ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks a 45 day suspension of the beer and wine
permit of Little Giant Food Stores, Inc (Little Giant). Little Giant asserts that a sanction of a 45 day
suspension is too severe. Jurisdiction is in the Administrative Law Judge Division. S.C. Code Ann.
§ 61-2-260 (Supp. 2002); S.C. Code Ann. Sec. 1-23-310 et. seq. (Rev. 1986 and Supp. 2002).
A hearing was held May 20, 2003 in Columbia, South Carolina. Based upon the evidence and the
argument presented, Little Giant shall pay a fine of $500 and its permit is suspended for 30 days with
the suspension beginning on the tenth day following the date of this order.
II. Issue
What is the appropriate penalty for Little Giant's violation of S.C. Code Ann. 61-4-580(1) (Supp.
2002) and S.C. Code Ann. Regs. 7-9(B) (Supp. 2002) for selling or allowing possession of beer or
wine to a person under 21 years of age?
III. Analysis
Penalty for Sale to an Underage Person
1. Positions of Parties
DOR asserts a sale to an underage individual occurred and that the sale was made knowingly. DOR
further argues that this is the third sale to an underage individual within a period of three years.
Given the violations, DOR seeks a sanction of a 45 day suspension.
Little Giant does not disagree with the assertion that a violation occurred. Rather, Little Giant argues
it has undertaken extensive measures to eliminate any future violations such that the current violation
should not result in a 45 day suspension.
2. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Little Giant holds a beer and wine permit in use at 684 Heckle Blvd., Rock Hill, South Carolina. On
October 17, 2002, an undercover cooperating individual (UCI) working with SLED entered the
location. On that date, the UCI was 18 years old.
After entering the store, the UCI picked up a 24 ounce container of beer and brought the beer to the
counter. The employee at the counter was an employee of Little Giant. The employee asked for
identification and received a driver's license from the UCI. The driver's license showed the UCI's
correct name and birth date and revealed that the UCI was not yet 21. The employee examined the
license, returned it to the UCI, took the UCI's money, delivered the beer to the UCI, and, thus,
completed the sale. The UCI left the store with the purchased beer.
Past sales to other individuals under the age of twenty-one have occurred at this same location. Such
sales were made on February 8, 2001 (fine paid of $400) and December 3, 2001 (fine paid of $800).
Thus, the sale to the UCI on October 17, 2002 was the third violation within less than two years.
Having recognized its past deficiencies, Little Giant has increased its efforts to eliminate sales to
underage individuals. For example, further training has been provided to all employees with such
training designed to prevent sales to underage parties. Plans are in place for future training by SLED
of all company employees so as to prohibit sales to minors. Current practices include the placement
of signs throughout the store notifying all customers that identification and verification of age will
be required for beer and wine purchases. Management is continuing to enforce awareness of the beer
and wine laws on all employees.
3. Conclusions of Law
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
Any party operating under a beer and wine permit who knowingly sells beer or wine to a person
under twenty-one years of age creates a ground for a sanction of a monetary penalty or suspension
or revocation of the holder's permit. S.C. Code Ann. § 61-4-580(1) (Supp. 2002); S.C. Code Ann.
Regs. 7-9(B) (Supp. 2002). Here, Little Giant challenges only the penalty.
In the final analysis, the decision of what monetary fine, or suspension, or revocation, or some
combination, is to be imposed is one for the Administrative Law Judge as the fact-finder. Walker v.
South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). The instant violation is the
third in a period of less than two years. Such repeated sales present a serious concern since "a rule
forbidding a licensee of the [DOR] to facilitate consumption of alcohol by a minor is designed to
protect both the minor who consumes the alcohol and those members of the public likely to be
harmed by the minor's consumption of that alcohol." Norton v. Opening Break of Aiken, Inc.,313
S.C. 508, 443 S.E.2d 406, 408 - 409 (Ct. App. 1994). When repeated violations of sales to persons
under twenty-one occur in a period as short as two years, a significant sanction is proper to foster
protection of the public at large and minors in particular. In addition, the past performance of this
location demonstrates that monetary fines alone are insufficient to halt the violations. Accordingly,
in this case a $500 fine and a thirty day suspension is imposed with the suspension beginning on the
tenth day following the date of this order.
In this case a suspension of less than 45 days is warranted. Management is concerned with the illegal
sales and has taken meaningful steps to eliminate future violations. For example, following earlier
violations, more extensive training is now being provided to prevent sales to underage parties. In
addition, SLED is being invited to provide training to the employees as well. Further, the use of signs
notifying all customers of the need for age verification are being emphasized and enforced. Given the
meaningful and renewed efforts to comply with the law and the need of the permit holder to rely upon
proper actions of employees, a $500 fine and a 30 day suspension is imposed.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
Little Giant shall pay a fine of $500 and its permit shall be suspended for 30 days with the suspension
beginning on the tenth day following the date of this order.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: May 22, 2003
Columbia, South Carolina |
