South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Larson C Stores, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Larson C Stores, Inc.
 
DOCKET NUMBER:
02-ALJ-17-0460-CC

APPEARANCES:
For Petitioner: Carol I. McMahan, Esquire

For Respondent: Fran Larson, pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2001). The South Carolina Department of Revenue ("Department") contends that Respondent Larson C Stores, Inc. ("Respondent") permitted the purchase of beer by a person under the age of twenty-one, in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001), for the third time in a three-year period. For this violation, Department seeks a forty-five day suspension of Respondent's beer and wine permit.

After timely notice to the parties, a hearing was conducted on December 11, 2002, at the Administrative Law Judge Division ("ALJD"), Columbia, South Carolina. Based upon testimony and the evidence presented, the Department's decision to suspend Respondent's beer and wine permit for forty-five days for violating 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001) is modified, and the permit is suspended for a period of thirty days.

STIPULATIONS

At the hearing on this matter, Respondent stipulated that on June 12, 2002, it violated 23 S.C. Code Ann. Regulation 7-9b (Supp. 2001) when its employee permitted a person under the age of twenty-one to purchase beer on its premises at 310 Charlotte Highway in Lyman, South Carolina.





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. Respondent holds a permit to sell beer and wine for off-premises consumption (permit #32000287-6-PBG) for its business located at 310 Charlotte Highway in Lyman, South Carolina.

2. On June 12, 2002, agents of the South Carolina Law Enforcement Division ("SLED"), along with an underage cooperating individual ("UCI"), entered Respondent's business at the permitted location. The UCI picked up a twenty-four-ounce Budlight Beer from the cooler and took it to the clerk on duty. The clerk did not request identification from the UCI, but sold him the beer. The UCI was seventeen years old at the time.

3. SLED Agent James R. Causey issued a Violation Report to Respondent for violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001), permitting the purchase of beer by a person under the age of twenty-one. Agent Causey also issued a Uniform Traffic Ticket to the clerk for a violation of S.C. Code Ann. § 61-4-90 (Supp. 2001), transfer of beer to a person under the age of twenty-one.

4. Respondent has had two prior violations within a three-year period at the permitted location. On November 12, 1999, Respondent was charged with permitting an underage person to purchase beer. Respondent paid a fine of $400.00 for that violation. On January 12, 2001, Respondent again was charged with permitting an underage person to purchase beer. It paid a fine of $800.00 for that second violation.

5. The Department issued a final determination on September 12, 2002, sustaining the violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001) and seeking to suspend Respondent's beer and wine permit for a period of forty-five days. Respondent timely appealed the determination, and the matter was timely transmitted to this Division for a contested case hearing

6. Mary Lynn Dozier, an employee of the Spartanburg Alcohol and Drug Abuse Commission, testified at the hearing that she has made a commitment with Fran Larson, owner of Respondent Larson C Stores, Inc., to train current and future employees of Respondent in the Training for Intervention Procedures ("TIPS") program. TIPS provides education and training to convenience store clerks to help prevent them from selling alcohol to individuals under the age of twenty-one. Ms. Dozier testified that Ms. Larson contacted her regarding the TIPS program in August 2002. Further, although she declined to opine as to what an appropriate penalty would be in this case, Ms. Dozier did testify that, in her opinion, Respondent's permit should not be suspended for a period of forty-five days as a result of this violation.

7. Although Ms. Larson did not testify at the hearing on this matter, Ms. Larson presented arguments at the opening and closing of the hearing. While Ms. Larson admitted that the violation in question occurred, Ms. Larson seemed to place more of the blame for the violation on law enforcement personnel and state agencies, for not providing her with information regarding training programs for clerks to train them not to sell beer or wine to underage individuals prior to this third violation, than she did on the Respondent business itself. Ms. Larson expressed her opinion that her convenience store should not be penalized for its violation of the law, but rather that convenience stores and the agencies charged with administering and enforcing the laws should work together through educational programs to help ensure that violations such as this one do not continue to occur.

8. There is no evidence that Respondent adopted any new policies or procedures to help prevent a future violation after its first or its second violation for illegally selling beer to an underage person. It was only after Respondent's third violation that Respondent implemented a new policy of having its employees trained through the TIPS program.

