ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to the request of Mahesh Patel, d/b/a Mike’s Food and
Beverage (“Respondent”) for a contested care hearing pursuant to an administrative violation
regarding the off-premises beer and wine permit for the Respondent’s premises located at 631 Whaley
Street, Columbia, SC, 29201 (“location”). The South Carolina Department of Revenue
(“Department”) contends that Respondent permitted the purchase of beer by a person under the age
of twenty-one, in violation of S.C. Code Ann. § 61-4-580(1)(Supp. 2002) and 23 S.C. Code Ann.
Regs. 7-9(B) (Supp. 2002)
, for the third time in a three-year period. For this violation, Department
seeks a forty-five (45) day suspension of Respondent’s off-premises beer and wine permit.
After notice to the parties, a hearing was conducted on September 10, 2003, at the
Administrative Law Judge Division (“Division”), Columbia, South Carolina. This matter had been
previously set for hearing on July 22, 2003, at which time the parties stipulated on the record to the
occurrence of the violation. However, at the request of counsel for Respondent, and without
objection by the Department, the matter was continued until September 10, 2003, for a hearing on
the penalty to be imposed for this violation. Based upon testimony and the evidence presented, I find
that Respondent’s off-premises beer and wine permit should be suspended for a period of forty (40)
days, commencing on September 22, 2003, for violating S.C. Code Ann. § 61-4-580 (1)(Supp. 2002)
and 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002).
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. The Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all
parties.
3. Respondent holds a permit to sell beer and wine for off-premises consumption (Permit
No. 32025270-PBG) for its business location at 631 Whaley Street, Columbia, South Carolina,
29201.
4. Respondent, Mahesh Patel, is the sole owner of the location. Other than himself,
the location has two employees, Mr. Patel’s wife, and George Harris. Mr. Harris has been employed
at the location for two years.
5. As stipulated by Respondent, on August 22, 2002, SLED agents conducted an
investigation of Respondent’s business at the permitted location. SLED Agent Marvin Brown
provided $2.00 to an Underage Confidential Informant (“UCI”), who was seventeen years old at the
time. The UCI entered Respondent’s store, picked up a sealed twenty-two ounce bottle of Bud Light
beer from the cooler at the rear of the store, and took it to the clerk on duty at the register. The
clerk, George Harris, asked the UCI for identification. The UCI handed Mr. Harris his South
Carolina’s driver’s license, which showed him to be seventeen years of age. Mr. Harris looked at the
license, but made the sale nonetheless. The UCI exited the store and carried the beer to Agent
Brown.
6.Agent Brown issued a Violation Report to Respondent for violation of 23 S.C. Code
Ann. Regs. 7-9(B) (Supp. 2002), permitting the purchase of beer by a person under the age of
twenty-one. Agent Brown also issued a Uniform Traffic Ticket to Mr. Harris for a violation of S.C.
Code Ann. § 61-4-90 (Supp. 2002), transfer of beer to a person under the age of twenty-one.
7.Respondent has had two prior violations within a three-year period at the permitted
location for permitting an underage person to purchase beer or wine. The first violation occurred on
July 19, 2001. Respondent paid a monetary penalty of Four Hundred Dollars ($400.00) for that
violation. The second violation occurred on January 14, 2002. For that violation, Respondent paid
a monetary penalty of Eight Hundred Dollars ($800.00).
8.The Department issued a final determination on October 25, 2002, sustaining the
violation of S.C. Code Ann. § 61-4-580 (1)(Supp. 2002) and 23 S.C. Code Ann. Regs. 7-9(B) (Supp.
2002) and seeking to suspend Respondent’s beer and wine permit for forty-five (45) days.
Respondent timely appealed the determination, and the matter was transmitted to the Division for a
contested case hearing.
9. On August 28, 2003, Respondent contacted SLED Agent John Kirkland for a training
session on preventing sales to underage individuals. As a result of this training session, Respondent
obtained a copy of a 2003 I.D. checking guide. Respondent also has its Store Policy on the sales of
alcohol and tobacco products posted.
CONCLUSIONS OF LAW
Based upon the above-listed findings of fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the Division to hear
contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260
(Supp. 2002) grants the Division the authority to hear contested case hearings in matters governing
alcoholic beverages, beer, and wine.
2.The Department is charged with the responsibility of administering and enforcing the
laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 2002).
3.The parties stipulate, and I find, that Respondent violated S.C. Code Ann. § 61-4-580
(1)(Supp. 2002) and 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002) by permitting the purchase of
beer by a person under the age of twenty-one. Regulation 7-9(B) provides:
To permit or knowingly allow a person under twenty-one years of age to purchase or
possess or consume beer or wine in or on a licensed establishment which holds a
license or permit issued by the South Carolina department is prohibited and
constitutes a violation against the license or permit. Such violation shall be sufficient
cause to suspend or revoke the license or permit by the department.
