ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks a forty-five day suspension of the beer and wine permit held by 3S
Corporation, d/b/a Food Shoppe (Food Shoppe) since Food Shoppe allowed the commission of a crime on the permitted premises.
While Food Shoppe agrees that a violation of the law occurred, Food Shoppe asserts a forty-five day suspension is too severe. The
disagreement between the parties places contested case jurisdiction in the Administrative Law Judge Division. S.C. Code Ann. §
61-2-260 (Supp. 1999). Under the facts of this case, Food Shoppe's beer and wine permit must be suspended for 45 days.
II. Issue
What is the appropriate penalty for Food Shoppe when within a six month period it knowingly permits three criminal acts of selling
beer to persons under twenty-one?
III. Analysis
Penalty For Permitting A Criminal Act
1. Positions of Parties
DOR asserts that Food Shoppe knowingly allowed a person under the age of twenty-one to purchase beer and that the violation was
the third such violation in three years. Given the repeated violations, DOR seeks a 45 day suspension. Food Shoppe admits the sale
but argues that the 45 day suspension is too severe.
2. Findings of Fact
I find by a preponderance of the evidence the following facts:
Food Shoppe is a convenience store located at 1300 Hwy. 501 Bus., Conway, South Carolina. The store sells typical convenience
store items including beer. On May 31, 2000, an undercover cooperating individual (UCI) under the age of twenty-one acted as an
undercover informant for the South Carolina Law Enforcement Division (SLED). The UCI entered the store and had in his
possession a valid South Carolina drivers license showing the individual was not yet twenty-one. The UCI picked up a 12 ounce can
of Bud Light beer, presented the beer to the clerk on duty, and provided the clerk with sufficient funds to purchase the beer. The clerk
did not ask for identification. The clerk took the funds for the beer, completed the sale, and gave the purchased beer to the UCI. The
UCI left the premises and gave the beer to a SLED Agent waiting outside the building. The agent entered the store and notified Food
Shoppe that an illegal sale of beer had been completed. As a result of the sale, SLED issued a citation against Food Shoppe's beer
and wine permit.
The sale to an underage buyer made on May 31, 2000 is not the first such sale for Food Shoppe. In addition to the May 31, 2000
sale, Food Shoppe sold beer to underage customers in December 1999 and March 2000. Thus, three illegal sales have been made in a
six month period. For the two previous violations, Food Shoppe paid fines of $400 and $800, respectively.
Management is aware of its duty not to sell beer to individuals under twenty-one. Training is provided to all employees, which
training is intended to prevent sales to underage customers. Signs are posted around the store advising customers of the ages for
purchasing beer and wine. Further, to avoid underage sales, a computerized cash register system is in place and is designed to
automatically prohibit sales of beer unless a proper birth date is entered in the system. However, the system can be thwarted through
by-passing the birth date requirement altogether or by arbitrarily entering a date that exceeds the date of birth required for a valid sale.
3. Conclusions of Law
Any party operating under a beer and wine permit who knowingly allows the commission of a criminal act on the premises used by
the beer and wine permit is subject to a civil sanction consisting of either a penalty or the suspension of the holder's permit. S.C.
Code Ann. § 61-4-580(5) (Supp. 1999). Here, Food Shoppe admits that the clerk on duty knowingly made a sale of beer to an
individual under the age of twenty-one. Further, Food Shoppe admits that such a sale is a criminal act under S.C. Code Ann. § 61-4-90. (1) Thus, Food Shoppe is liable for a civil penalty or civil suspension under § 61-4-580(5).
The Administrative Law Judge as the fact-finder is empowered 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). Here, the evidence establishes that monetary fines
have not been able to stop the violation. Rather, two previous fines totaling $1,200 were not able to prevent a third violation.
Accordingly, a suspension rather than continued monetary fines is warranted.
The length of the suspension is dependent upon the circumstances of each case. Here, the facts show that no less than three sales to
underage buyers have been made in a time span as short as six months. Such repeated sales present a serious violation since "a rule
forbidding a licensee of the [DOR] to facilitate consumption of alcohol by a minor is designed to protect both the minor who
consumes the alcohol and those members of the public likely to be harmed by the minor's consumption of that alcohol." Norton v.
Opening Break of Aiken, Inc.,313 S.C. 508, 443 S.E.2d 406, 408 - 409 (S.C.App. 1994). When repeated violations of sales to
persons under twenty-one occur in a period as short as six months, a significant suspension is required to foster protection of the
public at large and minors in particular. Accordingly, a suspension of 45 days is imposed.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
The beer and wine permit held by Food Shoppe shall be suspended for 45 days. The period of suspension shall begin at 12:01 a.m. on
January 29 and end at 12:01 a.m. on March 15, 2001.
AND IT IS SO ORDERED.
__________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: January 19, 2001
Columbia, South Carolina
1. § 61-4-90 explains that "[i]t is unlawful for a person to transfer or give to a person under the age of twenty-one years for the
purpose of consumption beer or wine at any place in the State." |