ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §61-2-260 (Supp. 2004). The South Carolina Department of Revenue (Department) seeks fine of one thousand dollars ($1,000) claiming that the Respondent allowed possession of a beer by a minor in violation of 23 S.C. Code Ann. Reg. 7-200.4 (Supp. 2004) and S.C. Code Ann. §§61-4-580, 61-6-1830, 61-9-90, 61-4-100 (Supp. 2004). A hearing was held before me on June 28, 2005 at the offices of the Court in Columbia, South Carolina. Based on the facts and evidence presented, I conclude that the location did transfer beer to a person under the age of twenty-one years, but because the Respondent has a compelling corporate policy against the transfer of alcohol to minors, and since there was no evidence of additional violations, the fine shall be reduced to one hundred dollars.
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; the parties were present and represented as indicated.
2. The Respondent, Elephant, Inc. d/b/a Platinum Plus, holds a permit to sell beer and wine for on-premises consumption at the location 805 Frontage Road, Greenville, South Carolina. This permit was in effect on January 21, 2005 (No. 32020422‑PBW).
3. On January 21, 2005, South Carolina Law Enforcement Division (SLED) agents, in
conjunction with the Greenville County Sheriff’s Office and a nineteen year old underage cooperating individual (UCI) arrived at this location.
4. The SLED agent in charge of the investigation searched the UCI to insure that the only items in his possessions were his non-altered state issued driver’s license and sufficient money to pay the cover charge for admission and purchase a beer.
5. At the door of the location, the UCI gave the employee who was checking identification his driver’s license. The employee noted that the UCI was less than twenty-one years of age. In accordance with company policy, the employee confiscated the UCI’s license, put wristbands on the UCI’s wrists and large X’s on the UCI’s hands. The X’s covered the back of the UCI’s hands from his knuckles to his wrists. The company policy is that the driver’s license is returned when the minor leaves the location if the wristbands have not been tampered with. In addition, the UCI testified that the employee at the door cautioned him that he would be thrown out and his license would be confiscated if he bought or possessed alcohol in the location.
6. The UCI walked straight to the bar and ordered a Coors Light Beer. The bartender did not ask for identification or confirm whether the UCI was under age. The UCI paid for the beer and sat down at the table. A floor host for the Respondent came over and attempted to take the beer from the UCI, but stopped when the UCI said that he needed to turn it over to the law enforcement officers. The clerk was charged with transfer of beer to an individual under the age of twenty-one. The Respondent, Elephant, Inc., was issued an administrative citation for knowingly permitting an underage person to buy beer on a licensed premises.
7. The Department issued its Final Department Determination in this matter on March 3, 2005, in compliance with the Revenue Procedures Act, S.C. Code Ann. Sections 12-60-10 et seq. (Supp 2004) and Administrative Procedures Act, S.C. Code Ann. Sections 1-23-10, et seq. (Supp 2004).
8. Elephant, Inc. timely requested an administrative review of the Final Department Determination on March 8, 2005, and this matter was transmitted to the Administrative Law Court on March 14, 2005 for a contested case hearing.
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 (1986 & Supp. 2004) grants jurisdiction to the Court to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2004) grants the Court the authority to hear contested cases 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. S.C. Code Ann. § 61-4-580 (Supp. 2004) sets forth that “[n]o holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder's permit: (1) sell beer or wine to a person under twenty‑one years of age . . . .” Regulation 7-200.4 further provides that:
To permit or knowingly allow a person under twenty‑one year [sic] of age to purchase or possess or consume alcoholic beverages, 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 by the Department. (Supp. 2004) (Emphasis added).
Accordingly, Regulation 7-200.4 adds the term “to permit” a sale as part of the violation. However, “[a]lthough a regulation has the force of law, it may not alter or add to a statute.” Goodman v. City of Columbia, 318 S.C. 488, 490, 458 S.E.2d 531, 532 (1995). Moreover, “[e]ach part of a statute should be given effect and each word given its plain meaning if this can be accomplished by any reasonable construction.” Sea Island Scenic Parkway Coalition v. Beaufort County Bd. of Adjustments and Appeals, 316 S.C. 231, 236, 449 S.E.2d 254, 257 (Ct. App. 1994). Furthermore, 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).
4. In this case, the Department imposed a fine of $1,000 for this second violation of 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2004). The Administrative Law Court, as the trier of fact in contested cases under the Administrative Procedures Act, has the authority to establish the facts supporting the imposition of a penalty for a violation. Inherent in and fundamental to the quasi-judicial powers of an Administrative Law Judge 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). To that end, the 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 the 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). A legitimate as well as a significant consideration is whether the alleged mitigating factor demonstrates reasonable cause to reduce the penalty. Kroger Co. v. Department of Revenue, 673 N.E. 2d 710 (Ill. 1996).
A manager and an employee of the Respondent testified about the Respondent’s policy on admitting minors and alcohol sales. The procedure to be followed is what was done in this case, checking a patron’s identification at the door. If he is under twenty-one, the employee confiscates the patron’s license and puts wristbands on the his wrists and large X’s on his hands. The X’s should cover the back of the patron’s hands from his knuckles to his wrists. The company policy is that the driver’s license is returned when the minor leaves the location if the wristbands have not been tampered with. In addition, the employee at the door to the location cautions that the minor will be evicted from the location and his license will be confiscated if he purchases or possesses alcohol in the location. Company policy also states that the bartender should also verify the age of a patron seeking to purchase alcohol. That portion of the policy was not followed in this case.
Because the bartender failed to check for the “X’s” before the sale, there was a transfer of alcohol to a minor. Even so, based on the steps that the Respondent has taken to prevent violation, the fine imposed seems excessive. I find that the corporate policy to prevent the sale or possession of alcohol by a minor is compelling. In addition, there was no evidence introduced of any prior violation by the Respondent. Therefore, I find that, in light of the facts of this case, there are sufficient mitigating circumstances to merit a lower fine than Department seeks.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Respondent shall pay a fine of One hundred Dollars ($100) to the Department of Revenue within thirty days of the date of this Order.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
August 2, 2005
Columbia, South Carolina
|