23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002).
Further, S.C. Code Ann. § 61-4-580(1)(Supp. 2002) provides:
No 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.
S.C. Code Ann. § 61-4-580(1)(Supp. 2002).
4.The Department has jurisdiction to revoke or suspend permits authorizing the sale of
beer or wine. S.C. Code Ann. § 61-4-590 (Supp. 2002). The Department may suspend or revoke
a beer and wine permit if the permittee has knowingly sold beer or wine to a person under the age of
twenty-one. S.C. Code Ann. §§ 61-4-580 (Supp. 2002); 23 S.C. Code Ann. Regs. 7-9(B) (Supp.
2002). See also S.C. Code Ann. § 61-4-270 (Supp. 2002) (authorizing the Department to “revoke
the permit of a person failing to comply with any requirements” in Chapter 4 of Title 61). Further,
the Department may exercise this authority to suspend or revoke a permit for a first violation of the
prohibition against selling beer and wine to minors. See S.C. Code Ann. §§ 61-4-270, 61-4-580, and
61-4-590 (Supp. 2002); 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002). In lieu of such suspension
or revocation, the Department may, in its discretion, impose a monetary penalty upon the holder of
a beer or wine permit. S.C. Code Ann. § 61-4-250 (Supp. 2002). For retail beer and wine
permittees, this monetary penalty must be no less than $25 and no greater than $1,000. Id.
5.The Department’s Revenue Procedure 95-7 sets forth penalty guidelines for violations
of the statutes and regulations governing the sale, distribution, and possession of alcohol, beer, and
wine. For retail beer and wine permits, Revenue Procedure 95-7 provides for a $400 fine for the first
offense, an $800 fine for the second offense, a forty-five (45) day suspension of the permit for the
third offense, and revocation of the permit for the fourth offense. This Revenue Procedure only
provides guidance to the Department; it is not law and thus is not binding on the Division.
6.It is a generally recognized principle of administrative law that the fact finder has the
authority to determine an appropriate administrative penalty, within the statutory limits established
by the legislature, after the parties have had an opportunity for a hearing on the issues. See, e.g.,
Walker v. S.C. ABC Comm’n, 305 S.C. 209, 407 S.E.2d 633 (1991). Further, in assessing a penalty,
the finder of fact “should give effect to the major purpose of a civil penalty - deterrence.” Midlands
Util., Inc. v. S.C. Dep’t of Health & Envtl. Control, 313 S.C. 210, 212, 437 S.E.2d 120, 121 (Ct.
App. 1993).
7.The purpose of the statutory prohibition against selling alcohol to underage individuals
is to protect both the underage individuals who purchase the alcohol and the public at large from the
possible adverse consequences of such purchases. Norton v. Opening Break of Aiken, Inc., 313 S.C.
508, 443 S.E.2d 406 (Ct. App. 1994), aff’d 319 S.C. 469, 462 S.E.2d 861 (1995); Whitlaw v. Kroger
Co., 306 S.C. 51, 410 S.E.2d 251 (1991). The sale of alcohol to an underage individual is a serious
offense and cannot be taken lightly.
8.A permit to sell beer and wine is neither a contract nor a property right. Rather, it is
merely a permit to do what otherwise would be unlawful to do, and is to be enjoyed only so long as
the restrictions and conditions governing its continuance are complied with. Feldman v. S.C. Tax
Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). Accordingly, there are legal consequences for a
permittee’s noncompliance with the alcoholic beverage laws of this State.
9.In this case, Respondent has not shown that he has taken any additional steps to
ensure that its employees comply with the laws and regulations regarding the sale of alcohol to
minors, both before and after the violation at issue in this case. Although Respondent has a store
policy on the sale of alcoholic beverages to underage individuals which has been posted in the
location at all times, violations of this policy occurred on three occasions. In addition, Respondent
had a 2001 edition of the I.D. checking guide available to his employees, yet three violations for
selling alcohol to an underage individual have occurred at this location. Respondent did contact
Agent Kirkland for a training session on preventing the sale of alcohol to underage persons. However,
as a result of this training session, Respondent did not implement any additional precautions or
safeguards other than those which he already had in place to ensure that no more violations occurred.
Furthermore, Respondent waited until August 28, 2003, a little over a month after the first scheduled
hearing in this matter, to contact Agent Kirkland for a training session.
10.For the reasons stated above, I find that a forty (40) day suspension of Respondent’s
beer and wine permit at the subject location is appropriate in this case.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that Respondent’s beer and wine permit (Permit No.
32025270-PBG) for the business located at 631 Whaley Street, Columbia, South Carolina, be
suspended for a period of forty (40) days, commencing on September 22, 2003, for Respondent’s
third violation of S.C. Code Ann. § 61-4-580(1)(Supp. 2002) and 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 2002).
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
September 16, 2003
Columbia, South Carolina |
