South Carolina              
Administrative Law Court
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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-17-0667-CC

APPEARANCES:
For the Petitioner: Jeffrey M. Nelson, Esquire

For the Respondent: Dirk J. Derrick, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division ("Division") pursuant to an administrative violation written by a State Law Enforcement Division ("SLED") agent on August 17, 2000. The violation was written against the off-premise beer and wine permit of Evan B. Todd, Jr. d/b/a G&T Discount Center ("Respondent") for the premises located at 1801 Parkview Road, Horry County, Conway, South Carolina ("location"). The violation report stated that Respondent violated 23 S.C. Code Ann. Regs. 7-82 (Supp. 2000) for hindering an inspection of the location. The South Carolina Department of Revenue ("Department") now seeks revocation of Respondent's beer and wine permit. The issue in this case is whether Respondent violated Regulation 7-82 by hindering an inspection by SLED agents on August 17, 2000, at this location and, if so, whether revocation of the license is appropriate.

After written notice to the parties, a hearing was held at the offices of the Division in Columbia, South Carolina on Wednesday, March 14, 2001. The parties were present and offered testimony. After a thorough review of the evidence, I find that the Respondent is in violation of Regulation 7-82. Based on the circumstances at the time of this inspection, however, I find that a reasonable penalty in this case is suspension of the beer and wine permit for a period of thirty days.

Any issues raised in the proceedings or hearing of this case but not addressed in this order are deemed denied. ALJD Rule 29(B). The filing of a motion for reconsideration is not a prerequisite to filing a notice of appeal of this order. ALJD Rule 29(C).

EXHIBITS

Without objection, Petitioner offered into the record four exhibits: the violation report; the report of SLED agent Pamela Williamson; a copy of an order issued by the Honorable C. Dukes Scott dated December 4, 2000, with attachments; and the Department's Final Determination letter.

FINDINGS OF FACT

Having carefully considered the credibility of the testimony and accuracy of the evidence presented at the hearing and 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 date, time, place, and nature of the hearing was timely given to all parties.

  • Respondent holds an off-premise beer and wine permit, #BG 963986, for the premises located at 1801 Parkview Road, Horry County, Conway, South Carolina.

  • On August 17, 2000, Special Agents Pamela Williamson and Steve Wright of the Alcohol Enforcement Unit of SLED, went to Respondent's location after receiving a tip that Respondent was selling alcoholic beverages to minors and was storing illegal liquor on the premises.

  • Agents Williamson and Wright were accompanied by an underage cooperating individual ("UCI"). The UCI entered the premises and attempted to purchase an alcoholic beverage. The clerk checked the UCI's identification and refused to sell the beverage because the UCI was not twenty-one years of age.

  • Agents Williamson and Wright thereafter entered the location at approximately 6:20 p.m. to conduct an inspection to ensure Respondent was in compliance with all ABC regulations and statutes. The agents specifically were searching for any illegal liquor stored or located on the premises.

  • During the inspection, the agents attempted to enter a small room measuring approximately six feet by six feet. The door providing entry into the room, however, was locked. The clerk at the location did not have access to a key which would open the door. According to the clerk, only Respondent had a key.

  • At the time of the inspection, Respondent was in Florence, South Carolina. He was purchasing equipment for his laundry business, which adjoins the location involved in this case.

  • Because the clerk could not open the door, the clerk telephoned Respondent. Agent Williamson listened to the conversation. The clerk told Respondent that the agents wanted access to the room. The clerk, however, did not tell Respondent that he would be issued a violation if he did not return immediately to the location and open the door. Unaware of the potential violation, Respondent told his clerk that he was not coming back at that time.

  • If warned of the potential violation, Respondent would have instructed the clerk to pry the door open to provide access to the agents. Respondent, however, believed that the agents would return later that evening or the next day.

  • Neither agent requested the clerk to tell Respondent that if he failed to open the door, a violation would be issued. Neither agent requested to speak with Respondent.

  • After the phone call concluded, Agent Williamson wrote the violation report and left it with the clerk. Respondent received the report when he returned to the store approximately two hours later.

