South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Linda D. Lewis, d/b/a King Street Grocery

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Linda D. Lewis, d/b/a King Street Grocery
 
DOCKET NUMBER:
00-ALJ-17-0531-CC

APPEARANCES:
Petitioner & Representative: South Carolina Department of Revenue, Michael K. Kendree, Esquire

Respondent & Representative: Linda D. Lewis, d/b/a King Street Grocery, Pro se

Parties Present: All Parties
 

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 Linda D. Lewis (Lewis), d/b/a King Street Grocery. DOR argues that Lewis allowed the commission of a crime on her permitted premises. Lewis disagrees with DOR on whether a violation of the law occurred, and further asserts that the alleged violation should not carry a forty-five day suspension. 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, Lewis' beer and wine permit must be suspended for fifteen days.



II. Issues



1. Did Lewis knowingly permit an act which constituted a crime under the laws of this State upon the licensed premises covered by Lewis's beer and wine permit?



2. If yes, what is the appropriate penalty?





III. Analysis



A. Permitting A Criminal Act



1. Positions of Parties



DOR asserts that Lewis knowingly allowed a person under the age of eighteen to purchase cigarettes on the premises of the location for which she holds a beer and wine permit. DOR argues that the sale was a criminal act and constitutes a violation of Lewis's beer and wine permit.



Lewis asserts the sale was not made to a person under eighteen. Rather, the clerk received identification showing the purchaser to be over eighteen.



2. Findings of Fact



I find by a preponderance of the evidence the following facts:



King Street Grocery is a convenience store located at 435 King Street, South Carolina. The store sells tobacco products and a sale of cigarettes on April 25, 2000 presents the matter in controversy here. On that date an individual under the age of eighteen acted as an undercover informant for the City of Charleston Police Department. The individual entered the store, picked up a pack of cigarettes, and presented them to Lewis for purposes of purchasing the cigarettes. Lewis asked the purchaser for age identification. The purchaser provided a valid South Carolina's driver's license with the purchaser's birth date stated as March 22, 1984. Thus, at the time of the transaction, the purchaser was sixteen. Lewis examined the license, returned it to the purchaser, and then completed the sale by receiving the purchaser's funds and giving the purchaser the cigarettes.



Upon leaving the store, the purchaser provided the cigarettes to a police officer waiting outside the building. The officer entered the store and notified Lewis that an illegal sale of cigarettes had been completed. As a result of the sale, SLED issued a citation against Lewis's beer and wine permit.



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 penalty or suspension of the holder's permit. S.C. Code Ann. § 61-4-580(5) (Supp. 1999). Here, on April 25, 2000, Lewis, the holder of a beer and wine permit, committed a criminal act by violating S.C. Code Ann. § 16-17-500 (Supp. 1999) through the sale of cigarettes to a person under age eighteen. (1) The sale was made knowingly since Lewis examined the purchaser's driver's license before completing the sale and thus had clear knowledge of the buyer's date of birth of March 22, 1984. A seller cannot avoid the "knowingly" standard by simply refusing to make a decision on the age of the purchaser and thereby claim lack of knowledge. 58 Am. Jur.2d Notice § 13 (1989) (a person has no right to shut his eyes to avoid information clearly before him). Thus, Lewis had before her plain information that informed her the buyer was only sixteen. Therefore, Lewis knowingly allowed the commission of a criminal act on the premises used for the sale of beer and wine.



B. Penalty



1. Positions of Parties



DOR asserts that a 45 day suspension is proper in light of the fact that Lewis has had three violations in less than three years. Lewis argues that a penalty of 45 days is simply too severe given the effort Lewis takes to prevent such violations.



2. Findings of Fact



I find by a preponderance of the evidence the following facts:



In less than three years, King Street Grocery has had three violations constituting criminal activity on the premises. However, not all criminal violations were for the same illegal activity. Rather, on February 12, 1998 and November 12, 1999, employees operating under Lewis's permit sold beer to persons under twenty-one years of age. For the two previous violations, Lewis paid fines of $400 and $800, respectively. The third violation was not for the sale of beer to an underage party but rather was for the sale of cigarettes to an underage party. For this third violation on April 25, 2000, DOR now seeks a forty-five day suspension.



