SC Administrative Law Court Decisions

The South Carolina Department of Revenue (DOR) seeks a 45 day suspension of the off-premise beer and wine permit of James Horton (Horton). DOR argues Horton sold wine to a underage person and sold it knowingly. Further, DOR argues that a substantial suspension of 45 days is required since the current violation is Horton's third in slightly more than a year.

Horton admits he violated the law. However, he does not admit that a 45 day suspension is required. He argues that the sale was simply made in error by a clerk with an unknown, but now documented and corrected, vision impairment. Further, he explains that he has installed a point of sale system that requires the clerk to enter the purchaser's birth date as shown on the purchaser's driver's license. Under his new system, a sale of beer or wine cannot be made unless the purchaser is 21 or older. Horton believes these extenuating circumstances should be considered in imposing a penalty.

A suspension of 30 days is warranted.

What penalty is due for Horton's violation of S.C. Code Ann. § 61-4-580(1) (Supp. 1997) and S.C. Code Regs. 7-9(B) (Supp. 1997) for selling wine to a person under 21 years of age?

A. Improper Sale

1. Findings of Fact

The facts of the sale are not disputed. Horton's off-premises beer and wine permit is used at his business location of 1525 Anderson Drive, Williamston, South Carolina. The location was investigated on July 15, 1997 by S.C. Law Enforcement (SLED) Agents by the use of an undercover cooperating individual (UCI). The UCI entered Horton's licensed premises, picked up a wine product consisting of a 4 pack of Seagram's wild orange strawberry passion wine coolers, and then placed the wine coolers and the funds for completing the sale on the clerk's counter.

The UCI's drivers license played a major role in the sales transaction. The driver's license was presented to the clerk in response to the clerk's request. The clerk physically held and examined the license. The license showed a date of birth of December 1, 1977 and clearly showed -- in an express statement in red -- that the party was under 21 until December 1, 1998. The date of the sale was not December 1, 1998. Rather, the date of the sale was July 15, 1997. Despite all of this obvious information, the clerk returned the license to the UCI, took the UCI's funds, and presented the wine to the UCI. The UCI left the premises with the purchased wine and turned it over to the SLED Agent waiting outside the building. The SLED Agent entered the premises and issued a violation to the clerk for selling wine to an underage party.

2. Conclusions of Law

Any party operating under a beer and wine permit who knowingly sells beer or wine to a person under twenty-one years of age creates a ground for a penalty or suspension of the holder's permit. S.C. Code Ann. § 61-4-580(1) (Supp. 1997); S.C. Code Regs. 7-9(B) (Supp. 1997) Here, no dispute exists on whether a sale was made to a person under 21. Further, Horton has not challenged the "knowingly" requirement. Rather, he admits that the facts of this case demonstrate the sale was made knowingly and was an improper sale. Accordingly, a violation of S.C. Code Ann. § 61-4-580(1) (Supp. 1997) and S.C. Code Regs. 7-9(B) (Supp. 1997) has been established. The only remaining issue is deciding the extent of the penalty.

B. Extent of Penalty

1. Findings of Fact

The only issue in dispute is setting the penalty which must flow from the violation. As with the violation itself, no dispute exists as to the facts.

Horton's policy is that his clerks must check for identification. Identification checks for sales of beer and wine are made for anyone who does not appear to be at least 34 years of age. The age rule was followed in this case since Horton's clerk complied with the instructions by checking the identification at the time of the sale to the UCI. At the time of the sale Horton's clerk had a visual impairment and was not wearing corrective lens. This lack of corrective lens led Horton's clerk to misread the identification given by the UCI and to incorrectly determine the UCI was 21 or over.

While admitting an incorrect age determination was made in the instant case, Horton asserts that his penalty should be reached only after considering the corrective steps he has taken to assure that no future violations will occur. To prevent future violations, Horton has installed a computer monitored cash register that requires the insertion of a birth date before any sale of beer or wine can be completed. In addition, sales of beer or wine will be properly policed and entered in the sales register since Horton has required his sales clerk to correct her visual impairment as a condition of retaining her job. The clerk has retained her job since she has corrected her visual impairment.

While such corrective acts are laudable to avoid future problems, past actions cannot be ignored. Past actions of Horton's employees show repeated sales to underage persons. On June 7, 1996, Horton, was charged with permitting the purchase of beer or wine by a person under twenty-one years of age. Horton paid a fine of $400. On March 13, 1997, he was again charged with permitting the purchase of beer or wine by a person under twenty-one years of age. He paid a fine of $800. The violation on July 15, 1997 is the third violation for the same offense. All three violations have occurred in a period of slightly more than one year.

2. Conclusions of Law

The sale of beer or wine to any person under twenty-one years of age subjects the permit holder to revocation or suspension. S.C. Code Ann. Sec. 61-4-580 (Supp. 1997); S.C. Code Ann. Regs. 7-9(B). In disputes over the penalty to be imposed, the Administrative Law Judge, as the fact-finder, is empowered to impose the appropriate penalty based on the facts presented. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Here, a 30 day suspension is appropriate.

Including the current violation, the location here under review has had three violations in slightly over one year with each violation involving the same offense of selling to a minor. The record demonstrates that prior monetary penalties have not halted the illegal sale to minors. Even when given a valid driver's license with a statement in red expressly declaring the party is not twenty-one years of age, Horton's clerk still made the sale. Obviously, to comply with the law Horton's sales practices are in need of significant change.

Significant changes have been made by Horton and those changes warrant consideration in establishing a penalty. In imposing a penalty here, three mitigating factors are relevant.

First, Horton has taken steps to accomplish a major revamping of his sales practices to eliminate sales to underage parties. All parties are already asked for identification but the problem of misreading or miscalculating has lead to violations. Avoidance of violations will be greatly enhanced since Horton has installed a computer monitored cash register that requires the entry of a birth date before a sale of beer or wine can be completed. Thus, beer and wine sales now require the obtaining of a proper identification and the entry of the birth date from the identification before the sale is completed. A sale will not be completed if the purchaser's birth date does not yield an age of 21 or over.

Second, in an effort to insure no further violations occur, Horton required his sales clerk to correct her visual impairment to remain as Horton's employee. The employee has complied with the new demands of her job.

Finally, a relevant factor is that Horton's employee complied with Horton's instructions to obtain identification. This is not a case in which the law was flagrantly disregarded. Rather, both parties admitted that the clerk asked for the driver's license, used the driver's license to compute the age, but misread or miscalculated the information.

The above three factors are only mitigating factors; none alone or in combination are sufficient to defeat the need to impose a suspension. Here, a third violation occurred despite prior monetary fines. Thus, fines have not been able to halt the problem. Given all of the factors involved, Horton's beer and wine permit is suspended for 30 days.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

DOR is ordered to suspend Horton's beer and wine permit for 1525 Anderson Drive, Williamston, South Carolina with such suspension to be imposed for thirty days beginning on May 1, 1998, and concluding May 30, 1998.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

Dated: April 23, 1998

Columbia, South Carolina