ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks a revocation of an off premises beer and
wine permit. The Pantry, Inc. d/b/a Depot 3282 (Depot 3282) opposes DOR's position and asserts
a revocation is not warranted. Depot 3282'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 arguments presented by the parties, Depot 3282's permit is suspended for 60 days.
II. Issue
What is the appropriate penalty for Depot 3282'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 to an underage individual was made knowingly and that since the sale
was the fourth sale to an underage individual within two years, a sanction of revocation is proper.
Depot 3282 does not disagree with the assertion that a violation occurred. Rather, Depot 3282
argues that it has undertaken extensive measures to eliminate any future violations such that the
current violation should not result in a revocation.
A. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Depot 3282 holds a beer and wine permit identified as PBG 32019297-4 with that permit in use at
Depot 3282's location of 820 Church Street, Greenville, South Carolina. On December 6, 2002, an
undercover cooperating individual (UCI) in the employment of SLED entered the location.
As of December 6, 2002, the UCI was 16 years old and was quite youthful in appearance. At the
time of the transaction, the UCI was not disguised in any manner in an attempt to appear older.
After entering the store, the UCI picked up a 24 ounce container of Coors Light beer and brought
the item to the counter. The employee at the counter was an employee of Depot 3282. The employee
did not ask for identification. Rather, she 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 and a civil citation was
issued to Depot 3282 as the permit holder.
Sales to other individuals under the age of twenty-one have also occurred at this same location in the
past. Such sales were made on January 19, 2001 (fine paid of $400), August 3, 2001 (fine paid of
$800), and October 24, 2001 (45 day suspension). Thus, the sale to the UCI on December 6, 2002
was the fourth violation within less than two years.
Both before and after the December 6, 2002 incident, Depot 3282 instituted steps to eliminate sales
to underage individuals. For example, employees making illegal sales to minors are terminated from
employment. That in fact occurred in the instant case in that the clerk’s employment was terminated.
Further, the organization carries on extensive training with all employees. Indeed, the terminated
employee had received training and had scored a 100 on a test of her knowledge of South Carolina
age-limit laws. Further, the organization carries on its own “secret shopper” program. Any employee
failing to request and properly calculate the age of the customer is reprimanded and subject to
dismissal.
A recent addition to the sales equipment at this store requires the clerk to enter a birth date of the
customer for beer and wine purchases. In addition, no provision allows the clerk to override the “no
sale” for a customer of an improper age. In fact, the birth date is displayed on the sales receipt.
Finally, the organization has added new management at the location with such management diligently
policing the sales of beer and wine made by all clerks.
The location estimates that beer and wine sales account for 15% of the location’s profit. In addition,
informed management suggests that a suspension of 60 days will have a major impact on the
continuing viability of the store.
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, Depot 3282 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, the instant violation
is the fourth in less 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 as short as two years, a significant sanction is proper to foster
protection of the public at large and minors in particular. Accordingly, a sixty day suspension is
imposed.
In this case, a suspension and not a revocation is warranted. Here, management is concerned with
the illegal sales and has taken appropriate steps to remedy the problem. Its efforts seek to eliminate
any future occurrences.
For example, extensive training is provided to all employees, which training is intended to prevent
sales to underage customers. Signs are posted around the store advising customers that identification
is needed for all customers who appear to be under thirty-five years of age. Further, all employees
are told that any employee making a sale to an underage party will have their employment terminated.
Indeed, the employee in this case failed to properly ascertain the age of the UCI and, consistent with
established policy, was terminated as an employee due to the illegal sale. Finally, and significantly,
a new management team is in place at the location. That team has an increased vigilance for improper
sales and has instituted policies to halt the practice of sales to minors.
Thus, given the meaningful and renewed efforts to comply with the law and the need to rely upon
proper actions of employees, a revocation is not proper at this point. However, should additional
violations occur, revocation may become the only viable option.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
The beer and wine permit held by the Pantry, Inc. d/b/a Depot 3282 shall have its permit suspended
for sixty days beginning on November 1, 2003. If the existing license shall expire or shall be
surrendered for any reason during the time of this suspension, any subsequent beer or wine permit
issued for this location shall be encumbered with any suspension not yet served at the time of the
expiration or surrendering of the current license.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: October 16, 2003
Columbia, South Carolina |
