ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002). The South Carolina Department of
Revenue (Department) contends that Respondent Southern Convenience Stores, Inc., d/b/a Texaco
(Southern) knowingly allowed an underage individual to purchase beer from Respondent’s licensed
premises located at the intersection of Highway 11 and Interstate 85 in Gaffney, South Carolina, in
violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002). For this third violation of Regulation 7-9(B) in as many years, the Department seeks to suspend Respondent’s off-premises beer and wine
permit for the location for forty-five days. In response, Southern concedes that the alleged violation
did occur, but further contends that the proposed penalty for the violation is excessive in light of its
efforts to prevent such sales.
After timely notice to the parties, a hearing of this matter was held on October 7, 2003, at the
Administrative Law Judge Division (ALJD or Division) in Columbia, South Carolina. Based upon
the testimony and evidence presented at the hearing, I find that the appropriate penalty for
Respondent’s violation is a twenty-one-day suspension of Respondent’s permit and the imposition
of a $500 fine upon Respondent.
STIPULATED FACTS
Pursuant to ALJD Rule 25(C) and Rule 43(k), SCRCP, the parties, through their counsel,
stipulated to the following facts in this matter:
1.That Southern Convenience Stores, Inc., is the current license holder of the location
identified as Texaco, at or near the intersection of Highway 11 and Interstate 85, Gaffney, South
Carolina.
2.That Southern Convenience Stores, Inc., was the license holder of the above-referenced location on April 7, 2003.
3.That Melvin Helms was an agent, employee, or other representative of the Respondent
on April 7, 2003.
4.That Melvin Helms did, on April 7, 2003, at approximately 6:06 p.m. sell a twenty-four-ounce Bud Light beer to Joshua Lee Kingsmore.
5.That Joshua Lee Kingsmore was an individual that was under the age of twenty-one
years of age at the time of the sale.
6.That Melvin Helms failed to check the driver’s license of Joshua Lee Kingsmore at
the time of the sale.
7.That, as a result of the foregoing, the Respondent violated 23 S.C. Code Ann. Regs.
§ 7-9(B) (Supp. 2002).
8.That the Respondent did not administer or cause to be administered any B.A.R.S. (Be
A Responsible Server) Program, facilitated by the North Carolina Department of Crime Control and
Public Safety, Alcohol Law Enforcement Division, on or about March 28, 2003.
9.That the attached two documents entitled “ABL Violation Disposition Report” are
genuine and admissible documents, which indicate that the Respondent has had two prior violations
within the last three (3) years against its off-premises beer and wine permit, number 32021271-PBG,
both of which were for permitting purchase of beer by a person under twenty-one, and which took
place on February 18, 2002, and August 23, 2000.
10.That the attached documents, which are copies of Joshua Lee Kingsmore’s driver’s
license and photograph, are genuine and admissible documents, which indicate that Joshua Lee
Kingsmore was a person under the age of twenty-one at the time of the alleged sale and that he has
a youthful appearance.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following Findings of Fact by a preponderance of the evidence:
1.At the hearing of this matter, Michael Frost, the president, chief executive officer, and
principal owner of Southern, described the efforts taken by Southern to prevent the sale of alcohol
to underage persons at its convenience stores. These efforts include strict policies and procedures
concerning checking the identification of customers purchasing alcohol (e.g., a company policy
requiring the immediate firing of an employee who sells alcohol to a minor), technological safeguards
against illegal alcohol sales (e.g., cash registers that require the customer’s birth date to be entered
before completing a sale of alcohol), and training programs regarding the prevention of underage
sales (e.g., employees receive training on preventing underage sales both in the initial training
program and in periodic training sessions by store managers).
2.Sandra Blackman, the store manager of the Gaffney location, Robert Jefferies, the
store director who currently oversees the Gaffney store, and John Woollums, the store director for
the location prior to May 2003, also testified to the training programs administered to employees at
the Gaffney location–including the employee who made the sale in question–concerning the
prevention of the sale of alcohol to underage individuals.
CONCLUSIONS OF LAW
Based upon the foregoing Stipulated Facts and Findings of Fact, I conclude the following as
a matter of law:
1.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).
2.Regulation 7-9(B) prohibits holders of beer and wine permits from selling beer or wine
to persons under twenty-one years of age. The regulation provides that:
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 [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). Respondent Southern concedes and stipulates that
it committed a violation of Regulation 7-9(B) as alleged by the Department.
3.The Department has jurisdiction to revoke or suspend permits authorizing the sale of
beer and wine. S.C. Code Ann. § 61-4-590 (Supp. 2002). Pursuant to such authority, the
Department may suspend or revoke a beer and wine permit if the permittee has knowingly sold beer
or wine to a person under twenty-one years of age. 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, 61-4-590; 23 S.C. Code Ann. Regs. 7-9(B).
In lieu of such suspension or revocation, the Department may also impose a monetary penalty upon
a permittee for selling beer and wine to minors. 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.
4.S.C. Revenue Procedure 95-7 (1995) sets forth the Department’s penalty guidelines
for violations of the alcoholic beverage control laws. For retail beer and wine permits, Revenue
Procedure 95-7 provides for a $400 fine for the first violation by a permittee, an $800 fine for the
second violation, a 45-day suspension of the permit for the third violation, and revocation of the
permit for the fourth violation. However, this document does not set binding norms for the
Department, but rather only provides guidance to the Department in assessing penalties for violations
of the alcoholic beverage control laws. See Revenue Procedure 95-7, at ¶ 4 (“These are guidelines
only and this advisory opinion does not establish a binding norm.”). As such, Revenue Procedure 95-7 is not law and thus is not binding upon this Division. Cf. Home Health Serv., Inc. v. S.C. Tax
Comm’n, 312 S.C. 324, 328, 440 S.E.2d 375, 378 (1994) (holding that “whether a particular agency
proceeding announces a rule or a general policy statement depends upon whether the agency action
establishes a binding norm”) (citing Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369 (11th
Cir. 1983)).
5.The weight and credibility assigned to evidence presented at the hearing of a matter
is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co.,
308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d
854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as finder of fact, “has the authority
to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate
the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157
(1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
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. Alcoholic Beverage Control 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 Utility, 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.Further, Respondent should be reminded that the purpose of the statutory prohibition
against selling alcohol to underage individuals is to protect both the underage individuals and the
public at large from the possible adverse consequences of such sales. The sale of alcohol to an
underage individual is a serious offense and cannot be taken lightly. Further, 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 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 noncompliance with the alcoholic beverage laws of this
State. Therefore, while this tribunal has not ordered the revocation of Respondent’s permit,
Respondent should not expect such leniency for a subsequent violation of those laws at this location.
ORDER
Based upon the Stipulated Facts, Findings of Fact, and Conclusions of Law stated above,
IT IS HEREBY ORDERED that, for Respondent’s third violation of 23 S.C. Code Ann.
Regs. 7-9(B) (Supp. 2002) within three years, the Department shall suspend Respondent’s beer and
wine permit for its premises located at the intersection of Highway 11 and Interstate 85 in Gaffney,
South Carolina, for a period of twenty-one (21) days, and impose upon Respondent a fine of five
hundred dollars ($500).
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 8, 2003
Columbia, South Carolina |
