ORDERS:
ORDER AND DECISION
I. STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C.
Code Ann. § 1-23-310, et seq. (Supp. 1995). The South Carolina Department of Revenue
("Department") contends that Ernest R. Carmichael, d/b/a Orangeburg Exxon ("Respondent")
knowingly permitted an Underage Cooperating Individual ("UCI"), Shannon Lybrand, to purchase beer
on Respondent's licensed premises on December 8, 1995, in violation of 23 S.C. Code Regs. § 7-9(B)
(Supp. 1995). The Department seeks a forty-five (45) day suspension of the Respondent's off-premises beer and wine permit for this violation. The Respondent admitted to the violation and
appeared before this tribunal to request a mitigation of the Department's proposed penalty.
After a timely notice to the parties, a hearing was conducted on July 10, 1996, at the
Administrative Law Judge Division, Columbia, South Carolina. Based on the testimony and evidence
presented, the Department's request that this tribunal suspend the Respondent's off-premises beer and
wine permit for a period of forty-five days is granted.
II. STIPULATED FACTS
The parties to this dispute stipulated to the following facts before this tribunal :
1. Respondent violated 23 S.C. Code Regs. § 7-9(B)(Supp.1995) when Respondent's
employee, Michelle Roberts, sold beer to nineteen year old SLED UCI, Shannon Lybrand, on
December 8, 1995.
2. Respondent has committed two previous violations of 23 S.C. Code Reg. § 7-9(B)
(Supp.1995) within the past three (3) years.
3. Respondent paid a $200 fine for the July 31, 1993 violation and a $1,000 fine for the
June 27, 1995 violation.
III. 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 an off-premises beer and wine permit for the Orangeburg Exxon in
Orangeburg, South Carolina.
2. On December 8, 1995, Respondent's employee, Michelle Roberts, sold beer to SLED
UCI, Shannon Lybrand, in violation of 23 S.C. Code Regs. §7-9(B) (Supp.1995).
3. Respondent previously violated 23 S.C. Code Regs. §7-9(B) (Supp. 1995) on July 31,
1993 and June 27, 1995.
4. Respondent paid a $200 fine for the July 31, 1993 violation and a $1,000 fine for the
June 27, 1995 violation.
5. Respondent provides an employee handbook that states employees may not sell alcohol
to minors.
6. Respondent mandates that his employees view a training video and attend SLED
seminars counseling against the sale of alcohol to minors.
7. Respondent's employee, Michelle Roberts, had viewed the training video and signed a
statement to that effect.
IV. CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the
1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this
matter.
2. 23 S.C. Code Regs. 7-9(B) provides that it is a violation against a license to "permit or
knowingly allow a person under twenty-one years of age to purchase or possess or consume alcoholic
beverages in or on a licensed establishment ...." This regulation further states that such a violation shall
be sufficient cause to suspend or revoke the license or permit.
3. S.C. Code Ann. § 61-5-60(b) (Supp. 1995) also provides that the license of a person
may be suspended or revoked for violating any of the regulations promulgated by the Department.
4. Pursuant to S.C. Code Ann. § 61-1-80 (Supp. 1993), a monetary penalty may be
imposed as an alternative to revocation or suspension in all cases in which revocation or suspension is
authorized.
5. Beer and wine licenses are neither contracts nor property rights. They are mere
permits, issued or granted in the exercise of the police power of the State to be used and enjoyed only
so long as the restrictions and conditions governing them are complied with. The tribunal authorized to
grant the issuance of a license is also authorized, for cause, to revoke it. Feldman v. S.C. Tax Comm'n,
203 S.C. 49, 26 S.E.2d 22 (1943).
6. I conclude that Respondent violated 23 S.C. Code Regs. 7-9(B), on December 8, 1995,
as conceded and stipulated to by his counsel at the hearing.
7. The violation of 23 S.C. Code Regs. 7-9(B) on December 8, 1995 constitutes the third
violation against the permit of the Respondent within a three (3) year period. Petitioner seeks a forty-five (45) day suspension of Respondent's off-premises beer and wine permit. I find and conclude that
this suspension is appropriate in this case. Furthermore, Respondent failed to present sufficient
evidence to support a mitigation of this penalty.
8. Accordingly, I find and conclude that the Respondent's license shall be suspended for
forty-five (45) days, and this suspension is to begin on the fifth day after the service of this Order on
Respondent or his legal counsel. The license shall be returned to Petitioner on or before the date the
suspension period begins and a copy of this Order shall be posted at the location. Respondent shall
cease and desist from selling beer and wine for off-premises consumption at the location during the
suspension period.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, Ernest R. Carmichael, d/b/a
Orangeburg Exxon, violated 23 S.C. Code Regs. 7-9(B).
IT IS THEREFORE ORDERED that Respondent's off-premises beer and wine permit be
suspended for forty-five (45) days from the fifth day after service of this Order.
IT IS FURTHER ORDERED that Respondent shall return his off-premises beer and wine
permit to the Petitioner within five days of receipt of this Order. Respondent is also ordered to post a
copy of this Order at a visible location at the licensed premises and cease and desist all beer and wine
sales during the suspension period.
AND IT IS SO ORDERED.
______________________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
Columbia, South Carolina
July 25, 1996 |
