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.
2003), S.C. Code Ann. § 1-23-600(B) (Supp. 2003), and S.C. Code Ann. §§ 1-23-310 et seq.
(1986 & Supp. 2003). Petitioner South Carolina Department of Revenue (Department) contends
that Respondent Tobins Convenience Store, Inc., d/b/a Tobins Convenience Store (Tobins),
knowingly allowed an underage individual to purchase beer from Respondent’s convenience
store located at 7501 Two Notch Road in Columbia, South Carolina, in violation of 23 S.C. Code
Ann. Regs. 7-200.4 (Supp. 2003). For this third such violation in as many years, the Department
seeks to suspend Tobins’ off-premises beer and wine permit for the location in question for a
period of forty-five days. In response, Tobins 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 and its change in position during the year between the date of the violation
and the date on which the Department decided to suspend its license.
After timely notice to the parties, a hearing of this matter was held on November 10,
2004, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based
upon the testimony and evidence presented at the hearing, I find that the appropriate penalty for
Tobins’ violation is the imposition of a $1000 fine upon Tobins.
STIPULATED FACT
At the commencement of this proceeding, Respondent Tobins, through its counsel,
stipulated, pursuant to ALC Rule 25(C) and Rule 43(k), SCRCP, that it committed a violation of
Regulation 7-200.4 on February 26, 2003.
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.Respondent Tobins, as stipulated, committed a violation of Regulation 7-200.4 on
February 26, 2003, when an employee at its convenience store sold a beer to a sixteen-year-old
Underage Cooperating Individual (UCI) during a routine sting operation conducted by the South
Carolina Law Enforcement Division (SLED). Tobins has been cited by the Department for two
previous violations for permitting the sale of beer to an underage individual. These violations
occurred on May 2, 2000, and December 11, 2001, and Tobins paid fines of $400 and $800,
respectively, as penalties for the two violations.
2.At the hearing of this matter, Juanita Tobin, the president and co-owner of Tobins
Convenience, Inc.,
and Sadie Coine, an assistant manager at the convenience store, described
the efforts taken by Tobins to prevent the sale of alcohol to underage persons at its store. These
efforts include:
(1) strict policies and procedures concerning checking the identification of customers
purchasing alcohol (e.g., under company policies, cashiers must request proof of age from any
customer purchasing alcohol who appears to be less than forty years old and the company will
immediately fire any employee who commits a violation of the laws governing the sale of beer
and wine by selling an alcoholic beverage to an underage individual);
(2) technological safeguards against illegal alcohol sales (e.g., the company uses a “legal
age” machine that requires the cashier to enter the birth date of the customer before completing a
sale of alcohol and the actions of the store’s cashiers are recorded by audio and video recording
equipment); and,
(3) training programs regarding the prevention of underage sales (e.g., the company
trains employees on the laws and company policies governing the sale of alcohol beverages,
reiterates that training in its bi-monthly staff meetings and on a daily basis with individual
employees, and has sent all of its employees to training provided by SLED on how to prevent
sales of alcohol to underage individuals).
Tobins also operates a self-policing “secret shopper” program to determine whether its
employees are complying with the laws and company policies related to the sale of alcoholic
beverages. While Tobins implemented many of these policies and safeguards prior to the
February 26, 2003 violation, it did not purchase its age verification system or send its employees
to the SLED training until after the violation had occurred.
3.Although the violation in question in this matter occurred on February 26, 2003,
the Department did not provide Tobins with notice of its intention to seek a forty-five-day
suspension of its beer and wine permit until March 1, 2004, and did not issue a final
determination regarding Tobins’ violation until June 12, 2004. During the year-long period
between the date of the violation and the date of the Department’s notice of intent to suspend its
permit, Tobins purchased its convenience store from the ConocoPhillips Company, from which
it had previously leased the store. This purchase constituted a significant financial commitment
for the Tobins, who guaranteed the loans necessary to purchase the property in their individual
names, not in the name of their corporation.
CONCLUSIONS OF LAW
Based upon the foregoing Stipulated Fact 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. 2003).
2.Regulation 7-200.4 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. 7-200.4 (Supp. 2003).
Respondent Tobins concedes and stipulates
that it committed a violation of Regulation 7-200.4 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. 2003). 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(1) (Supp.
2003); 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2003); see also S.C. Code Ann. § 61-4-270
(Supp. 2003) (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 minors. See S.C. Code Ann. §§ 61-4-270, 61-4-580, 61-4-590; 23 S.C. Code Ann.
Regs. 7-200.4. In lieu of such suspension or revocation, the Department may also impose a
monetary penalty upon a permittee for selling beer and wine to minors. S.C. Code Ann. § 61-4-250 (Supp. 2003). 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 Court.
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).
7.However, Respondent should be reminded that the purpose of the statutory
prohibition against selling alcohol to underage individuals is to protect both the underage
individuals and the public at large from the possible adverse consequences of such sales. The
sale of alcohol to an underage individual is a serious offense and cannot be taken lightly.
Further, a permit to sell beer and wine is neither a contract nor a property right. Rather, it is
merely a permit to do what otherwise would be unlawful to do, and to be enjoyed only so long as
the restrictions and conditions governing its continuance are complied with. Feldman v. S.C.
Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). Accordingly, Respondent is cautioned that any
further violations of the laws governing the sale of alcoholic beverages may place its permit in
jeopardy.
ORDER
Based upon the Stipulated Fact, Findings of Fact, and Conclusions of Law stated above,
IT IS HEREBY ORDERED that, for Respondent’s third violation of 23 S.C. Code Ann.
Regs. 7-200.4 (Supp. 2003) within three years, the Department shall impose upon Respondent a
fine of one thousand dollars ($1000.00).
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
December 13, 2004
Columbia, South Carolina |
