ORDERS:
FINAL ORDER AND DECISION
This matter is before the Administrative Law Judge Division ("Division") pursuant to the request of The Base Corporation, d/b/a
Forest Beach Store, ("Respondent") for a hearing pursuant to an administrative violation regarding the off-premise beer and wine
permit for the premises located at 40 South Forest Beach, Hilton Head Island, South Carolina 29928 ("location"). A violation report
was issued at the location for a violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1999) for allegedly permitting or knowingly
allowing a person under the age of twenty-one (21) years to purchase a beer on October 14, 1999. Based upon this alleged violation
and two (2) prior violations at this location against this permit held by the Respondent, the South Carolina Department of Revenue
("Department") is seeking to impose a forty-five (45) day suspension of the Respondent's off-premise beer and wine permit.
After giving notice to the parties, the undersigned held a contested case hearing at the offices of the Administrative Law Judge
Division ("Division") in Columbia, South Carolina, on November 1, 2000. The parties stipulated to certain facts and the sole issue
for consideration is the penalty to be assessed against the Respondent.
After a thorough review of the file and the evidence presented at the hearing, I find and conclude that a fine in the amount of Seven
Hundred Fifty Dollars ($750.00) and a ten-day suspension of the Respondent's off-premise beer and wine permit is appropriate in this
case.
Any issues raised in the proceedings or hearing of this case but not addressed in this order are deemed denied. ALJD Rule 29(B).
Furthermore, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this order. ALJD
Rule 29(C).
ISSUE
What is the appropriate penalty to be assessed against the Respondent for its violation of the provisions of 23 S.C. Code Ann. Regs.
7-9(B) (Supp. 1999) on October 14, 1999, by permitting or knowingly allowing a person under twenty-one (21) year of age to
purchase a beer?
STIPULATIONS
Prior to taking any testimony, the parties stipulated to the following:
1. On October 14, 1999, Robert Strickland, who was nineteen years of age and was an underage cooperating individual ("UCI") for
the Department, entered the location and purchased a twenty-two-ounce Budweiser beer from the Respondent's employee and agent,
Jerry Meng.
2. The birth date of Robert Strickland is October 30, 1979.
3. The employee at the location did not ask for any identification of the UCI prior to or at any time during the transaction.
4. The UCI had proper identification on his person when he entered the location.
5. There have been two previous violations at the location where employees of the Respondent sold beer to underage cooperating
individuals, one on March 29, 1997 (SLED case #54-97-0421) and one on March 6, 1999 (SLED case #54-99-0421). The
Respondent paid civil penalties to the Department for each violation, Four Hundred Dollars ($400.00) for the first and Eight Hundred
Dollars ($800.00) for the second.
6. There have been no violations at the location since October 14, 1999. SLED agent Ryan Neill sent a underage cooperating
individual into the location on one occasion since that date and made an inspection. No violation occurred on that date.
STATEMENT OF THE CASEThe Department asserts that Ms. Jerry Meng, an employee of the Respondent at the location, knowingly permitted and allowed the
purchase of a bottle of beer by an individual under the age of twenty-one years. The Respondent does not deny that the sale occurred.
The Respondent, however, alleges that the sale by the employee was not authorized by the Respondent.
The Respondent asserts that the company conducts training for its employees in ABC laws and regulations. The Respondent instructs
its employees to card customers, to look at identifications to determine ages, and to refrain from selling beer or wine to customers
unless they can show satisfactory evidence of the allowable age. Furthermore, since the violation in October 1999, the Respondent
has purchased a scanning machine to determine if the driver's license has been altered. The machine screens the birth date which the
employee can compare with a chart to see if the purchaser is twenty-one years of age or older. The Respondent seeks a penalty much
less than that sought by the Department.
EXHIBITS AND EVIDENCE
The Department placed into evidence, without objection, six (6) exhibits. The file also was made a part of the record without
objection of either party. Ms. Robin Carder, one of the owners of the Respondent, and the employee, Ms. Jerry Meng, testified at the
hearing. The UCI was present and the undersigned observed his appearance. SLED agent, Ryan Neill, was present.
FINDINGS OF FACTHaving 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. The Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all parties.
