SC Administrative Law Court Decisions

The South Carolina Department of Revenue (DOR) seeks to revoke the beer and wine permit of Rainwater Gas & Oil Co., d/b/a Sav Way # 22 (Sav Way # 22). Sav Way # 22 opposes DOR's position and asserts that a revocation is too severe a sanction. Sav Way # 22's disagreement with DOR's determination places jurisdiction in the Administrative Law Judge Division (ALJD). S.C. Code Ann. § 61-2-260 (Supp. 2000); S.C. Code Ann. Sec. 1-23-310 et. seq. (Rev. 1986 and Supp. 2000).

The hearing in this matter was held January 8, 2002 at the Edgar Brown Building, Columbia, South Carolina. Based upon the evidence and the argument presented by the parties, Sav Way # 22's permit is suspended for the period beginning at 12:01 a.m. on March 22, 2002 and ending at 12:01 a.m. June 20, 2002.

What is the appropriate penalty for Sav-Way # 22's violation of S.C. Code Ann. 61-4-580(1) (Supp. 2000) and S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) for selling or allowing possession of beer or wine to a person under 21 years of age?

1. Positions of Parties

DOR asserts that a sale to an underage individual occurred, and that the sale was made knowingly. DOR further argues that this is the fourth sale to an underage individual within two years and thus warrants a sanction of revocation.

Sav Way # 22 does not disagree with the assertion that a violation occurred. Rather, Sav Way # 22 argues that it has undertaken extensive measures to eliminate any future violations such that the current violation should not result in a revocation.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

Sav Way # 22 holds a beer and wine permit identified as # 32010832-PBW, with that permit in use at Sav Way # 22's location of 400 Longstreet, Kingstree, South Carolina. On July 19, 2001, an undercover cooperating individual (UCI) in the employment of SLED entered the location.

As of July 19, 2001, the UCI was 17 years old (date of birth November 27, 1983) and was not disguised in any manner in an attempt to appear older. After entering the store, the UCI picked up a 24 ounce container of beer and brought the beer to the counter. The employee at the counter was an employee of Sav Way # 22. The employee asked for identification and received a driver's license from the UCI. The driver's license showed the UCI's correct name and birth date and contained a statement of "under 21 until 11-27-2004." After receipt of the license, the employee held the license against a chart on the register which chart would have told the employee that the UCI was not yet twenty-one. However, the employee returned the license to the UCI, took the UCI's money, and completed the sale. The UCI left the store with the purchased beer.

After the purchase, an officer for SLED entered the store and explained that the employee had just performed an illegal act by making a transfer of beer to a person under the age of twenty-one. A criminal citation was issued to the employee for illegally making the transfer, and the employee subsequently pled guilty to the criminal charge.

Sales to other individuals under the age of twenty-one have occurred at this same location in the past. Such sales were made on December 22, 1999 (fine paid of $400), October 4, 2000 (fine paid of $800), and November 27, 2000 (45 day suspension sought but settled by payment of $2,500 and ten days suspension). Thus, the sale to the UCI on July 19, 2001 was the fourth violation within less than two years.

Prior to the July 19, 2001 incident Sav Way # 22 had begun steps to eliminate sales to underage individuals. For example, extensive training is provided to all employees, which training is intended to prevent sales to underage customers. Signs are posted around the store advising customers that identification is needed if customer is under thirty years of the age. Further, all employees are told that any employee making a sale to an underage party will be terminated. Indeed, the employee in this case was a highly regarded employee, but, consistent with established policy, was terminated due to the illegal sale.

3. Conclusions of Law

Based upon the above Findings of Fact, I conclude as a matter of law, the following:

a. Introduction

Any party operating under a beer and wine permit who knowingly sells beer or wine to a person under twenty-one years of age creates a ground for a sanction of a monetary penalty or suspension or revocation of the holder's permit. S.C. Code Ann. § 61-4-580(1) (Supp. 2000); S.C. Code Ann. Regs. 7-9(B) (Supp. 2000). Here, Sav Way # 22 does not dispute the violation. Rather, the issue is what penalty is proper.

b. Penalty Analysis

In the final analysis, a decision of what monetary fine, or suspension, or revocation, or some combination, is to be imposed is one for the Administrative Law Judge as the fact-finder. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991).

Here, the instant violation is the fourth in less than two years. Such repeated sales present a serious concern 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 two years, a significant sanction is proper to foster protection of the public at large and minors in particular. Accordingly, a suspension beginning at 12:01 a.m. on March 22, 2002 and ending at 12:01 a.m. June 20, 2002 is imposed..

In this case a suspension and not a revocation is warranted. Here, management is concerned with the illegal sales and has taken appropriate steps to remedy the problem. Its efforts seek to eliminate any future occurrences. For example, extensive training is provided to all employees, which training is intended to prevent sales to underage customers. Signs are posted around the store advising customers that identification is needed for all customers under thirty years of age. Further, all employees are told that any employee making a sale to an underage party will be terminated. Indeed, the employee in this case obtained the required identification but failed to properly apply the chart at the register providing the date for which a sale would be proper. Consistent with established policy, she was terminated due to the illegal sale.

Given the meaningful and renewed efforts to comply with the law and the need to rely upon the proper actions of employees, a revocation is not proper at this point. However, should additional violations occur, revocation may become the only viable option.

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

The beer and wine permit for Sav Way # 22 shall be suspended for the period beginning at 12:01 a.m. on March 22, 2002 and ending at 12:01 a.m. June 20, 2002.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: March 7, 2002

Columbia, South Carolina