South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Vinod Dhand, d/b/a NVD, Inc. (Food Fare)

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Vinod Dhand, d/b/a NVD, Inc. (Food Fare)
 
DOCKET NUMBER:
98-ALJ-17-0018-CC

APPEARANCES:
Arlene D. Hand, Attorney for Petitioner

Frank B. Register, Attorney for Respondent
 

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


Brown Bldg.

 

 

 

 

 

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