ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASEThis matter comes before the Administrative Law Judge Division (ALJD or Division) pursuant to S.C. Code Ann. § 61-4-580(5) (Supp. 1999), which prohibits any permittee or his agent from knowingly permitting an act that constitutes a crime
under the laws of South Carolina. Respondent is accused of violating S.C. Code Ann. § 16-17-500 (1999), which prohibits
selling, furnishing, giving, or providing cigarettes to anyone under the age of eighteen. The Department of Revenue
(Department) is seeking a fine of Four Hundred ($400.00) Dollars against the Respondent. A hearing was held before me on
March 22, 2000 at the Administrative Law Judge Division in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into
consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:
1. Earl Janis holds off-premises beer and wine permit No. BG036815 for West Ashley Discount Beverage. The store is
located at 1610 Sam Rittenburg Boulevard, Charleston, South Carolina.
2. On August 10, 1999, an underage cooperating individual (UCI) entered West Ashley Discount Beverage. The UCI
carried only her identification and money into the store. While inside the store, the UCI purchased a package of Newport
cigarettes from Phyllis Shaw, the clerk on duty. Although Ms. Shaw requested and looked at the UCI's identification, she
nonetheless sold the cigarettes to the UCI. At the time of the purchase, the UCI was fifteen years old.
3. It is the store's policy to check the identification of its customers who purchase beer, wine and tobacco products.
Furthermore, the store has signs declaring its no-sale-to-minors policy posted at its cash registers.
4. Corporal Randall McBrayer of the Charleston Police Department Vice Unit charged Ms. Shaw with the sale of tobacco to
a person less than eighteen years of age, pursuant to S.C. Code Ann. § 16-17-500 (Supp. 1999). Ms. Shaw plead guilty to
this charge on August 17, 1999.
5. The Respondent violated the provision of S.C. Code Ann. § 61-4-580(5) (Supp. 1999) by permitting a criminal act under
§ 16-17-500 (Supp. 1999).
6. This is the Respondent's first violation, and, as such, is the Respondent's first violation within the past three years.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 1999) grants jurisdiction to the ALJD to hear contested cases under the Administrative
Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 1999) grants the ALJD the authority to hear contested case hearings in matters
governing alcoholic beverages, beer and wine.
3. Permits and licenses issued by this state for the sale of liquor, beer and wine are privileges to be used and enjoyed only so
long as the holder complies with the restrictions and conditions governing them. See Feldman v. S.C. Tax Commission, 203
S.C. 49, 26 S.E.2d 22 (1943).
4. Holders of beer and wine permits are forbidden from permitting "any act, the commission of which tends to create a public
nuisance or which constitutes a crime . . . . " S.C. Code Ann. § 61-4-580(5) (Supp. 1999).
5. "It is unlawful for any person to sell, furnish, give, or provide any minor under the age of eighteen years with cigarettes. . .
. Any person violating the provisions of this section, either in person, by agent or in any other way, shall be guilty of a
misdemeanor. . . ." S.C. Code Ann. § 16-17-500 (Supp. 1999).
6. Pursuant to S.C.Code Ann. § 61-4-4090 (Supp. 1999), "[i]f a permittee or licensee, or servant, agent, or employee of the
permittee or licensee . . . is convicted of a criminal offense which occurred on the licensed premises, the conviction or plea
constitutes proof that the offense occurred and the record thereof is admissible in a contested case hearing before the
Administrative Law Judge Division."
7. The permitee is responsible for all acts of his servants, agents, or employees and cannot seek to avoid the consequences of
a violation for lack of personal knowledge. Following that principal, the South Carolina Supreme Court upheld a civil
forfeiture of a corporation's boat based upon an employee's transporting drugs even though the corporation claimed the use
of the boat to transport drugs was without its knowledge. South Carolina Law Enforcement Division v. The "Michael and
Lance," 281 S.C. 339, 341, 315 S.E. 2d 171, 173 (S.C. App. 1984). The Court held that "[a] principal is affected with
constructive knowledge of all material facts of which its agent receives notice while acting within the scope of his authority."
Id. citing Crystal Ice Co. of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 257 S.E.2d 496 (1979). Likewise, the
license holder is responsible for the actions and conduct of employees utilizing the permit upon the permitted premises. 48
C.J.S. Intoxicating Liquors § 259 (1981).
