ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
These matters come before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 61-2-20 and 61-2-260
(Supp. 1998). The South Carolina Department of Revenue (Department) seeks revocation of the Respondent's beer and wine permit
for its third and fourth violations of 23 S.C. Code Ann. Regs. 7-9 (Supp. 1998). On April 3, 2000, the Department filed a Notice and
Motion to Consolidate these matters. The attorney for the Respondent did not object to this motion. Thereafter, on April 12, 2000, I
issued an Order of Consolidation and Notice of Hearing, joining these matters together for hearing purposes only. A hearing was
held before me on July 6, 2000 at the offices of the 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 the evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner and the Respondent.
2. The Pantry, Inc., holds off-premises beer and wine permit No. BG-059401 (1) for The Pantry #423. The store is located at 507
College Avenue, Clemson, South Carolina.
3. On September 9, 1999, an underage cooperating individual (UCI) entered The Pantry #423. The UCI carried only his identification
and money into the store. While inside the store, the UCI purchased a twelve ounce "Budweiser" beer from Matthew Kay, the clerk
on duty. Mr. Kay requested and looked at the UCI's identification, which stated the UCI's correct age, but proceeded with the sale.
At the time of this violation, the UCI was eighteen (18) years old. This constituted a third violation against the Respondent's beer
and wine permit within three years.
4. Again, on October 23, 1999, an underage cooperating individual entered The Pantry #423. This UCI also carried only his
identification and money into the store. While inside the store, the UCI purchased a six pack of beer from Lois Bird. Ms. Bird
requested and looked at the UCI's identification and yet continued with the sale. At the time, the UCI was nineteen (19) years of age.
This incident was the Respondent's fourth violation.
5. The Respondent submitted testimony that the store has a written policy of checking identification to which its employees must
adhere. Also, there are signs posted at various locations throughout The Pantry #423 declaring its no-sale-to-minors policy. Evidence
was also presented that this location has recently purchased i.d. scanner equipment its clerks are now required to utilize. Finally, as to
the October 23 incident, the Respondent presented testimony that an unusually large number of customers were in the store at that
time because of a Clemson home football game and the store's close proximity to the campus. (2) The Respondent argued that this
factor played a part in the sale to the UCI on October 23.
6. 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 (21) on September 9, 1999 and October 23, 1999.
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 Division to hear contested cases under the Administrative
Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 1998) grants the Division 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 twenty-one (21) to purchase or possess beer upon the licensed premises
is a violation against a license or a permit. Such a violation constitutes sufficient 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 principle, 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. In this case, the Department imposed a forty-five (45) day suspension of the Respondent's beer and wine permit for the third
violation of S.C. Code Ann. Regs. 7-9(B) (Supp. 1998) within the past three years. Afterwards, the Department revoked the
Respondent's beer and wine permit for the fourth violation. See Revenue Procedure 95-7.
7. Inherent in and fundamental to the powers of an Administrative Law Judge, as the trier of fact in contested cases under the
Administrative Procedures Act, is the authority to decide the appropriate sanction when such is disputed. Walker v. South Carolina
ABC Comm'n, 305 S.C. 209, 407 S.E. 2d 633 (1991). The Administrative Law Judge, as fact-finder, must impose a penalty based on
the facts presented at the contested case hearing. To that end, an 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 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).
In the present case, 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 individuals under the age of twenty-one (21). Although the Respondent argues that employees are trained to
check identification, that they now have a new system by which to verify age, and that an unusually large number of patrons were in
the store on the date of the fourth violation, the Respondent's employees nevertheless still sold beer to minors. However, the fourth
violation occurred fifty (50) days after the third violation and well before any penalty was imposed by the Department for the third
violation. In fact, the penalties for both the fourth violation and the third violation were imposed on the same day, January 4, 2000. I,
therefore, find that the occurrence of these violations in rather quick succession and before a penalty was imposed for the third
violation is a mitigating circumstance which merits the penalties in this case to be limited to only consecutive suspensions of the
Respondent's permit rather than revocation.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Respondent's beer and
wine permit be suspended for forty-five (45) days for the third violation and sixty (60) days for the fourth violation.
IT IS FURTHER ORDERED that these suspensions run consecutively.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
November 29, 2000
Columbia, South Carolina
1. It is unclear from the record whether the Respondent's license number is BG-059401 or BG-859401. The Department's documents reference the former
while SLED's documents reference that latter.
2. SLED Agent Causey testified that the October 23, 1999 violation occurred at 3:45 p.m. while the football game started about 4:00 p.m. |
