H 3353 Session 110 (1993-1994)
H 3353 General Bill, By Fair
A Bill to abolish the South Carolina Alcoholic Beverage Control Commission and
transfer its regulatory powers, duties, and responsibilities to the South
Carolina Tax Commission and its regulation and law enforcement and inspection
responsibilities to the State Law Enforcement Division; to amend the Code of
Laws of South Carolina, 1976, by adding Section 61-1-100 so as to provide for
approval of a new application for a license or permit issued under Title 61 by
a local planning commission, provide for license and permit renewal, and
define local planning commission; to amend Sections 61-1-10 and 61-1-20,
relating to the Alcoholic Beverage Control Commission, so as to abolish the
Commission and provide for the appointment of an Alcoholic Beverage Control
Hearing Officer within the Tax Commission to be appointed by the Governor with
the advice and consent of the Senate and for the term, duties, powers, and
qualifications of the Officer; to amend Sections 61-1-60, 61-1-65, 61-1-70,
61-1-80, 61-1-90, 61-1-95, and 61-3-20, relating to the enforcement of
regulations governing alcoholic beverages and beer and wine, prohibitions as
to certain activities or interests by members or employees of the Alcoholic
Beverage Control Commission, authorization to the Commission to issue
regulations, authority of the Commission to impose penalties, appeals from
decisions of the Commission, conditions under which licenses issued by the
Commission must be surrendered, transferability, suspension, or revocation of
these licenses, and definitions used in Chapter 3 of Title 61, the Alcoholic
Beverage Control Act, so as to delete references to the Alcoholic Beverage
Control Commission and transfer its duties, powers, and responsibilities to
the Tax Commission and the State Law Enforcement Division; provide that the
regulations promulgated by the Alcoholic Beverage Control Commission remain in
force until modified or rescinded by the Tax Commission; and to repeal
Sections 61-1-30, 61-1-40, 61-1-50, and 61-3-60 relating to prohibited
activities of the members of the Alcoholic Beverage Control Commission,
transfer of powers and duties from the Tax Commission to the Alcoholic
Beverage Control Commission, and the authority of the Alcoholic Beverage
Control Commission to appoint an attorney.
02/02/93 House Introduced and read first time HJ-15
02/02/93 House Referred to Committee on Judiciary HJ-16
A BILL
TO ABOLISH THE SOUTH CAROLINA ALCOHOLIC BEVERAGE
CONTROL COMMISSION AND TRANSFER ITS REGULATORY
POWERS, DUTIES, AND RESPONSIBILITIES TO THE SOUTH
CAROLINA TAX COMMISSION AND ITS REGULATION AND
LAW ENFORCEMENT AND INSPECTION RESPONSIBILITIES TO
THE STATE LAW ENFORCEMENT DIVISION; TO AMEND THE
CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING
SECTION 61-1-100 SO AS TO PROVIDE FOR APPROVAL OF A
NEW APPLICATION FOR A LICENSE OR PERMIT ISSUED
UNDER TITLE 61 BY A LOCAL PLANNING COMMISSION,
PROVIDE FOR LICENSE AND PERMIT RENEWAL, AND DEFINE
LOCAL PLANNING COMMISSION; TO AMEND SECTIONS 61-1-10 AND 61-1-20, RELATING TO THE ALCOHOLIC BEVERAGE
CONTROL COMMISSION, SO AS TO ABOLISH THE
COMMISSION AND PROVIDE FOR THE APPOINTMENT OF AN
ALCOHOLIC BEVERAGE CONTROL HEARING OFFICER WITHIN
THE TAX COMMISSION TO BE APPOINTED BY THE
GOVERNOR WITH THE ADVICE AND CONSENT OF THE
SENATE AND FOR THE TERM, DUTIES, POWERS, AND
QUALIFICATIONS OF THE OFFICER; TO AMEND SECTIONS 61-1-60, 61-1-65, 61-1-70, 61-1-80, 61-1-90, 61-1-95, AND 61-3-20,
RELATING TO THE ENFORCEMENT OF REGULATIONS
GOVERNING ALCOHOLIC BEVERAGES AND BEER AND WINE,
PROHIBITIONS AS TO CERTAIN ACTIVITIES OR INTERESTS BY
MEMBERS OR EMPLOYEES OF THE ALCOHOLIC BEVERAGE
CONTROL COMMISSION, AUTHORIZATION TO THE
COMMISSION TO ISSUE REGULATIONS, AUTHORITY OF THE
COMMISSION TO IMPOSE PENALTIES, APPEALS FROM
DECISIONS OF THE COMMISSION, CONDITIONS UNDER
WHICH LICENSES ISSUED BY THE COMMISSION MUST BE
SURRENDERED, TRANSFERABILITY, SUSPENSION, OR
REVOCATION OF THESE LICENSES, AND DEFINITIONS USED
IN CHAPTER 3 OF TITLE 61, THE ALCOHOLIC BEVERAGE
CONTROL ACT, SO AS TO DELETE REFERENCES TO THE
