ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 12-60-450 and 12-60-460
(Supp. 1996) and S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1996) 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. 1996) for allegedly permitting the possession or consumption of beer by a
person during restricted hours on February 23, 1997. The South Carolina Department of
Revenue (DOR) seeks a $400 fine for the alleged violation. After notice was sent to each of the
parties, a hearing on this matter was held before the undersigned Administrative Law Judge on
January 16, 1998. Neither Respondent nor her counsel appeared at the hearing. A hearing on the
merits was conducted in the Respondent's absence. Based upon the relevant and probative
evidence and the applicable law, I find Respondent violated § 61-9-410(5)(Supp. 1996), as
charged. In addition, I find Respondent in default under ALJD Rule 23 for failing to appear at
the hearing. Respondent is ordered to pay a fine of Four Hundred Dollars ($400).
FINDINGS OF FACT
By a preponderance of the evidence, I find:
- 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 Dan O's
Hill Top Lounge at 3044A Highway 378 West, Batesburg-Leesville, South Carolina.
- On September 1, 1996, SLED Agent John Tanner issued a warning citation to
Respondent for sale, delivery, and/or removal of beer and wine during restricted hours
under R. 7-86 and for conducting an unauthorized private function pursuant to R. 7-14.
- On September 1, 1996, Agent Tanner also explained to Respondent the procedures set
forth by statue and regulation relating to conducting private functions at a licensed
location.
- On Sunday, February 23, 1997, at approximately 5:30 p.m., SLED Agents Tanner and
Reinhart entered the premises to conduct an inspection.
- At the time of inspection, several cars were in the parking lot, music was being played,
and a "private party" sign was posted on the outside of the front door of the
establishment.
- Respondent was present at the location at the time Agents Tanner and Reinhart entered
the premises.
- At the time Agents Tanner and Reinhart entered the location, there were several patrons
inside.
- David Ronald Parker was in possession of a large bottle of Crown Royal which had a
broken seal.
- Christopher K. Maxwell was in possession of and drinking from an open Michelob beer
bottle.
- Respondent could not provide a private party contract to Agents Tanner and Reinhart.
- Summonses were issued to patrons David Ronald Parker for possession of liquor during
restricted hours and Christopher K. Maxwell for possession of beer during restricted
hours, and a citation for an administrative violation was issued to Respondent by Agent
Tanner.
- Respondent has no previous permit violations.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
- Pursuant to S.C. Code Ann. §§ 12-60-450 and 12-60-460 (Supp. 1996) and S.C. Code
Ann. §§ 1-23-310, et seq. (Supp. 1996), the South Carolina Administrative Law Judge
Division has jurisdiction in this matter.
- 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).
- "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. 1996).
- "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).
- Respondent permitted the possession and consumption of beer during restricted hours on February 23, 1997, in violation of S.C. Code Ann. § 61-9-410 (5)(Supp. 1996).
- S.C. Code Ann. § 61-1-80 (Supp. 1996) authorizes the discretionary imposition of a
monetary penalty as an alternative to the suspension or revocation of a license or permit.
- 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) should be imposed upon the Respondent.
- ALJD Rule 23 permits the administrative law judge to dismiss a contested case adverse to
the defaulting party. A default occurs "when a party fails to plead or otherwise prosecute
or defend, fails to appear at a hearing without the proper consent of the judge or fails to
comply with any interlocutory order of the administrative law judge."
- Respondent's failure to appear at the January 16, 1998 contested case hearing without
consent of the Court, after receiving proper notice, constitutes default.
- Pursuant to ALJD Rule 29(B), any issues or motions raised at the hearing but not
addressed in this Order are deemed denied.
ORDER
IT IS THEREFORE ORDERED that Respondent shall pay a monetary penalty in the
amount of Four Hundred Dollars ($400) no later than February 13, 1998.
IT IS FURTHER ORDERED that if DOR does not receive payment of the assessed fine
by February 13, 1998, the beer and wine permit held by Respondent shall be suspended for a
period of fifteen (15) days. If the assessed fine is not paid by February 13, 1998, a SLED agent
shall serve a copy of this Order on Respondent and take possession of the permit. Upon service
of the fifteen (15) days suspension, said agent shall return the permit to Respondent. Respondent
and her agents are to cease and desist all sales of beer and wine at the location during the period
of any suspension.
AND IT IS SO ORDERED.
_________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
January 20, 1998
Columbia, South Carolina |