Thursday, March 21, 2019

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Vivian A. Hite, President, Knockers Oasis, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Vivian A. Hite, President, Knockers Oasis, Inc.
 
DOCKET NUMBER:
94-ALJ-17-0082-CC

APPEARANCES:
Nicholas Sipe, Esq. for Petitioner

Rick Selsor, Esq. for Respondent
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code §61-1-55 (Supp. 1993) and §1-23-310 et seq. upon a request for a hearing by the respondent upon being cited for alleged administrative violations against the club sale and consumption license and beer and wine permit of Vivian A. Hite occurring on or about September 9, 1993, November 3, 1993, and December 3, 1993. DOR seeks revocation of the respondent's license and permit for the alleged violations. A hearing was held on June 6, 1994. A violation for permitting lewd, immoral or improper entertainment on the licensed premises is found. A violation for permitting consumption of liquor by a non-member is also found. Respondent's beer and wine permit and minibottle license are suspended for thirty (30) days.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) The respondent holds a beer and wine permit and sale and consumption liquor license at 115 Overland Drive, West Columbia, South Carolina, at a private club and non-profit organization known as Knockers Oasis, Inc.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the Respondent, SLED, and DOR.

(3) On September 9, 1993, at approximately 2:00 p.m., Agent John Tanner of the SLED Alcohol Enforcement Unit entered the licensed premises unescorted.

(4) Agent Tanner filled out a membership application, paid a twenty dollar ($20) membership fee, and was allowed to enter the bar and lounge area.

(5) Agent Tanner was served an alcoholic beverage from a minibottle by the bartender.

(6) On November 3, 1993, at approximately 9:05 p.m., SLED Agents Mazyck and Streater entered the licensed location.

(7) Upon Agent Streater completing a membership application and paying a twenty dollar ($20) fee and Agent Mazyck paying a four dollar ($4) cover charge, the agents were allowed to enter the bar area.

(8) Agent Mazyck was served an alcoholic beverage from a minibottle by the bartender.

(9) Article III, Section 5 of the Bylaws of Knockers Oasis, Inc, reads: "No candidate for membership, whether resident or nonresident, shall be granted membership within twenty-four (24) hours of the time application is made."

(10) Article VIII, Section 1 of the Bylaws of Knockers Oasis, Inc, reads: "Guests are limited to those persons who accompany a member to the licensed premises or whom a member has made prior arrangements with the management."

(12) On November 3, 1993, at approximately 9:15 p.m., Agent Tanner entered the premises of the licensed location.

(13) Agent Tanner paid a dancer named "Casey" sixty dollars ($60) for a bottle of champagne and for her to dance for him in the balcony area of the club.

(14) "Casey" was dressed in only a thong bottom and twice pulled the thong down to reveal her pubic area to Agent Tanner.

(15) "Casey" straddled Agent Tanner's leg and sat in his lap while holding his face between her bare breasts.

(16) On December 3, 1993, at approximately 11:45 p.m., Agent Tanner entered the licensed premises.

(17) Two dancers, named "Kimberly" and "Crystal", dressed in thong bottoms only, performed for Agent Tanner in the balcony area.

(18) "Kimberly" and "Crystal" straddled each of Agent Tanner's legs and massaged themselves in rhythm to music.

(19) The two dancers also performed a lesbian type act in front of Agent Tanner.

(20) Agent Tanner observed another dancer rub her groin area in a customer's face.

(21) Since December 3, 1993, the Respondent has replaced the manager of Knockers Oasis, Inc. and increased supervision of dancers.

(22) "Casey", "Kimberly", and "Crystal" no longer work at Knockers Oasis, Inc.

(23) Petitioner seeks revocation of Respondent's beer and wine permit and sale and consumption license.

CONCLUSIONS OF LAW

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

(1) Pursuant to S.C. Code §61-1-55 (Supp. 1993) and Chapter 23 of Title I of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

(2) Knockers Oasis, Inc. operates as a non-profit organization with limited membership, not open to the general public, serving alcoholic beverages to its members and guests pursuant to S.C. Code §61-5-20(3) (1976).

(3) S.C. Code §61-9-410(4) (1976) states:

No holder of a permit authorizing the sale of beer or wine or any servant or employee of the permittee shall knowingly do any of the following acts upon the licensed premises covered by such holder's permit:

(4) permit lewd, immoral or improper entertainment, conduct, or practices. This includes, but is not limited to, entertainment, conduct, or practices where a person is in a state of undress so as to expose the human male or female genitals, pubic area, or buttocks cavity with less than a full opaque covering.

(4) Within the context of S.C. Code §61-9-410(4) (1976), the phrases "lewd, immoral or improper" are broad and ambiguous terms; however, specific prohibited acts are included in the statute for guidance.

(5) S.C. Code §61-9-410(4) (1976) was violated by Respondent's employees or servants on or about November 3, 1993 and December 3, 1993, by exposing the female pubic area and/or genitals to patrons.

(6) ABC Regulation 7-17(J) provides that "[o]nly bona fide members and bona fide guests of members of [private clubs] may consume alcoholic beverages sold in [minibottles] upon the licensed premises".

(7) Respondent's bylaws specify the procedure for gaining membership to Knockers Oasis, Inc.

(8) ABC Regulation 7-17(J) and respondent's bylaws were violated on September 9, 1993, when Agent Tanner was allowed to enter the licensed premises and was served an alcoholic beverage from a minibottle.

(9) ABC Regulation 7-17(J) and respondent's bylaws were violated on November 3, 1993, when Agents Streater and Mazyck were allowed to enter the licensed premises and Agent Mazyck was served an alcoholic beverage from a minibottle.

(10) Liquor 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. S.C. Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).

(11) A violation against a permit/license is punishable by revocation or suspension of the permit or imposition of a monetary fine pursuant to S.C. Code §§61-3-740, 61-5-60, and 61-13-510 (1976).

ORDER

IT IS THEREFORE ORDERED that the Beer and Wine Permit and Sale and Consumption License held by Vivian A. Hite, President of Knockers Oasis, Inc., at 115 Overland Drive, West Columbia, South Carolina, be suspended for a period of thirty (30) days. A SLED agent shall serve a copy of this order on Vivian A. Hite and take possession of the license and permit cited above. Upon service of the thirty (30) days suspension, an agent shall return the permit and license to Vivian A. Hite. During the period of suspension, Vivian A. Hite is ordered to post a copy of this order at









a visible location at the licensed premises, and to cease and desist all sales of beer, wine, or minibottles.

___________________________

STEPHEN P. BATES

Administrative Law Judge

June 23, 1994

Columbia, South Carolina