ORDERS:
ORDER AND DECISION
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. (1986 & Sup. 1995), upon request for a contested case hearing
by Hildah Thompson, d/b/a SavWay #15 ("Respondent"). Respondent was cited with an
administrative violation of 23 S. C. Code Ann. Regs. 7-9 (B)(Supp. 1995), for allegedly
permitting the purchase of beer by a person under twenty-one (21) years of age on or about April
16, 1996. The South Carolina Department of Revenue ("Department") seeks a suspension of
Respondent's permit for a period of forty-five (45) days for the alleged violation. The Respondent
stipulates to the violation but argues that a monetary fine in lieu of the suspension is a more
appropriate fine or penalty to be charged or assessed against it.
A hearing was held at the Administrative Law Judge Division ("Division") offices in Columbia,
South Carolina on December 9, 1996. I find that a fine in the amount of $1,000.00 is the
appropriate penalty in this case to be imposed on the permittee for the violation.
Any issues raised in the proceedings or hearing of this case but not addressed in this Final
Decision are deemed denied. ALJD Rule 29 (B).
STIPULATIONS
The parties stipulate to the following:
1. This tribunal has jurisdiction.
2. On April 16, 1996, an underage cooperating individual ("UCI"), Ervin C. Brock, whose
birthday is September 3, 1979, was seventeen (17) years of age.
3. That Mr. Brock, the UCI, entered SavWay # 15 in Marion, South Carolina and purchased a
beer from Debra Denise Whitaker, Respondent's employee and salesperson on duty at the time.
4. That the sale of the beer to Mr. Brock was a violation of Regs. 7-9(B) (Supp. 1995). 5. That
the sole issue before this court is the penalty or fine to be imposed on Respondent for the
violation.
ISSUE
Under the facts of this case, what is the appropriate penalty for permitting or knowingly allowing
a person under the age of twenty-one years to purchase beer?
EXHIBITS
The Respondent placed into evidence as a part of the record, without objection, the following
exhibits:
1. A video entitled "ID FAKE-OUT"(1);
2. An application for employment dated March 6, 1996, signed by Debra Denise Whitaker;
3. Several notices and an I. D. Button which employees are required to wear;
4. A copy of the first page of the Standard of Conduct Awareness Form dated March 6, 1996,
initialed by Debra Whitaker;
5. Original Standard or Conduct of Awareness Form dated March 6, 1996 as initialed and signed
by Debra Whitaker;
6. A one page Standard of Conduct Awareness Form dated March 6, 1996, signed and initialed by
Debra Whitaker;
7. A description of the sales associate job including its responsibilities, the accountabilities of a
sales associate, the essential functions of the sales associate position, the limitations on the
authority of a sales associate and an acknowledgment of the above. The form was signed by
Debra Whitaker on March 6, 1996;
8. Letter dated July 30, 1996 from Joseph W. Dorton, in his official capacity as Captain of the
Alcohol Training and Licensing Unit of the South Carolina Law Enforcement Division ("Unit"),
addressed to Respondent commending it for having its employees complete the Unit's
"Responsible Beverage Sales and Service Training;"
9. The 4/4/96 revised edition of Respondent's "S. C. ABC Laws Test" which is a part of
Respondent's New Employee Training Program;
10. The 6/4/96 revised edition of Respondent's "Day Two Quiz" which is also a part of
Respondent's New Employee Training Program; and
11. The 4/23/96 revised "Checking ID to determine age" for which is a part of Respondent's New
Employee Training Program.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony and having judged the
credibility of the witnesses, by a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to both parties.
3. Rainwater Gas & Oil Co., Inc. ("Rainwater Corporation") is a South Carolina corporation
doing business within the State of South Carolina as SavWay Food Stores. It owns and operates
twenty (20) stores in twelve (12) towns in the Pee Dee area of this state.
4. Robert Richard Rainwater, Jr. is the President of Rainwater Corporation and Ms. Hildah H.
Thompson is its Secretary. The off-premise beer and wine permit issued by the Department for
the subject location, SavWay # 15, located in Marion, South Carolina, is held in the name of Ms.
Thompson as a corporate officer of Rainwater Corporation.
5. Rainwater Corporation employs approximately 250 employees at its twenty stores. All of the
stores are open twenty-four hours daily. The sales of beer and wine at the stores account for
approximately $3.5 to 4 million in revenue annually.
