ORDERS:
ORDER
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (“ALC”) for a final order and decision following a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. § 61-2-260 (Supp. 2007). Petitioner, South Carolina Department of Revenue (“Department”), contends that Respondent, 3BM, LLC, d/b/a R. Foodmart (“3BM”), has committed a violation of 23 S. C. Code Ann. Regs. 7-200.4 (Supp. 2007) by knowingly allowing an underage individual to purchase beer from its convenience store at 1257 A Saint James Avenue in Summerville, South Carolina.
Because this is 3BM’s third violation in three years, the Department seeks to suspend its off-premises beer and wine permit for this location for a period of forty-five (45) days. In response, 3BM challenges this decision on the ground that a 45-day suspension is too stringent in light of mitigating circumstances.
After notice to the parties, the court held a hearing on this matter on January 24, 2008. No one appeared on behalf of 3BM. However, a few minutes after the court had commenced the hearing, 3BM’s attorney Dwayne M. Green (“Green”) contacted the court’s staff by telephone to inform the court that although he had made arrangements for another attorney to appear at the hearing, he had just learned that that attorney would not be able to appear. Additionally, 3BM’s attorney stated that his client’s principals were out of the country and that he himself was in Charleston, South Carolina. The court permitted Green to participate in the hearing on the record via speakerphone.
Green requested additional time to present evidence in mitigation based on the fact that his client’s principals were out of the country. The Department opposed this request and sought to have the hearing conducted as scheduled, noting that the case had been continued three times previously by motion of 3BM. It further noted that the violation at issue in this matter occurred on September 8, 2006, and that, since that time, hearings scheduled for August 30, 2007, October 4, 2007, and January 16, 2008, had each been continued by motion of 3BM. Under these circumstances, the court determined that 3BM has had ample notice and opportunity to obtain and present evidence necessary for its defense and proceeded to take evidence.
FINDINGS OF FACT
Pursuant to ALC Rule 25(C), the parties submitted Stipulations of Fact and Stipulations of Evidence to the Court at the hearing of this matter. Specifically, the parties stipulated to the following:
1. On September 8, 2006, at approximately 1:15 p.m., South Carolina Law Enforcement Division (SLED) Agent David Leslie conducted an investigation of R. Foodmart located at 1257 A Saint James Avenue in Summerville, South Carolina.
2. The Licensee holds an off premises consumption beer and wine permit at this location under permit number 32036355-PBG.
3. In conducting the investigation, the Agent provided State funds to an underage cooperating individual (UCI) who entered the location carrying only his valid, State of South Carolina issued, identification card and $10.00 in State issued funds.
4. The UCI was allowed to purchase one 24 ounce can of Bud Light beer from the store clerk, Suha Yousef.
5. The clerk neither checked the identification of the UCI, nor asked the UCI his age before making the sale.
6. The UCI was 18 years of age at the time of the sale and his date of birth is September 22, 1987.
7. An administrative violation was issued to the Licensee for violating the provisions of 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2006) by permitting the purchase of beer by a person under 21 and a criminal citation was issued to the clerk, Suha Yousef, for violation of S.C. Code Ann. § 61-4-90 (Supp. 2006) for the transfer of beer to a person under 21.
8. The South Carolina Department of Revenue (Department) issued to the Licensee a Notice of Intent to Suspend the permit for 45 days on October 25, 2006.
9. The Licensee timely protested the Notice of Intent to Suspend on January 25, 2007.
10. The violation committed on September 8, 2006, constitutes the Licensee’s third administrative violation within a three-year period for the sale of beer to a person under 21. The prior offenses occurred on August 24, 2005 and April 5, 2006.
