South Carolina Dept. of Revenue v. Blue Moon of Newberry, Inc.
South Carolina Dept. of Revenue v. Blue Moon of Newberry, Inc.
Dissenting Opinion
dissenting.
I would affirm the decision of the ALC. “Bona fide guests” are defined by Reg. 7-401.4(K) as “those who accompany a member onto the premises or for whom the member has made prior arrangements with the management of the organization.” The Blue Moon Sports Bar complied with this regulation by allowing guests to call a phone number and speak to a member of management, who was also a member of the Blue Moon Sports Bar, prior to gaining entry into its establishment.
Opinion of the Court
The South Carolina Department of Revenue (Department) sought to revoke the alcoholic beverage license and permit of Blue Moon of Newberry, Inc. (Blue Moon). The Department appeals the Administrative Law Court’s (ALC’s) order denying the revocation, arguing the ALC incorrectly interpreted a Departmental regulation governing Blue Moon’s operation and failed to find facts consistent with the evidence presented at trial. We reverse.
FACTS
Blue Moon operated a private social club known as the Blue Moon Sports Bar. Denise Polifrone managed the club, which also employed William Lindler and Steve Malone. On September 9, 2006, Quincy Ford (Agent Ford); an agent of the South Carolina State Law Enforcement Division (SLED), attempted to enter the club. Lindler, the doorman, asked whether Agent Ford was a member. Upon learning Agent Ford was not a member, Lindler denied him entry but directed him to a nearby poster that provided a telephone number for non-members to call to get permission to enter the club.
Agent Ford called the telephone number on the poster and spoke -with Malone.
On the same day, SLED issued a violation report against Blue Moon for permitting Agent Ford, a non-member, to consume liquor in the club. The Department sought to revoke
STANDARD OF REVIEW
Our review of an order of the ALC is confined to the record. S.C.Code Ann. § l-23-610(B) (Supp. 2009). This court may reverse or modify a decision of the ALC if that decision prejudices the substantive rights of the petitioner by violating statutory provisions, resting upon an error of law, or exhibiting an abuse of discretion or a “clearly unwarranted exercise of discretion.” Id. “The construction of a statute by the agency charged with its administration should be accorded great deference and will not be overruled without a compelling reason.” Vulcan Materials Co. v. Greenville County Bd. of Zoning Appeals, 342 S.C. 480, 496, 536 S.E.2d 892, 900 (Ct.App. 2000). Legislatively approved regulations of state agencies have the full force and effect of law. S.C.Code Ann. § 1-23-160 (2005). This court may review questions of statutory construction without deference to the trial court. Charleston County Parks & Recreation Comm’n v. Somers, 319 S.C. 65, 67, 459 S.E.2d 841, 843 (1995).
LAW/ANALYSIS
The Department first contends the ALC erred in interpreting the regulation permitting bona fide guests of members to consume certain alcoholic beverages
The General Assembly is authorized to enact statutes permitting the sale and consumption of alcoholic beverages “on the premises of certain nonprofit organizations with limited
“Only bona fide members and bona fide guests of members of [nonprofit] organizations may consume alcoholic beverages sold in sealed containers of two ounces or less upon the licensed premises.”
We find the ALC abused its discretion in denying the Department’s request to revoke Blue Moon’s alcoholic beverage license and permit. Nonprofit organizations are constitutionally prohibited from opening their doors to the general public. S.C. Const, art. VIII-A. Rather, they may serve certain alcoholic beverages only to their members and the bona fide guests of those members. 23 S.C.Code Ann. Regs. 7-401.4(J) (Supp. 2009). Here, Blue Moon placed an advertisement outside its door indicating a telephone number to call for admission. After Agent Ford, a stranger who desired admission, called the number and asked to be allowed inside, Blue Moon’s employee/member advised the doorman to admit the man. According to the record, “Agent Ford did not know anyone in the club and had no idea [to whom] he spoke ... on the phone.”
Noting the nonbinding effect of a prior decision of an ALC judge, the ALC judge cites as informative the decision of Judge Geathers in S.C. Dep’t of Revenue v. Mir, Inc. d/b/a Alley Gator Sports Bar & Grill, 04-ALJ-17-0409-CC (S.C.
The ALC concludes “the plain language of the regulation speaks for itself. A prior arrangement, of no definite duration, between management and a member is sufficient to permit a legal admission of a non-member guest.” We think the ALC placed undue emphasis on the “prior arrangement” language of the regulation without regard for the context in which it is used. The words of a statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand that statute’s operation. The language must be read in a manner which “harmonizes with its subject matter and accords with its general purpose.” See Mun. Ass’n of S.C. v. AT & T Communications of Southern States, Inc., 361 S.C. 576, 580, 606 S.E.2d 468, 470 (2004) (internal quotations omitted). The “prior arrangement” language should not be considered in isolation but should be read in conjunction with the purpose of the entire regulation and the policy of the law it addresses. See State v. Prince, 335 S.C. 466, 472, 517 S.E.2d 229, 232 (Ct.App. 1999). The
The Department also argues the ALC erred in finding it offered at the merits hearing no evidence of Agent Ford’s consumption of the alcoholic beverage.
CONCLUSION
We conclude the ALC erred in finding Agent Ford was a bona fide guest entitled to consume alcoholic beverages on Blue Moon’s premises. Accordingly, we reverse the ALC’s decision and grant the Department’s request to revoke Blue Moon’s alcoholic beverage license and permit.
REVERSED.
. Polifrone testified Malone was not only an employee with some managerial authority but also a member of the club. However, Agent Ford and Malone did not know each other before this telephone call.
. Blue Moon had two prior violations for serving alcoholic beverages to nonmembers in 2004 and 2005.
. The Alcoholic Beverage Control Act, S.C.Code Ann. §§ 61-6-10 to - 4720 (2009), technically defines "alcoholic beverages” to refer primarily to alcoholic liquors and to exclude most wine. See S.C.Code Ann. § 61-6-20(l)(a) (2009).
. "Free-pour” licenses to sell liquor by the drink replaced the familiar "minibottle” licenses. See S.C.Code Ann. §§ 61-6-1600(A) & 61-6-1610(A) (2009); see also S.C.Code Ann. § 61-6-20(l)(b) (2009) (defining "alcoholic liquor by the drink” as "a drink poured from a container of alcoholic liquor, without regard to the size of the container ... ”).
. Notably, nothing in the law prohibits a non-member of a private club from entering the club's premises; rather, such persons are precluded only from consuming alcoholic beverages sold by the club if they are not bona fide guests.
. We note the record contains evidence that Agent Ford consumed a portion of the alcoholic beverage. The issue on appeal concerns only the ALC’s determination the Department presented no such evidence at the merits hearing.
Reference
- Full Case Name
- SOUTH CAROLINA DEPARTMENT OF REVENUE, Appellant, v. BLUE MOON OF NEWBERRY, INC., D/B/A Blue Moon Sports Bar, Respondent
- Cited By
- 4 cases
- Status
- Published