ORDERS:
ORDER
STATEMENT OF CASE
This matter comes before me upon request for a Hearing by Bobby G. Hardee, Sr., DLP
Speedway #284 (Respondent) after being cited for an administrative violation against his beer and
wine permit. The South Carolina Department of Revenue and Taxation (DOR) seeks a 45-day
suspension of the Respondent's permit for violating 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1995).
A hearing was held before the Administrative Law Judge Division in Columbia on July 17,
1996. I find the Respondent has violated Regulation 7-9(B), and that based upon the factors of this
case, the appropriate penalty for this violation is payment of a $1000 monetary penalty and
suspension of his beer and wine permit for fifteen (15) days from the service of this Order.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, in addition to trial briefs submitted by both the Petitioner and the Respondent, and
passed upon their credibility taking into consideration the burden of persuasion of the Petitioner and
the Respondent, I make the following findings of fact by a preponderance of the evidence:
1. The court has subject matter jurisdiction of this case.
2. The Respondent holds an off-premise beer and wine permit for the Speedway #284
located in Orangeburg, South Carolina.
3. Notice of the time, date, place and subject matter of the hearing was given to the DOR
and the Respondent.
4. On December 8, 1995, at 9:10 p.m., Shannon Lybrand, a 19 year old student working
in conjunction with agent Byron Williams of the South Carolina Law Enforcement Division, Alcohol
Enforcement Unit (SLED), entered the Speedway #284. Lybrand picked up a thirty-two (32) ounce
bottle of Budweiser beer and carried the bottle to the cash register where Keshia D. Shuler was
working as the checkout clerk. Ms. Shuler requested identification from Lybrand, and checked
Lybrand's South Carolina driver's license which showed that Lybrand's date of birth was 5-14-1976.
5. Although Lybrand was 19 years of age on December 8, 1995, the Respondent's
employee sold a quart bottle of beer to her.
6. The Respondent has been cited by SLED on two previous occasions for selling
beer/wine at the Speedway #284 to persons under the age of 21. These violations occurred in July
1993, for which the Respondent paid a $400 penalty, and in June, 1995, for which Respondent was
fined $1000.
7. The Respondent holds numerous permits from the DOR for the off-premises sale of
beer and wine at convenience stores in various locations in the State of South Carolina on behalf of
his employer, Emro Marketing Company (Company).
8. The Respondent has not had a beer and wine permit suspended or revoked by the
State of South Carolina in the approximately 21 years that the Respondent has held such permits.
9. The Respondent requires mandatory training of all employees in the Company's policy
and procedures for conducting alcohol sales and South Carolina law regarding beer and wine sales.
The Respondent implements this training in the Speedway #284 and all other stores for which the
Respondent holds beer and wine permits. The policy is that employees must check the identification
of all customers appearing to be thirty years of age or less, who are attempting to purchase alcoholic
beverages.
10. At the time this violation occurred, the Respondent required the following training on
beer and wine sales of all new employees. First, each employee was required to review a "Day One
Orientation" manual presented by the Respondent's Store Managers. This manual teaches employees
the Company's Alcohol Sales Program and the legal requirements to sell beer and wine in South
Carolina, including the age to purchase beer and wine in South Carolina and proper means of
identification. The Day One Orientation manual was introduced in 1995 to improve the presentation
of the Respondent's former "Alcohol Sales Program" manual which was previously used to train new
employees. The employee who committed this violation, Ms. Shuler, had completed the Alcohol Sales
Program training upon her hiring in August, 1994.
Following instruction by the Store Manager of the information contained in the Day
One Orientation manual, and formerly the Alcohol Sales Program manual, employees are required
to sign an "Employee's Agreement" acknowledging, among other things, the legal age for the sale of
beer and wine and pledging never to sell beer and wine to anyone under 21. Ms. Shuler had signed
the above Employee's Agreement.
The Respondent also trains new employees in the legal requirements for beer and wine
sales by use of a "Store Employee Training Guide." Completion of the Store Employee Training
Guide requires the employee to read the company's Operations Manual, which provides a general
outline of the policies and procedures for conducting beer and wine sales. The employees are required
to pass a test which includes questions on the legal requirements for beer and wine sales in South
Carolina.
11. The Respondent, since at least 1990, has required all new employees to attend a
T.A.M. (Techniques of Alcohol Management) course led by the Respondent's District Managers. The
T.A.M. course was developed by the National Association of Convenience Stores and was purchased
by the Company for use in training employees in the lawful method of making beer and wine sales.
