ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division ("Division") on a citation
issued by the South Carolina Department of Revenue ("Department") against Vinod Dhand, d/b/a
NVD, Inc. (Food Fare) for an administrative violation of 23 S.C. Code Ann. Reg. 7-9 (B) (Supp.
1996) by permitting a person under the age of twenty-one (21) to purchase beer on a licensed
premises. The Department seeks a forty-five (45) day suspension of Respondent's off-premises beer
and wine permit as this alleged violation constitutes Respondent's third violation within the past four
years. The Respondent denies that the violation occurred and seeks review of the Department's
determination. After notice to the parties, a hearing was held on May 18, 1998. Any issues raised
or presented during the proceeding or hearing of this matter that are not specifically addressed in this
order are deemed denied pursuant to ALJD Rule 29C.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden of the parties to
establish their cases by a preponderance of the evidence and taking into account the credibility of
the witnesses:
1. The Division has personal and subject matter jurisdiction.
2. Vinod Dhand is the licensee on behalf of NVD, Inc. for an on-premises beer and wine
permit at Food Fare located at 2568 Highway 378, Gilbert, South Carolina.
3. Deputy Edward Hartley of the Lexington County Sheriff's Department was
conducting a routine surveillance of the location on May 29, 1997 at approximately 9:15 p.m. when
he observed two white males, who appeared to be young, at the counter.
4. According to Deputy Hartley, one of the white males, later identified as Damian
Hoffman, was carrying a paper bag in his hands which appeared to contain a beer or beers. Deputy
Hartley observed the two males exit the location and drive away in a black Mustang GT.
5. Deputy Hartley further testified that he followed the Mustang west two or three miles
on Highway 378 before he pulled the car over in a traffic stop. Hoffman, the driver of the Mustang,
exited the vehicle and presented his driver's license showing his date of birth as February 13, 1978.
The passenger, Jeremy Lutz, also presented his license which showed his date of birth as October
31, 1978.
6. Deputy Hartley found cold beer underneath the car seat in a bag and a Coca-Cola
bottle containing liquor in the back seat.
7. Deputy Hartley returned to Respondent's location the following day, May 30, 1997,
and issued a criminal citation to the clerk, Karam Jit Singh, for transfer of beer to a person under
twenty-one years of age.
8. Subsequently, an administrative violation report was issued to Respondent for
permitting the sale of beer to a person under twenty-one years of age.
9. Karam Jit Singh was tried for the criminal charges related to the sale and was found
not guilty.
10. Damian Hoffman testified that Lutz purchased a pack of cigarettes. Lutz then waited
while Hoffman purchased two twenty-two ounce bottles of "Bud Light" beer.
11. Hoffman claimed that he showed the clerk his valid South Carolina driver's license
showing his age to be under 21, paid for the beer with a five dollar bill, and received over two dollars
in change from the clerk.
12. Respondent submitted the master cash register tape that recorded all transactions on
May 29, 1997. Upon review, the tape fails to show a purchase of a pack of cigarettes followed by
a separate purchase of two twenty-two ounce beers. No purchase of general merchandise and
cigarettes corresponds to Hoffman's testimony. Further, no purchase on the night of May 29, 1997
was paid for with a five dollar bill with the purchaser receiving over two dollars in change.
13. I find the cash register tape from May 29, 1997 to be more credible as evidence than
the testimony of Deputy Hartley and Damian Hoffman.
14. The evidence fails to establish that Respondent's agent knowingly allowed the
purchase of beer by a person under twenty-one years of age.
CONCLUSIONS OF LAW
Based upon the forgoing Findings of Fact, I conclude as a matter of law:
1. Jurisdiction is vested in the Administrative Law Judge Division pursuant to S.C. Code
Ann. § 12-60-30(4)(a) (Supp. 1997) with the hearing held under S.C. Code Ann. §§ 1-23-600(B) and
1-23-310 (Supp. 1997).
2. 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997) prohibits a licensee from permitting
or knowingly allowing a person under twenty-one years of age to purchase beer or wine in or on a
licensed establishment.
3. The license holder is responsible for the actions and conduct of employees utilizing
the permit upon the permitted premises. 48 C.J.S. Intoxicating Liquors § 259 (1981).
4. A permit holder is subject to revocation or suspension if the holder of a permit or an
employee of the licensed premises knowingly sells beer or wine to any person under twenty-one
years of age. S.C. Code Ann. § 61-4-580(1) (Supp. 1997).
5. In civil cases, generally, the burden of proof rests upon the party who asserts the
affirmative of an issue. 29 Am. Jur. 2d Evidence § 127 (1994); Alex Sanders, et al., South Carolina
Trial Handbook § 9:3 Party With Burden, Civil Cases (1994). The Department is the party asserting
the affirmative in this case; therefore, the Department must prove by a preponderance of the evidence
that Respondent violated Section 61-4-580(1) and Regulation 7-9(B).
6. The preponderance of the evidence "is evidence which is of the greater weight or
more convincing than the evidence which is offered in opposition to it . . . ." Black's Law Dictionary
1182 (6th ed. 1990). "The preponderance of the evidence means such evidence as, when considered
and compared with that opposed to it, has more convincing force and produces in the mind the belief
that what is sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum
of Evidence in Civil Cases (1994), [citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)].
7. The trier of fact must weigh and pass upon the credibility of evidence presented.
See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586
(1992). The trial judge who observes a witness is in the best position to judge the witness's
demeanor and veracity and evaluate their testimony. See McAlister v. Patterson, 278 S.C. 481, 299
S.E.2d 322 (1982); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App. 1985).
8. This court is unable to find that the Department has met its burden of proof by a
preponderance of the evidence in showing that Respondent's clerk knowingly sold beer to a person
under twenty-one (21) years of age. Accordingly, the citation written against the licensee for a
violation of S. C. Code Regs. 7-9(B) is dismissed for lack of proof.
ORDER
Based upon the Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED THAT the citation against Vinod Dhand, d/b/a NVD, Inc.
(Food Fare) located at 2568 Highway 378 in Gilbert, South Carolina is DISMISSED.
AND IT IS SO ORDERED.
ALISON RENEE LEE
Administrative Law Judge
August 28, 1998
Columbia, South Carolina |