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 |