South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Evan B. Todd, Jr., d/b/a G & T Discount Center

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Evan B. Todd, Jr., d/b/a G & T Discount Center
 
DOCKET NUMBER:
00-ALJ-17-0332-CC

APPEARANCES:
Michael K. Kendree, Esquire, for the Petitioner

Dirk J. Derrick, Esquire, for the Respondent
 

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, Evan B. Todd, Jr., d/b/a G & T Discount Center, for violating provisions of 23 S.C. Code Regs. 7-9(B) (Supp. 1999) for the sale of alcohol to a person under the age of twenty-one. The Department seeks a forty-five (45) day suspension of the Respondent's off-premises beer and wine permit. The Respondent requested a contested case hearing. After notice to all parties, a hearing was conducted on November 6, 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 holds an off-premises beer and wine permit (# BG163986).

3. On February 18, 2000, an underage cooperating individual (UCI), in cooperation with the South Carolina Law Enforcement Division (SLED), entered the premises of the Respondent. The UCI was carrying only his valid South Carolina Driver's License and a small amount of money which was provided by SLED.

4. The employee of the Respondent, Ida M. Harriot, requested to see the UCI's Driver's License, reviewed it, and then sold one twelve ounce can of Bud Light beer to the UCI. The driver's license presented to the cashier indicated that the UCI's birth date was "06-27-1980." The license also indicated that the UCI was under 21 until "06-27-2001." The UCI was 19 years old at the time of the purchase.

5. The UCI paid for the beer, exited the store, and then took the beer to the SLED agent who was waiting outside.

6. After the violation, a SLED agent issued a citation to the Respondent for violating 23 S.C. Code Ann. Regs 7-9(B).

7. It is the Respondent's store policy to check the identification of its customers who purchase beer and wine products. The Respondent advises all individuals not to sell beer and wine to minors under the age of 21. The Respondent has posted on the cash register a card containing the date before which someone must be born in order to purchase cigarettes and the date before which someone must be born to purchase beer or wine. In the instant case, the employee, Ida M. Harriot, required the UCI to show his identification. Ms. Harriot mistakenly compared the UCI's birth date to the cigarette age instead of the beer and wine age.

8. Since this violation, the Respondent has taken additional steps to ensure his employees do not sell beer and wine to minors. He is in the process of purchasing equipment to be attached to his cash register which will allow the employee to enter the birth date of the purchaser and a computer chip will determine whether the individual is of age to purchase beer and wine and/or cigarettes. Respondent also installed a larger sign over the cash register which indicates the date before which someone must be born in order to purchase cigarettes and the date before which someone must be born to purchase beer or wine.

9. This is Respondent's third violation within the past three years. The first violation occurred on July 30, 1998. Respondent paid a $400.00 fine for that offense. The second violation occurred on March 19, 1999. Respondent paid a $800.00 fine for that offense.

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 23 S.C. Code Ann. Regs. 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) 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 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. This is Respondent's third violation within the past three years. The Department seeks a forty-five day suspension of Respondent's license and Respondent argues that this penalty is excessive. Internal Department policies call for the imposition of this penalty when a license holder receives a third violation within a three year time period.

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 forty-five day suspension of Respondent's license is excessive. Respondent demonstrated that he is taking steps to prevent the sale of alcohol to underage persons. This sale was made due to a mistake by the employee whose father had recently died. Therefore, I find that a monetary penalty of $1000.00 and a fourteen (14) day suspension of Respondent's license 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 One Thousand ($1000.00) Dollars within thirty (30) days of the date of this Order;

AND IT IS FURTHER ORDERED that the Respondent's beer and wine license is suspended for a period of fourteen (14) days beginning at 12:01 a.m. on the sixtieth (60) day following the date of this Order.

AND IT IS SO ORDERED.





____________________________________

C. Dukes Scott

Administrative Law Judge



December 4, 2000

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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