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
Enmark Stations, Inc. (Enmark) knowingly allowed an underage individual to purchase beer from Respondent's licensed
premises located at 303 Thompson Boulevard, Union, South Carolina, in violation of 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 2001). For this fourth violation of Regulation 7-9(B) in two years, the Department seeks to revoke Respondent's
off-premises beer and wine permit for the location. In response, Enmark 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 of this matter was held on September 24, 2002, at the Administrative Law
Judge Division (ALJD) 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 120-day suspension of Respondent's permit and the
imposition of a $1000 fine upon Respondent. Further, before resuming the sale of alcohol, Respondent shall request and
submit the store manager or other person responsible for employee training at Enmark Station 560 to training from the
South Carolina Law Enforcement Division (SLED) on how to prevent the sale of alcohol to underage individuals.
STIPULATION
At the hearing of this matter, Respondent stipulated that it violated 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001), as
alleged by the Department, when its clerk, Fred Rogers, knowingly permitted Jonathan Hilton, seventeen years of age, to
purchase beer on its licensed premises at 303 Thompson Boulevard, Union, South Carolina, on January 31, 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. Enmark Stations, Inc., d/b/a Enmark Station 560 (Enmark), holds a permit authorizing it to sell beer and wine for off-premises consumption from its store located at 303 Thompson Boulevard, Union, South Carolina. This permit is numbered
32021743-PBG. Enmark held this permit on January 31, 2002.
2. On January 31, 2002, at the Union location, Enmark's employee, Fred Rogers, permitted SLED's underage cooperating
individual (UCI), Jonathan David Hilton, to purchase a 24-ounce Bud Light beer.
3. Jonathan Hilton's birth date is June 9, 1984. In the upper right hand corner of his South Carolina driver's license is the
phrase "UNDER 21 UNTIL 06-09-2005." He was seventeen years of age on January 31, 2002.
4. During a routine UCI operation on January 31, 2002, Hilton entered Enmark Station 560, selected a 24-ounce Bud Light
beer from the cooler, and approached the sales counter. Enmark's clerk, Fred Rogers, requested Hilton's identification
prior to completing the sale; Hilton then presented his South Carolina driver's license, which clearly indicated that he
would not be twenty-one years of age until June 9, 2005. Despite examining Hilton's driver's license, Rogers completed
the sale of the beer to Hilton.
5. Enmark has committed three prior violations of Regulation 7-9(B) at this Union location by knowingly allowing
underage individuals to purchase beer from the store. These prior violations occurred on November 7, 2000, December 19,
2000, and November 9, 2001. Respondent paid fines of $400 and $800, respectively, for the first two violations and had its
permit suspended for thirty days and paid a $1000 fine for the third violation.
6. The Department issued its final department determination regarding the fourth violation on April 30, 2002. In the
determination, the Department upheld the violation and sought the revocation of Respondent's permit as a penalty. Enmark
timely appealed this determination on May 24, 2002. The Department timely transmitted the matter to the ALJD on June 4,
2002.
7. At the hearing of this matter, Jerry Morris, the director of operations for Enmark, described Enmark's policies and
procedures regarding the sale of alcohol at its convenience stores, particularly those policies and procedures aimed at
preventing the sale of alcohol to underage individuals.
8. Teresa Merchant, the manager of the store at which the violation occurred, testified to the training program she gives to
her employees regarding Enmark's policies and procedures related to the sale of alcohol. Diane Howell, a current
employee of the store, and Fred Rogers, the former employee who completed the sale in question in this case, also testified
at the hearing regarding the training given to them by Enmark concerning the sale of alcohol.
CONCLUSIONS OF LAW
Based upon the foregoing Stipulation 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 Enmark 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 Stipulation, Findings of Fact, and Conclusions of Law stated above,
IT IS HEREBY ORDERED that, for Respondent's fourth violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001)
within two years, the Department shall suspend Respondent's beer and wine permit numbered 32021743-PBG for the
premises located at 303 Thompson Boulevard, Union, South Carolina, for a period of one hundred and twenty (120) days.
IT IS FURTHER ORDERED that, in addition to the suspension, Respondent be fined $1000 for its violation.
Respondent shall remit $1000 to the Department within thirty (30) days of the date of this Order to satisfy the fine.
IT IS FURTHER ORDERED that, prior to resuming the sale of alcoholic beverages at this location, Respondent must
request and submit the store manager or any other person responsible for employee training at Enmark Station 560 to the
training provided by SLED to retailers of alcoholic beverages on how to prevent sales to underage individuals.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
September 26, 2002
Columbia, South Carolina |
