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. 2002). 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. 2002) and S.C. Code Ann.
§61-4-580 (Supp. 2002). A hearing was held before me on September 10, 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, Mr. Bunky’s Market, Inc., holds an off-premises beer and wine
permit for Mr. Bunky’s Market. The store is located at 10441 Garner’s Ferry Road, Eastover,
South Carolina.
3.On May 7, 2002, an underage cooperating individual (UCI) entered Mr. Bunky’s.
The UCI carried only his identification and money into the store. While inside the store, the UCI
handed money and a 24 oz. can of “Bud Light” directly to the clerk, Candace C. Hendrix. The
clerk asked the UCI for his identification, and the UCI handed her his driver’s license which stated
his correct age of sixteen. After looking at the UCI’s license, the cashier sold him the beer. The
Parties stipulated that the Respondent violated the provisions of 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 2002) by permitting the purchase of beer by an individual under the age of twenty-one
(21), and that it was the third violation. The only point in contention is the penalty.
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.
2002). The Respondent’s two previous violations of the laws regulating its beer and wine permit
were for permitting an underage person to purchase beer. The Respondent paid a $400.00 fine
for the first violation on June 12, 2000 and an $800.00 fine for the second violation on December
14, 2001. On July 25, 2002, the Department imposed a forty-five (45) day suspension for the
violation in this case, and the Respondent requested an Administrative Hearing on the suspension.
5.After the Respondent was cited for this third violation, he arranged for CITGO to
provide training to his employees to prevent the sale of alcohol to minors. In addition, shortly
after this violation, the Respondent had new cash registers installed which require that the cashier
manually enter the purchaser’s birth date into the register to complete the sale. If the purchaser is
not over twenty-one years of age, the sale will not be completed.
6.Mr. Bunky’s Market is a general mercantile store and restaurant. It is actually
several stores that sell animal feed, hardware, meat, hamburgers and hot dogs, etc. Hansel Carter,
the owner of Mr. Bunky’s, testified that it is not a “teenage hangout.” The store has enjoyed a
good relationship with local law enforcement for many years. In addition to the CITGO training
and new cash registers, he required the cashier who sold the beer at this and the previous
violations to pay the fine. Each violation has occurred during a busy time in the store when the
cashiers were rushing to complete the sale to help other customers.
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. 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 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. 2002) 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. 2002) 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).
The Respondent’s testimony that the store is not a teenage hangout is compelling. There
are no video games or other entertainment to entice under-age individuals. The store is not a
tavern, nightclub or even a convenience store that may be attractive to teenagers. Based on these
facts, and the steps the Respondent has taken to prevent another violation, the suspension of the
Respondent’s permit for forty-five days seems excessive.
Here, 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 has required his
employees to undergo training by CITGO 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. He has purchased expensive new cash registers to aid his employees in verifying the age of
the patrons. However, though the Respondent did have his employees trained by CITGO, that
training occurred after the violation in this case. Nevertheless, the Respondent has made
exceptional efforts to deter his employees from selling beer or wine to underage persons. The
Respondent’s previous penalty was an $800.00 fine. Therefore, I find that in light of the facts of
this case that there are sufficient mitigating circumstances to merit another fine instead of the
suspension of the Respondent’s permit for forty-five (45) days which the Department seeks.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that the Respondent shall pay to the Department within thirty days of the date of this
Order a fine in the amount of One Thousand ($1,000) dollars.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
September 23, 2003
Columbia, South Carolina |
