This
matter comes before the Administrative Law Court (ALC) due to a violation of 23
S. C. Code Ann. Regs. 7-200.4 (Supp. 2006). South Carolina Law Enforcement
Division issued two citations to the Respondent, Angela Rivers, d/b/a T & L
Grocery (T & L) for “transfer of beer or wine for underage person’s
consumption.” The South Carolina Department of Revenue (Department) sought
revocation of T & L’s permit to sell beer and wine for off-premises
consumption. T & L appealed this decision on the grounds that the
revocation of the license was too strict a punishment in light of the
circumstances. A hearing was held before this Court on April 17, 2008. After
carefully weighing all of the evidence, the Court finds that the Petitioner’s
decision to revoke the beer and wine license must be upheld.
FINDINGS
OF FACT
Having
observed the testimony of the witnesses and exhibits presented at the hearing
and closely passed upon their credibility, I make the following Findings of
Fact by a preponderance of evidence:
1. Angela
Rivers, d/b/a T & L Grocery holds a permit issued by the South Carolina
Department of Revenue that allows it to sell beer and wine for off premises
consumption at the licensed location: 114 Spring Street, Ste. B, Charleston,
South Carolina. The permit number is 32031633-2-PBW.
2. On
May 11, 2006, the licensed location was the subject of an investigation that
was conducted by Officers Mielcarek and Nelson of the Charleston City Police
Department’s vice squad. South Carolina Law Enforcement Division (“SLED”)
Agent David Leslie accompanied the Officers to the location. While observing
the licensed location, the Agents noticed a youthful female exiting the
location with a six pack of Miller Lite Beer. Upon inquiry, they learned that
she was nineteen (19) years of age and had just purchased the beer from the
Licensee’s clerk—Ms. Brenda Rivers. While entering the location, the Agents
noticed a youthful male at the counter purchasing two twenty four (24) pack
cases of Busch Beer. Upon inquiry, the Agents learned the male was twenty (20)
years of age, and that Ms. Brenda Rivers had sold him the beer. Ms. Brenda
Rivers did not ask to see the identification of the purchaser in either case.
3. Ms.
Brenda Rivers was issued two citations and charged with transfer of beer or
wine for underage person’s consumption. Ms. Brenda Rivers subsequently
attended a hearing on the matters, where one citation was dismissed. She was
ordered to pay a $465.00 fine for “transfer of beer to a person under 21,”
cited as ticket number 82825DP on October 12, 2006.
4. SLED
Agent Leslie subsequently issued an administrative violation against the
Licensee pursuant to Regulation 7-200.4 on December 7, 2006, to the Licensee.
5.
T & L admits that on May 11, 2006, it committed a violation of
Regulation 7-200.4 by permitting the underage patrons to purchase beer on the
licensed premises.
6.
The Department issued its Final Agency Determination in this matter on
August 22, 2007. The Final Agency Determination was prepared and served in
compliance with the Revenue Procedures Act, S.C. Code Ann. §§ 12-60-10
et. seq. (Supp. 2005) and Administrative Procedures Act, S.C. Code Ann. §§ 1-23-10, et. seq. (Supp. 2005).
7. The
Permitee timely requested a contested case hearing before the ALC on September
22, 2007.
8. The
issue before the Court is whether the penalty of revocation is appropriate for
the Petitioner’s sixth violation of the statutes and regulations set forth in S.C.
Code Ann. § 61.
CONCLUSIONS
OF LAW
Based
upon the above findings of fact, I conclude the following as a matter of law:
1. S.C.
Code Ann. § 61-2-80 (Supp. 2005) grants the Department of Revenue the “sole
and exclusive authority to regulate the operation of all locations authorized
to sell beer, wine, or alcoholic liquors.”
2. In this instance, the revocation of the
Company’s permit is the appropriate penalty for a sixth violation of the
alcohol provisions by, “permitting purchase of beer by a person under the age
of twenty one.”
3. Regulation
7-200.4, which mirrors S.C. Code Ann. 61-4580(1), authorizes suspension
or revocation of the Petitioner’s permit for even a first violation of its
provisions. That regulation specifically states that:
To
permit or knowingly allow a person under twenty-one year of age to purchase or
possess or consume alcoholic liquors, beer or wine in or on a licensed place of
business 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.
5. Petitioner committed five prior violations of Title 61
of the South Carolina Code of Laws within a five year period. One of these
violations was for “permitting games of chance” in violation of S.C. Code
Ann. 61-4-580(3), which states that no
holder of a permit authorizing the sale of beer or wine or a servant, agent, or
employee of the permittee may knowingly:
permit gambling or games of chance except game promotions including
contests, games of chance, or sweepstakes in which the elements of chance and
prize are present and which comply with the following:(a)
the game promotion is conducted or offered in connection with the sale,
promotion, or advertisement of a consumer product or service, or to enhance the
brand or image of a supplier of consumer products or services;(b) no purchase payment, entry fee, or proof of
purchase is required as a condition of entering the game promotion or receiving
a prize; and(c) all materials advertising the
game promotion clearly disclose that no purchase or payment is necessary to
enter and provide details on the free method of participation.
6. Petitioner’s other violations were for the transfer
of alcohol to a person under the age of twenty one. The Company paid fines for
these violations and served a suspension of 45 days for the third violation.
7. For sixth violations such as the one at issue,
it is the Department’s consistent administrative practice to revoke the beer
and wine permit absent mitigating circumstances. See S.C. Revenue Procedure
04-4. The construction of a statue by the agency charged with executing it is
entitled to the most respectful consideration and should not be overturned
without cogent reasons. Faile v. SC Employment Security Comm’n, 267 S.C.
536, 230 S.E.2d 219 (1976).
8. T & L Grocery did not offer any specific
mitigating circumstances of procedures and training in its place at the
location prior to or after the current violation. Although Respondent has terminated
Brenda Rivers, the Clerk who sold to the underage individual on May 11, 2006,
there was no evidence that a training program for employees has been
implemented, nor that any other methods of identifying underage purchasers are
being used.
9. The
revocation of the license after the sixth violation is not only authorized by
the regulations and statutes, but it is also a consistent administrative
practice of the Department after a sixth violation within a five year time
period. Although the Court is very sympathetic to the fact that this beer and
wine permit is essential to the livelihood of the Rivers family, and the Rivers
family is sincere in its desire to comply with the law, there is a continuing
problem with compliance at this location. Six violations within in a five year
period constitute a pattern of failing to conform to the laws of the state
regulations.