Further, the parties agreed to enter the following Petitioner’s exhibits into evidence without objection:
1. Stipulations of Fact;
2. Department Determination dated May 22, 2007;
3. Copy of the SLED citation issued to 3BM, LLC;
4. Copy of the criminal citation issued to the store clerk, Suha Yousef;
5. Copy of UCI’s State issued driver’s license;
6. Copy of UCI’s Buy Statement;
7. Copy of SLED AEU Seizure Report;
8. Copy of photo of UCI taken on September 8, 2006;
9. Department’s records of prior violations;
10. Revenue Procedure #04-4 (September 13, 2004)[.]
LAW
Based upon the above stipulations, the court concludes the following as a matter of law.
1. Jurisdiction and Review
Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. §§ 1-23-310 et seq., § 1-23-600(B), and § 61-2-260. “[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977). 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). In presiding over this contested case, the court serves as the finder of fact and makes a de novo determination regarding the matters at issue. See Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).
2. Suspension
Permits and licenses issued by this state for the sale of liquor, beer, and wine are not property rights. They are privileges granted in the exercise of the state’s police power 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 Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
The Department is charged with the responsibility of administering the laws and regulations governing the sale of beer and wine in South Carolina. See S.C. Code Ann. §§ 61-2-20, 61-2-80 (Supp. 2007). Pursuant to that authority, the Department may revoke or suspend permits authorizing the sale of beer and wine for violations of S.C. Code Ann. § 61-4-580. S.C. Code Ann. § 61-4-590 (Supp. 2007). Further, the Department may exercise this authority to suspend or revoke a permit for a first violation of the prohibition against selling beer and wine to minors. See S.C. Code Ann. §§ 61-4-270, -580, -590; 23 S.C. Code Ann. Regs. 7-200.4.
Section 61-4-580(1) provides that:
No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder’s permit:
(1) sell beer or wine to a person under twenty-one years of age . . . .
A violation of any provision of this section is a ground for the revocation or suspension of the holder’s permit.
Permittees and their agents are prohibited from selling beer or wine to persons under the age of twenty-one. The alcoholic beverage control regulations state:
To permit or knowingly allow a person under twenty-one year [sic] of age to purchase or possess or consume alcoholic liquors, beer or wine in or on a licensed place of business which holds a license or permit issued by the Department is prohibited and constitutes a violation against the license or permit. Such violation shall be sufficient cause to suspend or revoke the license or permit by the Department.
23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2007).
S.C. Revenue Procedure 04-4 sets forth the Department’s penalty guidelines for violations of the alcoholic beverage control laws. For third violations such as the one at issue, it is the Department’s consistent administrative practice to impose a 45-day suspension of the beer
and wine permit, absent mitigating circumstances. The Revenue Procedure itself recognizes that it is merely a guideline for the Department’s use; it has not been promulgated as a regulation and is therefore not binding on the court. S.C. Code Ann. § 1-23-10(4) (2005) (“Policy or guidance issued by an agency other than in a regulation does not have the force or effect of law.”); S.C. Rev. Proc. 04-4 at 2 (“These are guidelines only and this advisory opinion does not establish a binding norm.”). Revenue Procedure 04-4 provides that the Department “will consider mitigating circumstances when assessing penalties, and may reduce the penalties outlined in this advisory opinion when mitigating circumstances exist.” S.C. Rev. Proc. 04-4 at 2.
3. Conclusions
After carefully weighing the evidence and applying the law as discussed above, the court finds that 3BM’s beer and wine permit should be suspended for forty-five (45) days. Despite ample notice and opportunity to do so, 3BM has not offered any evidence in mitigation of the penalty sought. In assessing this penalty the court considers that this is 3BM’s third violation of the alcoholic beverage control laws within a three-year period. For each of its prior violations, 3BM paid a monetary fine.
ORDER
Based upon the Stipulations of Fact and Conclusions of Law stated above, it is hereby
ORDERED that, for Respondent’s third violation of the alcoholic beverage control laws within three years, the Department shall SUSPEND Respondent’s off-premises beer and wine permit for its store at 1257 A Saint James Avenue in Summerville, South Carolina for forty-five (45) days.
IT IS SO ORDERED.
______________________________________
PAIGE J. GOSSETT
Administrative Law Judge
January 25, 2008
Columbia, South Carolina
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