Thursday, March 21, 2019

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Susie M. Straka, DLP, d/b/a Tail Spin

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Susie M. Straka, DLP, d/b/a Tail Spin
 
DOCKET NUMBER:
00-ALJ-17-0246-CC

APPEARANCES:
For the Petitioner: Jeffrey M. Nelson, Esquire

For the Respondent: Leigh J. Leventis, Esquire &

Robert E. Kneece, Jr., Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE



This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999), S.C. Code Ann. § 1-23-310 (Supp. 1999), and S.C. Code Ann. § 1-23-600(B) (Supp. 1999). The Petitioner, South Carolina Department of Revenue ("Department") issued two citations to the Respondent, Susie M. Straka, for violating provisions of 23 S.C. Code Regs. 7-17(J), S.C. Code Ann. § 61-6-1600 (Supp. 1999), and S.C Code Ann. § 61-6-20(6) (Supp. 1999).

The Respondent is the holder of license number SC 76018for the sale and consumption of alcoholic liquors at Tail Spin, a nonprofit organization, located at 115 Overland Drive, West Columbia, South Carolina. The Respondent is accused of permitting the delivery of beer to a non-member and of permitting the consumption of liquor by a non-member on the premises of a private club/nonprofit organization. As to the license for the sale and consumption of alcoholic liquors, the Department asserts that the two violations charged herein are the fourth and fifth violations of the Respondent within the past three years. Under S.C. Revenue Procedure 95-7, the Department is seeking the revocation of the Respondent's retail sale and consumption license.

After notice to all parties, a hearing was conducted on September 14, 2000 at the Administrative Law Judge Division in Columbia, South Carolina.





FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner and the Respondent.

2. Susie M. Straka, d/b/a Tail Spin, holds sale and consumption license number SC 76018. Tail Spin is a nonprofit organization.

3. On October 17, 1999, Lieutenant Don Evatt and Special Agent James Causey of the State Law Enforcement Division (SLED) entered Tail Spin by paying a fee of Five ($5.00) Dollars to an employee at the entrance of the establishment. While at the door, Lt. Evatt and Special Agent Causey signed a list. While in Tail Spin, Agent Causey purchased a Scotch and water alcohol drink and a Budweiser beer from the bartender.

4. Although there were two violations, there was only one purchase. Further, there have been no additional violations since October 17, 1999 and the doorman who failed to comply with the procedures established has since been terminated as an employee. It is also recognized that even if the one purchase is considered one violation this is still the fourth violation in a rather short period of time. Although I find that permanent revocation of the permit is inappropriate, the Respondent must be made aware of the seriousness of not complying with the law. Therefore, I find that the appropriate penalty in this case is suspension of the Respondent's retail sale and consumption license for a period of ninety (90) days and a fine of $500.00.

5. Respondent, through her attorney, agreed not to seek renewal of her resale and consumption permit anytime during the period in which her present license would have been under suspension except for the expiration of the license.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 1999) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.



2. S.C. Code Ann. § 61-2-20 (Supp. 1999), sets forth:

The functions, duties, and powers set forth in this title are vested in the department and the division. The department must administer the provisions of this title, and the division must enforce the provisions of this title.

3. S.C. Code Ann. § 61-2-260 (Supp. 1999) grants the ALJ Division the authority to hear contested case hearings in matters governing alcoholic beverages, beer and wine.

4. S.C. Code Ann. § 61-6-1600 (Supp. 1999), entitled "Nonprofit organizations," sets forth the following:

Nonprofit organizations which are licensed by the department under this article may sell alcoholic liquors in minibottles. Members or guests of members of these organizations may consume alcoholic liquors sold in minibottles upon the premises between the hours of ten o'clock in the morning and two o'clock the following morning.

5. Only bona fide members and bona fide guests of members of such organizations may consume alcoholic beverages sold in sealed containers of two ounces or less upon the licensed premises. 23 S.C. Code Ann. Regs. 7-17(J).

6. S.C. Code Ann. § 61-6-20(6) (Supp. 1999) defines a "nonprofit organization" as "an organization not open to the general public, but with a limited membership and established for social, benevolent, patriotic, recreational, or fraternal purposes."

7. The Respondent violated S.C. Code Ann. Regs. 7-17(J) and S.C. Code Ann. Section 61-6-1600 (Supp. 1999) by permitting the consumption of liquor by a non-member on the premises licensed as a non profit organization.

8. The Respondent violated S.C. Code Ann. Section 61-6-20(6) by permitting the delivery of beer to a non-member.

9. Permits and licenses issued by this state for the sale of liquor, beer and wine are privileges to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).

10. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. And Tel. Co., 308 S.C. 216, 417 S.E. 2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and to evaluate their testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E. 2d 322 (1982); Mann v. Walker, 285 S.C. 194, 328 S.E. 2d (Ct. App. 1985).

11. 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 an 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 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); Dept. of Transp. v. Miller, 528 A.2d 1030 (Pa. 1987); State Police v. Cantina Gloria's, 639 A.2d 14 (Pa. 1994).

12. The Offenses and Penalty Guidelines in Revenue Procedure 95-7 sets forth that it is only a guideline and does not establish a binding norm.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the retail sale and consumption license of the Respondent, Susie M. Straka, DLP, d/b/a Tail Spin, is hereby suspended for a period of ninety (90) days and no renewal of such license shall be sought during this ninety (90) period.

IT IS FURTHER ORDERED that the Respondent shall pay a fine to the Department in the amount of Five Hundred ($500.00) Dollars.

AND IT IS SO ORDERED.



_____________________________

C. Dukes Scott

Administrative Law Judge



September 26, 2000

Columbia, South Carolina