It is a normal practice at this club for the same dancers to serve as contestants in these
contests on a frequent basis. For example, Ms. Buck has been participating in dance contests and
wet t-shirt contests at this club for four years.
21. Prior to this undercover operation, no law enforcement officer had discussed any
complaints about activities at this location with Respondent or his staff.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1996) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 1996) grants to the Administrative Law Judge
Division the powers, duties and responsibilities to hear contested cases arising under the provisions
of Title 61 of the 1976 S.C. Code of Laws.
3. S.C. Code Ann. § 61-9-410(4) (Supp. 1995) provides in pertinent part:
No holder of a permit authorizing the sale of beer or
wine or any servant, agent, or employee of the
permittee shall knowingly do any of the following acts
upon the licensed premises covered by the holder's
permit:
* * *
(4) permit lewd, immoral, or improper entertainment,
conduct, or practices. This includes, but is not limited
to, entertainment, conduct, or practices where a
person is in a state of undress so as to expose the
human male or female genitals, pubic area, or
buttocks cavity with less than a full opaque covering;
. . . .
A violation of any of the foregoing provisions is a
ground for the revocation or suspension of the
holder's permit.
4. The issue for determination is whether the Respondent or his agents, servants, or
employees knowingly permitted lewd, immoral, or improper entertainment, conduct, or practices on
the licensed premises. There is no South Carolina statutory or case law definition of "to permit."
Therefore, this tribunal consulted other authorities for a definition. "Permit" is defined as "(1) [t]o
allow the doing of [something]; consent to; (2) to grant leave or consent to [someone]; authorize;
(3) to afford opportunity or possibility for." The American Heritage College Dictionary 1018 (3d
ed. 1993). Further, Black's Law Dictionary defines "permit" as: "(1) To suffer, allow, consent, let;
(2) to give leave or license; (3) to acquiesce, by failure to prevent, or to expressly assent or agree to
the doing of an act." Id. at 1140 (6th ed. 1990).
5. A licensee may be held liable for violations of liquor statutes and regulations
committed by his agent while pursuing the ordinary business entrusted to him. The licensee is liable
even though the violations are committed in his absence and without his knowledge consent or
authority. See 48 C.J.S. Intoxicating Liquors § 271 (1981).
6. The evidence of record supports the conclusion that the disc jockey and manager on
duty were Respondent's employees and that they were acting within the scope of their employment
on the night in question. Furthermore, the evidence supports the conclusion that Respondent's
employees permitted the prohibited activity. Although the dancers were in view of one or more of
Respondent's employees at the time they pulled down their g-strings, none of the employees made
any attempt to prevent the prohibited acts from occurring or to stop the dancers' routines. Therefore,
I conclude that the Respondent violated S.C. Code Ann. § 61-9-410(4) on February 16, 1996.
7. S.C. Code Ann. § 61-4-250 (Supp. 1996) authorizes, for any violation of the statutes
pertaining to beer and wine, in lieu of suspension or revocation of the beer and wine permit, the
imposition of a monetary penalty of not less than twenty-five dollars ($25.00) and not more than one
thousand dollars ($1,000.00).
8. It is a generally recognized principle of administrative law that the fact finder has the
authority to impose an administrative penalty after the parties have had the opportunity to have a
hearing and be heard on the issues. See Ohio Real Estate Comm'n v. Aqua Sun Investments, 655
N.E.2d 266 (Ohio A. 2 Dist. 1995); Shadow Lake of Noel, Inc. v. Supervisor of Liquor Control, 893
S.W.2d 835 (Mo. App. S.D. 1995); Matter of Henry Youth Hockey Ass'n., 511 N.W.2d 452 (Minn.
App. 1994); Vermont Agency of Natural Resources v. Duranleau, 617 A.2d 143 (Vt. 1992); City of
Louisville v. Milligan, 798 S.W.2d 454 (Ky. 1990); Com., Dept. of Transp. v. Slipp, 550 A.2d 838
(Pa. 1988); Dept. of Transp. v. Miller, 528 A.2d 1030 (Pa. 1987); State Police v. Cantina Gloria's,
639 A.2d 14 (Pa. 1994). See also Walker v. S.C. ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633
(1991) (the fact-finder in a case has the authority to impose a penalty consistent with the facts
presented).
In this case, the evidence indicated that this was the first violation cited against the Respondent.
Accordingly, based upon the evidence presented, I conclude that the Respondent's beer and wine
permit should be suspended for a period of forty-five (45) days and that a fine in the amount of One
Thousand Dollars ($1,000.00) should be imposed for the violation of S.C. Code Ann. § 61-9-410(4)
(Supp. 1995), in lieu of the revocation of the Respondent's beer and wine permit.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Respondent's beer and wine permit is hereby suspended for a period of
forty-five (45) days. An agent of the State Law Enforcement Division shall serve a copy of this
Order on the Respondent and take possession of the permit cited above. Upon service of the forty-five (45) day suspension, an agent shall return the permit to the Respondent. During the period of
suspension, Respondent is ordered to post a copy of this Order at a visible location in the licensed
premises, and to cease and desist all sales of beer and wine on the premises. The Respondent is
further ordered to pay to the Department a monetary fine in the amount of One Thousand Dollars
($1,000.00) within fifteen (15) days of the date of this Order. It is further
ORDERED that this Division retains jurisdiction to enforce the provisions of this Order.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
December 2, 1997
1. S.C. Code Ann. § 61-9-410 has been recodified as S.C. Code Ann. § 61-4-580 (Supp.
1996). |