The King Street Grocery is a small operation having only four employees. Management provides training 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 cigarettes and beer and wine. To avoid underage sales, a chart is kept at the register so that the sales clerk can easily calculate the age of the intended purchaser. Indeed, Lewis and other employees have routinely denied sales of beer and cigarettes to underage purchasers.



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 is subject to a penalty or suspension of the holder's permit. S.C. Code Ann. § 61-4-580(5) (Supp. 1999). Here, since a violation has been found, the remaining issue is deciding what penalty is proper. 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).



DOR believes a sanction of 45 days is proper since that is the sanction suggested by DOR's penalty guidelines expressed in S.C. Rev. Proc. 95-7. The document explains that the sanctions listed are only guidelines and do not establish a binding norm. Indeed, the document explains that "[t]here will often be circumstances present that call for either more severe or less severe sanctions for an offense."



Here, the facts of this case warrant a sanction less severe than a 45 day suspension. If DOR's guidelines are applied with no examination of the circumstance of each case, a third violation of a criminal statute will result in a 45 day suspension regardless of the nature of the three criminal violations. Thus, unless some discretion is exercised, a permit holder committing three minor criminal violations will receive the same 45 day suspension as a permit holder committing three major criminal violations. While DOR's goal of uniform sanctions is laudable, uniformity must be balanced with the duty to act fairly under the circumstances of each case. Such is especially true in the instant case where the sanction for Lewis's third offense produces a significant leap in penalty from a second offense fine of $800 to a third offense suspension of 45 days. In short, the issue becomes that of deciding what impact the nature of the three offenses should have in fashioning an appropriate sanction.



In this case, Lewis twice sold beer to persons under 21 and paid fines of $1,200 for these violations. As DOR observes, the purpose of the fines is that of "insuring compliance with the law, not punishment." Rev. Proc. 95-7. From the facts of this case, it appears that Lewis has not made further sales of beer to persons under 21.



However, subsequent to the illegal beer sales, Lewis made a sale of cigarettes to a person under 18. Such a sale is a criminal violation. Indeed, the violation is the third criminal violation in less than three years and warrants a sanction. Accordingly, an increase in the sanctions beyond that of the second violation is warranted, but fairness demands that the degree of the increased sanction must depend upon the magnitude of the third violation.



The crime of selling cigarettes to a person under 18 is not of the same magnitude as that of a crime of selling beer to a person under 21. Indeed, our General Assembly has recognized the difference. The criminal penalty for transfer of beer to a person under 21 is two hundred dollars or thirty days in prison while the criminal penalty for a first offense (which the record before me seems to indicate is the case here) of selling cigarettes to a person under 18 is "a fine not exceeding twenty-five dollars." See §61-4-90 and § 16-17-500.



Accordingly, a violation that imposes a criminal penalty of a $25 fine is not the equivalent of a violation that imposes a criminal penalty of thirty days in jail. Therefore, since the third criminal violation on the permitted premises was the selling of cigarettes to a person under 18, a penalty of a 45 day suspension is not warranted. Rather, a suspension of Lewis's beer and wine permit for 15 days is proper.





IV. Order



Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:



The beer and wine permit held by Linda D. Lewis, d/b/a King Street Grocery, shall be suspended for 15 days. The period of suspension shall begin at 12:01 a.m. on January 29 and end at 12:01 a.m. on February 13, 2001.



AND IT IS SO ORDERED.



____________________________

RAY N. STEVENS

Administrative Law Judge



Dated: January 10, 2001

Columbia, South Carolina

1. Section 16-17-500 explains that "[i]t shall be unlawful for any person to sell, furnish, give, or provide any minor under the age of eighteen years with cigarettes, . . . "


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