ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks a 45 day suspension due to a violation of
the ABC laws arising from a sale to a minor by Zee Mart, Inc. (Zee Mart). Zee Mart admits the
violation but argues that a sanction of a 45 day suspension is too severe. Zee Mart's disagreement
with DOR's sanction placed jurisdiction in the Administrative Law Judge Division (ALJD). S.C.
Code Ann. §§ 61-2-260 (Supp. 2003); S.C. Code Ann. 1-23-310 et. seq. (Rev. 1986 and Supp.
2003) with the hearing in this matter being held February 24, 2004 at the Edgar Brown Building,
Columbia, South Carolina.
II. Issue
What is the appropriate penalty for Zee Mart's violation of S.C. Code Ann. 61-4-580(1) (Supp. 2003)
and S.C. Code Ann. Regs. 7-9(B) (Supp. 2003) for selling beer or wine to a person under 21?
III. Analysis
DOR argues that since an illegal sale to an underage individual occurred in this instance and since
the current sale is the third sale to an underage individual within two years, a sanction of a 45 day
suspension is proper. While Zee Mart does not disagree with the assertion that a violation occurred,
Zee Mart argues that it has undertaken extensive measures to eliminate any future violations such
that DOR's requested sanction should be denied.
A. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Zee Mart holds a beer and wine permit identified as # 32026938-4 PBG with that permit in use at
Zee Mart's location of 6719 Calhoun Memorial Hwy, Easley, South Carolina. On June 18, 2003, an
undercover cooperating individual (UCI) in the employment of SLED entered the location. As of
that date, the UCI was 17 years old (date of birth April 12, 1986 ). He was not disguised in any
manner in an attempt to appear older.
After entering the store, the UCI picked up a 24 ounce can of Bud Light and brought the item to the
counter. The employee at the counter was an employee of Zee Mart. The employee asked for
identification and received a driver's license from the UCI. The driver's license showed the UCI's
correct name and birth date and stated "UNDER 18 UNTIL 4-12-2004." However, the employee
returned the license to the UCI, took the UCI's money, and completed the sale. The UCI left the store
with the purchased beer.
After the purchase, an officer for SLED entered the store and explained that the employee had just
performed an illegal act by making a transfer of beer to a person under the age of twenty-one. A
criminal citation was issued to the employee for illegally making the transfer.
Sales to other individuals under the age of twenty-one have occurred at this same location in the past.
Such sales were made on August 24, 2002 (fine paid of $400.00) and on February 22, 2003 (fine paid
of $800.00). Thus, the sale to the UCI on June 18, 2003 was the third violation within less than 2
years.
Zee Mart has begun steps to eliminate sales to underage individuals. For example, the store now
allows for credit card sales to be made at the gas pumps. Sales at the pump reduce the number of
people entering the store and thus reduces the congestion at the clerk's counter. Further, the
employees of the location now all attended training sponsored by SLED with such training designed
to eliminate sales to minors. Finally, the point-of-sale equipment for purchases made at the counter
now requires the clerk to enter the purchaser's date of birth before a sale can be completed.
B. Conclusions of Law
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
Any party operating under a beer and wine permit who knowingly sells beer or wine to a person
under twenty-one years of age creates a ground for a sanction of a monetary penalty or suspension
or revocation of the holder's permit. S.C. Code Ann. § 61-4-580(1) (Supp. 2003); S.C. Code Ann.
Regs. 7-9(B) (Supp. 2003). Here, Zee Mart does not dispute the violation. Rather, the issue is what
penalty is proper.
In the final analysis, a decision of what monetary fine, or suspension, or revocation, or some
combination, is to be imposed is one for the Administrative Law Judge as the fact-finder. Walker
v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Here, the instant violation
is the third in less than two years. Such repeated sales present a serious concern since "a rule
forbidding a licensee of the [DOR] to facilitate consumption of alcohol by a minor is designed to
protect both the minor who consumes the alcohol and those members of the public likely to be
harmed by the minor's consumption of that alcohol." Norton v. Opening Break of Aiken, Inc.,313
S.C. 508, 443 S.E.2d 406, 408 - 409 (S.C.App. 1994). Such repeated violations in a period as short
as two years, a significant sanction is proper to foster protection of the public at large and minors in
particular. Accordingly, a 21 day suspension is imposed.
In this case a suspension and not a revocation is warranted. Here, management is concerned with the
illegal sales and has taken appropriate steps to remedy the problem. Its efforts seek to eliminate any
future occurrences. For example, the store now allows for credit card sales to be made at the gas
pumps and thereby reduce the number of people entering the store and thus reduce the congestion
at the clerk's counter. Further, the employees now all attend training sponsored by SLED in an effort
to eliminate sales to minors. Finally, a change in sales methodology has occurred for beer and wine.
New point-of-sale equipment has been placed at the counter and now requires entry of the
purchaser's date of birth before a sale can be completed.
Given the meaningful and renewed efforts to comply with the law and the need to rely upon the
proper actions of employees, a revocation is not proper at this point. However, should additional
violations occur, revocation may become the only viable option.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
The South Carolina Department of Revenue shall suspend Zee Mart, Inc.'s beer and wine permit
located at 6719 Calhoun Memorial Hwy, Easley, South Carolina for 21 days. The suspension shall
begin at 12:01 a.m on April 26, 2004.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: April 15, 2004
Columbia, South Carolina |