ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C.
Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2002). The South Carolina Department of Revenue
(“Department”) contends that Respondent Save More, Inc. (“Respondent”) permitted the purchase
of beer by a person under the age of twenty-one, in violation of 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 2002), for the fourth time in a three-year period. For this violation, Department seeks
permanent revocation of Respondent’s beer and wine permit, Permit No. 32014246-PBG.
After timely notice to the parties, a hearing was conducted on April 14, 2003, at the
Administrative Law Judge Division (“ALJD”), Columbia, South Carolina. Based upon testimony
and the evidence presented, I find that Respondent’s beer and wine permit should be suspended for
a period of 120 days, commencing on June 23, 2003, for violating 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 2002), and Respondent should be fined $1,000 for the violation, contingent upon certain
conditions set forth herein.
STIPULATIONS
At the hearing on this matter, Respondent stipulated that on August 15, 2002, it violated 23
S.C. Code Ann. Regulation 7-9b (Supp. 2002) when its employee permitted a person under the age
of twenty-one to purchase beer on its premises at 4568 Charlotte Highway in Lake Wylie, South
Carolina. Respondent further stipulated that this is the fourth such violation at this location within
the last three years. The previous violations of 23 S.C. Code Ann. Regulation 7-9b (Supp. 2002)
occurred on September 7, 2000, for which Respondent paid a $400 fine; February 1, 2002, for which
Respondent paid an $800 fine; and April 18, 2002, for which Respondent paid a $2500 fine and
served a ten-day suspension of its permit (reduced from a forty-five day suspension by the
Department due to the procedures Respondent had in place at the time of the third violation).
The Department and the Respondent further stipulated that the Respondent has taken a
number of steps in an effort to make sure its employees comply with the law regarding the sale of
alcohol, including training its employees in the procedures for complying with beer and wine
statutes and regulations, requiring employees to check the identification of all customers who appear
to be less than thirty years old who attempt to purchase alcohol, posting signs notifying employees
and customers of the proper age for purchasing beer and wine, and using computerized Gilbarco
cash registers, which require confirmation that a customer is not underage before a sale can take
place. Following its second violation, Respondent joined the BARS (Being an Alcohol Responsible
Server) program, a service that monitors carding practices. Respondent pays for this service. On
or about August 12, 2002, prior to the violation at issue, the Department informed the Respondent
about a training program provided by South Carolina Law Enforcement Division (“SLED”) Agent
Kirkland. In September 2002, Respondent was able to make arrangements for Agent Kirkland to
give his training program to employees of Respondent on three separate dates in October 2002.
Respondent also investigated the possibility of participating in Budweiser’s training programs, but
learned that Budweiser does not offer programs in the area where Respondent has its stores.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following findings of fact by a preponderance of the evidence:
1.Respondent holds a permit to sell beer and wine for off-premises consumption
(Permit No. 32014246-PBG) for its business located at 4568 Charlotte Highway in Lake Wylie,
South Carolina (“the Lake Wylie store”).
2.On August 15, 2002, SLED agents conducted an investigation of the Respondent’s
business at the permitted location. SLED Agent James Pat Jackson provided $5.00 to an underage
cooperating individual (“UCI”), who was eighteen years old at the time. The UCI entered
Respondent’s store, picked up a twenty-four-ounce Bud Light beer from the cooler in the back, and
took it to the clerk on duty at the register. The clerk asked the UCI for identification. The UCI
handed the clerk his South Carolina’s driver’s license, which showed him to be eighteen years of
age and which stated in bold letters “UNDER 21 UNTIL 06-09-2005.” The clerk looked at the
license, handed it back to the UCI, and rang up the sale. The UCI exited the store and carried the
beer to Agent Jackson.
3.Agent Jackson issued a Violation Report to Respondent for violation of 23 S.C. Code
Ann. Regs. 7-9(B) (Supp. 2002), permitting the purchase of beer by a person under the age of
twenty-one. Agent Jackson also issued a Uniform Traffic Ticket to the clerk for a violation of S.C.
Code Ann. § 61-4-90 (Supp. 2002), transfer of beer to a person under the age of twenty-one.
4.Respondent has had three prior violations within a three-year period at the permitted
location for permitting an underage person to purchase beer or wine.
5.The Department issued a final determination on October 11, 2002, sustaining the
violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002) and seeking to permanently revoke
Respondent’s beer and wine permit. Respondent timely appealed the determination, and the matter
was timely transmitted to the ALJD for a contested case hearing.
CONCLUSIONS OF LAW
Based upon the above-listed findings of fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260
(Supp. 2002) grants the ALJD the authority to hear contested case hearings in matters governing
alcoholic beverages, beer, and wine.
2.The Department is charged with the responsibility of administering and enforcing the
laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 2002).
3.The parties stipulate, and I find, that Respondent violated 23 S.C. Code Ann. Regs.
7-9(B) (Supp. 2002) by permitting the purchase of beer by a person under the age of twenty-one.
