ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 and Supp. 2000). The South Carolina Department of Revenue (Department)
contends that Respondent Circle K, Inc. d/b/a Circle K Stores (Respondent) permitted or knowingly allowed
an underage person to purchase beer from Respondent's licensed establishment located at 1839 Celanese
Road, Rock Hill, South Carolina. Accordingly, the Department seeks to impose an $800 fine against
Respondent for this second violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000).
After timely notice to the parties, a hearing was conducted on July 26, 2001, at the Administrative Law Judge
Division, Columbia, South Carolina. Based upon testimony and the evidence presented, Respondent shall be
fined $400 for violating 23 S.C. Code Ann. Regs. 7-9(B).
STIPULATED FACT
By letter dated July 25, 2001, Counsel for Respondent stipulated that the violation occurred but challenged
the severity of the penalty.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and
taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a
preponderance of the evidence.
1. Respondent holds an off-premises beer and wine permit (#32012392PB6) for the convenience store located
at 1839 Celanese Road, Rock Hill, South Carolina.
2. On February 8, 2001, Respondent was issued a citation for violating 23 S.C. Code Ann. Regs. § 7-9(B)
(Supp. 2000). Respondent was previously charged with an identical violation on March 26, 1999, for which
it paid a $400 fine.
3. For the incident occurring on February 8, 2001, Ms. Danette Follett, the store clerk, was charged with a
criminal violation of S.C. Code Ann. § 61-4-90 (Supp. 2000), for transferring beer to a person under the age
of twenty-one.
4. Ms. Follett is sixty-three years old. She has been in the convenience store business for nineteen and one-half years. For many of these years, she has worked as a manager. She readily admits that she made a
mistake and indicated, "clearly he [the Underage Cooperating Individual or UCI] did not look over twenty-one." She normally relies on an electronic scanner to verify the age of a prospective purchaser of alcohol;
however, the scanner was broken on the night in question. As an additional precaution, she relied on an age
verification calendar to verify the UCI's eligibility to legally purchase alcohol. Rather than referring to the
date for the purchase of alcohol, she inadvertently referred to the date for the purchase of tobacco products.
The permissible age for the purchase of tobacco is eighteen, whereas it is twenty-one for the purchase of
alcohol. The UCI possessed a South Carolina Driver's License, which clearly indicated that he was "Under
21 until 05-28-2003," which Ms. Follett overlooked.
5. In observing Ms. Follett's demeanor, I find her to be a sincere and truthful individual, who accepts full
responsibility for her actions. She readily admits making an unintentional mistake in this instance. Further,
the evidence suggests that the store was busy at the time of the sale to the UCI.
CONCLUSIONS OF LAW
1. The Department is charged with the responsibility of administering and enforcing the laws and regulations
governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 2000). The
Department alleges Respondent violated 23 S.C. Code Ann. Regs. § 7-9(B)(Supp. 2000) by permitting or
knowingly allowing a minor to purchase beer from Respondent's licensed establishment. Regulation 7-9(B)
provides:To permit or knowingly allow a person under twenty-one years of age to purchase or possess or consume beer
and wine in or on a licensed establishment which holds a license or permit issued by the South Carolina
Alcoholic Beverage Control Commission is prohibited and constitutes a violation against the license or
permit. Such violation shall be sufficient cause to suspend or revoke the license or permit by the Alcoholic
Beverage Control Commission.
23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) (emphasis added).2. The Department is authorized to revoke or suspend the beer and wine permit of any licensee for
committing a violation of the laws pertaining to alcoholic beverages or any regulation promulgated by the
Department. See S.C. Code Ann. §§ 61-4-270 & 61-4-590 (Supp. 2000). For example, the Department is
authorized to revoke a licensee's permit for only a first violation. See S.C. Code Ann. §§ 61-4-270, 61-4-590
(Supp. 2000); 23 S.C. Code Ann. Regs. 7-9(B). Further, the Department may impose a monetary penalty as
an alternative to revocation or suspension. S.C. Code Ann. § 61-4-250 (Supp. 2000). Under S.C. Code Ann.
§ 61-4-250 (Supp. 2000), a monetary penalty of $25 to $1,000 for any violation relating to retail beer and
wine licenses may be imposed.
3. The Department's Revenue Procedure 95-7 sets forth penalty guidelines for violations of the Alcohol
Beverage Control laws. For retail beer and wine licenses, Revenue Procedure 95-7 provides for a $400 fine
for the first offense, an $800 fine for the second offense, a 45-day suspension of the license for the third
offense, and revocation of the license for the fourth offense. This Revenue Procedure only provides guidance
to the Department; it is not law and thus is not binding on this Division. Cf. Home Health Serv. v. S.C. Tax
Comm'n, 312 S.C. 324, 328, 440 S.E.2d 375, 378 (1994) and Ryder Truck Lines, Inc. v. U.S., 716 F.2d 1369
(11th Cir. 1983).
4. 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 Tel. & Tel. 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 or her testimony. See 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); 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). See
also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (court as finder of fact "has the
authority to determine the weight and credibility of the evidence before him.")
5. The facts in this case warrant a lesser fine than that sought to be imposed by the Department. It is a
generally recognized principle of administrative law that the fact-finder has the authority to determine an
appropriate administrative penalty, as established by the legislature, after the parties have had an opportunity
for a hearing on the issues. See, e.g., Walker v. S.C. ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). In
assessing a penalty , the fact finder "should give effect to the major purpose of a civil penalty -- deterrence."
Midlands Utility, Inc. v. S.C. Dep't of Health and Envtl. Control, 313 S.C. 210, 212, 437 S.E.2d 120, 121
(1993). See also Walker, supra.
6. Nevertheless, Respondent should be reminded that the purpose of the statutory prohibition against selling
alcohol to underage individuals is to protect both the individuals and the public at large from the possible
adverse consequences of such sales. The sale of alcohol to an underage individual is a serious offense and
cannot be taken lightly. Further, a beer and wine permit is neither a contract nor a property right. It is a
"mere [permit], issued or granted in the exercise of the police power of the state to do what otherwise would
be unlawful to do; and to be enjoyed only so long as the restrictions and conditions governing [its]
continuance are complied with." Feldman, 203 S.C. 49, 26 S.E.2d 22, 25 (1943). Accordingly, there are
legal consequences for noncompliance with the alcoholic beverage laws. Consequently, Respondent should
not expect such leniency for a subsequent violation at this location.
ORDER
IT THEREFORE ORDERED that Respondent be fined $400 for violating 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 2000). Respondent shall remit $400 to the Department within thirty (30) days of the date of this Order
to satisfy the fine.
AND IT IS SO ORDERED.
_________________________________
JOHN D. GEATHERS
Administrative Law Judge
August 8, 2001
Columbia, South Carolina |
