South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Tommy Enterprises, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
South Carolina Department of Revenue

Respondent:
Tommy Enterprises, Inc.
 
DOCKET NUMBER:
06-ALJ-17-0160-CC

APPEARANCES:
Lynn Baker, Esquire, for Petitioner

James H. Harrison, Esquire, for Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2005). The South Carolina Department of Revenue (Department) seeks a forty-five (45) day suspension of Respondent’s beer and wine permit for its third violation of 23 S.C. Code Ann. Regs. 7-200.4 (eff. 6/27/03). A hearing was held before me on June 14, 2006, at the offices of the Administrative Law Court.

STIPULATIONS OF FACT

At the hearing into this matter and pursuant to ALC Rule 25(C), the parties entered the following written stipulations of fact into the Record:

1. Tommy Enterprises 1, Inc., d/b/a Tommy’s Superette is the holder of an on premises beer and wine permit for the location at 320 South Irby Street in Florence, SC 29501.

2. Christine Pace was an employee and/or agent of the Licensee on December 19, 2005 and was working at the location as a cashier.

3. On Monday, December 19, 2005 at approximately 3:28 PM Christine Pace knowingly allowed an Underage Confidential Information (“UCI”) who was working with SLED to purchase one 24 ounce Bud Light beer for $1.16 in State issued funds.

4. The UCI is a white female who was 17 years of age at the time of the sale.

5. The clerk, Christine Pace, an employee of the Licensee, did not check the UCI’s driver’s license or ask her age and made the sale.

6. A copy of the UCI’s driver’s license that is attached hereto and incorporated herein by reference is a true copy of the State issued license (excluding the redacted information). The license states that the UCI’s date of birth is 10-10-1988.

7. Ms. Christine Pace was served with a criminal citation pursuant to SC Code Ann. Section 61-4-90 and the Licensee was served with a regulatory violation pursuant to SC Code Ann. Reg. 7-200.4 for permitting the purchase of beer by a person under 21 years of age.

8. That the foregoing constitutes a knowing regulatory violation by the Licensee against the laws of the State of South Carolina.

9. The foregoing offense is the third offense against the Licensee within a 3 year time period. The first offense against the licensee occurred on March 21, 2005 for permitting games of chance on the licensed premises and the second offense occurred on October 25, 2005 for permitting games of chance on the licensed premises.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and taking into consideration the burden of persuasion and the credibility of the witnesses, I make the following findings of fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner and the Respondent.

2. Tommy Enterprises has been operating convenience stores in South Carolina for over 35 years. Tommy’s Superette (Tommy’s) has been in operation for about 20 years. They have a strict policy against the sale of beer or wine to minors and in all the years of this business the company has not been cited for selling beer or wine to a minor. Furthermore, their employees are informed that if they make an illegal sale to an underage person they will be immediately fired. Consequently, the employee who made the sale in this case was fired the day after she sold a beer to the UCI.

Tommy’s also attempts to discourage illegal sales through their training. Training usually lasts three days and employees are required to read and sign an ABC sheet informing them of the laws on alcohol sales and penalties for violating such laws. In the future, Tommy’s Superette plans to train all 14 cashiers through an outside program called TOAST.

3. The employee who sold the beer in this case was only in her second day of employment and training when she sold a beer to the UCI. The manager who was training her was called to the back office for a period of about ten (10) minutes to address a cash register shortage. It was during that time Ms. Pace sold the beer. Ms. Pace had been instructed to punch the “beer” button on the cash register when making a beer or wine sale, which would have required that she enter the birth date of the purchaser. However, she struck the “grocery” button and completed the sale without requesting identification from the customer. It is the policy of Tommy’s Superette to reprimand employees who circumvent the “beer” key in order to get around entering a birth date. Ms. Pace was also instructed not to sale beer or wine to anyone appearing under the age of the age of thirty (30).

CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (Supp. 2005) grants jurisdiction to the Court to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2005) grants the ALC the authority to hear contested case hearings in matters governing alcoholic beverages, beer and wine.

2. Permits and licenses issued by this state for the sale of liquor, beer and wine are privileges 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 Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

3. Permitting or knowingly allowing a person under the age of twenty-one (21) to purchase or possess beer upon the licensed premises is a violation against a license or a permit. Such a violation constitutes sufficient grounds for either suspension or revocation of the beer and wine permit. 23 S.C. Code Ann. Regs. 7-200.4 (eff. 6/27/03). Furthermore, the permittee is responsible for all acts of his servants, agents, or employees and cannot seek to avoid the consequences of a violation for lack of personal knowledge. Following that principle, the South Carolina Supreme Court upheld a civil forfeiture of a corporation’s boat based upon an employee’s transporting drugs even though the corporation claimed the use of the boat to transport drugs was without its knowledge. South Carolina Law Enforcement Division v. The "Michael and Lance,” 281 S.C. 339, 315 S.E. 2d 171 (Ct. App. 1984). The Court held that “[a] principal is affected with constructive knowledge of all material facts of which its agent receives notice while acting within the scope of his authority.” Id. at 173, citing Crystal Ice Co. of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 257 S.E. 2d 496 (1979). Likewise, the license holder is responsible for the actions and conduct of employees utilizing the permit upon the permitted premises. 48 C.J.S. Intoxicating Liquors § 259 (1981).

5. The Department seeks a forty-five (45) day suspension of the Respondent’s beer and wine permit for a third violation of Regulation 7-200.4 within the past three (3) years. See Revenue Procedure 04-4. Where the General Assembly authorizes a range of alternatives for an administratively imposed penalty, the administrative fact-finder may set the amount of the penalty after a hearing on the dispute. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). To that end, an Administrative Law Judge must consider relevant evidence presented in mitigation. Mitigation is defined as a lessening to any extent, great or small. It may be anything between the limits of complete remission on one hand and a denial of any relief on the other. In a legal sense, it necessarily implies the exercise of the judgment of the court as to what is proper under the facts of the particular case. 58 C.J.S. Mitigation p. 834, 835 (1948).

Here, the Department, and therefore the ALC, has jurisdiction to “revoke or suspend permits authorizing the sale of beer or wine.” S.C. Code Ann. § 61-4-590 (Supp. 2004). Furthermore, in lieu of suspension or revocation, a beer and wine permittee may be fined not less than twenty five dollars nor more than one thousand dollars for an infraction against Title 61, Chapter 4 or “for a violation of any regulation pertaining to beer or wine and wine.” S.C. Code Ann § 61-4-250 (Supp. 2004). See also, S.C. Code Regs. 7-702.1. The fine may range from twenty-five dollars to one thousand dollars for retail beer and wine licensees. Id.

In the present case, the Respondent violated the provisions of Regulation 7-200.4 by permitting the purchase of beer by an individual under the age of twenty-one (21). Moreover, despite Respondents efforts to screen and train its employees, those efforts did not prevent this violation from reoccurring. Nevertheless, Respondent promptly terminated the offending employee. Furthermore, Respondent’s employee had just been instructed how to properly sale beer or wine and failed to follow those instructions during a very limited absence of her supervisor. Finally, though this is a third violation against Respondent’s permit in a three year period, there is no history of this location making beer or wine sales to underage individuals in the past.[1]

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that Respondent’s beer and wine permit be suspended for ten (10) days.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

July 13, 2006

Columbia, South Carolina



[1] The previous violations involved the existence of video poker machines on the premises.


 

 

 

 

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