ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 12-60-450 and 12-60-460
(Supp. 1995) and S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1995) upon request for a contested
case hearing by 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 years of age on October 9, 1996. The South Carolina Department of Revenue
(DOR) seeks an $800 fine for the alleged violation. A hearing was held October 15, 1997, at the
Anderson County Courthouse in Anderson, South Carolina. Respondent admitted that the sale
took place to an underage person, but that it was not done "knowingly." I find that the violation
did occur. Respondent is ordered to pay a fine of Six Hundred Dollars ($600).
FINDINGS OF FACT
By a preponderance of the evidence, I find:
- Notice of the time, date, place, and subject matter of the hearing was given to Respondent
and DOR.
- Respondent holds an on-premises beer and wine permit for a convenience store known as
"Fant Street Amoco" located at 501 East Greenville Street, Anderson, South Carolina.
- On October 9, 1996, at approximately 6:30 p.m., employee John Stockman was operating
the cash register at the location.
4. On October 9, 1996, at approximately 6:30 p.m., SLED Agents Aaron Jackson and Evatt Asbill visited the licensed location with an Underage Cooperating Informant (UCI).
5. At the time he entered the store, the only items in possession of the UCI were his valid South Carolina driver's license and a small amount of cash.
6. The UCI entered the location and presented a six-pack of beer for purchase.
7. At the time, there were approximately 5-7 customers in the store.
8. Stockman asked for identification, and the UCI handed Stockman his South Carolina driver's license. Stockman looked at the license and at an age calendar and sold the beer to the UCI.
9. The licensed location has age calendars at the cash register to assist the cashier in determining whether a customer is old enough to purchase tobacco products and beer and wine.
10. The minimum age to purchase tobacco products is eighteen (18) years.
11. Stockman looked at the wrong age calendar in determining whether the UCI was underage.
12. The UCI exited the store and returned to the car where Agent Jackson confiscated the beer.
13. Agent Jackson entered the location and issued a ticket to the employee and issued an administrative citation to Respondent.
14. Philip Schmierer was the UCI and was born on June 17, 1978.
15. Schmierer was 18 years old at the time of purchase on October 9, 1996.
16. The UCI has worked with SLED in the past as a UCI and was paid $50 each night he cooperated.
17. Respondent has policies in place to encourage employees to obey the law and not sell beer or wine to anyone underage.
18. Respondent has one previous violation.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
- Pursuant to S.C. Code Ann. §§ 12-60-450 and 12-60-460 (Supp. 1995) and S.C. Code
Ann. §§ 1-23-310, et seq. (Supp. 1995), the South Carolina Administrative Law Judge
Division has jurisdiction in this matter.
- Beer and wine licenses are neither contracts nor property rights. They are mere permits,
issued or granted in the exercise of the State's police power and to be enjoyed only so
long as the restrictions and conditions governing their continuance are complied with.
The same tribunal authorized to grant the issuance of a license is likewise authorized, for
cause, to revoke it. Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22
(1943).
- 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1995) prohibits a licensee to permit or knowingly
allow the purchase or possession of beer by a person under the age of twenty-one years on
the licensed premises. A violation constitutes grounds for suspension or revocation of the
beer and wine permit.
- "Knowingly" includes not only actual knowledge of a fact, but also situations where a
person has such information, or the circumstances are such, as would lead a prudent
person to form a belief as to the fact, and if followed by inquiry would have disclosed its
character. State v. Thompkins, 263 S.C. 472, 211 S.E.2d 549 (1975); Feldman, 203 S.C.
49, 26 S.E.2d 22 (1943); Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990).
5. 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, even though the violations are committed without the licensee's authority. 48 C.J.S. Intoxicating Liquors § 276 (1981).
6. Respondent permitted the purchase of beer by a person under the age of twenty-one on October 9, 1996, in violation of R. 7-9(B).
- S.C. Code Ann. § 61-1-80 (Supp. 1995) authorizes the discretionary imposition of a
monetary penalty as an alternative to the suspension or revocation of a license or permit.
- The fact-finder in a case has the authority to impose a penalty consistent with the facts
presented. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991).
Accordingly, based upon the evidence presented, I conclude that a fine of Six Hundred
Dollars ($600) should be imposed upon the Respondent.
ORDER
IT IS THEREFORE ORDERED that Marshall Pickens shall pay a fine in the amount
of Six Hundred Dollars ($600) for the offense of permitting the purchase of beer by a person
under the age of twenty-one (21) years.
IT IS FURTHER ORDERED that if DOR does not receive payment of the assessed fine
within fifteen (15) days from the date of this Order, the beer and wine permit held by Marshall I.
Pickens, d/b/a Fant Street Amoco at 501 East Greenville Street, Anderson, South Carolina, shall
be suspended for a period of fifteen (15) days. If the assessed fine is not paid within fifteen (15)
days from the date of this Order, a SLED agent shall serve a copy of this Order on Marshall I.
Pickens and take possession of the permit. Upon service of the fifteen (15) days suspension, said
agent shall return the permit to Respondent. Respondent and his agents are to cease and desist all
sales of beer and wine at the location during the period of suspension.
________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
November ___, 1997
Columbia, South Carolina |