Regulation 7-9(B) provides:
To permit or knowingly allow a person under twenty-one years of age to purchase
or possess or consume beer or wine in or on a licensed establishment which holds a
license or permit issued by the South Carolina Alcoholic Beverage Control
Commission is prohibited and constitutes a violation against the license or permit.
Such violation shall be cause to suspend or revoke the license or permit by the
Alcoholic Beverage Control Commission.
23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002).
4.The Department has jurisdiction to revoke or suspend permits authorizing the sale
of beer or wine. S.C. Code Ann. § 61-4-590 (Supp. 2002). The Department may suspend or revoke
a beer and wine permit if the permittee has knowingly sold beer or wine to a person under the age
of twenty-one. S.C. Code Ann. §§ 61-4-270 and -580 (Supp. 2002); 23 S.C. Code Ann. Regs.
7-9(B) (Supp. 2002). The Department may exercise this authority to suspend or revoke a permit for
a first violation. See S.C. Code Ann. §§ 61-4-270, -580, and -590 (Supp. 2002); 23 S.C. Code Ann.
Regs. 7-9(B) (Supp. 2002). In lieu of such suspension or revocation, the Department may, in its
discretion, impose a monetary penalty upon the holder of a beer or wine permit. S.C. Code Ann. §
61-4-250 (Supp. 2002). For retail beer and wine permittees, this monetary penalty must be no less
than $25 and no greater than $1,000. Id.
5.The Administrative Law Judge as the finder of fact is empowered to impose the
appropriate penalty based on the facts presented. Walker v. S.C. ABC Comm’n, 305 S.C. 209, 407
S.E.2d 633 (1991). In assessing a penalty, the finder of fact “should give effect to the major purpose
of a civil penalty - deterrence.” Midlands Util., Inc. v. S.C. Dep’t of Health & Envtl. Control, 313
S.C. 210, 212, 437 S.E.2d 120, 121 (Ct. App. 1993).
6.The purpose of the statutory prohibition against selling alcohol to underage
individuals is to protect both the underage individuals who purchase the alcohol and the public at
large from the possible adverse consequences of such purchases. Norton v. Opening Break of
Aiken, Inc., 313 S.C. 508, 443 S.E.2d 406 (Ct. App. 1994), aff’d 319 S.C. 469, 462 S.E.2d 861
(1995); Whitlaw v. Kroger Co., 306 S.C. 51, 410 S.E.2d 251 (1991). The sale of alcohol to an
underage individual is a serious offense and cannot be taken lightly.
7.A permit to sell beer and wine is neither a contract nor a property right. Rather, it
is merely a permit to do what otherwise would be unlawful to do, and is to be enjoyed only so long
as the restrictions and conditions governing its continuance are complied with. Feldman v. S.C. Tax
Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). Accordingly, there are legal consequences for a
permitee’s noncompliance with the alcoholic beverage laws of this State.
8.The Department’s Revenue Procedure 95-7 sets forth penalty guidelines for
violations of the statutes and regulations governing the sale, distribution, and possession of alcohol,
beer, and wine. For retail beer and wine permits, Revenue Procedure 95-7 provides for a $400 fine
for the first offense, an $800 fine for the second offense, a 45-day suspension of the permit for the
third offense, and revocation of the permit for the fourth offense. This Revenue Procedure only
provides guidance to the Department; it is not law and thus is not binding on the ALJD.
9.In this case, Respondent has presented evidence of a number of steps it has taken to
ensure that its employees comply with the laws and regulations regarding the sale of alcohol, both
before and after the violation at issue in this case. Agent Kirkland testified that he provides follow-up seminars after his initial training sessions, and the president of Respondent, Mr. Evans, testified
that Agent Kirkland is scheduled to provide a follow-up training session to the employees of
Respondent’s Lake Wylie store sometime before the end of April 2003.
10.For the reasons stated above, I find that permanent revocation of Respondent’s beer
and wine permit at the subject location is not appropriate in this case. Rather, I find that, contingent
upon Respondent’s employees of the Lake Wylie store attending a training session by Agent
Kirkland before the end of April 2003, Respondent’s beer and wine permit at the subject location
should be suspended for a period of 120 days, to commence on June 23, 2003, and Respondent
should further be fined $1,000.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that, contingent upon Respondent’s employees of the Lake
Wylie store attending a training session by Agent Kirkland before the end of April 2003,
Respondent’s beer and wine permit (Permit No. 32014246-PBG) for the business located at 4568
Charlotte Highway in Lake Wylie, South Carolina, be suspended for a period of 120 days,
commencing on June 23, 2003, and Respondent be fined $1,000 for violating 23 S.C. Code Ann.
Regs. 7-9(B) (Supp. 2002).
AND IT IS SO ORDERED.
_________________________________
C. DUKES SCOTT
Administrative Law Judge
April 21, 2003
Columbia, South Carolina |