ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999), S.C. Code
Ann. § 1-23-600(B) (Supp. 1999) and S.C. Code Ann. § 1-23-310 (Supp. 1999). The Petitioner, South Carolina Department of
Revenue ("Department"), issued a citation against the Respondent, Davis L. Weaver, d/b/a Bucksport Plantation Marina, for violating
provisions of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1999) for the sale of alcohol to a person under the age of twenty-one. The
Department seeks to impose a $400 fine against Respondent. The Respondent requested a contested case hearing. After notice to all
parties, a hearing was conducted on August 30, 2000 at the Administrative Law Judge Division ("ALJD") in Columbia, South
Carolina.
FINDINGS OF FACT
Having carefully considered the testimony and the arguments of both sides, and taking into account the credibility of the evidence and
witnesses, I find by a preponderance of the evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to all parties in a timely manner.
2. The Respondent is the business owner of Bucksport Plantation Marina located at 135 Bucksport Road, Conway, South Carolina in
Horry County. Respondent holds an off-premises beer and wine permit (#AI-BW184248) for this location.
3. On December 3, 1999, State Law Enforcement Division ("SLED") Agent Rhett Holden, with the assistance of underage
cooperating individual ("UCI") Thomas Powers, conducted a routine sting operation at the licensed premises.
4. Ms. Rhonda Balcom, the store's cashier, was standing outside the Marina when Agent Holden and Mr. Powers arrived at the
Bucksport Marina. Agent Holden and Ms. Balcom are acquaintances, and Ms. Balcom was aware that Agent Holden was a law
enforcement officer.
5. Mr. Powers was carrying only his valid South Carolina Driver's License and a small amount of money which was provided by
SLED when he entered the store. Mrs. Balcom entered the store after Mr. Powers so that he could make his purchase.
6. Mr. Powers took a 22 ounce can of Budweiser beer from the cooler and proceeded to the front of the store. Mr. Powers paid Ms.
Balcom for the beer and exited the store. Ms. Balcom did not check the UCI's identification. Mr. Powers was 19 years old at the
time he purchased the beer.
7. Mr. Powers took the beer to Agent Holden and Agent Holden issued a citation to Respondent for violating 23 S.C. Code Ann. Regs
7-9(B) (Supp. 1999).
8. Mr. Weaver instructed his employees to check the identifications of customers purchasing beer from the Marina.
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. Specifically, 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.
2. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 2 Am. Jur. 2d
Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1999).
The Department is the party asserting the affirmative in this case; therefore, the Department must prove by a preponderance of the
evidence that Respondent violated Reg. 7-9(B), by selling alcohol to a person under the age of twenty-one.. See Anonymous v. State
Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998) (standard of proof in an administrative proceeding is preponderance
of the evidence).
3. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See
S.C. Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a
trial judge, who observes a witness is in the better position to judge the witness's demeanor and veracity and evaluate his testimony.
See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v.
Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
4. The Department of Revenue contends the Respondent violated 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1999) which provides:
To permit or knowingly allow a person under twenty-one years of age to purchase or possess or consume beer or wine in or on a
licensed establishment which holds a license or permit issued by the [The Department] is prohibited and constitutes a violation
against the license or permit. Such violation shall be sufficient cause to suspend or revoke the license by [The Department].
5. 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).
6. The Respondent clearly violated the provisions of 23 S.C. Code Ann. Regs. 7-9(B) by permitting the purchase of beer by an
individual under the age of twenty-one. The Department seeks a $400 fine for this violation.
7. The amount of the penalty imposed is within the sound discretion of the Administrative Law Judge. Walker v. South Carolina
ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Under the facts and circumstances of this case, I believe that a $400 fine is
excessive. This is Respondent's first violation and Respondent told Ms. Balcom to check the identifications of customers purchasing
beer from his store. However, in this case, I believe that Ms. Balcom was misled by the presence of Agent Holden in the parking lot.
Ms. Balcom knew Agent Holden and she knew that he worked in the law enforcement field in her community. It was reasonable for
Ms. Balcom to assume that a law enforcement officer would not send a minor into the store to purchase beer. Therefore, I find that a
monetary penalty of $25.00 is appropriate.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Respondent pay to the Department of Revenue a fine in the amount of Twenty-five ($25.00) Dollars within
thirty (30) days of the date of this Order.
AND IT IS SO ORDERED.
_________________________________
C. Dukes Scott
Administrative Law Judge
October 3, 2000
Columbia, South Carolina |
