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
Savings Carolina Division, d/b/a Dodge's Store (Dodge's Store). Dodge's Store opposes DOR's
position and asserts a revocation is not a proper sanction. Dodge's Store'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 # 2, Greenville, South Carolina.
Based upon the evidence and the arguments presented by the parties, Dodge's Store's permit is
suspended for 75 days.
II. Issue
What is the appropriate penalty for Dodge's Store'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 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, and that the sale was made knowingly.
DOR further argues that since this is the fourth sale to an underage individual within three years, a
revocation is proper.
Dodge's Store does not disagree with the assertion that a violation occurred. Rather, Dodge's Store
argues that it has undertaken extensive measures to eliminate any 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:
Dodge's Store holds a permit issued by DOR to sell beer and wine for off-premises consumption at
3318 Wade Hampton Blvd., Taylors, South Carolina. On April 9, 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 seventeen years of age.
The UCI picked up a 24 ounce container of beer from the cooler and took it to the clerk on duty. The
clerk requested identification from the UCI. The UCI presented his valid South Carolina driver's
license that showed the UCI was seventeen years of age. The clerk permitted the UCI to purchase
the beer anyway.
The clerk was charged with the offense of transferring beer to an individual under the age of
twenty-one. In addition, Dodge’s Store 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. Dodge’s Store agrees with DOR that the sale to the UCI was made knowingly.
The April 9, 2004 violation is not the first for selling to an underage party. Rather, the April 9, 2004
violation is the fourth in less than three years.
The first violation was on January 22, 2002 and resulted in the payment of a fine of $400.00. In that
sale, the UCI was nineteen and the selling clerk did not request identification prior to the sale. The
second was on July 12, 2002 and resulted in the payment of a fine of $800.00. The sale was to a UCI
that was seventeen. The clerk in that sale received the UCI’s South Carolina driver's license which
showed an age of seventeen. The clerk sold the beer anyway. The third prior sale was on September
6, 2002 and resulted in consent order in which Dodge’s Store agreed to a fine of $2500 and a ten day
suspension of its beer and wine permit. In that sale, the UCI was sixteen years old. The clerk on duty
requested identification and obtained the UCI’s South Carolina driver's license that showed the UCI
was sixteen. Again, the clerk sold the beer anyway.
Prior to the April 9, 2004 incident, Dodge's Store had begun steps to eliminate sales to underage
individuals. For example, management had begun placing a greater emphasis on training. All
employees, including the clerk who made the sale here under review, had received instruction
through TAMS (Techniques of Alcohol Management Service) and BARS (Being Alcohol
Responsible Servers).
Under BARS, “mystery” shoppers enter the store as often as once a week to secretly test employees
on alcohol sales. The new policy utilizes penalties and rewards. For example, an employee who
fails to check for proper identification is given a “red card” and forfeits 7 days of wages. However,
if a clerk properly checks for identification, the clerk receives a “green card” entitling them to a $25
bonus.
In the same vein the store has an additional incentive aimed at preventing sales to underage
customers. If a SLED or law enforcement sting operation results in the clerk not making the sale,
the clerk receives a $500 bonus. In addition, the old policy still continues which requires the
immediate termination of the employee making the sale.
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,
Dodge's Store 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 fourth in less than three 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).
Considering all of the evidence here, a suspension and not a revocation or fine is warranted. Here,
management is concerned with the illegal sales and has taken steps in an effort to eliminate any
future occurrences. For example, extensive training seeking to prevent sales to underage customers
is provided to all employees. Further, all employees are told that any employee making a sale to an
underage party will be terminated. Indeed, the employee in this case was terminated due to the illegal
sale. Further, policies are now in place to provide monetary rewards to clerks who successfully
perform in a sting operation.
While positive steps are underway to eliminate sales to underage customers, it is obvious that a
pattern of repeat violations have developed at this location. When repeated violations of sales to
persons under twenty-one have occurred in a period as short as three years, a significant sanction is
required in order to foster the protection of the public at large and of minors in particular. Here, past
fines and a short suspension of 10 days have not succeeding in eliminating the improper sales.
Accordingly, a suspension of 75 days is imposed..
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 suspend the beer and wine permit of
Dodge's Store for a period of 75 days beginning on the eleventh day after the date of this order.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: September 27, 2004
Greenville, South Carolina |
