ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001). The South Carolina Department of Revenue (Department) contends that Respondent
Trescot Enterprises, Inc. (Trescot) knowingly allowed an underage individual to purchase beer from Respondent's licensed
premises located at 1461 North Pleasantburg Drive, Greenville, South Carolina, in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001). For this third violation of Regulation 7-9(B) in as many years, the Department seeks to impose a 45-day
suspension of Respondent's off-premises beer and wine permit for the location. In response, Trescot concedes that the
alleged violation did occur, but further contends that the proposed penalty for the violation is excessive in light of its efforts
to prevent such sales.
After timely notice to the parties, a hearing on the propriety of the Department's proposed penalty was held on September
10, 2002, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the testimony and evidence
presented at the hearing, I find that the appropriate penalty for Respondent's violation is a twenty-five-day suspension of
Respondent's permit and the imposition of a $400 fine upon Respondent.
STIPULATED FACTS
Pursuant to ALJD Rule 25C, the parties stipulated to the following facts regarding this matter:
1. Trescot Enterprises, Inc., d/b/a Trescot 2 (Trescot), holds a beer and wine permit at the location 1461 N. Pleasantburg
Drive, Greenville, South Carolina, authorizing it to sell beer and wine for off-premises consumption. It held this permit on
January 26, 2002. The permit number is 32008698-PBG.
2. On January 26, 2002, at this Greenville location, Trescot's employee, Nancy Usery, permitted the South Carolina Law
Enforcement Division's underage cooperating individual (UCI), Chad May, to purchase a 24-ounce Icehouse beer.
3. Chad May's birth date is July 14, 1982. In the upper right hand corner of his South Carolina driver's license is the
phrase "UNDER 21 UNTIL 7-14-2003." He was nineteen years of age on January 26, 2002.
4. Nancy Usery requested Chad May's identification prior to the sale. He presented his South Carolina driver's license that
provided the phrase "UNDER 21 UNTIL 7-14-2003." Nancy Usery sold the beer to Chad May.
5. Trescot has committed prior violations at this location within a three-year period. On December 12, 2001, Trescot
permitted a person under twenty-one years of age to purchase beer at this Greenville location. The clerk did not request
identification prior to permitting the purchase. Trescot paid a fine of $800.00 for this violation. On June 19, 2001, Trescot
permitted the purchase of beer by a person under the age of twenty-one at this Greenville location. The clerk on duty did
not request identification prior to permitting the purchase. Trescot paid a fine of $400.00 for this violation.
6. Trescot admits that it violated 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001) on January 26, 2002, by knowingly
permitting Chad May, nineteen years of age, to purchase beer on its licensed premises at 1461 N. Pleasantburg Drive,
Greenville, South Carolina.
7. The South Carolina Department of Revenue (Department) issued its final department determination on April 19, 2002.
Trescot timely appealed this determination on May 14, 2002. The Department timely transmitted the matter to the
Administrative Law Judge Division on May 23, 2002.
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. At the hearing of this matter, William Thompson, the sole owner of Trescot, described Trescot's policies and procedures
regarding the sale of alcohol at its convenience stores, particularly those related to preventing the purchase of alcohol by
underage persons.
2. Nancy Zapata, the manager of the store at which the violation occurred, testified to the general training program she
gives to her employees regarding the sale of alcohol and to the specific training she gave to the employee who committed
the violation regarding the sale of alcohol.
CONCLUSIONS OF LAW
Based upon the foregoing Stipulated Facts and Findings of Fact, I conclude the following as a matter 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. 2001).
2. Regulation 7-9(B) prohibits holders of beer and wine permits from selling beer or wine to persons under twenty-one
years of age. The regulation provides that:
To permit or knowingly allow a person under twenty-one years of age to purchase or possess or consume beer or wine in or
on a licensed establishment which holds a license or permit issued by the [Department] 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 [Department].
