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.
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 |