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. 2004). 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
January 4, 2006, 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. BMC
Distributions of SC, LLC, d/b/a Exxon Tiger Stop 15 is the holder of an off
premises beer and wine permit for the location at 484 Savannah Highway in
Charleston, South Carolina.
2. Kristin
Denham was an employee and/or agent of the Licensee on January 27, 2005 and was
working at the location as a cashier.
3. On Thursday,
January 27, 2005 at approximately 7:45 PM Kristin Denham knowingly allowed an
Underage Confidential Information (“UCI”) who was working with SLED and
Charleston City Vice Officers to purchase one 22 ounce bottle of Bud Light beer
from Kristin Denham for $1.23 in Charleston City issued funds.
4. The UCI is a
white male who was 18 years of age at the time of the sale.
5. The clerk,
Kristin Denham, an employee of the Licensee, did check the UCI’s driver’s
license which states that his date of birth is 02-18-1986 and that he is under
18 until 02-18-2004.
6. A copy of
the UCI’s driver’s license that is attached hereto and incorporated herein by
reference is a true copy of the State issued license (excluding the redacted
information) presented to Ms. Denham.
7. BMC was
placed on notice of the UCI’s age by the information that was clearly stated on
his driver’s license.
8. Ms. Kristin
Denham was served with a criminal citation pursuant to SC Code Ann. Section
61-4-90 and the License was served with a regulatory violation pursuant to SC
Code Ann. Reg. 7-200.4 for permitting the purchase of beer by a person under 21
years of age.
9. That the
foregoing constitutes a knowing regulatory violation by the Licensee against
the laws of the State of South Carolina.
10. The
foregoing offense is the third offense against the Licensee within a 3 year
time period for the sale of beer or wine to a person under the age of 21 with
the first offense occurring on March 22, 2002, and the second occurring on
October 21, 2004.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and taking into
consideration the burden of persuasion and the credibility of the witnesses, I
make the following findings of fact by a preponderance of evidence:
1. Notice of
the time, date, place and subject matter of the hearing was given to the
Petitioner and the Respondent.
2. BMC
has been operating convenience stores since 1982 and currently operates eleven
locations in the low country. It has a strict policy against the sale of beer
or wine to minors. In light of that policy, employees are informed that if
they make an illegal sale they will be immediately fired. In that regard, the
employee who made the sale in this case was fired as soon as management was
made aware of the sale.
BMC
also attempts to discourage illegal sales through their training. Supervisors
used roll playing as the initial method of training the employees on the proper
method of selling alcohol. The supervisor also used a check list provided by BMC
to insure employees were correctly instructed concerning age sensitive training
in beer and wine sales. The employees were required to sign the policy after
their instruction. In addition, supervisors also shadowed new employees the
first three days on the job to insure that the employee understood the proper
procedures of their job, including beer and wine sales. The employees were
also instructed concerning beer and wine sales after the initial three days,
though that training was not on a regular basis.
The
company also provided independent instruction concerning the sale of beer and
wine to some of its employees. When the violation occurred Respondent’s
employees were receiving training from SLED Agent John Kirkland. That program
was subsequently discontinued. Beginning in July 2004, supervisors and some
employees received special training in a program concerning beer and wine sales
known as “TIPS.” The materials from that program were used to train the clerk
who made the sale in this case.
BMC
also used other means to discourage sale of beer or wine to underage individuals.
The store utilized a cash register that required employees to enter the date of
birth before making a beer or wine sale.[1]
Employees do attempt to circumvent the safeguards offered by that register but
Respondent continues to initiate efforts to thwart such actions. Respondent
also had signs posted throughout the store indicating that “We ID.”[2]
3. Since
the violation in this case occurred, Respondent has initiated further measures
to insure no future violations occur. BMC implemented a "secret
shopper" program through “Speed Mark.” They send surreptitious underage
shoppers to each of Respondent’s locations once a month to test whether his
employees are complying with the law prohibiting the sale to underage
individuals. If an employee improperly sells beer or wine to an underage “secret
shopper,” they are terminated. Additionally, BMC now requires that each
employee take a weekly test concerning the law and requirements of making beer
and wine sales.
4. In the past six months the Charleston Police
Department has attempted two separate purchases by underage individuals and
both were unsuccessful.
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. 2004) 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. 2004).
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 has not prevented violations from reoccurring.
Nevertheless, Respondent promptly terminated the offending employee.
Furthermore, though it is unclear what type of individuals Respondent is
hiring, it has made notable efforts to insure that it employees know the law
and comply with its requirements. In light of the fact that the Charleston
Police Department’s UCIs have recently been unable to purchase beer or wine at
the location, BMC’s efforts appear to be working. Additionally, Respondent has
recently further increased its efforts to insure compliance with Regulation
7-200.4. Though such efforts were implemented after the violation, they deserve
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
February 22, 2006
Columbia, South Carolina
|