  • The agents never returned to inspect the room after Respondent returned to the location.

  • Respondent keeps several valuable items in the small room including book work for the location, approximately $2000.00 to $3000.00 in quarters taken from the laundromat machines, an inventory of cigarettes and cigars, and videotape equipment for the cameras located in the cash register area and throughout the location. Respondent routinely locked the door and refused access to his employees in order to prevent the employees from tampering with the videotape equipment.

  • Petitioner did not offer any proof that Respondent had any illegal liquor in the small room or anywhere in the location at the time of the inspection.

  • These agents have issued violation reports at Respondent's location previously. On each occasion, the door to this small room was locked. The agents, however, never advised Respondent to keep the door unlocked and never issued a violation report for the door being locked.

  • Subsequent to this incident, Respondent has kept the door to the small room unlocked at all times. Respondent also installed an additional camera inside the location which will videotape anyone, including his employees, who might attempt to enter the small room.

  • Respondent is credible both in his testimony and in his actions. He has made many changes to his store to ensure that it complies with ABC regulations and statutes. Respondent was forthright when testifying that he did not believe the agents would issue a violation report if he did not return to the location immediately at the time of the inspection.

  • Respondent also testified that there are other businesses in the general vicinity of the location which have offices with locked doors.

  • On July 30, 1998, Agent Williamson accompanied a UCI to Respondent's location. On that occasion, Linda Miles, the clerk at Respondent's location, sold a beer to the UCI. A violation report was issued against Respondent for permitting the purchase of a beer by a person under the age of twenty-one in violation of 23 S.C. Code Ann. Regs. 7-9(B). On September 2, 1998, Respondent paid a fine to the Department in the amount of $400.00 for this violation.

  • On March 19, 1999, at approximately 8:25 p.m., Eric Athey, the clerk at Respondent's location, sold a beer to a UCI. A violation report was issued against Respondent for permitting the purchase of a beer by a person under the age of twenty-one in violation of 23 S.C. Code Ann. Regs. 7-9(B). On June 7, 1999, Respondent paid a fine to the Department in the amount of $800.00 for this violation.

  • On February 18, 2000, a UCI accompanied a SLED agent to Respondent's location. The UCI entered the premises, was asked for identification, and was allowed to purchase a beer. The UCI was under twenty-one years of age. The Honorable C. Dukes Scott held a hearing, fined Respondent $1000.00, and suspended Respondent's permit for a period of fourteen days. Respondent thereafter took additional steps to ensure his employees did not sell beer or wine to minors. Respondent purchased an additional mechanical device which attaches to the cash register. When the birth date of the individual is entered, the device calculates the age and displays it for the clerk to see. No violations have been issued against Respondent since this date for selling beer to a person under twenty-one years of age.


CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:

1. The Administrative Law Judge Division has jurisdiction to hear this case.

  • S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the Division to hear contested cases under the Administrative Procedures Act.

  • S.C. Code Ann. § 61-2-260 (Supp. 2000) specifically grants jurisdiction to the Division to conduct contested case hearings in matters governing alcoholic beverages, beer, and wine.

  • In civil cases, the burden of proof generally 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 (2000). One means of determining which party has the affirmative of an issue is to answer the question as to which party would be subject to an adverse judgment on the pleadings if no evidence was introduced.

  • The Department is the party asserting the affirmative in this case. The Department, therefore, must prove by a preponderance of the evidence that Respondent violated 23 S.C. Code Ann. Regs. 7-82 (Supp. 2000) by hindering a full inspection of the location. See Anonymous v. State Bd. of Med. Exam'rs, 329 S.C. 371, 496 S.E.2d 17 (1998).

  • The trier of fact must weigh and pass upon the credibility of evidence presented. South Carolina Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. Shealy v. Aiken County, 341 S.C. 448, 535 S.E.2d 438 (2000).

  • When interpreting a statute, the judge must ascertain and effectuate legislative intent if it reasonably can be discovered in the language when construed in light of its intended purpose. Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000).