ALCOHOLIC BEVERAGE CONTROL COMMISSION AND
TRANSFER ITS DUTIES, POWERS, AND RESPONSIBILITIES TO
THE TAX COMMISSION AND THE STATE LAW ENFORCEMENT
DIVISION; PROVIDE THAT THE REGULATIONS
PROMULGATED BY THE ALCOHOLIC BEVERAGE CONTROL
COMMISSION REMAIN IN FORCE UNTIL MODIFIED OR
RESCINDED BY THE TAX COMMISSION; AND TO REPEAL
SECTIONS 61-1-30, 61-1-40, 61-1-50, AND 61-3-60 RELATING TO
PROHIBITED ACTIVITIES OF THE MEMBERS OF THE
ALCOHOLIC BEVERAGE CONTROL COMMISSION, TRANSFER
OF POWERS AND DUTIES FROM THE TAX COMMISSION TO
THE ALCOHOLIC BEVERAGE CONTROL COMMISSION, AND
THE AUTHORITY OF THE ALCOHOLIC BEVERAGE CONTROL
COMMISSION TO APPOINT AN ATTORNEY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. As of July 1, 1993:
(1) The South Carolina Alcoholic Beverage Control Commission
ceases to exist as a separate agency or department of state government.
(2) All of the powers, duties, functions, rights, and privileges of the
South Carolina Alcoholic Beverage Control Commission concerning
licensing and assessment of penalties for administrative violation of the
law or regulations are transferred to the South Carolina Tax
Commission.
(3) All of the powers, duties, functions, rights, and privileges of the
South Carolina Alcoholic Beverage Control Commission concerning law
enforcement, regulation enforcement, and inspections are transferred to
the State Law Enforcement Division.
(4) All records, files, office equipment, and other property of the
South Carolina Alcoholic Beverage Control Commission devoted to the
exercising of all powers and duties are apportioned between the South
Carolina Tax Commission and the State Law Enforcement Division as
determined by the State Budget and Control Board.
(5) All personnel engaged in the exercise of those powers, duties,
functions, rights, and privileges of the South Carolina Alcoholic
Beverage Control Commission have priority for those positions
necessary to perform those responsibilities transferred to the State Law
Enforcement Division and the South Carolina Tax Commission. The
positions available and salary paid for these positions must be
determined by the State Budget and Control Board and must be
necessary for the proper functioning of those responsibilities at the State
Law Enforcement Division and the South Carolina Tax Commission.
(6) When the law enforcement personnel of the South Carolina
Alcoholic Beverage Control Commission are transferred to the State
Law Enforcement Division by the provisions of this act, they shall
continue to meet those qualifications and criteria formerly applied to
them at the South Carolina Alcoholic Beverage Control Commission but
are not considered automatically to have been appointed State Law
Enforcement Division agents under Article 3, Chapter 4, Title 12 of the
1976 Code of Laws unless further action is taken to accomplish the same
by the Governor and the Chief.
(7) All fines, fees, forfeitures, or revenues imposed or secured by the
Divisions of the South Carolina Alcoholic Beverage Control
Commission must be transferred to the South Carolina Tax Commission
or State Law Enforcement Division, depending on the nature of the fees
and as dictated by the State Budget and Control Board and must
continue to be used and expended for those purposes now provided by
law. If a portion of these fines, fees, forfeitures, or revenues were
required to be used for support, benefit, or expense of the licensing and
law enforcement personnel, these funds must continue to be used for
these purposes.
(8) The State Budget and Control Board, in consultation with the
Chief of the South Carolina Law Enforcement Division and Chairman
of the South Carolina Tax Commission shall prescribe the manner in
which the provisions of this act must be implemented.
(9) A South Carolina Alcoholic Beverage Control Hearing Officer
is established within the South Carolina Tax Commission to perform
those adjudicatory functions previously under the purview of the South
Carolina Alcoholic Beverage Control Commission.
(10) The terms of the members of the South Carolina Alcoholic
Beverage Control Commission are terminated upon the effective date of
this act.
