South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Lemerle Wooten, d/b/a Lena Quick Stop

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Lemerle Wooten, d/b/a Lena Quick Stop
Highway 3E, Estill, S.C.
 
DOCKET NUMBER:
01-ALJ-17-0315-CC

APPEARANCES:
Leah B. Moody, Esquire, for the Petitioner

Ronnie Wooten, testifying 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, for a third violation of 23 S. C. Code Ann. Reg. 7-86 (delivery of beer during restricted hours). The Department seeks a forty-five (45) day suspension of the Respondent's off-premises beer and wine permit. Ronnie Wooten, son of the Respondent, requested a contested case hearing. (1) After notice to both parties, a hearing was conducted on November 13, 2001 at the Administrative Law Judge Division (ALJD) in Columbia, South Carolina.

FINDINGS OF FACT

Having carefully considered the testimony of both sides and the arguments of the Department, 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 (# 32012199PBW) for Lena's Quick Stop (Quick Stop), which is located at Highway 3E in Lena, South Carolina in Hampton County.

3. On Sunday, March 25, 2001, Officer Reid Creswell, an agent assigned to the Alcohol Enforcement Unit of the South Carolina Law Enforcement Division (SLED), was on duty in Hampton County when he noticed heavy traffic coming from the town of Estill. Because it was the only store around, Agent Creswell began observing the Quick Stop.

4. After watching the Quick Stop for approximately ten minutes, Agent Creswell observed a subject exiting the Quick Stop with a brown paper bag and enter a parked vehicle. Based on his fourteen years of experience in law enforcement, Agent Creswell suspected that the brown paper bag contained alcohol and initiated a traffic stop. After Agent Creswell approached the vehicle on the passenger side, he asked the subject what was in the bag. The subject responded that he didn't want to get anyone in trouble, but that he had purchased the beer from the Quick Stop. The subject surrendered the bag to Agent Creswell, which contained two 22 ounce Budweiser beers. Agent Creswell noted that the beers were cold to the touch. Agent Creswell then gave the subject a receipt for the beers and confiscated them.

5. After confiscating the beers, Agent Creswell testified that he entered the Quick Stop and talked to Ronnie Wooten, who was behind the counter. According to Agent Creswell, Wooten denied selling beer to the subject. Agent Creswell then issued a Violation Report for the Delivery of Beer During Restricted Hours to Wooten. After Wooten refused to post a beer bond, Agent Creswell seized all beer and wine in the establishment.

6. Ronnie Wooten testified on behalf of his mother, the Respondent. Wooten testified that he was behind the counter of the Quick Stop on March 25, 2001, helping his mother out. He denied working for his mother. Wooten stated that Agent Creswell barged into the Quick Stop and immediately began accusing Wooten of selling beer and instructed him to count it. Wooten testified that he denied selling beer to Agent Creswell, who then told him to shut his mouth or Creswell would put him in the Hampton County jail. Wooten testified that Creswell would not let Wooten count the beer before he seized it. Wooten admitted that there have been violations in the past, but vehemently denied selling beer on this occasion.

7. This is Respondent's third violation within the past three years. The first violation occurred on April 14, 1999 and involved the Respondent's permitting the purchase of beer by a person under 21 years of age. Respondent paid a $800.00 fine for that offense. The second violation occurred on July 30, 2000 and involved the Respondent's sale/delivery of beer or wine during restricted hours. 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. 1998) grants jurisdiction to the ALJD to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 1998) grants the ALJD the authority to hear contested case hearings in matters governing alcoholic beverages, beer, and wine.

2. 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 (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 Reg. 7-86, by selling or delivering beer or wine to a person during restricted hours. 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. Reg. 7-86. Regulation 7-86 provides in pertinent part: Any beer or wine sold, offered for sale or delivered to anyone from any licensed place of business or the removal therefrom of any beer or wine between the hours of twelve o'clock Saturday night and sunrise Monday morning is a violation against the beer and wine permit and such permit will be subject to suspension or revocation, or [the Department] may accept a monetary penalty in lieu of suspension or revocation.



S.C. Code Ann. Reg. 7-86.



5. Permits issued by this state for the sale of 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. I find that the Respondent violated 23 S.C. Code Ann. Regs. 7-86 by selling or delivering beer during restricted hours . This is Respondent's second violation of Regulation 7-86 and Respondent's third violation within the past three years. The Department seeks a forty-five day suspension of Respondent's license. 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 monetary penalty of 800.00 is more 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 Eight Hundred ($800.00) Dollars within thirty (30) days of the date of this Order.

AND IT IS SO ORDERED.

____________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE



November 29, 2001

Columbia, South Carolina





1. Although Ronnie Wooten is not the Respondent, the Department transmitted his request for a contested case hearing to the Division. Therefore, Wooten was permitted to testify on behalf of the Respondent but not permitted to represent her, as he is neither an attorney nor an officer of the licensed establishment. See Rule 9(a), ALJDRP.


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