SC Administrative Law Court Decisions

The South Carolina Department of Revenue (DOR) seeks to impose revocation of Respondent, Fast Phils of South Carolina Inc, d/b/a Fast Phils No. 7, off-premises beer and wine permit for a fourth violation of the prohibition on knowingly selling beer to a person under the age of twenty-one. Respondent opposes the revocation.

At the hearing on this matter, Fast Phil's of South Carolina Inc. stipulated that on March 5, 2002, it violated 23 S.C. Code Ann. Regulation 7-9b (Supp. 2001) when its employee knowingly permitted a seventeen year old, Jonathon Hilton, to purchase beer on its premises at 18 Lancaster Road, Chester, South Carolina.

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, I find by a preponderance of the evidence, the following:

1. Notice of the time, date, place and subject matter of the hearing was given to all parties in a timely manner.

2. Respondent, Fast Phils of South Carolina Inc., d/b/a Fast Phils No. 7 (Phils), is a convenience store located at 18 Lancaster Road, Chester, South Carolina. It holds a permit at this location for the sale of beer and wine for off-premises consumption. It held this permit on March 5, 2002.

3. On March 5, 2002, the South Carolina Law Enforcement Division (SLED) in conjunction with underage cooperating individual, seventeen year old Jonathon Hilton, entered Phil's location and purchased a 24 oz. can of Bud Light beer from the employee on duty, Vicky Feaster. Ms. Feaster requested Mr. Hilton's identification. She failed to note that in the upper right hand corner of his South Carolina driver's license was the phrase "UNDER 21 UNTIL 06-09-2005." Mr. Hilton's birthdate was also noted on the license presented. His birthdate is "06-09-1984."

4. Phils has committed three prior violations of Regulation 7-9(B) at the Chester location within a three year period. It knowingly permitted the sale of beer to an individual under the age of twenty-one on October 19, 1999. Phils paid a fine of $400.00 for this violation. On September 5, 2000, it was again charged with a Regulation 7-9B violation and paid a fine of $800.00. Again on December 11, 2000, it was charged with permitting a person under twenty-one to purchase beer. It paid a fine of $2,500.00 and served a ten day suspension based on the procedures in place at the location.

5. The DOR issued its final department determination for this fourth violation on May 31, 2002. In the determination, DOR sustained the imposition of a violation and sought to impose revocation of Phil's beer and wine permit at the Chester location. In response to the determination Phils submitted manuals, invoices, and other evidence of the procedures in place to assist in preventing sales to underage individuals. In DOR's amended determination issued on July 24, 2002, it sustained the initial determination based on the fact that all of the procedures in place on March 5, 2002 were in place at the time of the third violation and had been used to mitigate the penalty in that case. ⁽¹⁾ Phils timely appealed the determination and the matter was timely transmitted to this Division for a contested case hearing.

6. At the hearing of this matter, Phils submitted documents showing the procedures currently in place to assist in preventing sales to underage individuals. These are: Fast Phil's beer selling policy, excerpts from the employee manual regarding alcohol sales, employee orientation checklist, Vicky Feaster's signed acknowledgment of these policies and termination of employment form, Phils' purchase of the computerized alcohol training program "NACS." Phils also submitted information on its "mystery shopper" program. Phils apparently sends employees into its locations in an undercover capacity to determine if employees request identification prior to selling alcohol. Where an employee fails to request identification they are terminated. Also, Phils has scheduled SLED alcohol training for its employees within the next few months.

Based upon the foregoing Stipulations and Findings of Fact, I conclude the following as a matter of law:

1. DOR is charged with the responsibility of administering and enforcing the laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. Section 61-2-20 (Supp. 2001).

2. Regulation 7-9(B) prohibits beer and wine permittees from selling beer or wine to individuals under the age of twenty-one years. The Regulation provides:

. . .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 South Carolina Alcoholic Beverage Control Commission [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 Alcoholic Beverage Control Commission [the Department].

3. DOR has the authority to revoke or suspend beer and wine permits, S.C. Code Ann. Section 61-4-590 (Supp. 2001). DOR may revoke such a permit for a first offense of permitting the sale of beer to an individual under the age of twenty-one, Regulation 7-9(B), S.C. Code Ann. Sections 61-4-580, 61-4-270 (Supp. 2001). DOR may also impose a monetary fine in lieu of such suspension or revocation, S.C. Code Ann. Section 61-4-250 (Supp. 2001). For a retail beer and wine permit, the monetary penalty must be no less than $25.00 or more than $1,000. DOR has provided South Carolina Revenue Procedure 95-7 as its penalty guidelines for violations of the alcohol licensing provisions. This document provides that for a fourth offense of permitting the sale of beer to an underage individual, DOR will impose revocation of the permit.

4. The weight and credibility of evidence presented is within the sound discretion of the trier of fact. See S.C. Cable Television Ass'n v. S. Bell Tel. & Tel. Co, 308 S.C. 216, 417 S.E. 2d 586 (1992).

5. Giving weight to the procedures currently in place at Phil's location as well as the additional procedures implemented, I find that revocation is not warranted at this time.

Based upon the Stipulations, Findings of fact and Conclusions of Law set forth above,

IT IS HEREBY ORDERED that, because Phils has permitted the sale of beer to an individual under the age of twenty-one for the fourth time in a three year period, DOR shall suspend its beer and wine permit for a period of one-hundred and twenty (120) days. Such suspension shall begin within ten days of the date of this Order.

IT IS FURTHER ORDERED that, in addition to the suspension of its permit, Phils must remit a fine to DOR in the amount of $1,000.00 within ten days of the date of this Order.

IT IS FURTHER ORDERED that Phils must schedule SLED alcohol training for its employees at the Chester location who sell directly to customers at this location. Such training must be completed prior to the completion of the suspension ordered in this matter.

AND IT IS SO ORDERED.

_______________________________

C. Dukes Scott

Administrative Law Judge

November 20, 2002

Columbia, South Carolina

1. For the third violation, DOR had initially imposed a forty-five day suspension. Based on Phil's procedures to prevent alcohol sales to underage individuals, DOR had reduced this suspension.