South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
DOR vs. Woodie Enterprises, Inc. d/b/a Gold Hill Texaco

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
South Carolina Department of Revenue

Respondent:
Woodie Enterprises, Inc. d/b/a Gold Hill Texaco
 
DOCKET NUMBER:
03-ALJ-17-0352-CC

APPEARANCES:
Petitioners & Representative:
South Carolina Department of Revenue, Milton G. Kimpson, Esquire

Respondents & Representative:
Woodie Enterprises, Inc. d/b/a Gold Hill Texaco, Pro se
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case


The South Carolina Department of Revenue (DOR) seeks a 45 day suspension of a beer and wine permit. Woodie Enterprises Inc. (Woodie) opposes DOR's position and asserts that a suspension is not warranted. Rather, Woodie suggests that a fine is proper. Woodie's disagreement with DOR's determination places jurisdiction in the Administrative Law Judge Division (ALJD). S.C. Code Ann. § 61-2-260 (Supp. 2002); S.C. Code Ann. Sec. 1-23-310 et. seq. (Rev. 1986 and Supp. 2002). Based upon the evidence and the argument presented by the parties, Woodie's beer and wine permit is suspended for 45 days.


II. Issue


What is the appropriate penalty for Woodie's violation of S.C. Code Ann. 61-4-580(1) (Supp. 2002) and S.C. Code Ann. Regs. 7-9(B) (Supp. 2002) for selling or allowing possession of beer or wine to a person under 21 years of age?



III. Analysis


Penalty for Sale to an Underage Person


DOR asserts that since a sale was knowingly made to an underage individual and that since the current sale is the third such sale to an underage individual in slightly more than two years, a sanction of a 45 day suspension is proper. While Woodie acknowledges that a violation occurred, he argues that extenuating circumstances mitigate in favor of a fine rather than a suspension.


A. Findings of Fact


Based on the preponderance of the evidence, the following findings of fact are entered:


Woodie holds a beer and wine permit identified as PBG-32014966 with that permit in use at Woodie's location of 802 Gold Hill Road, Fort Mill, South Carolina. On February 3, 2003, an 18 year old (date of birth June 9, 1984) undercover cooperating individual (UCI) employed by SLED entered the location.


After entering the store at approximately 2:00 p.m., the UCI picked up a 24 ounce container of Bud Light beer and brought the item to the counter. At the counter, second shift employees were coming on duty. Indeed, the clerk just coming on duty was in his 60's and was a diabetic.


The clerk asked for identification and received a driver's license from the UCI. The driver's license showed the UCI's correct name and birth date. However, the employee returned the license to the UCI, took the UCI's money, and completed the sale. The UCI left the store with the purchased beer.


After the purchase, an officer for SLED entered the store and explained that the employee had just performed an illegal act by making a transfer of beer to a person under the age of twenty-one. A criminal citation was issued to the employee for illegally making the transfer. In addition, a civil citation was issued against Woodie as the permit holder. Upon learning of the improper sale, Woodie terminated the clerk’s employment.


The current sale is not the only sale to minors within the recent past. Rather, sales to other individuals under the age of twenty-one have occurred at this same location. Such sales were made on January 6, 2001 (fine paid of $800) and on October 24, 2001 (45 day suspension served). Thus, the sale to the UCI on February 3, 2003 was the third violation in slightly more than two years.


Prior to the February 3, 2003 incident, Woodie had begun steps to eliminate sales to underage individuals. For example, he installed equipment on his cash registers that required the inputting of the customer’s birth date before a sale of alcohol could be completed. However, in the instant case, the clerk failed to entered the UCI’s actual birth day but instead entered a date that allowed the sale to be completed.


B. Conclusions of Law


Based upon the above Findings of Fact, I conclude as a matter of law, the following:


1. Introduction


Any party operating under a beer and wine permit who knowingly sells beer or wine to a person under twenty-one years of age creates a ground for a sanction of a monetary penalty or suspension or revocation of the holder's permit. S.C. Code Ann. § 61-4-580(1) (Supp. 2002); S.C. Code Ann. Regs. 7-9(B) (Supp. 2002). Here, Woodie does not dispute the violation. Rather, the issue is what penalty is proper.


2. Penalty Consideration


In the final analysis, a decision of what monetary fine, or suspension, or revocation, or some combination, is to be imposed is one for the Administrative Law Judge as the fact-finder. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Here, a suspension rather than a fine is appropriate.


The instant violation is the third in slightly more than two years. Such repeated sales present a serious concern since "a rule forbidding a licensee of the [DOR] to facilitate consumption of alcohol by a minor is designed to protect both the minor who consumes the alcohol and those members of the public likely to be harmed by the minor's consumption of that alcohol." Norton v. Opening Break of Aiken, Inc.,313 S.C. 508, 443 S.E.2d 406, 408 - 409 (S.C.App. 1994). When repeated violations of sales to persons under twenty-one occur in a period of slightly more than two years, a significant sanction is proper to foster protection of the public at large and minors in particular. Accordingly, a 45 days suspension is required rather than a fine.


IV. Order

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

The beer and wine permit of Woodie Enterprises Inc. located at 802 Gold Hill Road, Fort Mill, South Carolina is suspended for 45 days beginning November 1, 2003.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: October 16, 2003

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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