23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001). Respondent Trescot concedes and stipulates that it committed a violation of
Regulation 7-9(B) as alleged by the Department.
3. The Department has jurisdiction to revoke or suspend permits authorizing the sale of beer and wine. S.C. Code Ann. §
61-4-590 (Supp. 2001). Pursuant to such authority, the Department may suspend or revoke a beer and wine permit if the
permittee has knowingly sold beer or wine to a person under twenty-one years of age. S.C. Code Ann. § 61-4-580 (Supp.
2001); 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001); see also S.C. Code Ann. § 61-4-270 (Supp. 2001) (authorizing the
Department to "revoke the permit of a person failing to comply with any requirements" in Chapter 4 of Title 61). Further,
the Department may exercise this authority to suspend or revoke a permit for a first violation of the prohibition against
selling beer and wine to minors. See S.C. Code Ann. §§ 61-4-270, 61-4-580, 61-4-590; 23 S.C. Code Ann. Regs. 7-9(B).
In lieu of such suspension or revocation, the Department may also impose a monetary penalty upon a permittee for selling
beer and wine to minors. S.C. Code Ann. § 61-4-250 (Supp. 2001). For retail beer and wine permittees, this monetary
penalty must be no less than $25 and no greater than $1,000. Id.
4. S.C. Revenue Procedure 95-7 (1995) sets forth the Department's penalty guidelines for violations of the alcoholic
beverage control laws. For retail beer and wine permits, Revenue Procedure 95-7 provides for a $400 fine for the first
violation by a permittee, an $800 fine for the second violation, a 45-day suspension of the permit for the third violation, and
revocation of the permit for the fourth violation. However, this document does not set binding norms for the Department,
but rather only provides guidance to the Department in assessing penalties for violations of the alcoholic beverage control
laws. See Revenue Procedure 95-7, at ¶ 4 ("These are guidelines only and this advisory opinion does not establish a
binding norm."). As such, Revenue Procedure 95-7 is not law and thus is not binding upon this Division. Cf. Home Health
Serv., Inc. v. S.C. Tax Comm'n, 312 S.C. 324, 328, 440 S.E.2d 375, 378 (1994) (holding that "whether a particular agency
proceeding announces a rule or a general policy statement depends upon whether the agency action establishes a binding
norm") (citing Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369 (11th Cir. 1983)).
5. 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. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also
Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as finder of
fact, "has the authority to determine the weight and credibility of the evidence before him"). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness's demeanor and veracity and to evaluate the credibility of his
testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300
S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
6. The facts in this case warrant a lesser penalty 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, within the statutory limits established by the legislature, after the parties have had an opportunity for a hearing on
the issues. See, e.g., Walker v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Further,
in assessing a penalty, the finder of fact "should give effect to the major purpose of a civil penalty-deterrence." Midlands
Utility, Inc. v. S.C. Dep't of Health & Envtl. Control, 313 S.C. 210, 212, 437 S.E.2d 120, 121 (Ct. App. 1993).
7. Nevertheless, Respondent should be reminded that the purpose of the statutory prohibition against selling alcohol to
underage individuals is to protect both the underage 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 permit to sell beer and wine is neither a contract nor a property right. Rather, it is merely a permit 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 v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). Accordingly, there are
legal consequences for noncompliance with the alcoholic beverage laws of this State. Consequently, Respondent should
not expect such leniency for a subsequent violation of those laws at this location.
ORDER
Based upon the Stipulated Facts, Findings of Fact, and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department shall suspend Respondent's beer and wine permit numbered 32008698-PBG for the premises located at 1461 North Pleasantburg Drive, Greenville, South Carolina, for a period of twenty-five
(25) days.
IT IS FURTHER ORDERED that, in addition to the suspension, Respondent be fined $400 for its violation of 23 S.C.
Code Ann. Regs. 7-9(B) (Supp. 2001). 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
Post Office Box 11667
Columbia, South Carolina 29211-1667
September 16, 2002
Columbia, South Carolina |
