ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260
(Supp. 2005), S.C. Code Ann. § 1-23-600(B) (2005), and S.C. Code Ann. §§
1-23-310 et seq. (2005). Petitioner South Carolina Department of
Revenue (Department) contends that Respondent Lil Cricket Food Stores, Inc.,
d/b/a Lil Cricket 213 (Lil Cricket), knowingly allowed an underage cooperating
individual (UCI) to purchase beer from its convenience store at 407 S. Main
Street, Woodruff, South Carolina, in violation of 23 S.C. Code Ann. Regs.
7-200.4 (Supp. 2005). For this fourth such violation in three years, the
Department seeks to revoke Lil Cricket’s off-premises beer and wine permit for
the location in question. In response, Lil Cricket concedes that the alleged
violation did occur, but further contends that the proposed penalty for the
violation is excessive in light of its efforts to prevent such sales.
After timely notice to the parties, a hearing of this matter was held on September
7, 2006, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the testimony and exhibits presented at the hearing, I find that
the appropriate penalty for Lil Cricket’s violation is the imposition of a one
thousand dollar ($1000.00) fine upon Lil Cricket and the suspension of Lil
Cricket’s off-premises beer and wine permit for its 407 S. Main Street,
Woodruff, South Carolina location for a period of one hundred twenty (120) days.
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. Lil Cricket Food Stores, Inc., d/b/a Lil Cricket 213, owns and
operates the convenience store, Lil Cricket 213, located at 407 S. Main Street,
Woodruff, South Carolina.
2. On February 7, 2006, Ceresa Kirk, an employee of Respondent
Lil Cricket, allowed a nineteen-year-old Underage Cooperating Individual (UCI)
working with the South Carolina Law Enforcement Division (SLED) to purchase
beer at its location at 407 S. Main Street, Woodruff, South Carolina. Ms. Kirk
completed the sale of the beer to the UCI after requesting identification and
after examining the identification provided carefully. Ms. Kirk questioned the
UCI about his residence. Ms. Kirk also asked the UCI where his eyeglasses
were. However, Ms. Kirk failed to ask the UCI if he was over the age of twenty
one and Ms. Kirk improperly calculated the UCI’s age. The sale of the beer
constituted a knowing violation of South Carolina law and it is Little
Cricket’s fourth such violation within a three-year period for permitting the
sale of beer and or wine to a person under 21 years of age, the first occurring
on May 14, 2003; the second occurring on September 26, 2003; the third
occurring on May 6, 2004; and the fourth (this offense) having occurred on February
7, 2006.
3. Lil Cricket has made good-faith efforts to prevent the sale of
beer and wine to underage individuals. For example, Lil Cricket sends its
employees to training sessions concerning the prevention of sales of beer
and/or wine to underage persons known as the Training Intervention Program
(TIPS). Little Cricket also participates in the “We ID” program, which is
sponsored by the South Carolina Association of Convenience Stores (SCACS) and
Anheuser-Busch, Inc. Further, Lil Cricket has strict policies and procedures
concerning checking the identification and verifying the age of customers
purchasing beer and/or wine (e.g., under company policy, cashiers must request
proof of age from all customers purchasing beer and/or wine).
4. Lil Cricket has also strengthened its efforts to prevent
underage sales by implementing its current policies and procedures regarding
sales of beer and/or wine. These efforts include:
(1) training programs, including the Palmetto Retailers Education
Program (PREP), regarding the prevention of underage sales (e.g., the company
trains new employees thoroughly regarding the laws and company policies
governing the sale of beer and/or wine and reiterates that training frequently);
and,
(2) methods of monitoring whether its employees are complying with the
laws and company policies related to the sale of beer and/or wine (e.g., the
location is inspected through undercover alcohol and tobacco compliance
operations conducted by the Spartanburg Alcohol and Drug Abuse Commission
(sadac) along with the Spartanburg County Sheriff’s Office). This program
operates by issuing a green card to congratulate establishments that properly
check for IDs and decline sales of beer and/or wine to persons under 21 years
of age. Establishments who fail to check an ID and/or sell beer and/or wine to
persons under 21 years of age are issued a red card, and the individual
responsible for the sale must attend further PREP training.
