ORDERS:
ORDER AND DECISION
This matter comes before the Administrative Law Judge Division ("Division") on a citation
issued by the South Carolina Department of Revenue ("Department") against Rehan W. Mir,
President, Alley Gator Raw Bar and Grille, for an administrative violation of 23 S.C. Code Ann.
Regs. 7-9(B) (Supp. 1996), by permitting a person under the age of twenty-one (21) years to possess
beer on a licensed premises. For the violation, the Department assessed a $400 monetary penalty
upon the Respondent. The Respondent sought review of the Department's determination. After
notice to the parties, a hearing was conducted on February 12, 1999, at the Spartanburg County
Courthouse, Spartanburg, South Carolina.
After a thorough review of the file and the evidence presented at the hearing, I find and
conclude that a fine in the amount of One Hundred and no/100 ($100.00) Dollars is the appropriate
penalty in this case.
Any issues raised or presented during the proceedings or hearing of this matter that are not
specifically addressed in this order 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 Order.
ALJD Rule 29(C).
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 of
Fact:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all parties.
3. Respondent holds an on-premises beer and wine permit, as President of the Alley
Gator Raw Bar and Grille, for a restaurant located at 115 Pelham Road, Greenville, South Carolina.
4. On November 7, 1997, after receiving complaints of alleged violations at the location,
State Law Enforcement Division ("SLED") Agents Ashley Brunson Asbill and James R. Causey
conducted an inspection at the location.
5. Agent Causey went to the outside deck area of the restaurant and observed what
appeared to be an underaged young man with a Budweiser in his hand. Agent Causey also observed
a waitress, Jamie Hembace, walk up to the young man and ask if he needed another beer. The
waitress did not check the young man's identification.
6. Agent Causey identified himself and asked for the young man's identification. The
young man produced a valid South Carolina driver's license, identifying him as John L. Rutledge, age
20. Mr. Rutledge stated to the SLED agent that when he purchased the beer from the bar, no one
asked for his identification.
7. Mr. Rutledge had not entered the restaurant through the main entrance where one of
Respondent's employees was checking identification. He entered through the outside deck area.
8. Mr. Rutledge had been barred from the restaurant a week before the incident.
Respondent did not know that he was there on the night the incident occurred.
9. Respondent has since spent $15,000 to cover the outside deck area, so that no one
can enter the restaurant except through the main entrance.
10. John L. Rutledge was charged with possession of a beer by a person under twenty-one
(21) years of age. He was issued a summons to appear before Magistrate Cagle. At this appearance
he pled guilty and was fined $125.00.
11. An administrative citation was issued against the Respondent for violation of 23 S.C.
Code Ann. Regs. 7-9(B).
12. Respondent has had no previous violations against his permit.
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. 1998) 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. 1998) provides that contested case hearings arising
under the provisions of Title 61 must be heard by an Administrative Law Judge.
3. 23 S.C. Regs. 7-9(B) (Supp. 1998) provides that it is prohibited to permit or
knowingly allow a person under twenty-one years of age to purchase, possess or consume beer or
wine in or on a licensed establishment. Such an act is a violation against the permit and constitutes
grounds for suspension or revocation of the beer and wine permit.
4. 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 § 276 (1981).
5. If an agent is doing some act in furtherance of the principal's business, he will be
regarded as acting within the scope of his authority. On the other hand, a principal is generally not
liable when an agent is acting for his own independent purposes, wholly disconnected from
furtherance of his employer's business; such conduct falls outside the scope of his employment.
Crittenden v. Thompson-Walker Co., Inc., 288 S.C. 112, 341 S.E.2d 385 (Ct. App. 1986).
