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. A hearing was held before me on May 20, 2003, at the offices of the Division.
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, BMC Distributors of South Carolina (BMC), holds of an off-premise beer and wine permit for a convenience store located at 2941 West Montague Avenue,
North Charleston South Carolina.
3.On July 17, 2002, agents of the North Charleston Police Department performed an
undercover inspection of BMC. On that date, an underage cooperating individual (UCI) entered
the location. The UCI carried only his identification and money into the store. While inside the
store, the UCI handed money and six twelve-ounce cans of “Bud Light” to the store’s clerk, Faith
Anderson. The clerk requested to see the UCI’s identification which stated the UCI’s correct age
and then sold the beer to the UCI. 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 two
previous violations of the laws regulating its beer and wine permit within three (3) years of July
17, 2002. Both 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.December 6, 2001- the Respondent paid a $400.00 fine; and
b.May 8, 2002 - the Respondent paid an $800.00 fine;
On December 5, 2002, the Department issued its Final Determination Letter in which it suspended
BMC’s permit for forty-five (45) days.
5.The Respondent argues that though this violation occurred, BMC goes to great
lengths to prevent such violations. When employees are hired at a BMC store, they receive
explicit training in the laws concerning the sale of beer/wine products and the impacts of making
an unlawful sale to an under-aged person. The employees are required to acknowledge BMC’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. Anderson acknowledged those policies and was promptly
terminated for selling the beer to the UCI.
Additionally, after the first violation (December 6, 2001), BMC fired the clerk who
permitted that violation. After the second violation (May 8, 2002), BMC fired every employee
including the managers at the location. BMC then transferred an experienced manager from
another store to operate the West Montague Avenue location in order to prevent further permit
infractions. The new manager hired all new staff. He explicitly instructed the staff, and Ms.
Anderson in particular, on numerous occasions not to sell beer or wine to minors and the impacts
of making such sales to the company and them personally. BMC’s Business Supervisor, Mr. Fort,
also requested that the North Charleston Police assist them in educating their employees
concerning the sale of beer/wine and the impacts of an improper sale of beer or wine to a minor.
North Charleston Officer Danny Beecham conducted a training seminar at the West Montague
Avenue location.
Furthermore, BMC has a “Card Com” machine at the register. Employees are instructed
to use that device every time a sale of beer or wine is made. That device allows the clerk to
simply scan 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 beer or wine, a red light
will appear. Additionally, the register requires that a clerk enter a date of birth before making a
sale of beer or wine. If a correct date of birth is not entered, the register will not complete the
transaction. However, the register can be overridden. Finally, the Respondent also has its
managers attend SLED training when offered if they are available 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.The Department is vested with the authority to administer the provisions of Title
61 governing alcoholic beverages, beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 2001). 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 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.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 suspended the Respondent’s beer and wine permit for
forty-five (45) days for a third violation of Regulation 7-9(B) 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 third 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 penalty was an $800.00
fine. Therefore, I find that in light of the extraordinary facts of this case that there are sufficient
mitigating circumstances to merit a suspension of the Respondent’s permit for a period of less
than the forty-five (45) days the Department is seeking.
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 fifteen (15) days.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
June 12, 2003
Columbia, South Carolina |
