South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Dee Traxx, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
South Carolina Department of Revenue

Respondent:
Dee Traxx, Inc.
 
DOCKET NUMBER:
05-ALJ-17-0061-CC

APPEARANCES:
Carol I. McMahan, Esquire, for Petitioner

James H. Harrison, Esquire, for Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2003). The South Carolina Department of Revenue (Department) seeks a forty-five (45) day suspension of Respondent’s beer and wine permit for its third violation of 23 S.C. Code Ann. Regs. 7-200.4 (eff. 6/27/03). A hearing was held before me on May 17, 2005, at the offices of the Administrative Law Court in Columbia, South Carolina.

STIPULATIONS OF FACT

At the hearing into this matter and pursuant to ALC Rule 25(C), the parties entered the following written stipulations of fact into the Record:

1. Dee Traxx, Inc. (the Company), holds a permit issued by the South Carolina Department of Revenue (Department) that permits it to sell beer and wine for off-premises consumption at the location: 704 Crescent Ave, Spartanburg, South Carolina.

2. On September 17, 2004, South Carolina Law Enforcement Division (SLED) agents, in conjunction with an underage cooperating individual (UCI), Dustin May, entered the location at the above referenced address. On that date Dustin was nineteen years of age. Dustin picked up a 24 oz. Bud light beer from the cooler and took it to the clerk on duty. The Company’s employee, Angela Dawkins, requested identification from Dustin. Dustin presented his South Carolina Driver’s license that showed he was nineteen years of age. Angela Dawkins permitted Dustin to purchase the beer anyway.

3. Angela Dawkins was charged with transfer of beer to an individual under the age of twenty-one. The Company was issued an administrative citation for knowingly permitting an underage person to purchase beer on a licensed premises [sic], 23 S.C. Code Ann. Regulation [sic] 200.4.

4. The Company has had two prior violations within a two year period at this specific location. All of these violations were for “permitting the purchase of beer by a person under the age of twenty-one.” The Company committed the first violation within this two year period on November 25, 2003. It paid a fine of $400.00 for this violation. For the second such violation on June 22, 2004, it committed another violation of Regulation 7-200.4. [sic] The Company paid a fine of $1000.00.

5. The Company admits that it violated Regulation 7-200.4 on September 17, 2004, [by] “knowingly permitting the purchase of beer by a person under the age of twenty-one,” when its employee, Angela Dawkins, permitted nineteen year old Dustin May, purchase beer at the location here. [sic].

6. The November 25, 2003 violation of permitting sale of beer to an underage involved a seventeen year old youngster. The clerk did not request identification prior to the sale, but sold the beer without any inquiry into the nineteen [sic] year old’s age.

7. The June 22, 2004 violation of permitting the sale to an underage involved an eighteen year old. The Company’s clerk did not request identification from him but sold him the beer anyway. The Company’s clerk sold the beer.

8. The Department issued its Final Department Determination in this matter on January 31, 2005 in compliance with the Revenue Procedures Act, S.C. Code Ann. Sections 12-60-10, et seq. (Supp. 2003) and Administrative Procedures Act, S.C. Code Ann. Sections 1-23-10, et seq. (Supp. 2003).

9. The Company timely appealed the Final Department Determination pursuant to the Revenue Procedures Act.

10. This matter was timely transmitted to the Administrative Law Judge Division [sic] for a contested case hearing.

11. The Department filed its Exchange of Evidence and Foundation for Documents with attachments on April 26, 2005.

12. The sole issue for this Court is the penalty to be imposed for the Company’s third violation of permitting a person under the age of twenty-one purchase beer. The Department in its Final Department Determination imposed a suspension of forty-five days for this violation.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner and the Respondent.


2. Willie Young and his wife have operated Dee Traxx for fifteen (15) years as a convenience store. Since starting that business, Respondent has never had any violations involving his permit up until 2003. However, in the last three years he has had two prior violations of selling beer to minors. During that time period, Mr. Young had a policy prohibiting the sale of beer and wine to minors. He also instructed his employees to check “ids” if a person appeared to be under the age of thirty (30).

