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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Valley M. Henry

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Valley M. Henry
 
DOCKET NUMBER:
99-ALJ-17-0636-CC

APPEARANCES:
Jeffrey M. Nelson
Attorney for Petitioner

Valley M. Henry
pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1998) for a contested case hearing on an alleged administrative violation of the alcoholic beverage laws. The South Carolina Department of Revenue (Department) contends that Respondent violated 23 S.C. Code Ann. Regs. 7-88 (1976) by failing to adhere to two of the stipulations incorporated into the basic requirement for the privilege of obtaining and retaining her beer and wine permit.

After timely notice to the parties, a hearing was conducted on March 9, 2000.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence.

Respondent Valley M. Henry was issued a beer and wine permit for the 378 East Gameroom, 904 East Myrtle Beach Highway in Scranton, South Carolina. Pursuant to a June 25, 1996 Order and Decision of this tribunal involving the same parties (Docket No. 96-ALJ-17-0181-CC), three restrictions were placed on Respondent's on-premises beer and wine permit.

As a condition to the issuance of the permit, Respondent stipulated to the following:

(1) Respondent will not open for business except during the hours of 2:00 p.m. to 12:00 a.m. daily.

(2) Respondent will be responsible for cleaning up all litter reasonably attributable to her

business.

(3) Respondent will take all precautions necessary to eliminate unreasonably loud noise

emanating from the proposed location and patrol the immediate grounds around the

premises to prevent consumption of beer or wine outside the structural confines of the

permitted premises.

The Department charged Respondent with violating Conditions 1 and 2 on March 6, 1999. The evidence clearly indicates that Respondent, through her employee, sold beer to an undercover informant for the South Carolina Law Enforcement Division at 12:20 a.m. on March 6, 1999. Equally evident is that excessive piles of uncollected trash were located on the grounds immediately surrounding the premises on this same date.

CONCLUSIONS OF LAW AND DISCUSSION

The Department is charged with the responsibility of administering and enforcing the laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 1998). Here, the Department seeks to impose a $400 fine for the violation pursuant to 23 S.C. Code Ann. Regs. 7-88 (1976). Reg. 7-88 provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permits and permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee [sic] will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.



23 S.C. Code Ann. Regs. 7-88 (1976) (emphasis added).

Respondent contends that the fine is excessive. This argument, however, ignores the leniency underlying the Department's imposition of the $400 fine. For example, the Department is authorized to revoke a license or permit for only a first violation. See S.C. Code Ann. §§ 61-4-270 & 61-4-590 (Supp. 1998). In the present case, Respondent violated two of the stipulations incorporated into her beer and wine permit.

Finally, Respondent's argument ignores that a beer and wine permit is neither a contract nor a property right. It is a "mere [permit] issued or granted in the exercise of the police power of the state to do what otherwise would be unlawful to do; and to be enjoyed only so long as the restrictions and conditions governing [its] continuance are complied with." Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

Hence, there are legal consequences for non-compliance with the alcoholic beverage laws. Accordingly, this tribunal rejects Respondent's argument, and the Department shall impose the $400 fine at issue, which is consistent with its penalty guidelines for a first violation.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Department's imposition of a $400 fine against Respondent for violating two stipulations incorporated into her beer and wine permit is sustained.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

March 10, 2000

Columbia, South Carolina


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