6. The record is clear in this case that both the bartender, who sold the first beer to Mr.
Rutledge, and the waitress, Ms. Jamie Hembace, who observed Mr. Rutledge in possession of a beer
and who asked him if he wanted another beer, were acting within the scope of general authority
placed in them by their principal, the Respondent, in selling beer and wine at the location. Further,
their actions in so doing are and were with the knowledge and consent of their principal. No evidence
was placed in the record that these employees were not authorized to be at the location nor to make
sales of beer and wine. Further, the evidence is overwhelming that Mr. Rutledge purchased the first
beer at the bar; that Ms. Hembace observed him in possession of the beer and asked him if he wanted
another beer; and that neither the bartender nor Ms. Hembace asked Mr. Rutledge for identification.
7. Based upon the evidence, I conclude that the Respondent and/or his agent for whose
action he is responsible violated 23 S.C. Code Ann. Regs. 7-9(B) by permitting a person under the
age of twenty-one (21) years to possess a beer on the licensed premises.
8. Permits and licenses issued by the state of South Carolina for the sale of liquor, beer,
and wine are not rights or property, but are rather privileges granted in the exercise of the police
power of this State to be used and enjoyed only so long as the restrictions and conditions governing
them are complied with. The Administrative Law Judge Division, as the tribunal authorized to grant
the issuance of a permit, is likewise authorized for cause to revoke or suspend the permit.
See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
9. S.C. Code Ann.§ 61-4-250 (Supp. 1998) authorizes, for any violation of any
regulation promulgated by the department pertaining to beer and wine, the imposition of a monetary
penalty in the amount of not less than twenty-five dollars ($25.00) and not more than one thousand
dollars ($1,000), in lieu of suspension or revocation.
10. It is a generally recognized principle of administrative law that the fact-finder has the
authority to impose an administrative penalty, as established by the legislature, after the parties have
had an opportunity to have a hearing and be heard on the issues. Walker v. S.C. ABC Comm'n, 305
S.C. 209, 407 S.E.2d 633 (1991). See also City of Louisville v. Milligan, 798 S.W.2d 454 (Ky.
1990); Matter of Henry Youth Hockey Ass'n, 511 N.W.2d 452 (Minn. Ct. App. 1994); Shadow Lake
of Noel, Inc. v. Supervisor of Liquor Control, 893 S.W.2d 835 (Mo. Ct. App. 1995); Ohio Real
Estate Comm'n v. Aqua Sun Inv., 655 N.E.2d 266 (Ohio 1995); State Police v. Cantina Gloria's, 639
A.2d 14 (Pa. 1994); Vermont Agency of Natural Resources v. Duranleau, 617 A.2d 143 (Vt. 1992).
11. Based upon the evidence presented and after considering the credibility of the
witnesses, together with Respondent's efforts to prevent similar occurrences in the future and the fact
that Respondent has had no previous violations against his permit and license, I conclude that a
monetary penalty of One Hundred and No/100 ($100.00) Dollars is the appropriate penalty in this
case.ORDER
Based upon the foregoing Findings of Fact and Conclusions of law, it is hereby:
ORDERED that the Respondent, Rehan W. Mir, shall pay a monetary penalty in the amount
of one hundred dollars ($100.00), within fifteen (15) days of the date of this Order, for violation of
23 S. C. Code Ann. Regs. 7-9(B) (Supp. 1998) as enumerated above. If the Petitioner does not
receive a total of $100.00 from Rehan W. Mir, within fifteen (15) days from the date of this Order,
it is Ordered that the beer and wine permit be suspended for a period of fifteen (15) days. If the
Petitioner does not receive the funds as stated, any agent of the State Law Enforcement Division shall
serve a copy of this Order on Respondent and shall take possession of the beer and wine permit issued
to Rehan W. Mir, President, Alley Gator Raw Bar and Grille located at 115 Pelham Road, Greenville,
South Carolina. Said agent shall hold the permit for fifteen (15) days. Upon expiration of the fifteen
(15) day suspension, Respondent is ordered to post a copy of this Order at a visible location at his
place of business, and to cease and desist all sales of beer and wine.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
March 18, 1999. |