SECTION 2. The 1976 Code is amended by adding:
"Section 61-1-100. (A) Before a new application for a
license or permit issued under this title is approved and issued by the
South Carolina Tax Commission, the application must be reviewed and
approved by the local planning commission for the area in which the
license or permit is effective.
(B) The review must include, but is not limited to, at least one public
hearing on the application. The hearing must be held not less than after
fifteen days notice of the application and time and place of the hearing
in a newspaper having general circulation in the planning area and at the
site of the proposed licensed or permitted establishment. The hearing
must include, but is not limited to, testimony by a representative of the
local planning commission, the chief law enforcement officer of the
area, and the public. The local planning commission shall report its
findings to the South Carolina Tax Commission and whether it approves
or disapproves the application.
(C) The requirements of this section also apply to an application for
renewal of a license or permit approved pursuant to this section.
(D) As used in this section, local planning commission means a
municipal planning commission, a county planning commission, or a
joint municipal-county planning commission."
SECTION 3. Section 61-1-10 of the 1976 Code is amended to read:
"Section 61-1-10. There is hereby created the South
Carolina Alcoholic Beverage Control Commission, which shall consist
of three members, to be appointed by the Governor for terms of six years
in the same manner and under the same terms and conditions as the
members of the South Carolina Tax Commission are appointed. Of the
members first appointed, at least two shall be present members of the
Tax Commission, whose terms may be extended so that of the initial
members one shall serve for two years, one shall serve for four years and
one shall serve for six years.
(A) The Governor shall appoint an Alcoholic Beverage Control
Hearing Officer within the Tax Commission upon the advice and
consent of the Senate for a term of six years. No person may serve more
than two full six-year terms. The hearing officer must be paid by and
located within the South Carolina Tax Commission which shall provide
personnel and property from existing South Carolina Alcoholic
Beverage Control Commission assets necessary to perform the duties as
the hearing officer. The hearing officer serves at the pleasure of the
Governor. The hearing officer must be an attorney admitted to the
profession for at least five years and shall receive a salary of ninety
percent of a circuit court judge. Vacancies must be filled in the same
manner as the original appointment.
(B) The Alcoholic Beverage Control Hearing Officer may designate,
if work requires, a temporary hearing officer, to hear those matters
considered appropriate by the hearing officer. This temporary hearing
officer must be retained for those limited purposes designated by the
hearing officer at a per hourly rate approved by the Attorney General.
The appointment of a temporary hearing officer also must be approved
by the Chairman of the Tax Commission. This hearing officer must not
be employed by the Tax Commission or by the agency bringing the
enforcement action or have any connection with the preparation or
presentation of evidence for the hearing for which he acts as a temporary
hearing officer."
SECTION 4. Section 61-1-20 of the 1976 Code is amended to read:
"Section 61-1-20. The Governor shall designate one of the
commissioners as chairman. In addition to other qualifications required
of the chairman by this chapter, the Governor, in selecting the chairman,
shall give consideration to prior service by a candidate for chairman as
either a member of the Tax Commission or an employee of the Tax
Commission, or the Governor may appoint anyone skilled in tax laws
and administration. Duties of an Alcoholic Beverage Control
Hearing Officer include:
(1) impose a monetary penalty as an alternate to revocation or
suspension in all cases where the hearing officer has the authority to
suspend or revoke a license or permit. The hearing officer also may
suspend payment of the monetary penalty imposed;
(2) conduct hearings on protested applications;
(3) conduct hearings on contested violations;
(4) issue subpoenas requiring the attendance of witnesses and the
production of records, memoranda, papers, and other documents for
consideration at hearings or before a law enforcement officer;
(5) administer oaths;
(6) authorize another person to hold and conduct hearings, issue
subpoenas, and administer oaths and take testimony."
SECTION 5. Section 61-1-60 of the 1976 Code is amended to read:
"Section 61-1-60. In order to provide means for a more rigid
enforcement of the laws and rules and regulations governing
alcoholic beverages and beer and wine in the State, the South Carolina
Law Enforcement Division, Division of Alcoholic Beverage
Control Commission, is authorized to employ eleven
investigators and other necessary administrative personnel who shall
function under the control of the Commission State Law
Enforcement Division. Salaries of all personnel shall be as
are set by the Commission State Law Enforcement
Division."