8. Prior to governmental restructuring, a commission, sitting in its adjudicatory capacity, imposed penalties for violations of
statutory provisions administered by the commission's subordinate agency. In its capacity as the fact-finder, the Tax
Commission would conduct an adjudicatory hearing in all contested cases arising under Title 12 of the South Carolina Code,
and would render an order containing findings of fact and conclusions of law. As the fact-finder, it was the commission's
prerogative "to impose the appropriate penalty based on the facts presented." Walker v. South Carolina ABC Comm'n, 305
S.C. 209, 407 S.E. 2d 633, 634 (1991).
With the advent of restructuring and the abolition of the Tax Commission, however, the Administrative Law Judge Division
was given the authority to hear "all contested cases, as defined by Section 1-23-310 and as previously considered by the
three [Tax] commissioners. . . ." S.C. Code Ann. Section 12-4-30(D) (Supp. 1996).
9. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v.
Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E. 2D 586 (1992). Additionally, the Administrative Law Judge, as the
current fact-finder, must also impose a penalty based on the facts presented at the contested case hearing. It is a generally
recognized principle of administrative law that the fact-finder has the authority to impose an administrative penalty after the
parties have had an opportunity to have a hearing and be heard on the issues. See Ohio Real Estate Comm'n v. Aqua Sun
Investments, 655 N.E. 2d 266 (Ohio 1995); Shadow Lake of Noel, Inc. v. Supervisor of Liquor Control, 893 S.W. 2d 835
(Mo. App. S.D. 1995); Matter of Henry Youth Hockey Ass'n, 511 N.W. 2d 452 (Minn. App. 1994); Vermont Agency of
Natural Resources v. Duranleau, 617 A.2d 143 (Vt. 1992); City of Louisville v. Milligan, 798 S.W. 2d 454 (Ky. 1990);
Com., Dept. of Transp. v. Slipp, 550 A.2d 838 (Pa. 1988); Dept. of Transp. v. Miller, 528 A.2d 1030 (Pa. 1987); State
Police v. Cantina Gloria's, 639 A. 2d 14 (Pa. 1994).
Parties are entitled to present evidence on all issues arising out of the contested agency action and the tribunal responsible for
conducting the contested case proceedings has the authority to decide the issues based on the facts presented, and make the
final decisions on all the issues, including the appropriate penalty. To that end, the Administrative Law Judge must consider
relevant evidence presented in mitigation. Mitigation is defined as a lessening to any extent, great or small. It may be
anything between the limits of complete remission on the one hand and a denial of any relief on the other. In a legal sense, it
necessarily implies the exercise of the judgment of the court as to what is proper under the facts of the particular case. 58
C.J.S. Mitigation p. 834-835 (1948).
10. S.C. Code Ann. § 61-4-250 (Supp. 1999) authorizes the imposition of a monetary penalty not less than twenty-five
dollars and not more than one thousand dollars.
11. Under the Offenses and Penalty Guidelines in Revenue Procedure 95-7, the penalty for a first offense against a beer and
wine retail permit is a fine of Four Hundred ($400.00) Dollars. This is the penalty the Department is seeking against the
Respondent. Revenue Procedure 95-7 also sets forth that it is only a guideline and does not establish a binding norm.
12. The Respondent violated S.C. Code Ann. § 61-4-580 (Supp. 1999) by permitting a criminal act under S.C. Code Ann. §
16-17-500 (Supp. 1999). However, I find that the fact that Ms. Shaw requested the UCI's identification, even though she
misread the license, along with posted signs to be mitigating factors that warrant a slightly reduced penalty from the Four
Hundred ($400.00) Dollars the Department is seeking in this matter.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Respondent, Earl
K. Janis, d/b/a West Ashley Discount Beverage, has violated S.C. Code Ann. § 61-4-580 (Supp. 1999) by permitting a
criminal act under S.C. Code Ann. § 16-17-500 (Supp. 1999) and is fined Three Hundred Fifty ($350.00) Dollars to be
remitted to the Department of Revenue within fifteen days of the date of this Order.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
June 16, 2000
Columbia, South Carolina |