The T.A.M. program uses interactive training by use of a video, teaching acronyms, discussions, and
pre- and post-program testing to teach proper methods of handling various problems encountered
when selling alcohol, and the employee's responsibilities regarding alcohol sales laws. A significant
portion of the T.A.M. program is devoted to preventing underage sales by properly identifying
underage persons attempting to purchase beer or wine.
12. Following initial training, the Respondent reinforces the alcohol policy by reminders
to his employees from the Store Manager, District Manager, Region Manager, and Company
headquarters through E-mail memoranda, display of "We I.D." and "Please Have Valid Drivers
License" decals in the stores and "I I.D." buttons worn by the employees, and store meetings and one-on-one sessions to repeat the alcohol policy.
13. Following the second violation in July 1995, and the third violation in December,
1995, the Respondent's Store Manager met with each employee in one-on-one sessions to reinforce
the alcohol policy and to stress the importance of preventing underage sales.
14. Since this violation occurred in December, 1995, the Respondent has taken additional
steps to prevent underage sales of beer or wine. The Respondent has installed in all stores, including
the Speedway #284, an age verification/birthdate program on his computerized "P.O.S." (Point of
Sale) cash registers. Under this program, an employee cannot complete a beer or wine sale until a
valid birthdate which meets the legal requirement for the sale of beer or wine is verified.
The Respondent has also implemented a "mystery shopper" program to reinforce his
training in proper beer and wine sales. In this program, the Respondent sends other employees who
are over the age of 21, but under the age of 30, into different stores to ensure that employees are
following the Respondent's policy and procedures by requesting identification from any customer
attempting to purchase beer or wine who appears to be under the age of thirty. Any employee who
violates the Respondent's policy by failing to check the "mystery shopper's" identification is
terminated following one warning.
14. The Respondent supports any employee who decides not to sell beer or wine in the
belief the sale would violate company policy and South Carolina law. Moreover, the Respondent
immediately terminates any employee who fails to follow company policy or violates the law in selling
beer or wine to any person under the age of 21. In this case, Ms. Shuler was immediately terminated
following her failure to follow the Respondent's alcohol policy and procedures and South Carolina
law in making the sale which resulted in this violation.
15. The Respondent's utilization of the T.A.M. program and the other training measures
taken by the Respondent are not required by the laws of this State, but are implemented by the
Respondent to ensure compliance with South Carolina laws regarding the sale of beer and wine.
16. The above measures taken by the Respondent to prevent the sale of beer or wine to
underaged individuals is a factor in considering the proper penalty to impose against the Respondent
for his violation.
CONCLUSIONS OF LAW
1. South Carolina Code Ann. § 61-1-55 (Supp. 1995) authorizes the South Carolina
Administrative Law Judge Division to hear this case pursuant to Chapter 23 of Title I of the 1976
Code, as amended, and grants the Administrative Law Judge Division the powers, duties, and
responsibilities as Hearing Officer in contested cases governing beer and wine.
2. Permits and licenses issued by this State for the sale of alcoholic beverages, beer and
wine are not property rights. They are, rather, privileges granted in the exercise of the State's police
power to be used and enjoyed only so long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Judge Division, being the tribunal authorized to grant the
issuance of a license or permit, is likewise authorized for cause to revoke or suspend the license or
permit. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
3. Permitting or knowingly allowing a person under the age of 21 to purchase or possess
beer upon the licensed premises is a violation against the permit. Such a violation constitutes grounds
to suspend or revoke the beer and wine permit. 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1995).
4. South Carolina Code Ann. § 61-13-510 (Supp. 1995) provides the discretion, for
violation of a regulation pertaining to beer, wine, or liquor, to impose a monetary penalty upon the
holder of any beer, wine or liquor license in lieu of suspension or revocation of the permit. This
Section further provides for a monetary penalty to be determined in each case for violation of a retail
beer and wine license in an amount not less than twenty-five dollars, nor more than one thousand
dollars.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
1. That the Respondent Bobby G. Hardee, Sr., DLP Speedway #284 pay a monetary
penalty of $1000 to the South Carolina Department of Revenue within ten (10) days of service of this
Order for the offense of permitting the purchase of beer by a person under the age of 21 years;
2. That the off-premise beer and wine permit held by the Respondent be suspended for
a period of fifteen (15) days for permitting the purchase of beer by a person under the age of 21 years.
SLED agents shall serve a copy of this Order on the Respondent and take possession of his permit.
Upon service of the 15 day suspension, the permit shall be returned to the Respondent. The
Respondent and his employees are to cease and desist all sales of beer and wine at the Speedway
#284 during the suspension.
______________________________________
Ralph King Anderson, III
Administrative Law Judge
September 4, 1996
Columbia, South Carolina |
