ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE This matter comes before the Administrative Law Judge Division (ALJ Division) pursuant
to S.C. Code Ann. § 61-4-580(5) (Supp. 1997), which prohibits any permittee or his agent from
knowingly permitting an act that constitutes a crime under the laws of South Carolina. Respondent
is accused off violating § 16-17-500, which prohibits selling, furnishing, giving, or providing
cigarettes to anyone under the age of eighteen. The Department of Revenue (Department) is seeking
a fine of $400.00 against the Respondent. A hearing was held before me on December 14, 1998, at
2:00 p.m. at the Administrative Law Judge Division in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Parties, I make the
following Findings of Fact by a preponderance of evidence:
1. Fayeq A. Yousef holds off-premises beer and wine permit No. 866107 for College
Corner.
2. On January 26, 1998, an underage cooperating individual (UCI) entered College
Corner. While inside College Corner, the UCI purchased a package of Newport cigarettes from the
Respondent. At no time during the purchase of the cigarettes did the Respondent ask the UCI for
identification to establish the UCI's age.
3. The Respondent testified that his customers are primarily students at the College of
Charleston and are therefore over the age of eighteen. He also stated that the incident occurred
during his busiest hours while the store was crowded, and that he was checking the identification of
his customers but inadvertently missed checking the identification of the UCI.
4. Officer McBrayer of the Charleston Police Department issued a ticket to the
Respondent for a violation of § 16-17-500 of the South Carolina Code for the sale of cigarettes to
a person under eighteen years of age. The Respondent paid a fine of $76.00 to the Municipal Court
but did not appear at the proceedings. Thereafter, the Respondent was convicted of violating § 16-17-500 of the South Carolina Code on January 28, 1998, in Municipal Court.
5. This is the Respondent's first violation within the past three years.
6. The Respondent violated the provision of S.C. Code Ann. § 61-4-580 by permitting
a criminal act under § 16-17-500.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 1997) grants jurisdiction to the ALJ Division to
hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 1997) grants the ALJ Division the authority to
hear contested case hearings in matters governing alcoholic beverages, beer and wine.
3. Permits and licenses issued by this state for the sale of liquor, beer and wine are
privileges to be used and enjoyed only so long as the holder complies with the restrictions and
conditions governing them. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22
(1943).
4. Holders of beer and wine permits are forbidden from permitting "any act, the
commission of which tends to create a public nuisance or which constitutes a crime...." S.C. Code
Ann. § 61-4-580(5) (Supp. 1997).
5. "It is unlawful for any person to sell, furnish, give, or provide any minor under the
age of eighteen years with cigarettes....Any person violating the provisions of this section, either in
person, by agent or in any other way, shall be guilty of a misdemeanor...." S.C. Code Ann. § 16-17-500 (Supp. 1997).
6. Pursuant to S.C.Code Ann. § 61-4-4090 (Supp. 1997), "[i]f a permittee or licensee,
or servant, agent, or employee of the permittee or licensee...is convicted of a criminal offense which
occurred on the licensed premises, the conviction or plea constitutes proof that the offense occurred
and the record thereof is admissible in a contested case hearing before the Administrative Law Judge
Division."
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 to 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. It is a generally recognized principle of administrative law that the fact finder has the
authority to impose an administrative penalty after the parties have had an opportunity to have a
hearing and be heard on the issues. See Ohio Real Estate Comm'n v. Aqua Sun Investments, 655
N.E. 2d 266 (Ohio 1995); Shadow Lake of Noel, Inc. v. Supervisor of Liquor Control, 893 S.W. 2d
835 (Mo. App. S.D. 1995); Matter of Henry Youth Hockey Ass'n, 511 N.W. 2d 452 (Minn. App.
1994); Vermont Agency of Natural Resources v. Duranleau, 617 A.2d 143 (Vt. 1992); City of
Louisville v. Milligan, 798 S.W. 2d 454 (Ky. 1990); Com., Dept. of Transp. v. Slipp, 550 A.2d 838
(Pa. 1988); Dept. of Transp. v. Miller, 528 A.2d 1030 (Pa. 1987); State Police v. Cantina Gloria's,
639 A. 2d 14 (Pa. 1994).
Prior to governmental restructuring, a commission, sitting in its adjudicatory capacity,
imposed penalties for violations of statutory provisions administered by the commission's
subordinate agency. In its capacity as the fact-finder, the Tax Commission would conduct an
adjudicatory hearing in all contested cases arising under Title 12 of the South Carolina Code, and
would render an order containing findings of fact and conclusions of law. As the fact-finder, it was
the commission's prerogative "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, 634 (1991). With the
advent of restructuring and the abolition of the Tax Commission, however, the Administrative Law
Judge Division was given the authority to hear "all contested cases, as defined by Section 1-23-310
and as previously considered by the three [Tax] commissioners. . . ." S.C. Code Ann. Section 12-4-30(D) (Supp. 1996). The Administrative Law Judge, as the current fact-finder, must also impose a
penalty based on the facts presented at the contested case hearing. Parties are entitled to present
evidence on all issues arising out of the contested agency action and the tribunal responsible for
conducting the contested case proceedings has the authority to decide the issues based on the facts
presented, and make the final decisions on all the issues, including the appropriate penalty.
9. S.C. Code Ann. § 61-4-250 (Supp. 1997) authorizes the imposition of a monetary
penalty not less that twenty-five dollars and not more than $1,000.
10. The Respondent violated the provision of S.C. Code Ann. § 61-4-580 by permitting
a criminal act under § 16-17-500. However, his conviction and payment of a fine under the same
facts in Magistrate's Court is a mitigating factor that warrants a reduced penalty from the $400 the
Department is seeking in this matter.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that the Respondent, Fayeq A. Yousef, d/b/a College Corner, has violated the provision
of S.C. Code Ann. § 61-4-580 by permitting a criminal act under § 16-17-500 and is fined Two
Hundred and Fifty Dollars ($250.00) to be remitted to the Department of Revenue within fifteen days
of the date of this Order.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
March 23, 1999
Columbia, South Carolina |