  • 23 S.C. Code Ann. Regs. 7-82 (Supp. 2000) provides:

Any holder of a retail or wholesale liquor license, a retail beer license, or a retail or wholesale beer and wine permit, or a holder of a possession and consumption of alcoholic liquors permit, or any servant of such person, who shall, upon demand of any officer or agent of the Alcoholic Beverage Control Commission [now the South Carolina Department of Revenue in coordination with the State Law Enforcement Division] or of any peace officer, refuse to allow full inspection of the premises or any part thereof, or who shall hinder or in any wise delay or prevent such inspection, shall be deemed to have violated said license or licenses, and the Alcoholic Beverage Control Commission may suspend or revoke said license or licenses, or may impose a monetary penalty in lieu thereof with respect to licenses, pursuant to provisions of law.

(Emphasis added).

  • Permits and licenses issued by the State of South Carolina authorizing 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. Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

  • "Hinder" is defined as "to delay, impede, or prevent action." Webster's Collegiate Dictionary 548 (10th ed. 1993). "Delay" is defined as "to stop, detain, or hinder for a time." Webster's Collegiate Dictionary 305 (10th ed. 1993). "Delay" also is defined as "the act of postponing or slowing." Black's Law Dictionary 437 (7th ed. 1999).

  • Since the door to the small office was locked, no employee at the location at the time of the inspection had access to the room. Respondent did not come back to the store immediately to open the door and, therefore, is in violation of preventing the agents from conducting a full inspection of the location. Respondent's actions or inactions, which hindered and delayed the inspection of the location, constitute a violation of the clear and explicit language of the regulation.

  • Notwithstanding the fact that Respondent technically violated the regulation, I find that his motive for keeping the door locked was for a valid business purpose. Furthermore, when the clerk telephoned Respondent, the SLED agents were listening to the conversation and should have told the clerk to advise Respondent to return immediately. Respondent sincerely believed the agents would return later that evening or the next day. Based on the totality of the circumstances as known by Respondent, Respondent acted responsibly in completing his shopping in Florence before returning to the location two hours later.

  • The Department argues that, pursuant to its Revenue Procedure 95-7, any violation for hindering or delaying an inspection justifies the permanent revocation of the permit at the location of the inspection. The Department further argues that if licensees are allowed to delay SLED inspections, the licensees would have the opportunity to move contraband or illegally stored goods, warn patrons who are illegally drinking or purchasing alcohol, or conceal other criminal conduct.

  • While the Department's argument has merit, the amount of the penalty to be imposed upon a licensee is within the sound discretion of the trier of fact. See Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). As the trier of fact, I find that a revocation of the license would be excessive under the circumstances of this case. At the time of the inspection, Respondent had locked the small room for legitimate business reasons. Respondent now keeps the door to the small room unlocked making the room available at all times for inspection by SLED agents. I conclude that a suspension of the beer and wine permit for a period of thirty days, effective ten days from the date of this order, is appropriate under the facts of this case. If there are no violations issued by the Department during this suspension period, the permit must be returned to Respondent at the end of the thirty-day period.

  • I am mindful of the various violations which have been issued against Respondent at this location. Respondent, therefore, must obtain a complete set of the ABC regulations and statutes and must become more familiar with them. Respondent also must communicate with agents of the Department to obtain any ABC training that is available for him and for his employees.




ORDER

Based on the foregoing findings of fact and conclusions of law,

IT IS HEREBY ORDERED that, ten days from the date of this order, agents of SLED or of the Department shall go to Respondent's location and retrieve the beer and wine permit. Absent any further violations at Respondent's location, the agents shall return the permit to Respondent thirty days thereafter or forty days from the date of this order.

IT IS FURTHER ORDERED that Respondent shall obtain a complete set of all ABC regulations and statutes and become familiar with them. Respondent also shall communicate and consult with agents and employees of the Department to obtain any training the Department may offer for himself and for his employees.

AND IT IS SO ORDERED.



__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

March 27, 2001

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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