ORDERS:
AMENDED FINAL ORDER AND DECISION
The
Administrative Law Court (ALC) issued a Final Order and Decision in the above
referenced case on March 24, 2006. Petitioner filed a “Motion For a New Trial
or in the Alternative to Reconsider, Alter, or Amend Judgment” on April 4, 2006.
Having reviewed the arguments, the Motion is denied except for the
clarification of factual statements contained in the Findings of Fact and
corrections made in the Conclusions of Law which do not alter the Final Order
and Decision issued on March 24, 2006.
STATEMENT
OF THE CASE
This
matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp.
2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§
1-23-310 et seq. (2005). Petitioner South Carolina Department of Revenue
(Department) contends that Respondent 130 Rutledge Ave., LLC, d/b/a Medical
Center Amoco (130 Rutledge), knowingly allowed an underage individual to
purchase beer from its convenience store at 130 Rutledge Avenue in Charleston,
South Carolina, in violation of 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2004).
For this third such violation in as many years, the Department seeks to suspend
130 Rutledge’s off-premises beer and wine permit for the location in question
for a period of forty-five days. In response, 130 Rutledge 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.
After
timely notice to the parties, a hearing of this matter was held on March 20,
2006, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the testimony and exhibits presented at the hearing, I find that
the appropriate penalty for 130 Rutledge’s violation is the imposition of a one
thousand dollar ($1000.00) fine upon 130 Rutledge.
STIPULATED FACTS
Pursuant
to ALC Rule 25(C) and Rule 43(k), SCRCP, the parties submitted a Stipulation of
Facts to the Court at the hearing of this matter. The Stipulation was marked as
Petitioner's Exhibit #1 and is hereby incorporated into this Order by
reference. In the ten items of the stipulation, the parties describe the
circumstances giving rise to the violation in question and acknowledge both the
current and prior violations committed by 130 Rutledge.
Specifically,
the parties stipulated that on April 24, 2005, Albert Christie, an employee of
Respondent 130 Rutledge, allowed an eighteen-year-old Underage Cooperating
Individual (UCI) working with the South Carolina Law Enforcement Division
(SLED) to purchase beer at its location at 130 Rutledge Avenue, Charleston, South Carolina. Mr. Christie completed the sale of the beer to the UCI without
requesting identification. Beyond describing the incident, the parties further
stipulated that the sale of the beer constituted a knowing violation of South
Carolina law and that the violation was 130 Rutledge’s third such violation
within a three-year period, the first occurring on December 6, 2004 (for the
sale of beer to a person under 21); and the second occurring on December 24,
2004 (also for the sale of beer to a person under the age of 21); and the third
(this offense) having occurred on April 24, 2005.
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.
130 Rutledge Ave., Inc. owns and operates the convenience store,
Medical Center Amoco, located at 130 Rutledge Avenue, Charleston, South Carolina.
2.
130 Rutledge has made good-faith efforts to prevent the sale of beer
and wine to underage individuals. For example, 130 Rutledge sends its employees
to training sessions concerning the prevention of sales of beer and/or wine to
underage persons known as the Training Intervention Program (TIPS). Bonnie
Arnold, the convenience store manager at Medical Center Amoco, is a certified
trainer for TIPS. Fourteen of 130 Rutledge’s eighteen employees are TIPS
trained. 130 Rutledge believes that the TIPS training program effectively
addresses its problem with sales to underage individuals.
3. 130
Rutledge has strengthened its efforts to prevent underage sales by implementing
its current policies and procedures regarding sales of beer and/or wine. These
efforts include:
(1)
strict policies and procedures concerning checking the identification and
verifying the age of customers purchasing beer and/or wine (e.g., under company
policy, cashiers must request proof of age from all customers purchasing
beer and/or wine and any cashier caught not checking for such identification is
terminated) – this policy was implemented after 130 Rutledge’s second violation
and before 130 Rutledge’s third violation;
(2)
technological safeguards against illegal beer and/or wine sales (e.g., the
company uses a "legal age" cash register that requires the cashier to
enter the date of birth of the customer before completing a sale of beer and/or
wine and has available to the cashier an ID scanner that calculates the age of
the customer for the cashier) – these technological safeguards were in place
prior to 130 Rutledge’s third violation;
(3)
training programs regarding the prevention of underage sales (e.g., the company
trains new employees thoroughly regarding the laws and company policies
governing the sale of beer and/or wine and reiterates that training frequently);
and,
(4)
methods of monitoring whether its employees are complying with the laws and
company policies related to the sale of beer and/or wine (e.g., the company
operates a "secret shopper" program that checks its stores and the
company's managers review samples of the video surveillance of each cashier's
shift on a daily basis).
These efforts
are indicative of 130 Rutledge’s commitment to prevent the sale of beer and/or
wine to underage individuals and are relevant for determining the appropriate
penalty to be imposed in this matter.
CONCLUSIONS
OF LAW
Based
upon the foregoing Stipulated Facts 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 beer and wine. S.C. Code Ann. §
61-2-20 (Supp. 2004).
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. 2004). Respondent 130 Rutledge 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. 2004).
Pursuant to such authority, the Department may suspend or revoke a beer and
wine permit if the permittee has knowingly sold beer and/or wine to a person
under twenty-one years of age. S.C. Code Ann. § 61-4-580(1) (Supp. 2004); 23
S.C. Code Ann. Regs. 7-200.4 (Supp. 2004); see also S.C. Code Ann. §
61-4-270 (Supp. 2004) (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/or
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/or wine to minors. S.C. Code Ann. § 61-4-250 (Supp. 2004). For retail beer
and wine permittees, this monetary penalty must be no less than $25 and no
greater than $1,000. Id.
4.
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).
5.
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).
6.
However, Respondent should be reminded that the purpose of the
statutory prohibition against selling beer and/or wine 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 beer and/or wine to an
underage individual is a serious offense and cannot be taken lightly. Further,
it should be noted that 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, beyond satisfying
the penalty imposed in this matter, Respondent is advised to make every effort
to prevent such sales in the future, as the failure to do so may subject it to
more severe penalties in the event of a future violation.
ORDER
Based
upon the Stipulated Facts, 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. 2004) within three years, the Department shall IMPOSE upon Respondent a fine of one thousand dollars ($1000.00).
AND
IT IS SO ORDERED.
__________________________________
JOHN
D. MCLEOD
Administrative
Law Judge
May 1, 2006
Columbia, South Carolina
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