ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C.
Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2002). The South Carolina Department of Revenue
(“Department”) contends that Respondent Waleed A. Barakat, d/b/a Road Runner Mini Mart,
(“Respondent”), permitted the purchase of beer by a person under the age of twenty-one, in violation
of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002)
. For this third violation in a three-year time
period, the Department seeks a forty-five day suspension of Respondent’s beer and wine permit.
After timely notice to the parties, a hearing was conducted on October 13, 2003, at the
Administrative Law Judge Division (“ALJD”) in Columbia, South Carolina. For the following
reasons, Respondent’s beer and wine permit is suspended for a period of fourteen days for violating
23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001).
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.Respondent holds a permit to sell beer and wine for off-premises consumption (Permit
No. 32006434-5-PBG) for its business located at 10900 Clemson Boulevard in Seneca, South
Carolina. Respondent has held a beer and wine permit at this location for over nine years.
2.The permitted location operates as a convenience store, which sells mostly food and
beverage items; the store does not sell gasoline. Respondent owns the location along with his
brother, and Respondent and his brother are currently the only two people who work in the store.
The store is located within a couple miles of Clemson University.
3.On May 17, 2003, two agents of the South Carolina Law Enforcement Division
(“SLED”), working with an Undercover Cooperating Individual (“UCI”), conducted a routine
undercover investigation of Respondent’s location. Agent Jim Causey pulled into the parking lot of
the subject location in an unmarked vehicle, with the UCI in the passenger seat, and Agent Brunson
Aspill pulled into the parking lot in a separate unmarked vehicle. The UCI, who was eighteen years
old, entered Respondent’s location and purchased a 24-ounce can of beer. Both Agent Causey and
Agent Aspill observed the UCI enter the store empty-handed and come out of the store with a brown
bag, which contained the beer.
4.When the UCI, after entering the store, approached the cash register with the beer,
Respondent asked her for identification. The UCI handed Respondent her driver’s license, which
showed her date of birth to be 04-15-1985, and which contained a notation in the upper-right-hand
corner stating “under 18 until 04-15-2003.” Respondent returned the driver’s license to the UCI and
rang up the sale of beer. Respondent then asked to see the UCI’s driver’s license again, which she
again gave to him. After looking at the driver’s license this second time, Respondent returned the
driver’s license to the UCI, and the UCI exited Respondent’s location with the beer in a brown paper
bag. The UCI then got into the passenger side of Agent Causey’s vehicle. Agent Causey took
possession of the beer, and the UCI began to fill out a “UCI Buy Statement” for SLED, describing
the transaction.
5.Immediately after the UCI walked out of the Respondent’s location with the purchased
beer, Respondent looked at a calendar by his cash register evidencing the date by or before which an
individual must have been born in order to be old enough to legally purchase alcohol in the state.
That calendar was next to another one indicating the legal birth date for purchasing cigarettes.
Respondent realized that he had been looking for the wrong year of birth when he examined the
UCI’s driver’s license, and that the UCI, though old enough to legally purchase cigarettes, was not
old enough to legally purchase alcohol. Respondent left the store, approached Agent Causey’s
vehicle, and tapped on the passenger-side window, intending to take back the beer he had sold to the
UCI. The UCI was filling out her statement form for SLED when Respondent tapped on the
window. Agent Causey rolled down the window, showed Respondent his badge, and instructed
Respondent to go back inside the store and wait for the agent to come in and speak with him.
6.Agent Causey entered Respondent’s location some moments later, and Respondent
began to explain to him that he had made a mistake. Agent Causey told Respondent that any
explanation should be made to the judge. Agent Causey then issued a Violation Report to
Respondent for permitting the purchase of beer by a person under the age of twenty-one in violation
of Regulation 7-9(B). Agent Causey also issued a Uniform Traffic Ticket to Respondent 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. On January 28, 2002, Respondent was charged with permitting the purchase of beer by a
person under the age of twenty-one in violation of Regulation 7-9(B). Respondent paid a fine of
$400.00 for that violation. On October 18, 2002, Respondent was charged with permitting gambling
in violation of S.C. Code Ann. § 61-4-580(3). Respondent paid a fine of $800.00 for that violation.
8.The Department issued a final determination on July 25, 2003, finding that Respondent
had violated Regulation 7-9(B) and seeking to suspend Respondent’s beer and wine permit for a
period of forty-five days. Respondent timely appealed the determination, and the matter was timely
transmitted to the ALJD for a contested case hearing
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 ALJD to hear
contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260
(Supp. 2002) grants the ALJD 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).
3.23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002) (recodified as 23 S.C. Code Ann. Regs.
7-200.4 effective June 27, 2003) 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 Alcoholic Beverage Control
Commission is prohibited and constitutes a violation against the license or permit.
Such violation shall be cause to suspend or revoke the license or permit by the
Alcoholic Beverage Control Commission.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. §§ 61-4-270 and -580 (Supp. 2002); 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 2002). The Department may exercise this authority to suspend or revoke a permit for a first
violation. See S.C. Code Ann. §§ 61-4-270, -580, and -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 test for determining whether a permittee has “knowingly” sold beer or wine to
a person under the age of twenty-one is: (1) whether the permittee knew the individual was underage;
or (2) whether the permittee “had such information, from [the individual’s] appearance or otherwise,
as would lead a prudent man to believe that [the individual] was [underage], and if followed by
inquiry must bring knowledge of that fact home to him.” Feldman v. S.C. Tax Comm’n, 203 S.C.
49, 26 S.E.2d 22, 25 (1943).
6.Respondent in this case asked for and viewed the UCI’s driver’s license. A prudent
person would have realized from the information contained on the driver’s license that the UCI was
under the age of twenty-one. Respondent nevertheless sold the UCI the beer. Therefore, Respondent
violated Regulation 7-9(B).
7.The Administrative Law Judge, as the finder of fact, is empowered to impose the
appropriate penalty based on the facts presented. Walker v. S.C. ABC Comm’n, 305 S.C. 209, 407
S.E.2d 633 (1991). 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).
8.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.
9.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
permitee’s noncompliance with the alcoholic beverage laws of this State.
10.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 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 ALJD.
11.In this case, Respondent has had two violations at the permitted location before the
instant violation; one violation was for selling beer to an individual under the age of twenty-one, and
the other violation was for permitting gambling. Respondent paid a total of $1200 for these
violations. No new policies or procedures were put into place by Respondent following the first
offense of selling beer to an underage individual to help prevent a future violation from occurring.
This subsequent offense warrants an increase in sanction. However, though this is Respondent’s third
violation in three years, it is only the second violation for the offense of selling alcohol to an underage
individual. Further, the fact that Respondent checked the UCI’s identification prior to the sale and
realized his mistake and attempted to retrieve the beer from the UCI immediately after the sale
warrants some mitigation of the penalty sought in this case by the Department.
12.For the reasons stated above, I find that a fourteen-day suspension of Respondent’s
beer and wine permit 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.
32006434-5-PBG), for the business located at 10900 Clemson Boulevard in Seneca, South Carolina,
be suspended for a period of fourteen days, commencing on a date to be agreed upon by the parties
within thirty (30) days of the signing of this Order, for violating 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 2002).
AND IT IS SO ORDERED.
_________________________________
C. DUKES SCOTT
Administrative Law Judge
October 14, 2003
Columbia, South Carolina |
