ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp.
2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code Ann. §§
1-23-310 et seq. (2005) for a contested case hearing. Petitioner South
Carolina Department of Revenue (Department) contends that Respondent Rowko,
Inc. (Rowko) knowingly permitted an underage individual to purchase beer from
its convenience store and service station located at 590 Highway 72 Bypass West
in Greenwood, South Carolina, in violation of 23 S.C. Code Ann. Regs. 7-200.4
(Supp. 2005). For this third such violation within as many years, the Department
seeks to suspend Rowko’s off-premises beer and wine permit for the location for
a period of forty-five days. In response, Rowko 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 April 19,
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 Rowko’s violation is a twenty-one-day
suspension of its off-premises beer and wine permit and the imposition of a
$1000 fine upon Rowko.
STIPULATED
FACTS
Pursuant
to ALC Rule 25(C) and Rule 43(k), SCRCP, the parties submitted Stipulations of
Fact to the Court at the hearing of this matter. These Stipulations are hereby
incorporated into this Order by reference. In the nine Stipulations, the
parties describe the circumstances giving rise to the violation in question and
acknowledge both the current and prior violations committed by Rowko.
Specifically,
the parties stipulated that, at approximately 1:43 p.m. on Thursday, April 7,
2005, Deanna Horne, an employee of Respondent Rowko, sold a 24-ounce Bud Light
beer to an eighteen-year-old Underage Cooperating Individual (UCI), who was
working with agents of the South Carolina Law Enforcement Division (SLED). At
the time of the sale, Ms. Horne was working as a cashier at Rowko’s gas station
and convenience store at 590 Highway 72 Bypass West in Greenwood, South
Carolina. The parties further stipulated that Ms. Horne asked for, and
examined, the UCI’s driver’s license, which indicated that his date of birth
was “07-21-1986,” but nevertheless completed the sale of the beer to the UCI.
Beyond describing the incident, the parties also agreed that the sale of the
beer constituted a knowing violation of South Carolina law and that the
violation was Rowko’s third such violation within a three-year period, with
prior violations for the sale of beer to an underage person occurring on July
11, 2003, and January 7, 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. Rowko,
Inc., is a corporation owned by Robert Knox that operates a gas station,
convenience store, and car wash, known collectively as Gas Plus, located at 590
Highway 72 Bypass West in Greenwood, South Carolina. Rowko holds a permit to
sell beer and wine for off-premises consumption from its convenience store, and
has held such a permit since opening the store in 1987.
2. Rowko
has made good-faith efforts to prevent the sale of alcoholic beverages to
underage individuals. It provides in-house training on the sale of alcoholic
beverages to its employees, both at the time of hire and in reminder forms
reviewed by the employees every two weeks. It also supplies its employees with
resources to ensure that they do not make sales of alcoholic beverages to
underage persons; these resources include a “Ruby” cash register system that
requires age verification for sales of alcoholic beverages, a book showing
out-of-state driver’s licenses, and a calendar behind the register listing the
date before which a customer must have been born in order to purchase alcoholic
beverages. Further, Rowko has instituted a company policy requiring cashiers
to check for identification from any person purchasing alcoholic beverages who
appears to be under thirty years old, and has posted signs in the store stating
its identification policy and its refusal to sell alcoholic beverages to
underage persons.
3. In
his testimony at the hearing of this case, Mr. Knox further stipulated that he
would be willing to provide training to his employees regarding the sale of
alcoholic beverages from a Department-recognized training program.
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 alcoholic beverages, including beer and
wine. S.C. Code Ann. § 61-2-20 (Supp. 2005).
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 year[s] of age to
purchase or possess or consume alcoholic liquors, 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 or permit by the Department.
23 S.C. Code
Ann. Regs. 7-200.4 (Supp. 2005). Respondent Rowko 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.
2005). Pursuant to such authority, the Department may suspend or revoke a beer
and wine permit if the permittee has knowingly sold beer or wine to a person
under twenty-one years of age. S.C. Code Ann. § 61-4-580(1) (Supp. 2005); 23
S.C. Code Ann. Regs. 7-200.4 (Supp. 2005); see also S.C. Code Ann. §
61-4-270 (Supp. 2005) (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 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 wine to minors. S.C. Code Ann. § 61-4-250 (Supp. 2005). For retail beer
and wine permittees, this monetary penalty must be no less than $25 and no
greater than $1,000. Id.
4. S.C. Revenue Procedure 04-4 (2004) sets forth the Department’s
penalty guidelines for violations of the alcoholic beverage control laws. For
retail beer and wine permits, Revenue Procedure 04-4 provides for a $500 fine
for the first violation by a permittee, a $1000 fine for the second violation,
a forty-five-day suspension of the permit for the third violation, and
revocation of the permit for the fourth violation. However, this document does
not set binding norms for the Department, but rather only provides guidance to
the Department in assessing penalties for violations of the alcoholic beverage
control laws. See Revenue Procedure 04-4, at 2 (“These are guidelines
only and this advisory opinion does not establish a binding norm.”). As such,
Revenue Procedure 04-4 is not law and thus is not binding upon this Court. Cf. Home Health Serv., Inc. v. S.C. Tax Comm’n, 312 S.C. 324, 328, 440
S.E.2d 375, 378 (1994) (holding that “whether a particular agency proceeding
announces a rule or a general policy statement depends upon whether the agency
action establishes a binding norm”) (citing Ryder Truck Lines, Inc. v.
United States, 716 F.2d 1369 (11th Cir. 1983)).
5. 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).
6. 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).
7. However, Respondent should be reminded that the purpose of the
statutory prohibition against selling alcohol 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 alcohol 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
against its beer and wine permit within three years, the Department shall SUSPEND Respondent’s off-premises beer and wine permit for its Gas Plus convenience
store located at 590 Highway 72 Bypass West in Greenwood, South Carolina, for a
period of twenty-one (21) days and shall ASSESS a fine of one thousand
dollars ($1000.00) upon Respondent.
IT IS FURTHER ORDERED that, within sixty (60) days of the date of
this Order, Respondent must secure training for its employees in sales of
alcoholic beverages under one of the training programs recognized by the
Department. See S.C. Information Letter 06-5 (2006) (listing five
recognized training programs for alcoholic beverage sales).
AND IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205
Pendleton Street, Suite 224
Columbia,
South Carolina 29201-3731
May 18, 2006
Columbia, South Carolina |
