ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to
S.C. Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2001). The South Carolina Department of
Revenue (Department) seeks a forty-five (45) day suspension of the Respondent’s beer and wine
permit for its third violation of 23 S.C. Code Ann. Regs. 7-9 (Supp. 2001). A hearing was held
before me on February 4, 2003 at the offices of the Division in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the parties, I make the
following Findings of Fact by a preponderance of the evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner and the Respondent.
2.The Respondent, Chetan S. Patel, holds an off-premises beer and wine permit for
the By Pass Quick Mart (Quick Mart). The store is located at 109 15-401 Bypass, Bennettsville,
South Carolina.
3.On March 25, 2002, an underage cooperating individual (UCI) entered the Quick
Mart. The UCI carried only his identification and money into the store. While inside the store,
the UCI handed money and a one pint can of “Bud Ice” directly to the clerk, Mr. Antani. The
clerk then sold the beer to the UCI. Mr. Antani did not request to see the UCI’s identification
which stated the UCI’s correct age. He also did not ask the UCI his age. At the time of this
violation, the UCI was sixteen (16) 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 23 S.C. Code Ann. Regs. 7-9 (Supp.
2001). The Respondent has two previous violations of the laws regulating its beer and wine
permit within three years of March 25, 2002. Both of those violations were for permitting an
underage person to purchase beer. The Respondent paid a $400.00 fine for the first violation and
an $800.00 fine for the second violation. On July 10, 2002, the Department imposed a forty-five
(45) day suspension for the violation in this case.
5.After the Respondent was cited for the third violation, he required that his
employees receive the training provided by SLED concerning the sale of alcoholic beverages.
Since his employees have received that training, he has not had any other citations. Also, his
employees are constantly reminded to check identification.
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).
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 imposed a forty-five (45) day suspension of the
Respondent’s beer and wine permit for a third violation of 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 2001) within the past three 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).
In the present case, the Respondent’s clerk knowingly sold beer to an individual under the
age of twenty-one (21). As mitigation, the Respondent presented evidence that he now requires
his employees to undergo SLED training and reminds them of the importance of checking the
identification of patrons. Additionally, the Respondent has not had any other citations in the past
year. However, though the Respondent did have his employees trained by SLED, that training
occurred after the violation in this case.
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 forty-five (45) days.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
May 1, 2003
Columbia, South Carolina |
