South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Deborah Culler, d/b/a Monticello Package Store

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Deborah Culler, d/b/a Monticello Package Store
 
DOCKET NUMBER:
02-ALJ-17-0463-CC

APPEARANCES:
For Petitioner: Jeffrey Nelson, Esquire

For Respondent: Franchot Brown, Esquire
 

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 Deborah Culler, d/b/a Monticello Package Store ("Culler"), permitted the keeping or storage of other goods, wares, or merchandise on her premises licensed for the retail sale of alcoholic liquor, in violation of S.C. Code Ann. § 61-6-1540 (Supp. 2001). For this violation, the Department seeks a monetary fine of $800.00 pursuant to S.C. Code Ann. § 61-6-4270 (Supp. 2001) and Revenue Procedure 95-7.

After timely notice to the parties, a hearing was conducted on December 5, 2002, at the Administrative Law Judge Division, Columbia, South Carolina. Based upon the testimony and evidence presented, the Department's finding that Culler violated S.C. Code Ann. § 61-6-1540 (Supp. 2001) is affirmed. However, in light of the mitigating circumstances set forth below, the Department's finding that Culler be fined $800.00 is modified, and the fine is reduced to $100.00.

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. Culler holds a retail liquor license (#32005026-PRL) for the Monticello Package Store located at 6037-A Monticello Road, Columbia, South Carolina.

2. At approximately 5:00 p.m. on February 15, 2002, State Law Enforcement Division ("SLED") Special Agents Keith Stokes and J.B. Williams conducted a routine inspection at the licensed premises, in coordination with the Richland County Sheriff's Department C.A.T. Team.

3. The agents found items other than retail liquor inside the licensed location, including various types of shoes, clothing, lamps, statues, and compact discs.

4. As a result, Special Agent Stokes wrote an Administrative Violation for Unlawful Storage of Other Goods, Wares, or Merchandise, pursuant to S.C. Code Ann. § 61-6-1540 (Supp. 2001). The violation was signed for by Culler's daughter, Reeshemah Culler. Culler was not present at the time of the inspection.

5. Culler, whom I find to be a credible witness, testified that she owns four licensed businesses on Monticello Road, including the liquor store in question, a pool room, a restaurant, and a clothing store. Culler testified that she keeps lamps in her store for lighting purposes, statues for decoration, and compact discs for personal use while she is working.

6. Reeshemah Culler, whom I find to be a credible witness, testified that she manages her mother's businesses, including the liquor store. Reeshemah Culler testified that shortly before 5:00 p.m. on February 15, 2002, her mother left the businesses on Monticello Road to go to the bank, unintentionally taking the keys to all of the businesses except the liquor store with her. Reeshemah Culler testified that it then began raining, causing a display of shoes and clothing from the clothing store that was set up outside the pool room to get wet. Because the clothing store was locked and she did not have a key, Reeshemah Culler called her mother on her cell phone, and her mother told her to put the display inside the liquor store and lock the door. Reeshemah Culler testified that she dragged the display of shoes and clothing into the liquor store to get them out of the rain, and that she did not intend to sell any of the shoes or clothing, or any of the liquor, while the display was in the liquor store. Special Agent Stokes and the other law enforcement personnel arrived for their routine inspection after Reeshemah Culler put the display of shoes and clothing in the liquor store and before her mother returned from the bank. Reeshemah Culler's testimony was supported by that of her mother, Culler.

7. Culler has a prior violation for the licensed premises for violating S.C. Code Ann. Regs. 7-9(A), sale of liquor to a person under the age of twenty-one. For that violation, Culler paid a fine of $400.00.

8. The Department issued its final determination for the violation at issue on July 3, 2002. In the determination, the Department sustained the imposition of a violation and sought to fine Culler $800.00. Culler timely appealed the determination, and the matter was timely transmitted to this Division for a contested case hearing.

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 alcohol and alcoholic beverages.

2. The Department is charged with the responsibility of administering and enforcing the

laws and regulations governing alcohol and alcoholic beverages. S.C. Code Ann. § 61-2-20 (Supp. 2001).

3. The Department alleges Culler violated S.C. Code Ann. § 61-6-1540 (Supp. 2001) by permitting the keeping or storage of other goods, wares, or merchandise on her premises licensed for the retail sale of alcoholic liquor. Section 61-6-1540 provides:

Except as provided in subsection (B), no other goods, wares, or merchandise may be kept or stored in or sold in or from a retail alcoholic liquor store or place of business, and no place of amusement may be maintained in or in connection with the store.



S.C. Code Ann. § 61-6-1540(A) (Supp. 2001). (1)

4. S.C. Code Ann. § 61-6-4270 (Supp.2001) authorizes the imposition of a monetary penalty of not less than one hundred dollars and not more than one thousand five hundred dollars for a violation of Article 3 of Chapter 6 of Title 61. (2) The Department's "Penalty Guidelines" in Revenue Procedure 95-7 calls for fine of $800.00 upon the commission of a second violation. This is the penalty the Department is seeking against Culler. However, Revenue Procedure 95-7 also sets forth that it is only a guideline and does not establish a binding norm.

5. 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).

6. Although there is a question as to whether or not the lamps, statues, and compact discs in the liquor store qualify as goods, wares, or merchandise within the meaning of the statute at issue, I find that the displayed shoes and clothing which were inside the liquor store at the time of the inspection constitute goods, wares, or merchandise within the meaning of S.C. Code Ann. § 61-6-1540 (Supp. 2001). There is no statutory exception for temporarily storing goods, wares, or merchandise in a liquor store. Nor is there a statutory exception for storing goods, wares, or merchandise in a liquor store while the liquor store is locked, closed, or otherwise not in operation. Therefore, I find that Culler violated S.C. Code Ann. § 61-6-1540 (Supp. 2001) by permitting the keeping or storage of other goods, wares, or merchandise on her premises licensed for the retail sale of alcoholic liquor when she allowed the display of shoes and clothing to be placed in her liquor store.

7. Giving weight to the mitigating circumstances testified to by Culler and Reeshemah Culler, I find that a reduced penalty is warranted in this case. Therefore, the fine of $800.00 imposed by the Department is reduced to $100.00.

ORDER

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

IT IS HEREBY ORDERED that Department's finding that Culler violated S.C. Code Ann. § 61-6-1540 (Supp. 2001) is affirmed;

IT IS FURTHER ORDERED that Department's finding that Culler be fined $800.00 for the violation is modified in light of the mitigating circumstances discussed above, and the fine is reduced to $100.00;

IT IS FURTHER ORDERED that Culler shall remit $100.00 to the Department within thirty (30) days of the date of this Order to satisfy the fine.

AND IT IS SO ORDERED.

_________________________________

C. DUKES SCOTT

Administrative Law Judge

December 9, 2002





1. Subsection (B) of S.C. Code Ann. § 61-6-1540 (Supp. 2001) pertains to the selling of wines and is inapplicable to the present case.

2. Section 61-6-1540, which Culler is charged with violating, falls under Title 61, Chapter 6, Article 3, Subarticle 15 of the South Carolina Code Annotated, dealing with the regulation of retail dealers of alcohol and alcoholic beverages.


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