ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002). The South Carolina Department of
Revenue (Department) contends that, on May 17, 2003, Respondent Plez U Food Stores, Inc. (Plez
U) knowingly allowed an underage individual to purchase beer from Respondent’s licensed premises
located at 1502 Blue Ridge Boulevard in Seneca, South Carolina, in violation of 23 S.C. Code Ann.
Regs. 7-9(B) (Supp. 2002). For this fourth violation of Regulation 7-9(B) within a three-year period,
the Department seeks to revoke Respondent’s off-premises beer and wine permit for the location.
In response, Plez U 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 January 14, 2004, at
the Administrative Law Judge Division in Columbia, South Carolina. At the commencement of the
hearing, the parties submitted a set of stipulated facts, under which Plez U admits to the violation of
Regulation 7-9(B). Accordingly, the only matter at issue in the hearing was the propriety of the
Department’s proposed penalty of revocation. Based upon the stipulated facts, the testimony and
evidence presented at the hearing, and the arguments of counsel, I find that the appropriate penalty
for Respondent’s violation is a 120-day suspension of Respondent’s permit and the imposition of a
$1000 fine upon Respondent.
STIPULATED FACTS
Pursuant to ALJD Rule 25C, the parties stipulated to the following facts regarding this matter:
1.That the Respondent holds a license to sell beer and wine for off-premises
consumption, License Number 32015829-PBG, for licensed premises located at 1502 Blue Ridge
Boulevard, Seneca, South Carolina 29672.
2.That the Respondent was the license holder at the above-stated location on May 17,
2003.
3.That Sandy Hutchins was an agent, employee or other representative of the
Respondent on May 17, 2003.
4.That, on May 17, 2003, at approximately 3:58 p.m., Sandy Hutchins sold a 24-ounce
can of Bud Light beer to Crystal Marshall, an Underage Cooperating Individual.
5.That Crystal Marshall was less than twenty-one years of age at the time of the sale.
6.That Sandy Hutchins did not ask Crystal Marshall’s age or inspect her driver’s license
before transacting the sale.
7.That, as a result of the foregoing, the Respondent violated 23 S.C. Code Ann. Regs.
7-9(B) by permitting the purchase of beer by a person under the age of twenty-one.
8.That the attached documents, which are copies of Crystal Marshall’s driver’s license
and photograph, are genuine and admissible documents that show that Crystal Marshall was a person
under the age of twenty-one at the time of the alleged sale and that she has a youthful appearance.
See Pet’r Ex. #1, at 3.
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.Plez U Food Stores, Inc. was founded in 1977 and now consists of a chain of twelve
convenience stores located in Upstate South Carolina. The store at which the violation in question
occurred, Plez U Store #8, in Seneca, South Carolina, has been licensed for the sale of beer and wine
since approximately 1980.
2.Plez U has adopted a number of policies and procedures in an effort to prevent sales
of alcohol to underage individuals. Included among these efforts are: requiring employees, both at
the time of hire and on a monthly basis, to review and sign documents describing South Carolina law
and Plez U’s policies with regard to the sale of alcohol; administering a written test to employees
based upon an instructional video addressing ways to prevent the sale of alcohol to underage
individuals; requiring employees to enter the birthdate of any customer purchasing alcohol and the
driver’s license numbers of those customers under thirty years of age purchasing alcohol into a
computerized cash register before completing a sale of alcohol; providing continuing, on-the-job
training to employees by store managers and supervisors regarding the procedures for handling
alcohol sales; and, holding training seminars on alcohol sales for store managers and employees
conducted by John Kirkland of the South Carolina Law Enforcement Division.
3.The Plez U employee who committed the violation in question by selling alcohol to
an underage individual received training from both his store manager and store supervisor with regard
to the sale of alcohol and signed the training document at the time he was hired. He also received
ongoing training regarding alcohol sales from the store manager and the store supervisor during the
three weeks he was employed with Plez U. Nevertheless, he sold an alcoholic beverage to an
underage individual without inquiring as to the individual’s age and without asking for any
identification from the individual. Based upon this violation, the employee was promptly fired by Plez
U.
CONCLUSIONS OF LAW
Based upon the foregoing Stipulated Facts and 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 alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 2002).
2.Regulation 7-9(B) 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. 7-9(B) (Supp. 2002). Respondent Plez U concedes and stipulates that it
committed a violation of Regulation 7-9(B) 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. 2002). Pursuant to such authority, the
Department may suspend or revoke a beer and wine permit if the permittee has knowingly sold beer
or wine to a person under twenty-one years of age. S.C. Code Ann. § 61-4-580 (Supp. 2002); 23
S.C. Code Ann. Regs. 7-9(B) (Supp. 2002); see also S.C. Code Ann. § 61-4-270 (Supp. 2002)
(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 wine to
underage persons. See S.C. Code Ann. §§ 61-4-270, 61-4-580, 61-4-590; 23 S.C. Code Ann. Regs.
7-9(B). In lieu of such suspension or revocation, the Department may also impose a monetary
penalty upon a permittee for selling beer and wine to underage individuals. 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.
4.S.C. Revenue Procedure 95-7 (1995) sets forth the Department’s penalty guidelines
for violations of the alcoholic beverage control laws. For retail beer and wine permits, Revenue
Procedure 95-7 provides for a $400 fine for the first violation by a permittee, an $800 fine for the
second violation, a 45-day suspension of the permit for the third violation, and revocation of the
permit for the fourth violation. However, this document does not set binding norms for the
Department, but rather only provides guidance to the Department in assessing penalties for violations
of the alcoholic beverage control laws. See Revenue Procedure 95-7, at ¶ 4 (“These are guidelines
only and this advisory opinion does not establish a binding norm.”). As such, Revenue Procedure 95-7 is not law and thus is not binding upon this Division. Cf. Home Health Serv., Inc. v. S.C. Tax
Comm’n, 312 S.C. 324, 328, 440 S.E.2d 375, 378 (1994) (holding that “whether a particular agency
proceeding announces a rule or a general policy statement depends upon whether the agency action
establishes a binding norm”) (citing Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369 (11th
Cir. 1983)).
5.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).
6.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). In the case at hand, I find that, while the sale of alcohol
to an underage individual is a serious offense that cannot be taken lightly, and while Respondent’s
record of violations at this location is a cause for concern, the appropriate administrative penalty in
this case is a lengthy suspension of Respondent’s permit and the imposition of a significant fine upon
Respondent, rather than the full revocation of Respondent’s permit.
ORDER
Based upon the Stipulated Facts, Findings of Fact, and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department shall suspend Respondent’s beer and wine
permit numbered 32015829-PBG for the premises located at 1502 Blue Ridge Boulevard, Seneca,
South Carolina, for a period of one hundred and twenty (120) days.
IT IS FURTHER ORDERED that, in addition to the suspension, Respondent be fined
$1000 for its violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002). Respondent shall remit
$1000 to the Department within thirty (30) days of the date of this Order to satisfy the fine.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
January 15, 2004
Columbia, South Carolina |