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. 2005). 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 June
14, 2006, at the offices of the Administrative Law Court.
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. Tommy
Enterprises 1, Inc., d/b/a Tommy’s Superette is the holder of an on premises
beer and wine permit for the location at 320 South Irby Street in Florence, SC
29501.
2. Christine
Pace was an employee and/or agent of the Licensee on December 19, 2005 and was
working at the location as a cashier.
3. On Monday,
December 19, 2005 at approximately 3:28 PM Christine Pace knowingly allowed an
Underage Confidential Information (“UCI”) who was working with SLED to purchase
one 24 ounce Bud Light beer for $1.16 in State issued funds.
4. The UCI is a
white female who was 17 years of age at the time of the sale.
5. The clerk,
Christine Pace, an employee of the Licensee, did not check the UCI’s driver’s
license or ask her age and made the sale.
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). The license states that the UCI’s date of birth is 10-10-1988.
7. Ms.
Christine Pace was served with a criminal citation pursuant to SC Code Ann.
Section 61-4-90 and the Licensee 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.
8. That the
foregoing constitutes a knowing regulatory violation by the Licensee against
the laws of the State of South Carolina.
9. The
foregoing offense is the third offense against the Licensee within a 3 year
time period. The first offense against the licensee occurred on March 21, 2005
for permitting games of chance on the licensed premises and the second offense
occurred on October 25, 2005 for permitting games of chance on the licensed premises.
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. Tommy
Enterprises has been operating convenience stores in South Carolina for over 35
years. Tommy’s Superette (Tommy’s) has been in operation for about 20 years.
They have a strict policy against the sale of beer or wine to minors and in all
the years of this business the company has not been cited for selling beer or
wine to a minor. Furthermore, their employees are informed that if they make an
illegal sale to an underage person they will be immediately fired. Consequently,
the employee who made the sale in this case was fired the day after she sold a
beer to the UCI.
Tommy’s also attempts
to discourage illegal sales through their training. Training usually lasts
three days and employees are required to read and sign an ABC sheet informing
them of the laws on alcohol sales and penalties for violating such laws. In
the future, Tommy’s Superette plans to train all 14 cashiers through an outside
program called TOAST.
3. The
employee who sold the beer in this case was only in her second day of employment
and training when she sold a beer to the UCI. The manager who was training her
was called to the back office for a period of about ten (10) minutes to address
a cash register shortage. It was during that time Ms. Pace sold the beer. Ms.
Pace had been instructed to punch the “beer” button on the cash register when
making a beer or wine sale, which would have required that she enter the birth
date of the purchaser. However, she struck the “grocery” button and completed
the sale without requesting identification from the customer. It is the policy
of Tommy’s Superette to reprimand employees who circumvent the “beer” key in
order to get around entering a birth date. Ms. Pace was also instructed not to
sale beer or wine to anyone appearing under the age of the age of thirty (30).
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. 2005) grants jurisdiction to the Court to hear
contested cases under the Administrative Procedures Act. Specifically, S.C.
Code Ann. § 61-2-260 (Supp. 2005) 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. 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). Furthermore, 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).
5. The
Department seeks 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. Where the General Assembly
authorizes a range of alternatives for an administratively imposed penalty, the
administrative fact-finder may set the amount of the penalty after a hearing on
the dispute. Walker v. South Carolina ABC Comm'n, 305 S.C. 209,
407 S.E.2d 633 (1991). 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).
Here,
the Department, and therefore the ALC, has jurisdiction to “revoke or suspend
permits authorizing the sale of beer or wine.” S.C. Code Ann. § 61-4-590
(Supp. 2004). Furthermore, in lieu of suspension or revocation, a beer and
wine permittee may be fined not less than twenty five dollars nor more than one
thousand dollars for an infraction against Title 61, Chapter 4 or “for a
violation of any regulation pertaining to beer or wine and wine.” S.C. Code
Ann § 61-4-250 (Supp. 2004). See also, S.C. Code Regs. 7-702.1. The fine may
range from twenty-five dollars to one thousand dollars for retail beer and wine
licensees. Id.
In the present case, the Respondent violated the provisions
of Regulation 7-200.4 by permitting the purchase of beer by an individual under
the age of twenty-one (21). Moreover, despite Respondents efforts to screen
and train its employees, those efforts did not prevent this violation from
reoccurring. Nevertheless, Respondent promptly terminated the offending
employee. Furthermore, Respondent’s employee had just been instructed how to
properly sale beer or wine and failed to follow those instructions during a
very limited absence of her supervisor. Finally, though this is a third
violation against Respondent’s permit in a three year period, there is no
history of this location making beer or wine sales to underage individuals in
the past.
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 ten
(10) days.
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
July 13, 2006
Columbia, South Carolina
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