ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
The
above-captioned case comes before this Court pursuant to S.C. Code Ann. §
61-2-260 (Supp. 2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code
Ann. §§ 1-23-310 et seq. (2005) for a contested case hearing. In this
matter, Petitioner South Carolina Department of Revenue (Department) contends
that Respondent Simons of Greenwood, Inc. (Respondent) violated its non-profit
private club license to sell liquor by the drink by permitting the consumption
of liquor by a non-member on its licensed premises, known as Simons Bar &
Grill and located at 807 Bypass 25 NE in Greenwood, South Carolina. For this
third violation of Respondent’s license in as many years, the Department seeks
the imposition of a $500 fine upon Respondent and the revocation of
Respondent’s liquor license and beer and wine permit. Respondent concedes that
the alleged violation did occur, but further contends that the proposed penalty
for the violation is excessive in light of the efforts it has taken to address
such violations.
After
timely notice to the parties, a hearing of this case was held on September 21,
2006, at the South Carolina Administrative Law Court in Columbia, South
Carolina. Based upon the evidence presented at the hearing and upon the
applicable law, I find that the appropriate penalty for Respondent’s violation
is a 30-day suspension of Respondent’s license to sell liquor by the drink and
the imposition of a $1500 fine upon Respondent.
STIPULATION
At the hearing of this matter, counsel for Respondent stipulated, on the
record, that Respondent had committed the violation of its liquor license as
alleged by the Department by allowing a person who was neither a member of
Respondent’s non-profit private club nor a bona fide guest of a member to
consume liquor on its licensed premises.
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:
1. Respondent
Simons of Greenwood, Inc., holds a non-profit private club license to sell
liquor by the drink for its private club, Simons Bar & Grill, located at
807 Bypass 25 NE in Greenwood, South Carolina. Respondent also holds an
on-premises beer and wine permit for the premises. Shou Martin is the
principal owner and operator of Simons of Greenwood, Inc., and its private
club.
2. On
Friday, January 14, 2006, two agents of the South Carolina Law Enforcement
Division (SLED) conducted a sting operation at Simons Bar & Grill. In
conducting the investigation, the SLED agents, who were not members of
Respondent’s private club or bona fide guests of a member of the club, were
allowed to enter the club and to purchase and consume liquor drinks on the
licensed premises. As a result of the sting operation, the SLED agents issued
an administrative citation to Respondent for a violation of 23 S.C. Code Ann.
Regs. 7-401.4(J) (Supp. 2005) for permitting the consumption of liquor on the
licensed premises by a person who was neither a member of the club nor a guest
of a member.
3. Respondent
has committed two prior violations of its license to sell liquor by the drink
within the past three years. Specifically, Respondent was cited for the
possession of alcoholic liquors in violation of the Alcoholic Beverage Control
Act on February 3, 2004, and for permitting the consumption of liquor on the
licensed premises by a non-member on August 27, 2004. Within the past three
years, Respondent has committed one violation of its beer and wine permit
resulting from a sale of beer to an underage individual on August 27, 2004.
4. At
the hearing of this matter, Shou Martin testified to the efforts she has made
to prevent any further violations of the liquor license for her private club.
These efforts include the institution of a new membership card system, with a
back-up file of photocopied driver’s licenses to confirm memberships when
necessary; the adoption of a new policy prohibiting non-members or guests of
members from entering the premises, including entry solely for the service of
meals; the placement of new signs on the doorway that emphasize the membership
requirements for the private club; and the implementation of additional
training for staff regarding the club’s membership policies, and, in
particular, the prohibition upon serving liquor to persons who are not members
or guests of members. While Respondent did not implement many of these
prevention efforts until after the instant violation occurred, these actions
are, nonetheless, indicative of Respondent’s good-faith and sincere efforts to
prevent the sale of liquor to persons who are not members or bona fide guests
of its private club and are relevant to determining the appropriate penalty for
Respondent’s violation.
CONCLUSIONS
OF LAW
Based
upon the foregoing Stipulation and Findings of Fact, I conclude the following
as a matter of law:
1. The
Department is charged with the responsibility of administering and enforcing
the laws and regulations governing the manufacture and sale of alcoholic
beverages, including beer, wine, and alcoholic liquors. S.C. Code Ann. §
61-2-20 (Supp. 2005).
2. In
the case at hand, the Department contends that, as a result of the incident on
January 14, 2006, Respondent violated 23 S.C. Code Ann. Regs. 7-401.4(J) (Supp.