SECTION 6. Section 61-1-65 of the 1976 Code is amended to read:
"Section 61-1-65. No member or employee of the South
Carolina Alcoholic Beverage Control Commission Law
Enforcement Division, or licensing or adjudicatory positions
within the South Carolina Tax Commission directly or indirectly,
(a) individually, (b) as a member of a partnership or of
an association, (c) as a member or stockholder of a
corporation, or (d) as a relative to any a
person by blood or marriage within the second degree shall
may:
(1) have any an interest in the manufacture of or
dealing in alcoholic liquors or in any an enterprise or
industry in which alcoholic liquors are required;
(2) receive any a commission or profit on the
purchase or sale of alcoholic liquors by any a person;
(3) have any an interest in or mortgage or deed of
trust on any land or a building where alcoholic liquors
are manufactured for sale, offered for sale, or sold or in
any personal property used therein in the
building."
SECTION 7. Section 61-1-70 of the 1976 Code is amended to read:
"Section 61-1-70. The South Carolina Alcoholic Beverage
Control Commission Tax Commission is authorized to
issue such rules and promulgate regulations as may
be necessary to carry out the duties imposed upon the
Commission it by law which, when duly
promulgated, shall have the full force of law."
SECTION 8. Section 61-1-80 of the 1976 Code is amended to read:
"Section 61-1-80. The Alcoholic Beverage Control
Commission Hearing Officer may impose a monetary
penalty as an alternate to revocation or suspension in all cases where
the Commission the hearing officer has the authority to
suspend or revoke a license or permit. The Commission
hearing officer in its discretion may also may
suspend payment of the monetary penalty imposed."
SECTION 9. Section 61-1-90 of the 1976 Code is amended to read:
"Section 61-1-90. Any A decision of the
Alcoholic Beverage Control Commission Hearing
Officer revoking or suspending any a license or
permit or imposing a monetary penalty in lieu thereof instead
of revoking or suspending a license or permit may be appealed to
the Court of Common Pleas for the county of the appellant's
residence or for Richland County South Carolina Tax
Commission. Any A monetary penalty imposed
may be paid under protest. No appeal shall act acts as
a supersedeas. Notice of such an appeal shall
must be served on the Commission Tax
Commission within ten days after receipt of notification of
such a decision. The Commission Alcoholic
Beverage Control Hearing Officer shall certify the written record
to the court Tax Commission within thirty days after
receiving the notice of appeal, and the factual issues shall
must be determined on the record as on certiorari. Appeals
from a decision of the Tax Commission must go to the Court of
Common Pleas for the county of the appellant's residence or for
Richland County."
SECTION 10. Section 61-1-95 of the 1976 Code is amended to read:
"Section 61-1-95. (A) A person shall
promptly shall surrender a license or permit issued under the
provisions of this title upon request of the commission
Tax Commission. All licenses and permits are the property of
the commission Tax Commission and are not
transferable. All licenses and permits must be immediately
surrendered immediately to the commission Tax
Commission upon the termination of a business, or upon a
change of ownership, possession, or control of a corporation or business
entity, or upon a change in the character of the property, facilities, or
nature of the business activity for which a license or permit has been
obtained. The transfer of twenty-five percent or more of corporate stock
is considered a change in ownership.
(B) All licenses and permits must be issued for a
designated location and may must not be transferred to
any other another location. A separate license or permit
is required for each separate location of a business.
(C) When a license or permit is suspended or revoked, no
partner or person with a financial interest of any kind in the business or
premises, nor a person within the third degree of kinship to the person
to whom a license or permit has been issued, may be issued a license or
permit for the premises concerned.
(D) A person whose license or permit has been suspended
or revoked for a particular premises is not eligible for a license or permit
at any other another location during the period the
suspension or revocation is in effect, and the commission
Alcoholic Beverage Control Hearing Officer, on behalf of the Tax
Commission, may suspend or revoke all other licenses or permits
held by the person if the suspended or revoked premises is within close
proximity."
SECTION 11. Section 61-3-20(5) of the 1976 Code is amended to
read:
"(5) The word `Commission' shall mean means
the South Carolina Alcoholic Beverage Control Tax
Commission."
SECTION 12. All regulations promulgated by the Alcoholic
Beverage Control Commission as of the effective date of this act remain
in force until they are modified or rescinded by the Tax Commission.
SECTION 13. Sections 61-1-30, 61-1-40, 61-1-50, and 61-3-60 of the
1976 Code are repealed.
SECTION 14. The Code Commissioner shall change all references
in the 1976 Code from Alcoholic Beverage Control Commission to Tax
Commission or State Law Enforcement Division, where applicable.
SECTION 15. This act takes effect July 1, 1993.
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