ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me upon request for a Hearing by the Respondent after being cited for an administrative violation
against his beer and wine permit. The South Carolina Department of Revenue (Department) seeks revocation of the
Respondent's license for violating the Alcoholic Beverage Control Act. A hearing was held before me on March 30, 2000 at
the Administrative Law Judge Division (ALJD) 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. Notice of the time, date, place and subject matter of the Hearing was given to the Petitioner and the Respondent.
2. Benjamin J. Creel holds off-premises beer and wine permit No. BG015007 for Easy Pick Up #4. The store is located at
238 N. Fraser Street, Georgetown, South Carolina.
3. On August 6, 1999, an underage cooperating individual (UCI) entered Easy Pick Up #4. The UCI carried only his
identification and money into the store. While inside the store, the UCI purchased a twenty-two ounce "Bud Light" from
Jacqueline Boure, the clerk on duty. Ms. Boure did not request the UCI's identification or ask his age. She simply sold the
beer to the UCI. At the time of the purchase, the UCI was nineteen years old.
4. It is the company's policy to check the identification of its customers who purchase beer, wine and tobacco products at
all of its locations. In fact, signs were posted declaring its no-sale-to-minors policy posted at the cash registers of Easy Pick
Up #4. Furthermore, each employee is required to sign a paper acknowledging that they have been informed of that policy.
Ms. Boure was fired as a result of this violation.
5. The Respondent violated the provisions of 23 S.C. Code Ann. Regs. § 7-9 (B) (Supp. 1998) by permitting the purchase
of beer by an individual under the age of twenty-one.
6. This is the Respondent's fourth violation within the past three years at this location. The Respondent committed the
following violations regulating his beer and wine permit and received the following punishments:
a. Permitting the purchase of beer by an individual under the age of twenty-one on December 6, 1996. The Respondent paid
a $400.00 fine for that offense.
b. Permitting the purchase of beer by an individual under the age of twenty-one on August 16, 1997. The Respondent paid a
$800.00 fine for that offense.
c. Permitting the purchase of tobacco by a minor on January 13, 1999. The Respondent served a forty-five (45) day
suspension for that violation.
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. 1998) grants jurisdiction to the ALJD to hear contested cases under the
Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 1998) grants the ALJD the authority to
hear contested case hearings in matters governing alcoholic beverages, beer and wine.
2. 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).
3. 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. 1998).
4. Permitting or knowingly allowing a person under the age of 21 to purchase or possess beer upon the licensed premises is a
violation against a license or a permit. Such a violation constitutes grounds for either suspension or revocation of the beer
and wine permit. 23 S. C. Code Ann. Regs. 7-9(B) (Supp. 1998).
5. The permittee 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, 315 S.E. 2d 171 (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. at 173,
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).
6. 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).
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 issue 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 (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. 1998). The
administrative law judge, as the current fact-finder, must also impose a penalty based on the facts presented at the contested
case hearing. 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 to make the final decisions on all the issues, including the appropriate penalty.
7. S.C. Code Ann. § 61-4-250 (1) (Supp. 1998) authorizes the imposition of a monetary penalty of not less than twenty-five dollars and not more than one thousand dollars. Additionally, the Department's "Penalty Guidelines" in Revenue
Procedure 95-7, calls for revocation of a permit upon the commission of a fourth violation. This is the penalty the
Department is seeking against the Respondent. However, Revenue Procedure 95-7 also sets forth that it is only a guideline
and does not establish a binding norm.
8. The Respondent clearly violated the provisions of 23 S.C. Code Ann. Regs. § 7-9 (B) (Supp. 1998) by permitting the
purchase of beer by an individual under the age of twenty-one. This is the Respondent's fourth violation in three years. I
recognize Respondent's difficulties in hiring individuals at his pay scale who will meticulously comply with the laws
concerning beer and wine permits. Furthermore, the Respondent posted signs, instructed his employees concerning the sale
of beer to minors and even purchased an "IdentiScan" machine for this store. However, this is the Respondent's fourth
violation within the past three years at this location. Furthermore, the Respondent has already received a forty-five day
suspension for his most recent violation at this location. Therefore, I find that revocation is warranted in this case.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Respondent's
beer and wine permit for Easy Pick Up #4 is revoked.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
July 31, 2000
Columbia, South Carolina |