3. The Respondent holds an off-premise beer and wine permit for the store located at 40 South Forest Beach, Hilton Head Island,
South Carolina 29928.
4. On October 14, 1999, SLED agent Ryan Neill made a "controlled buy" at the Forest Beach Store in Hilton Head Island, South
Carolina. An underage cooperating individual ("UCI"), Robert Strickland, from Walterboro, South Carolina, participated in the
controlled buy.
5. Robert Strickland was born on October 30, 1979, and was nineteen years of age on October 14, 1999.
6. Mr. Strickland held a valid South Carolina driver's license which showed his birth date and contained in the upper right-hand
corner the statement: "Under 21 until 10-30-2000."
7. At approximately 6:52 p.m. on October 14, 1999, Mr. Strickland entered the Forest Beach Store, walked to the cooler, picked up a
22-ounce Budweiser, walked to the counter, and purchased the beer from the clerk, Jerry Meng. Ms. Meng never asked the UCI for
identification.
8. SLED agent Ryan Neill then wrote out the administrative citation against the location for violating S.C. Code Ann. Regs. 7-9(B) by
permitting the purchase of beer by a person under twenty-one years of age.
9. This violation constitutes the third violation of S.C. Code Ann. Regs. 7-9(B) written against the beer and wine permit for this store,
the Forest Beach Store. The first violation report is dated March 29, 1997. The Respondent paid a monetary penalty of Four Hundred
Dollars ($400.00) for that violation. The second violation report is dated March 6, 1999. The Respondent paid a monetary penalty of
Eight Hundred Dollars ($800.00) for that violation.
10. Beer and wine sales for off-premise consumption are extremely important to this store.
11. The Respondent trains its new employees by reviewing ABC laws. The Respondent also gives its employees a handbook. Each
employee is required to sign a paper indicating the employee read and understood the handbook.
12. During the time from October 15, 1999, to November 1, 2000, there were no administrative violations under the South Carolina
Alcoholic Beverage Control laws or regulations written against the Forest Beach Store.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1999) grants jurisdiction to the Administrative Law Judge Division to hear contested cases
under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 1999) provides contested case hearings arising under the provisions of Title 61 must be heard
by an Administrative Law Judge with the Division.
3. A permit is subject to revocation or suspension if the holder or an employee on the permitted premises knowingly sells beer or
wine to any person under the age of twenty-one years. S.C. Code Ann. § 61-4-580(1) (Supp. 1999).
4. 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1999) prohibits a permittee from permitting or knowingly allowing a person under twenty-one years of age to purchase or possess or consume beer or wine in or on the licensed premises. Such an act is a violation against the
permit and constitutes grounds for suspension or revocation of the beer and wine permit.
5. For a violation of any provision contained in Chapter 4 of Title 61, S.C. Code Ann. § 61-4-250 (Supp. 1999) authorizes discretion
in the trier-of-fact to impose a monetary penalty on the holder of a beer and wine permit in lieu of suspension or revocation. It
provides certain parameters for retail beer and wine licenses and for wholesale beer and wine licenses. It further provides that the
monetary penalty may be suspended.
6. All regulations promulgated by the Commission (now Department), effective on the date of the Government Restructuring Act of
1993, remain in force until modified or rescinded by the Department or SLED. 1993 S.C. Acts 181, § 1604.
7. A party manifests consent and knowledge to allowing a person under twenty-one years of age to purchase beer if, from the
appearance of the person or otherwise, the party had sufficient information that would lead a prudent man to believe the person was
under twenty-one especially where simple inquiry would have confirmed such fact. Feldman v. South Carolina Tax Comm'n, 903
S.C. 49, 26 S.E.2d 22 (1943); S.C. Atty. Gen. Op. 3395 (1972); see 58 Am. Jur. 2d Notice § 14 (1989). A person has no right to shut
his eyes to avoid information clearly before him. 58 Am. Jur. 2d Notice § 13 (1989).
8. A licensee may be held liable for violations of liquor statutes and regulations committed by his agent while pursuing the ordinary
business entrusted to him. The licensee is liable even though the violations are committed in his absence and without his knowledge,
consent, or authority. See 48 C.J.S. Intoxicating Liquors § 276 (1981).
