ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks to revoke the beer and wine permit of Plez
U Stores, Inc., d/b/a Plez U Food Stores 8 (Plez U). Plez U opposes DOR's position and asserts a
revocation is not a proper sanction. Plez U's disagreement with DOR's determination places
jurisdiction in the Administrative Law Court. S.C. Code Ann. § 61-2-260 (Supp. 2003); S.C. Code
Ann. Sec. 1-23-310 et. seq. (Rev. 1986 and Supp. 2003).
The hearing in this matter was held September 8, 2004 in Courtroom # 3, Greenville, South Carolina.
Based upon the evidence and the arguments presented by the parties, Plez U's permit is revoked.
II. Issue
What is the appropriate penalty for Plez U's violation of S.C. Code Ann. 61-4-580(1) (Supp. 2003)
for selling or allowing possession of beer or wine to a person under 21 years of age?
III. Analysis
Penalty for Sale to an Underage Person
DOR asserts that a sale to an underage individual occurred with the sale made knowingly. DOR
further argues that since this is the fifth sale to an underage individual within slightly more than four
years, a revocation is proper.
Plez U does not disagree with the assertion that a violation occurred. Rather, Plez U argues that it
has undertaken measures to eliminate future violations such that DOR's sanction of a revocation
should be denied.
A. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Plez U holds a permit issued by DOR to sell beer and wine for off-premises consumption at 1502
Blue Ridge Blvd., Seneca, South Carolina.. On January 29, 2004, South Carolina Law Enforcement
Division (SLED) agents, in conjunction with an underage cooperating individual (UCI), entered the
location. On that date the UCI was eighteen years of age.
The UCI picked up a container of beer and took it to the clerk on duty. The clerk at the counter had
been trained not to make sales of beer and wine to patrons not yet 21. The clerk requested
identification from the UCI. The UCI presented his valid South Carolina driver's license that showed
he was eighteen years of age. The clerk permitted the UCI to purchase the beer anyway.
The clerk was charged with and found guilty of the offense of transferring beer to an individual
under the age of twenty-one. In addition, Plez U was issued an administrative citation for knowingly
permitting an underage person to purchase beer on a licensed premises, 23 S.C. Code Ann. Regs
200.4. Plez U agrees with DOR that the sale to the UCI was made knowingly.
The January 29, 2004 violation is not the first for selling to an underage party. Rather, the January
29, 2004 violation is the fifth violation in slightly more than four years.
The first violation was on December 14, 2000 and resulted in the payment of a fine of $400.00. The
sale was made to an eighteen year old with the clerk receiving proper identification, but then
choosing to make the sale anyway. The second violation was on August 10, 2001 and resulted in
the payment of a fine of $800.00. That sale was to a UCI that was nineteen with the clerk failing to
ask for any identification. The third prior violation was on January 28, 2002 with the sale being
made to a nineteen year old. Again, the clerk failed to ask for any identification before making the
sale. The penalty imposed was a fine of $400 and a 30 day suspension of the beer and wine permit.
Another sale to an underage patron occurred on May 17, 2003. Again, the clerk did not ask for
identification in making the sale. The penalty imposed for the fourth violation was a fine of $1,000
and a suspension of 120 days.
Prior to the January 29, 2004 incident, Plez U had begun some steps seeking to eliminate sales to
underage individuals. For example, management had begun placing a greater emphasis on training.
However, the store has been plagued with a high turnover of employees and, even though training
has occurred in the past, sales have still been made to underage patrons.
The location purchased an electronic device that “reads” the magnetic strip on the drivers’ license
of approximately 15 states. If the individual is not yet 21, the device displays a red light alerting the
clerk not to make the sale. However, regardless of whether the clerk uses the device or fails to use
the device, the cash register system still allows the sale to be made in all events.
B. Conclusions of Law
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
1. Introduction
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 suspension, revocation, or
imposition of a fine. S.C. Code Ann. §§ 61-4-580(1) (Supp. 2003) and 61-4-250 (Supp. 2003). Here,
Plez U does not dispute the violation. Rather, the issue is what penalty is proper.
2. Penalty Consideration
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 fifth in slightly more than four 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).
Certainly it is true that training is important and is to be encouraged. However, it is clear from this
case that training has not been able to stop repeated sales to underage patrons. Indeed, the clerk who
made the sale in the instant case had extensive training and even asked for identification. Despite
having obvious proof that the buyer was not yet 21, she made the sale anyway.
Further, while of some assistance, I do not find the electronic device that reads drivers’ licenses to
be a meaningful basis for preventing future sales to patrons under 21. Rather, an electronic device
that reads “red” is simply a means by which the clerk can determine whether a buyer is not yet 21.
However, it adds very little to the drivers’ license itself which already contains obvious proof of age
via the birth date. Indeed, nothing in the device prevents the cash register system from operating
when the “red” light is displayed. Instead, the same clerk who is able to merely ignore the face of
the license can also simply ignore the warning light displayed on the device.
In short, the device does not create any persuasive assurance that future sales to underage patrons
will cease. Accordingly, given an obvious pattern of repeated violations, a sanction sufficient to
foster the protection of the public at large and of minors in particular is required.
What such a sanction must be is made abundantly clear by the repeated failures of the permit holder
and by the lack of any meaningful deterrence achieved by previous sanctions. Here, not even fines
up to $1,000 and suspensions up to 120 days have been able to stop the illegal sales of beer to
minors. Thus, when, as is the case here, the permit holder shows an inability or an unwillingness to
comply with the law and when, as is the case here, past sanctions prove to be ineffective, it is time
for a sanction that will achieve compliance. The permit is revoked.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
The South Carolina Department of Revenue is directed to revoke the beer and wine permit of Plez
U Stores, Inc., d/b/a Plez U Food Stores 8 with the revocation being effective on the fifteenth day
following the date of this order.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: September 29th, 2004
Greenville, South Carolina |