6. Ms. Sharon Guy is the training director for Rainwater Corporation, having served in that
capacity for the last three and one-half years. Ms. Guy has been employed as a sales associate, a
supervisor and for ten years has conducted training for employees at convenience stores. She was
previously employed with the 7-11 and the Circle-K convenience store chains.
7. Ms. Guy has developed a training program for new employees for Rainwater Corporation.
During the last three and one-half years she has trained approximately 1000 new employees.
The training program was developed utilizing her previous knowledge and experience, as well as
that of fellow employees. A strong emphasis is placed on educating the employees in the ABC
laws and regulations. The program consists of three days of training at the corporate
headquarters in Florence for all employees except for those who prepare food; their program lasts
five days. Rainwater Corporation allocates approximately $100,000.00 annually for training of
its employees.
8. Ms. Debra Whitaker filed an application for employment with Rainwater Corporation on March
6, 1996 and was interviewed at which time its policies and procedures in selling beer and wine
were explained to her in great detail. She acknowledged an understanding of each policy, signed
all the company forms and initialed all the provisions thereon.
9. Each of the twenty convenience stores of Rainwater Corporation has its own supervisor. Part
of each supervisor's job function is to continuously train and remind its employees to strictly
adhere to all ABC laws and regulations. Each of the managers or supervisors of the twenty stores
meet together each Monday. In August, 1996, they attended the seminar presented by the
Alcohol Training and Licensing Unit of the South Carolina Law Enforcement Division entitled
"Responsible Beverage Sales and Service Training".
10. Since Ms. Guy is the only training employee of Rainwater Corporation, each new employee
training class consists of a maximum of eight employees. Because of the great number of
employee turnover in employer's business and the backlog in training new employees, Ms.
Whitaker had not yet attended the new employee training program. However, she had been
scheduled for such.
11. As stipulated to, on April 16, 1996, Mr. Ervin C. Brock, whose birth date is September 3,
1979, entered Rainwater Corporation's SavWay store #15 at Marion, South Carolina and
purchased a beer from the sales associate, Ms. Debra Whitaker.
12. Rainwater Corporation now has a policy which requires that its salespersons check the
identification of all purchasers of beer or wine at all of its locations, notwithstanding their
personal appearance. Further, in this case, Ms. Whitaker was reprimanded and was subsequently
terminated from employment for another violation of company policy.
13. Rainwater Corporation has one full-time employee who visits the twenty stores unannounced
to monitor for violations of all company policies and who also sends memos reminding the
salespersons of the requirement of all ABC laws.
14. For over a decade Mr. Rainwater has been active in the South Carolina Association of
Convenience Stores, serving as its President and in other leadership positions. He is also a
member of the National Association of Convenience Stores and is active in the state association's
efforts in developing programs to make salespersons aware of the laws which forbid the sales to
beer and wine to persons under the age of twenty one years. Specifically, he was a prime mover
in the state association's assistance in the funding of the video tape "ID FAKE-OUT". This tape
is used as a training tool for new employees.
15. None of the twenty convenience stores owned by Rainwater Corporation have ever received a
suspension or revocation of their off-premise beer and wine permits.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1995) grants jurisdiction to the Administrative Law Judge
Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1995) grants to the Administrative Law Judge Division the
powers, duties and responsibilities as a hearing officer in protested and contested matters
governing alcoholic beverages, beer and wine.
3. A permit is subject to revocation or suspension if the holder or an employee on the permitted
premises knowingly sells beer or wine to any person under twenty-one years of age. S.C. Code
Ann. § 61-9-410(1) (Supp. 1995).
4. S.C. Code Regs. 7-9(B) (Supp. 1995) prohibits a permittee from permitting or knowingly
allowing a person under twenty-one years of age to purchase or possess or consume beer or wine
in or on the licensed premises. Such an act is a violation against the permit and constitutes
grounds for suspension or revocation of the beer and wine permit.
5. S.C. Code Ann. § 61-8-80 (Supp. 1995) authorizes the imposition of a monetary penalty as an
alternative to the suspension or revocation of a license or permit where the discretion is provided
by statute.
6. All regulations promulgated by the Commission (now Department), effective on the date of the
Government Restructuring Act of 1993, remain in force until modified or rescinded by the
Department or the State Law Enforcement Division. 1993 S.C. Acts 181, §1604.