2005) by allowing a person who was neither a member of its private club nor a
bona fide guest of such a member to consume liquor on Respondent’s licensed
premises. The Department further contends that, in addition to this violation,
Respondent had committed two prior violations of its liquor license in February
and August 2004.
3. As a penalty for the instant violation, the Department seeks
to impose a fine of $500 upon Respondent and to revoke Respondent’s license to
sell liquor by the drink and its beer and wine permit. Respondent concedes
that it committed the violation alleged by the Department in the current matter
and the prior violations identified by the Department; however, it further
contends that the penalties sought to be imposed by the Department are
excessive in light of its efforts to address the violations.
4. Under
the statutes and regulations governing the sale of alcoholic beverages, the
violations committed by Respondent are sufficient to warrant the suspension or
revocation of its license to sell liquor by the drink and its beer and wine
permit. See S.C. Code Ann. § 61-6-1830 (Supp. 2005) (authorizing the
suspension or revocation of a liquor-by-the-drink license where the licensee
has violated a provision of the Alcoholic Beverage Control Act or any
regulation promulgated pursuant to the Act); S.C. Code Ann. § 61-6-2600(3)
(Supp. 2005) (authorizing a five-hundred-dollar fine and a permanent license
revocation for a third violation of a license to sell liquor by the drink); see
also S.C. Code Ann. § 61-2-140(E) (Supp. 2005) (providing that, where a
person has a permit or license suspended or revoked, the Department may suspend
or revoke all other permits or licenses held by the person for premises within
close proximity to the premises where the violation occurred). However, in
lieu of suspension or revocation, a monetary penalty may be imposed upon a
permittee or licensee who has committed a violation of the alcoholic beverage
laws or regulations. See S.C. Code Ann. § 61-4-250 (Supp. 2005)
(monetary penalties for violations of beer and wine permits); S.C. Code Ann. §
61-6-4270 (Supp. 2005) (monetary penalties for violations of liquor licenses).
These monetary penalties range between $25 and $1000 for retail beer and wine
permittees and between $100 and $1500 for retail liquor licensees. S.C. Code
Ann. §§ 61-4-250(1), 61-6-4270(1).
5. The weight and credibility assigned to evidence presented at
the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C.
216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324
S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge,
when acting as finder of fact, “has the authority to determine the weight and
credibility of the evidence before him”). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness’s demeanor and
veracity and to evaluate the credibility of his testimony. See, e.g., Woodall
v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v.
Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
6. The facts in this case warrant a lesser penalty than that
sought to be imposed by the Department. It is a generally recognized principle
of administrative law that the fact finder has the authority to determine an
appropriate administrative penalty, within the statutory limits established by
the legislature, after the parties have had an opportunity for a hearing on the
issues. See, e.g., Walker v. S.C. Alcoholic Beverage Control Comm’n,
305 S.C. 209, 407 S.E.2d 633 (1991). Further, in assessing a penalty, the
finder of fact “should give effect to the major purpose of a civil
penalty–deterrence.” Midlands Utility, Inc. v. S.C. Dep’t of Health &
Envtl. Control, 313 S.C. 210, 212, 437 S.E.2d 120, 121 (Ct. App. 1993).
Here, I find that the appropriate penalty for Respondent’s violations is a 30-day
suspension of its license to sell liquor by the drink and the imposition of a
$1500 fine upon Respondent.
7. However, Respondent should be reminded that violations of the
basic terms of its alcoholic beverage permit and license are serious offenses
that cannot be taken lightly. Further, it should be noted that an alcoholic
beverage permit or license is neither a contract nor a property right. Rather,
it is merely a permit 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). Accordingly, beyond satisfying the penalty imposed in
this matter, Respondent is advised to make every effort to prevent such
violations in the future, as the failure to do so may subject it to more severe
penalties in the event of a future violation.
ORDER
Based
upon the Stipulation, Findings of Fact, and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that, for Respondent’s third violation of its liquor
license in as many years, the Department shall SUSPEND Respondent’s
non-profit private club license to sell liquor by the drink, for its private
club, Simons Bar & Grill, located at 807 Bypass 25 NE in Greenwood, South
Carolina, for a period of thirty (30) days. As a further penalty for the
violation, the Department shall IMPOSE upon Respondent a fine of one
thousand five hundred dollars ($1500).
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205
Pendleton Street, Suite 224
Columbia,
South Carolina 29201-3731
October 19, 2006
Columbia, South Carolina
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