These efforts
are indicative of Lil Cricket’s commitment to prevent the sale of beer and/or
wine to underage individuals and are relevant for determining the appropriate
penalty to be imposed in this matter.
CONCLUSIONS
OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a
matter of law:
1. The Department is charged with the responsibility of
administering and enforcing the laws and regulations governing beer and wine.
S.C. Code Ann. § 61-2-20 (Supp. 2005).
2. S.C. Code Ann. Regulation 7-200.4 (Supp. 2005) prohibits
holders of beer and wine permits from selling beer or wine to persons under
twenty-one years of age. The regulation provides that:
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 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. 2005). Respondent Lil Cricket concedes that it
committed a violation of Regulation 7-200.4 as alleged by the Department.
3. The Department has jurisdiction to revoke or suspend permits
authorizing the sale of beer and wine. S.C. Code Ann. § 61-4-590 (Supp. 2005).
Pursuant to such authority, the Department may suspend or revoke a beer and
wine permit if the permittee has knowingly sold beer and/or wine to a person
under twenty-one years of age. S.C. Code Ann. § 61-4-580(1) (Supp. 2005); 23
S.C. Code Ann. Regs. 7-200.4 (Supp. 2005); see also S.C. Code Ann. §
61-4-270 (Supp. 2005) (authorizing the Department to "revoke the permit of
a person failing to comply with any requirements" in Chapter 4 of Title
61). Further, the Department may exercise this authority to suspend or revoke a
permit for a first violation of the prohibition against selling beer and/or
wine to minors. See S.C. Code Ann. §§ 61-4-270, 61-4-580, 61-4-590; 23
S.C. Code Ann. Regs. 7-200.4. In lieu of such suspension or revocation, the
Department may also impose a monetary penalty upon a permittee for selling beer
and/or wine to minors. S.C. Code Ann. § 61-4-250 (Supp. 2005). For retail beer
and wine permittees, this monetary penalty must be no less than $25 and no
greater than $1,000. Id.
4. 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); see also Doe v. Doe, 324
S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge,
when acting as finder of fact, "has the authority to determine the weight
and credibility of the evidence before him"). Furthermore, a trial judge
who observes a witness is in the best position to judge the witness's demeanor
and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace
v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App.
1990).
5. The facts in this case warrant a lesser penalty than that
sought to be imposed by the Department. It is a generally recognized principle
of administrative law that the fact finder has the authority to determine an
appropriate administrative penalty, within the statutory limits established by
the legislature, after the parties have had an opportunity for a hearing on the
issues. See, e.g., Walker v. S.C. Alcoholic Beverage Control
Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Further, in assessing a
penalty, the finder of fact "should give effect to the major purpose of a
civil penalty-deterrence." Midlands Utility, 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. However, Respondent should be reminded that the purpose of the
statutory prohibition against selling beer and/or wine to underage individuals
is to protect both the underage individuals and the public at large from the
possible adverse consequences of such sales. The sale of beer and/or wine to an
underage individual is a serious offense and cannot be taken lightly. Further,
it should be noted that 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 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, beyond satisfying
the penalty imposed in this matter, Respondent is advised to make every effort
to prevent such sales in the future, as the failure to do so may subject it to
more severe penalties in the event of a future violation.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that, for Respondent's fourth violation of 23
S.C. Code Ann. Regs. 7-200.4 (Supp. 2005) within three years, the Department
shall SUSPEND Respondent Lil Cricket’s off-premises beer and wine permit
(#32016314-PBG) for Lil Cricket 213 at 407 S. Main Street, Woodruff, South Carolina for a period of one hundred twenty (120) days and shall IMPOSE upon
Respondent a fine of one thousand dollars ($1000.00).
AND IT IS SO ORDERED.
__________________________________
JOHN
D. MCLEOD
Administrative
Law Judge
September 21, 2006
Columbia, South Carolina |