9. The evidence in the record clearly shows that the Respondent, through his employee, permitted the sale of beer to a person under
twenty-one years of age. Despite the youthful appearance of the UCI, the Respondent's employee neglected to ask the UCI for
identification. In this case, the UCI's identification would have shown that he was nineteen years of age at the time of the purchase.
10. If an agent is doing some act in furtherance of the principal's business, he will be regarded as acting within the scope of his
authority. On the other hand, a principal generally is not liable when an agent is acting for his own independent purposes, wholly
disconnected from furtherance of his employer's business; such conduct falls outside the scope of his employment. Crittenden v.
Thompson-Walker Co., 288 S.C. 112, 341 S.E.2d 385 (Ct. App. 1986).
11. The record is clear that the clerk, Jerry Meng, was acting within the scope of general authority placed in her by her principal, the
Forest Beach Store, in selling beer and wine at the location. No evidence was entered into the record that Ms. Meng was not
authorized to be at the location nor to make sales of beer and wine. In addition, the evidence is overwhelming that she did sell a beer
to the UCI.
12. Permits and licenses issued by the state of South Carolina for the sale of liquor, beer, and wine are not rights or property, but are
privileges granted in the exercise of the police power of this state to be used and enjoyed only so long as the restrictions and
conditions governing them are complied with. The Administrative Law Judge Division, as the tribunal authorized to grant the
issuance of a permit, likewise is authorized to revoke or suspend the permit for cause. See Feldman v. South Carolina Tax Comm'n,
903 S.C. 49, 26 S.E.2d 22 (1943).
13. Based upon the evidence, I conclude that the Respondent and/or his agent for whose action he is responsible violated S.C. Code
Ann. § 61-4-580 (Supp. 1999) and 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1999) on October 14, 1999, by selling a beer to a person
under twenty-one years of age.
14. S.C. Code Ann. § 61-4-250 (Supp. 1999) authorizes, for any violation of any regulation promulgated by the Department
pertaining to beer and wine, in lieu of suspension or revocation of the beer and wine permit, the imposition of a monetary penalty not
less than twenty-five dollars ($25.00) but not more than one thousand dollars ($1000.00).
15. It is a generally recognized principle of administrative law that the fact finder has the authority to impose an administrative
penalty, as established by the legislature, after the parties have had an opportunity to have a hearing and be heard on the issues.
Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991); see also City of Louisville v. Milligan, 798 S.W.2d
454 (Ky. 1990); Matter of Henry Youth Hockey Ass'n, 511 N.W.2d 452 (Minn. Ct. App. 1994); Shadow Lake of Noel, Inc. v.
Supervisor of Liquor Control, 893 S.W.2d 835 (Mo. Ct. App. 1995); Ohio Real Estate Comm'n v. Aqua Sun Inv., 655 N.E.2d 266
(Ohio 1995); State Police v. Cantina Gloria's, 639 A.2d 14 (Pa. 1994); Vermont Agency of Natural Resources v. Duranleau, 617
A.2d 143 (Vt. 1992).
16. Based upon the evidence presented and after considering the credibility of the witnesses, together with the Respondent's policies
regarding the adherence to ABC statutes, I conclude that a monetary penalty of Seven Hundred Fifty Dollars ($750.00), together with
a suspension of the off-premise beer and wine permit for a period of ten (10) days, is the appropriate penalty in this case.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Respondent, The Base Corporation, d/b/a Forest Beach Store, is in violation of S.C. Code Ann.
§ 61-4-580 (Supp. 1999) and 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1999) for selling a beer to a person under the age of twenty-one
years on October 14, 1999.
IT IS FURTHER ORDERED that the Respondent must pay a monetary penalty in the amount of Seven Hundred Fifty Dollars
($750.00) to the Department within fifteen (15) days of the date of this order.
IT IS FURTHER ORDERED that the off-premise beer and wine permit issued by the Department to the Respondent at 40 South
Forest Beach, Hilton Head Island, SC 29928, is suspended for a period of ten (10) days, to begin on the fifteenth day from the date of
this order.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
November 7, 2000
Columbia, South Carolina |
