ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks a 45 day suspension of the beer and wine permit of Enmark
Stations, Inc., d/b/a Enmark Station 560 (Enmark 560). Enmark 560 opposes DOR's position and asserts that a sanction of
a 45 day suspension is too severe. Enmark 560'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 May 17, 2002 at the Edgar Brown Building, Columbia, South Carolina. Based upon the
evidence and the argument presented, Enmark 560 shall pay a fine of $1,000 and its permit is suspended for 30 days with
the suspension beginning on the tenth day following the date of this order.
II. Issue
What is the appropriate penalty for Enmark 560'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?
III. Analysis
Penalty for Sale to an Underage Person
1. Positions of Parties
DOR asserts a sale to an underage individual occurred and that the sale was made knowingly. DOR further argues that this
is the third sale to an underage individual within a period of slightly more than one year. Given the violations, DOR seeks
a sanction of a 45 day suspension.
Enmark 560 does not disagree with the assertion that a violation occurred. Rather, Enmark 560 argues it has undertaken
extensive measures to eliminate any future violations such that the current violation should not result in a 45 day
suspension.
2. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Enmark 560 holds a beer and wine permit in use at 303 Thompson Blvd., Union, South Carolina. On November 9, 2001,
an undercover cooperating individual (UCI) working with SLED entered the location. On November 9, 2001, the UCI was
17 years old.
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 Enmark 560. 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
06-09-2005." The employee examined the license, returned it to the UCI, took the UCI's money, delivered the beer to the
UCI, and, thus, 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.
Past sales to other individuals under the age of twenty-one have occurred at this same location. Such sales were made on
November 7, 2000 (fine paid of $400) and December 19, 2000 (fine paid of $800). Thus, the sale to the UCI on November
9, 2001 was the third violation within a little more than one year.
Having recognized its past deficiencies, Enmark 560 increased its efforts to eliminate sales to underage individuals. For
example, following earlier violations, further training has been provided to all employees with such training designed to
prevent sales to underage parties. After the training, the employee must pass an exam covering the seller's beer and wine
obligations and must sign a statement acknowledging the beer and wine requirements.
Having found that the training did not provide all of the results sought, the company has adopted a policy to require age
identification for all purchasers of beer or wine regardless of age appearance. Such is a change from the previous policy of
requiring age identification for customers appearing to be under 27 years of age. Further, the company has instituted an
"alcohol compliance program." Under this program, the company sends in a "secret shopper" who purchases beer from the
clerk on duty and observes whether the clerk obtains the proper age identification. Generally, "secret shopper" events are
conducted twice a month. An employee failing to obtain age identification is given one warning for the first failure and is
terminated on the second failure.
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, Enmark 560 does not dispute the
violation. Rather, the issue is what penalty is proper.
b. Penalty Analysis
In the final analysis, the 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).
The instant violation is the third in a little more than one year. 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 (Ct. App. 1994). When
repeated violations of sales to persons under twenty-one occur in a period as short as one year, a significant sanction is
proper to foster protection of the public at large and minors in particular. In addition, the past performance of this location
demonstrates that monetary fines alone are insufficient to halt the violations. Accordingly, in this case a $1,000 fine and a
thirty day suspension is imposed with the suspension beginning on the tenth day following the date of this order.
In this case a suspension of less than 45 days is warranted. Management is concerned with the illegal sales and has taken
meaningful steps to eliminate future violations. For example, following earlier violations, more extensive training is now
being provided to prevent sales to underage parties with that training requiring the employee to pass an exam covering the
seller's beer and wine obligations. In addition, the company's new policy requires age identification for all purchasers of
beer or wine regardless of age appearance rather than the former policy of requiring age identification from customers
appearing to be under 27 years of age. Finally, the company has instituted an "alcohol compliance program" designed to
test compliance with the age identification criteria.
Given the meaningful and renewed efforts to comply with the law and the need of the permit holder to rely upon proper
actions of employees, a $1,000 fine and a 30 day suspension is imposed.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
Enmark 560 shall pay a fine of $1,000 and its permit shall be suspended for 30 days with the suspension beginning on the
tenth day following the date of this order.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: May 23, 2002
Columbia, South Carolina |
