ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C.
Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997), upon the request of Respondent Roy E.
Adams, d/b/a Texaco Food Mart for a contested case hearing. Respondent was cited with an
administrative violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997), for permitting or
knowingly allowing a person under twenty-one (21) years of age to purchase beer on April 6, 1997.
The South Carolina Department of Revenue (DOR) seeks a 45-day permit suspension for the alleged
violation. The Respondent admits that beer was sold to an underage individual, but argues for a
reduced penalty owing to mitigating factors and remedial measures. After notice to the parties, a
contested case hearing was held in Columbia, South Carolina, on September 1, 1998.
Upon review of the evidence and applicable law, I conclude that the appropriate penalty for
violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997) is a forty-five day suspension. Any issues
raised or presented in the proceedings or hearing of this case not specifically addressed in this Order
are deemed denied. ALJD Rule 29(C).
FINDINGS OF FACT
I make the following Findings of Fact, taking into account the burden on the parties to
establish their respective cases by a preponderance of the evidence and taking into consideration the
credibility of the witnesses:
The Division has personal and subject matter jurisdiction.
Notice of the time, date, place, and subject matter of the hearing was given to the
parties.
The Respondent Roy E. Adams holds a beer and wine permit (BG-837727) for the
Texaco Food Mart at 480 Old Greenville Highway, Clemson, South Carolina.
On September 11, 1997, an underage cooperating individual ("UCI") working with
the South Carolina Law Enforcement Division ("SLED") entered the premises for the purpose of
purchasing a beverage containing alcohol.
The UCI selected a bottle of "Icehouse" beer and took the beer to the clerk on duty.
The UCI presented his valid South Carolina driver's license to the clerk, who
examined it and then collected the money for the beer.
The UCI's date of birth is June 9, 1979. On September 11, 1997, the UCI was
eighteen years old. The driver's license contained a statement that the UCI was under twenty-one
until June 9, 2000.
Upon leaving the store, the UCI informed the law enforcement officers of what
transpired. A citation was subsequently issued to the clerk for a criminal violation and to the
Respondent for the administrative violation.
At the time of the violation, Respondent conducted monthly meetings with employees
regarding the sale of alcohol and tobacco. In addition, each employee, before receiving his
paycheck, was required to sign a statment acknowledging the store policy and law regarding sales
to underage persons.
After the violation, the Respondent took additional steps to prevent the recurrence
of such an event. The Respondent upgraded the location's checkout system. New software now
prompts the clerk on duty to input the date of birth of anyone purchasing beer or wine. In so doing,
the clerks are less likely to make an error in determining if individuals are old enough to buy beer
and wine. The Respondent also instituted additional training concerning the sales of beer an wine
for employees at the location.
The September 11, 1997 incident was the location's third violation for sales to
underage individuals. The first violation occurred on August 23, 1996 for which Respondent paid
a $400 fine. The second violation occurred on February 2, 1997 for which Respondent paid an $800
fine.
In the year since the September 11, 1997 incident, Respondent has not been cited for
any further violations.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997), the South Carolina Administrative Law Judge Division has
jurisdiction in this matter.
S.C. Code Ann. Regs. 7-9(B) (Supp. 1997) prohibits a licensee from permitting or
knowingly allowing the purchase or possession of beer by a person under the age of twenty-one on
a 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); Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct.
App. 1990).
A party manifests consent and knowledge in allowing a person under twenty-one
years of age to purchase beer if, from the appearance of the person or from other submission of
evidence of age, the party had sufficient information that would lead a prudent person to believe the
purchaser was under twenty-one years of age. Feldman v. South Carolina Tax Comm'n, 203 S.C.
49, 26 S.E. 2d 22 (1943).
An agent of the Respondent requested the valid driver's license of the customer which
he read and then sold the beer. The sale to an underage individual on September 11, 1997 was
knowing.
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).
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).
The Department has established penalty guidelines for ABC violations set forth in
Revenue Procedure 95-7. For a third violation relating to retail beer and wine offenses (except
specific offenses enumerated), the penalty is a 45-day suspension of the beer and wine permit.
While the new practice is commendable as a means of avoiding future violations,
such a new procedure is insufficient to decrease the penalty for prior violations. Considered as a
whole, a penalty of a 45-day suspension is reasonable.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that Roy E. Adams violated the provisions of 23 S.C. Code, Regs. 7-9(B) by
permitting or knowingly allowing the purchase of beer by a person under 21 years of age.
IT IS FURTHER ORDERED that the beer and wine permit (BG-837727) for Roy E.
Adams d/b/a Texaco Food Mart at 480 Old Greenville Highway, Clemson, South Carolina, be
suspended for a period of forty-five days, commencing ten days after the date of this Order and
continuing forty-five days thereafter.
AND IT IS SO ORDERED.
__________________________________
ALISON RENEE LEE
Administrative Law Judge
October 19, 1998
Columbia, South Carolina |