Since the violation in this case, Mr. Young now instructs employees every day to require picture “ids” of all persons purchasing beer and wine and he goes over the policy with each employee monthly. In that training, Mr. Young explains how selling beer/wine to underage individuals can impact both the store and the employee personally. Mr. Young has also recently purchased an “age verifying” machine. That machine scans driver's licenses and confirms the age of a purchaser who is buying beer or wine. Respondent requires that each employee use the “age verifying” machine before making a beer/wine sale. Additionally, Respondent has posted signs throughout the location that require every employee to wear tags signifying that Dee Traxx will not sell beer/wine without proper identification.

3. Angela Dawkins, the employee who sold the beer to the underage individual, had become extremely upset the morning that this sale occurred because her recently deceased mother’s picture was errantly published in the newspaper. In fact, Ms. Dawkins had only been back at the store for three to four minutes when the sale occurred to the UCI. Moreover, the underage person was the first person to approach the check-out area after she had resumed her duties. Though Ms. Dawkins improperly made the sale to the underage person, she was also distracted by the emotional events that had recently occurred.[1] Therefore, Mr. Young did not terminate the Ms. Dawkins for making the sale in this case.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 2003) grants jurisdiction to the Court to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann.

§ 61-2-260 (Supp. 2003) grants the ALC the authority to hear contested case hearings in matters governing alcoholic beverages, beer and wine.

2. Permits and licenses issued by this state for the sale of liquor, beer and wine are privileges to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

3. Holders of beer and wine permits are forbidden from permitting “any act, the commission of which tends to create a public nuisance or which constitutes a crime. . . . ” S.C. Code Ann. § 61-4-580(5) (Supp. 2003).

4. Permitting or knowingly allowing a person under the age of twenty-one (21) to purchase or possess beer upon the licensed premises is a violation against a license or a permit. Such a violation constitutes sufficient grounds for either suspension or revocation of the beer and wine permit. 23 S.C. Code Ann. Regs. 7-200.4 (eff. 6/27/03).

5. The permittee is responsible for all acts of his servants, agents, or employees and cannot seek to avoid the consequences of a violation for lack of personal knowledge. Following that principle, the South Carolina Supreme Court upheld a civil forfeiture of a corporation’s boat based upon an employee’s transporting drugs even though the corporation claimed the use of the boat to transport drugs was without its knowledge. South Carolina Law Enforcement Division v. The "Michael and Lance,” 281 S.C. 339, 315 S.E. 2d 171 (Ct. App. 1984). The Court held that “[a] principal is affected with constructive knowledge of all material facts of which its agent receives notice while acting within the scope of his authority.” Id. at 173, citing Crystal Ice Co. of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 257 S.E. 2d 496 (1979). Likewise, the license holder is responsible for the actions and conduct of employees utilizing the permit upon the permitted premises. 48 C.J.S. Intoxicating Liquors § 259 (1981).

6. In this case, the Department imposed a forty-five (45) day suspension of the Respondent’s beer and wine permit for a third violation of Regulation 7-200.4 within the past three (3) years. See Revenue Procedure 04-4.

7. Inherent in and fundamental to the powers of an Administrative Law Judge, as the trier of fact in contested cases under the Administrative Procedures Act, is the authority to decide the appropriate sanction when such is disputed. Walker v. South Carolina ABC Comm’n, 305 S.C. 209, 407 S.E. 2d 633 (1991). The Administrative Law Judge, as fact-finder, must impose a penalty based on the facts presented at the contested case hearing. To that end, an Administrative Law Judge must consider relevant evidence presented in mitigation. Mitigation is defined as a lessening to any extent, great or small. It may be anything between the limits of complete remission on one hand and a denial of any relief on the other. In a legal sense, it necessarily implies the exercise of the judgment of the court as to what is proper under the facts of the particular case. 58 C.J.S. Mitigation p. 834, 835 (1948).


In the present case, the Respondent clearly violated the provisions of Regulation 7-200.4 by permitting the purchase of beer by an individual under the age of twenty-one (21). Although Respondent argues that employees are trained to check identification, that training was limited to monthly verbal instruction even after two previous violations. Nevertheless, the recent testing efforts, the circumstances under which the sale occurred and the addition of an “age verifying” machine by this company in an attempt to ensure compliance with Regulation 7-200.4 deserves some limited consideration.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that Respondent’s beer and wine permit be suspended for fourteen (14) days.

AND IT IS SO ORDERED.

 

 

__________________ ___ ______

Ralph King Anderson, III

Administrative Law Judge

 

June 9, 2005

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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