SC Administrative Law Court Decisions

This matter comes before the South Carolina Administrative Law Judge Division on a citation issued by the South Carolina Department of Revenue ("DOR") against Diane W. Hickman, Piggly Wiggly, Sea Island, Inc., Piggly Wiggly #10 ("Respondent") for an administrative violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997), which prohibits any permittee or its agent from knowingly permitting a person under the age of twenty-one (21) to purchase beer in or on a licensed premises. DOR seeks imposition of a forty-five (45) day suspension of the Respondent's beer and wine permit. The Respondent admits the violation, but proposes the imposition of a monetary penalty in lieu of the suspension. After notice to the parties, a hearing was held on December 1, 1998, in Moncks Corner, South Carolina. Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(C).

I make the following Findings of Fact, taking into account the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into consideration the credibility of the witnesses:

1. Diane W. Hickman holds Beer and Wine Permit No. AI-0101179 on behalf of Piggly Wiggly Sea Island, Inc., Piggly Wiggly #10, located at 1260 Ben Sawyer Boulevard, Mount Pleasant, South Carolina.
2. On January 22, 1998, an underage cooperating individual ("UCI") entered the Piggly Wiggly location at 1260 Ben Sawyer Boulevard, Mount Pleasant, South Carolina.
3. Once inside the Piggly Wiggly, the UCI purchased a six-pack of Natural Light 12 ounce bottles from the cashier, Beverly C. Driggers.
4. Ms. Driggers checked the UCI's identification, which showed his date of birth as July 15, 1980 (making him 17 years of age), and still sold him the beer.
5. At the time of the events in question, Ms. Driggers was an employee and agent of the Piggly Wiggly.
6. Thereafter, Officer Scott of the Mount Pleasant Police Department issued a ticket to Ms. Driggers for a violation of S.C. Code Ann. 61-4-50 (Supp. 1997), which prohibits any permittee or its agent from knowingly permitting a person under the age of twenty-one (21) to purchase beer in or on a licensed premises.
7. Ms. Driggers was convicted of violating S.C. Code Ann. § 61-4-50 (Supp. 1997) on February 18, 1998.
8. As a result of her conviction, Ms. Driggers lost her driver's license, was fined $150, counseled and suspended from work for three days without pay. In addition, Ms. Driggers was informed during her counseling that she would be terminated if any such occurrences happened again.
9. On February 23, 1998, an agent of the State Law Enforcement Division issued a citation against Respondent for knowingly permitting a person under the age of twenty-one (21) to purchase beer in or on a licensed premises.
10. This Piggly Wiggly location was previously cited on January 4, 1996, for violating 23 S.C. Code Ann. Regulation 7-9(B). Respondent paid a $400 fine.
11. The location was again cited on June 26, 1997, for violating 23 S.C. Code Ann. Regulation 7-9(B). Respondent paid an $800 fine.
12. Respondent testified that if the forty-five day suspension is implemented, the location would lose approximately 25% of its weekly revenue ($25,000 a week), of which an estimated $13,000 is attributable to beer and wine sales. In addition, Petitioner further stated that the location would have to lay off approximately six part-time employees and also cut full-time help.
13. Respondent provided written proof of actual beer and wine training for cashiers, as well as its beer and wine policy. Respondent also utilizes a computer program that requires the cashier either to check identification to determine the age of the purchaser or to input the date of birth of the purchaser. Both of these features can be manually overridden by the cashier.

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

1. Subject matter jurisdiction is vested in the South Carolina Administrative Law Judge Division pursuant to S.C. Code Ann. § 12-60-30(4)(a) (Supp. 1997) with the hearing conducted under S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1997).
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. DOR asserts the affirmative in this case; therefore, it must prove by a preponderance of the evidence that Respondent violated 23 S.C. Code Ann. Regulation 7-9(B)(Supp. 1997). See 29 Am. Jur. 2d Evidence § 127 (1994); Alex Sanders et al., South Carolina Trial Handbook § 9:3 (1994).
4. Pursuant to S.C. Code Ann. § 61-6-4090 (Supp. 1997), "if a permittee or licensee, or servant, agent, or employee of the permittee or licensee . . .is convicted of a criminal offense which occurred on the licensed premises, the conviction or plea constitutes proof that the offense occurred and the record thereof is admissible in a contested case hearing before the administrative law judge division."
5. At the time of the events in question, Ms. Driggers was an employee of the Piggly Wiggly and she was convicted of violating S.C. Code Ann. § 61-4-50 (Supp. 1997) by selling beer to a person under the age of twenty-one (21).
6. "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 of Revenue] 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. 7-9(B)(Supp. 1997).
7. The Department, through Revenue Procedure 95-7, has established penalty guidelines for violations of "ABC" laws. These guidelines provide that the appropriate penalty to be imposed on a retail beer and wine permittee who commits a third offense within a three-year period, is a forty-five day suspension of the permittee's retail beer and wine permit.
8. Respondent provided proof of reprimand of the cashier involved in this offense, an employee training program, and proposes the imposition of a fine in lieu of a forty-five day suspension. Respondent asserts that the Department's recommended forty-five day suspension would cause the business to bear severe financial hardship, which ultimately will affect the number of hours available for full and part-time staff.
9. The fact finder has the authority to impose an administrative penalty after the parties have had an opportunity to be heard. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991).
10. Although the penalty imposed by the Department is appropriate for the facts and circumstances of this case, the foreseeable adverse financial impact, together with the punitive and corrective actions made by Respondent warrants the consideration of an adjustment to the penalty. Furthermore, the suspension of Respondents beer and wine permit during the Christmas and New Year holiday season in itself has the potential for substantial adverse financial impact. This impact is sufficient to impress upon the permittee the seriousness of the offense and provide the appropriate penalty.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that Diane W. Hickman, Piggly Wiggly Sea Island, Inc., Piggly Wiggly #10 " located at 1260 Ben Sawyer Boulevard, Mount Pleasant, South Carolina violated the provisions of 23 S.C. Code Ann. Regulation 7-9(B) (Supp. 1997) by knowingly permitting a person under the age of twenty-one (21) to purchase beer in or on a licensed premises.

IT IS FURTHER ORDERED that a thirty day (30) suspension is levied upon the beer and wine permit No. AI-0101179, maintained by Diane W. Hickman, Piggly Wiggly Sea Island, Inc., Piggly Wiggly #10 " located at 1260 Ben Sawyer Boulevard, Mount Pleasant, South Carolina. This suspension shall commence ten (10) days after the date of this Order and continue for a period of thirty days thereafter.

AND IT IS SO ORDERED.

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ALISON RENEE LEE

Administrative Law Judge

December 10, 1998

Columbia, South Carolina