7. A party manifests consent and knowledge to allowing a person under twenty-one years of age
to purchase beer if, from the appearance of the person or otherwise, the party had sufficient
information that would lead a prudent man to believe the person was under twenty-one especially
where simple inquiry would have confirmed such fact. Feldman v. S.C. Tax Comm'n, 903 S.C.
49, 26 S.E.2d 22 (1943); S.C. Atty. Gen. Op. 3395 (1972); see 58 Am.Jur.2d Notice §14 (1989).
A person has no right to shut his eyes to avoid information clearly before him. 58 Am.Jur.2d
Notice § 13 (1989).
8. A licensee may be held liable for violations of liquor statutes and regulations committed by his
agent while pursuing the ordinary business entrusted to him. The licensee is liable even though
the violations are committed in his absence and without his knowledge, consent or authority. See
48 C.J.S. Intoxicating Liquors § 276 (1981).
9. The evidence in the record, as stipulated to by the parties, shows that Respondent, through its
employee, permitted the sale of beer to a person under the age of twenty-one years.
10. The record is clear that Ms. Whitaker was acting within the scope of general authority placed
in her by her principal, Rainwater Corporation, in selling beer and wine at the location. Further,
her actions in so doing were with the knowledge and consent of her principal. No evidence was
placed in the record that Ms. Whitaker was not authorized to be at the location. Further, she was
authorized to sell beer and wine.
12. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights or
property, but are rather privileges 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 Administrative Law Judge Division, as the tribunal authorized to grant the issuance of
a permit, is likewise authorized for cause to revoke or suspend the permit. See Feldman v. S.C.
Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
13. Accordingly, based upon the evidence, I conclude that the permittee and/or her agent for
whose action she is responsible violated S.C. Code Regs. 7-9(B)(Supp. 1995) on April 16, 1996,
by selling beer to a person under twenty-one years of age.
14. S.C. Code Ann. § 61-13-510 (Supp.1995) authorizes, for any violation of any regulation
promulgated by the Department pertaining to beer and wine, in lieu of a suspension or revocation
of the beer and wine permit, the imposition of a monetary penalty not less than twenty-five dollars
($25.00) and not more than one thousand dollars ($1,000.00).
15. The fact-finder in a case has the authority to impose a penalty consistent with the facts
presented. Walker v. S.C. ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Accordingly,
based upon all evidence presented, specifically the testimony and exhibits explanatory of the new
employee training programs initiated by Rainwater Corporation employees and its President, the
lengthy forms utilized by managers at each store in educating new employees immediately upon
hire and after also considering the sincerity of both Mr. Rainwater, the President of Rainwater
Corporation and Ms. Guy, its training director, I conclude that the sale was an honest mistake by
the employee. Accordingly, I conclude that a suspension is not warranted in this case due to the
exemplary efforts by Rainwater Corporation officers and staff in training its employees in ABC
laws. Suspension of the permit would be harsh and punitive and result in a loss of income by
Respondent which is totally inconsistent with the violation. However, I do conclude that the
maximum monetary fine of $1,000.00 allowed by statute should be imposed.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of law, it is hereby:
ORDERED that Respondent, Hildah Thompson, shall pay a monetary penalty in the amount of
one thousand dollars ($1000.00), within fifteen (15) days of the date of this Order, for violation of
S.C. Code Regs. 7-9(B) (Supp.1995) as enumerated above. If the Petitioner does not receive a
total of $1000.00 from Hildah Thompson, within fifteen (15) days from the date of this Order, it
is Ordered that the beer and wine permit be suspended for a period of fifteen (15) days. If the
Petitioner does not receive the funds as stated, any agent of the State Law Enforcement Division
shall serve a copy of this Order on Respondent and shall take possession of the beer and wine
permit issued to Hildah Thompson, d/b/a SavWay #15 located at South Main Street, Marion,
South Carolina. Said agent shall hold the permit for fifteen (15) days. Upon expiration of the
fifteen (15) day suspension, said agent shall return the permit to Respondent. During the period
of this suspension, Respondent is ordered to post of copy of this Order at a visible location at his
place of business, and to cease and desist all sales of beer and wine.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
December 16, 1996
_______________
Fn.1. The tape was released to Mrs. Hand, attorney for the Department, at the conclusion of the
hearing for review. It was also independently reviewed by the Court. |