CONCLUSIONS OF LAW

Based upon the above-listed findings of fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 2001) grants jurisdiction to the ALJD to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2001) grants the ALJD the authority to hear contested case hearings in matters governing alcoholic beverages, beer, and wine.

2. 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).

3. The parties stipulate, and I find, that Respondent violated 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001) by permitting the purchase of beer by a person under the age of twenty-one. Regulation 7-9(B) 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 is prohibited and constitutes a violation against the license or permit. Such violation shall be cause to suspend or revoke the license or permit by the Alcoholic Beverage Control Commission.



23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001).

4. The Department has jurisdiction to revoke or suspend permits authorizing the sale of beer or wine. S.C. Code Ann. § 61-4-590 (Supp. 2001). The Department may suspend or revoke a beer and wine permit if the permittee has knowingly sold beer or wine to a person under the age of twenty-one. S.C. Code Ann. §§ 61-4-270 and -580 (Supp. 2001); 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001). The Department may exercise this authority to suspend or revoke a permit for a first violation. See S.C. Code Ann. §§ 61-4-270, -580, and -590 (Supp. 2001); 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001). In lieu of such suspension or revocation, the Department may, in its discretion, impose a monetary penalty upon the holder of a beer or wine permit. 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.

5. The Administrative Law Judge as the finder of fact is empowered to impose the appropriate penalty based on the facts presented. Walker v. S.C. ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). In assessing a penalty, the finder of fact "should give effect to the major purpose of a civil penalty - deterrence." Midlands Util., Inc. v. S.C. Dep't of Health & Envtl. Control, 313 S.C. 210, 212, 437 S.E.2d 120, 121 (Ct. App. 1993).

6. The purpose of the statutory prohibition against selling alcohol to underage individuals is to protect both the underage individuals who purchase the alcohol and the public at large from the possible adverse consequences of such purchases. Norton v. Opening Break of Aiken, Inc., 313 S.C. 508, 443 S.E.2d 406 (Ct. App. 1994), aff'd 319 S.C. 469, 462 S.E.2d 861 (1995); Whitlaw v. Kroger Co., 306 S.C. 51, 410 S.E.2d 251 (1991). The sale of alcohol to an underage individual is a serious offense and cannot be taken lightly.

7. 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 is 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 a permitee's noncompliance with the alcoholic beverage laws of this State.

8. The Department's Revenue Procedure 95-7 sets forth penalty guidelines for violations of the statutes and regulations governing the sale, distribution, and possession of alcohol, beer, and wine. For retail beer and wine permits, Revenue Procedure 95-7 provides for a $400 fine for the first offense, an $800 fine for the second offense, a 45-day suspension of the permit for the third offense, and revocation of the permit for the fourth offense. This Revenue Procedure only provides guidance to the Department; it is not law and thus is not binding on this Division.

9. In this case, Respondent, prior to the instant violation, has twice sold beer to persons under the age of twenty-one and paid a total of $1200.00 for these violations. No new policies or procedures were put into place by Respondent following either the first or the second violation to help prevent a future violation from occurring. This third offense for the same illegal act, sale of beer to a person under the age of twenty-one, warrants an increase in sanction. However, the new practice of having current and future employees trained through the TIPS program, implemented after the third violation, is commendable as a means of avoiding future violations, and warrants some mitigation of the penalty sought in this case by the Department.

10. For the reasons stated above, I find that a thirty day suspension of Respondent's beer and wine permit is appropriate in this case.

ORDER

Based upon the foregoing findings of fact and conclusions of law,

IT IS HEREBY ORDERED that Department's decision that Respondent's beer and wine permit (permit #32000287-6-PBG) for the business located at 310 Charlotte Highway in Lyman, South Carolina, be suspended for forty-five days for violating 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2001) is modified. Respondent's permit shall be suspended for a period of thirty days, commencing on January 2, 2003, and concluding on January 31, 2003, inclusively;

AND IT IS SO ORDERED.





_________________________________

C. DUKES SCOTT

Administrative Law Judge

December 12, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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