SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999); S.C. Code Ann. §§ 1-23-310 et. seq. (1986 & Supp. 1999) upon Respondent's request for a contested case hearing regarding a Violation Report issued on March 26, 1999, by the South Carolina Law Enforcement Division ("SLED") and subsequent Final Agency Determination dated February 4, 2000 issued by Petitioner, South Carolina Department of Revenue ("DOR") against Respondent for an administrative violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1999) and S. C. Code Ann. § 61-4-580(1) (Supp. 1998) (permitting purchase of beer by a person under 21 years of age), and the imposition by DOR of a $400 fine on Respondent.

A hearing in this matter was held before the undersigned Administrative Law Judge on June 22, 2000, in Columbia, South Carolina. Based upon the facts, testimony, and evidence presented by the parties at the hearing, I find that the above-described violation did occur and that the imposition of a $400 fine is appropriate.

FINDINGS OF FACT

By a preponderance of the evidence, I find that:

1. Notice of the date, time, place, and subject matter of the hearing was timely given to the Petitioner and the Respondent.
2. The Respondent holds an off-premises beer and wine permit identified as "AI 0003913," for the location, Hilton's Grocery, 3715 Celanese Road, Rock Hill, South Carolina.
3. On March 26, 1999, an undercover cooperating individual ("UCI") in the employment of SLED entered the location.
4. The UCI, on March 26, 1999, was eighteen years old.
5. After entering the store, the UCI picked up a container of beer and took the beer to the counter.
6. The employee at the counter was an employee of Respondent, Joseph C. Hilton, III, d/b/a Hilton's Grocery.
7. The UCI placed the beer on the counter, gave the clerk the purchase price, and then left the store with the purchased beer.
8. The employee did not ask for or receive any identification from the UCI.
9. The licensee, Respondent Joseph C. Hilton, III, d/b/a Hilton's Grocery, was on the premises at the time of the sale but took no part in the transaction.
10. A criminal citation was issued to the employee for illegally making the transfer, and the employee subsequently entered Pretrial Intervention.

CONCLUSIONS OF LAW

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

1. Jurisdiction is properly before the ALJD under the authority of S.C. Code Ann. § 61-2-260 (Supp. 1999); S.C. Code Ann. §§ 1-23-310 et. seq. (1986 & Supp. 1999).
2. Beer and wine licenses are neither contracts nor property rights. They are mere permits, issued or granted in the exercise of the State's police power and to be enjoyed only so long as the restrictions and conditions governing their continuance are complied with. The same tribunal authorized to grant the issuance of a license is likewise authorized, for cause, to revoke it. Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
3. 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997) prohibits a licensee to permit or knowingly allow the purchase or possession of beer by a person under the age of twenty-one years on the licensed premises.
4. SLED may use a UCI to assist the agency in apprehending those licensees that violate Reg. 7-9(B). See 1993 S.C. Op. Atty. Gen. 93-94; S.C. Dept. of Revenue and Taxation v. Baker, 96-ALJ-17-0133-CC.
5. "Knowingly" includes not only actual knowledge of a fact, but also situations where a person has such information, or the circumstances are such, as would lead a prudent person to form a belief as to the fact, and if followed by inquiry would have disclosed its character. State v. Thompkins, 263 S.C. 472, 211 S.E.2d 549 (1975); Feldman, 203 S.C. 49, 26 S.E.2d 22 (1943); Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990).
6. A permit holder may be held liable for violations of beer and wine statutes and regulations committed by his agent while pursuing the ordinary business entrusted to him, even though the violations are committed without the permit holder's authority. 48 C.J.S. Intoxicating Liquors § 181 (1981). Further, an employee operating under the permit who knowingly sells beer to a person under twenty-one years of age creates a ground for the suspension of the holder's permit. Respondent, by and through his employee, permitted the purchase of beer by a person under the age of twenty-one on March 26, 1999, in violation of S. C. Code Ann. § 61-4-580(1) (Supp. 1998) and 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1999).
7. A permit violation constitutes grounds for suspension or revocation of the beer and wine permit. S.C. Code Ann. § 61-4-250 (Supp. 1997) authorizes the discretionary imposition of a monetary penalty as an alternative to the suspension or revocation of a license or permit.
8. The fact-finder in a case has the authority to impose a penalty consistent with the facts presented. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991).
9. Based upon the evidence presented, I conclude that a fine in the amount of $400 is reasonable and proper in this case and is consistent with DOR Procedure 95-7.

ORDER

IT IS THEREFORE ORDERED that a fine in the amount of Four Hundred ($400) Dollars shall be paid to the South Carolina Department of Revenue by Respondent, Joseph C. Hilton, III, d/b/a Hilton's Grocery, within ten (10) days of the date of this Order for a violation on March 26, 1999, of S. C. Code § 61-4-580(1) (Supp. 1998) and S.C. Code Ann. Regs.7-9(B) (Supp. 1998).

AND IT IS SO ORDERED.

_________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

June 27, 2000

Columbia, South Carolina