SC Administrative Law Court Decisions

3. On April 18, 2002, an underage cooperating individual (UCI) entered the Food Mart. The UCI carried only his identification and money into the store. While inside the store, the UCI handed money and a twenty-four (24) ounce can of “Icehouse” to the store’s clerk, Judy Adkins. The clerk then sold the beer to the UCI. However, the clerk did not request to see the UCI’s identification which stated the UCI’s correct age. She also did not ask the UCI his age. At the time of this violation, the UCI was nineteen (19) years old and did not appear to be over the age of twenty-one (21). I find that the Respondent violated the provisions of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001) by permitting the purchase of beer by an individual under the age of twenty-one (21).

4. The Respondent was issued an administrative citation for permitting the purchase of beer by a person under twenty-one (21) in violation Regulation 7-9. The Respondent has three (3) previous violations of the laws regulating its beer and wine permit within three (3) years of April 18, 2002. All of those violations were for permitting an underage person to purchase beer. The dates of those violations and the punishments received were as follows:

a. October 14, 1999. The Respondent paid a $400.00 fine;

b. July 17, 2000. The Respondent paid an $800.00 fine; and

c. January 6, 2001. The Respondent received a ten (10) day suspension and paid a $2,500.00 fine.

On August 7, 2002, the Department revoked the Respondent’s permit for the violation in this case.

5. The Respondent argues that though this violation occurred, Wilkerson goes to great lengths to prevent such violations. When employees are hired at a Wilkerson store, they receive and are required to acknowledge Food Mart’s policies and procedures concerning the sale of beer or wine. Those policies provide, in part, that employees must “i.d.” every purchase of beer or wine to prevent the sale of alcoholic beverages to an underaged person and that any employee who sells beer or wine to a person under the age of twenty-one (21) will be fired. Ms. Adkins acknowledged those policies and though she worked there for approximately four (4) years, she was promptly terminated for selling the beer to the UCI.

The Respondent also requires that his employees watch a video tape which instructs the employees in the requirements of lawfully selling beer and wine. The employees also must read an “associate training manual” which further instructs employees in the requirements to lawfully sell beer and wine. After receiving the training, the employees must sign a written agreement that provides, in part, that:

·                      Employees are prohibited from selling beer or wine to anyone under the age of twenty-one (21);

·                      Employees must “i.d.” any customer who does not clearly appear to be over the age of thirty (30) years old before selling beer or wine with a valid driver’s license;

·                      The employee understands that their activities are monitored by state and local law enforcement; and

·                      An employee who commits any infraction concerning the sale of beer or wine could be immediately fired.

Ms. Adkins received this training. Additionally, there are signs posted at various locations throughout Food Mart declaring its “no-sale-to-minors” policy. Furthermore, Food Mart has a register that scans the driver’s license to verify the customer is old enough to purchase beer or wine. If the machine determines that the individual is not old enough to purchase the beer or wine, the register will stop the sale. However, the register can be overridden and the manager was not sure that machine was in place when the violation in this case occurred. Finally, the Respondent also has its employees attend SLED training when offered if the employee is not working at the time of the training.

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. 2001) grants jurisdiction to the Division to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2001) grants the Division 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. 2001) 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 7-9 (B) further provides that:

To permit or knowingly allow a person under twenty‑one years of age to purchase or possess or consume alcoholic beverages in or upon a licensed establishment which holds a license issued by the South Carolina Alcoholic Beverage Control Commission for the sale and consumption of alcoholic beverages in sealed containers of two (2) ounces or less is prohibited and constitutes a violation against the license. Such violation shall be sufficient cause to suspend or revoke the license by the Alcoholic Beverage Control Commission.

(Emphasis added). Accordingly, Regulation 7-9 (B) 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).^[1] Therefore, I conclude that the language in Regulation 7-9 (B) insures that the permittee cannot seek to avoid the consequences of a violation for lack of personal knowledge because the permittee is responsible for the acts of his servants, agents, or employees.

4. In this case, the Department revoked the Respondent’s beer and wine permit for a fourth violation of S.C. Code Ann. Regs. 7-9(B) (Supp. 2001) within the past three (3) years. See Revenue Procedure 95-7. The Administrative Law Judge Division, 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).

The sale of beer to underaged persons threatens the safety and welfare of our society. Accordingly, violations of this Regulation 7-9 cannot be treated with indifference, especially given that this is the Respondent’s fourth violation within the past three (3) years at this location. Nevertheless, the Respondent has made exceptional efforts to deter his employees from selling beer or wine to underaged persons. Moreover, the Respondent’s previous suspension was limited to ten (10) days. Therefore, I find that in light of the extraordinary facts of this case there are sufficient mitigating circumstances to merit a suspension of the Respondent’s permit rather than revocation. However, I strongly caution the Respondent that any future violations should most certainly result in revocation of its beer and wine permit.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Respondent’s beer and wine permit is suspended for one hundred twenty (120) days.

AND IT IS SO ORDERED.

___________________________

Ralph King Anderson, III

Administrative Law Judge

May 6, 2003

Columbia, South Carolina