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. (Supp. 1997). The South Carolina Department of Revenue contends
that Respondent Henry F. Lewis, d/b/a 501 Mini Mart, knowingly permitted an Underage
Cooperating Individual (UCI) to purchase beer from Respondent's licensed premises on February
12, 1998, in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997). The Department seeks a
forty-five day suspension of Respondent's off-premises beer and wine permit for this alleged
violation. The parties agreed that no hearing was necessary in this matter, as Respondent stipulated
to the facts as alleged by the Department.
Based on the evidence, the Department's request that this tribunal suspend the Respondent's
off-premises beer and wine permit for a period of forty-five days is granted.
FINDINGS OF FACT
By letter dated February 10, 1999, Respondent stipulated to the following facts which are
hereby incorporated into the record by reference: 1) that the sale was made in violation of Rule 7-9(B); 2) that such sale was the third offense within the past three years; 3) that the Department is
seeking a forty-five day suspension of Respondent's license; and 4) that Respondent's presentation
at a hearing would have been directed towards convincing the court to impose a fine in lieu of a
suspension and or a reduction in the amount of time of the suspension.(1)
CONCLUSIONS OF LAW AND DISCUSSION
The Department is charged with the responsibility of administering and enforcing the laws
and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20
(Supp. 1997). The Department alleges that Respondent violated 23 S.C. Code Ann. Regs. 7-9(B)
by permitting or knowingly allowing a minor to purchase beer from Respondent's licensed
establishment.
In the instant case, Respondent stipulated that the violation occurred. Thus, the only matter
left for this tribunal to determine is the appropriate penalty. The purpose of the regulatory
prohibition against selling beer to minors is to protect both the minor and the public at large from
the possible adverse consequences of such sales. The sale of alcohol to a minor is a serious offense
and cannot be taken lightly. A beer and wine permit is neither a contract nor a property right. It is
a "mere permit, issued or granted in the exercise of the police power of the state to do what otherwise
would be unlawful to do; and to be enjoyed so long as the restrictions and conditions governing their
continuances are complied with." Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d
22, 25 (1943).
Accordingly, there are legal consequences for noncompliance with the alcoholic beverage
statutes. Respondent argues that in each of the unlawful sales, an employee of the store made the
sale by mistake and contrary to the licensee's policy. While this tribunal understands that human
beings make mistakes, the occurrence of a mistake does not excuse the duty imposed by the statute
to not sell beer to minors, nor does it lessen the attendant penalties.
Further, when the meaning of the language, the subject matter, and the purpose of the
regulation are considered together, it becomes apparent that the drafter of 23 S.C. Code Ann. Regs.
7-9(B) intended for beer and wine permit holders to be responsible for the actions and conduct of
their agents or employees. See S.C. Code Ann. § 61-4-580 (Supp. 1996); 48 C.J.S. Intoxicating
Liquors, § 168 (1981). Thus, the sale of beer or wine to a minor is forbidden irrespective of whether
the sale is made by the permit holder or by an employee of the permit holder. 48 C.J.S. Intoxicating
Liquors, § 259 (1981). Such an interpretation is consonant with the public policy of preventing
underage drinking.
The Department is authorized to revoke or suspend the beer and wine permit of any licensee
for committing a violation of the laws pertaining to alcoholic beverages or any regulation
promulgated by the Department. S.C. Code Ann. § 61-4-590 (Supp. 1997).
This violation is the third offense for this establishment in three years. The licensee requests
a fine in lieu of suspension of his license. However, the forty-five day suspension is consistent with
the Department's guidelines for a third violation and authorized under § 61-4-590.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that the Department's suspension of Respondent's off-premises beer and wine permit
for forty-five days is sustained.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
March 8, 1999
Columbia, South Carolina
1. Respondent's stipulation of the facts made a hearing on the merits unnecessary in this matter.
Although Respondent was still entitled to a hearing on the penalty phase, he waived this right
through counsel and agreed to a telephone conference to discuss the appropriate penalty. A
telephone conference was conducted with this tribunal and counsel for both parties on February 18,
1999, and Mr. Johnson requested a reduction of the penalty because of what he believed to be
extenuating circumstances. Ms. McMahan stated that the Department opposed any such reduction.
On February 24, 1999, Mr. Johnson submitted a letter reiterating Respondent's request that there be
a reduction in the penalty. Ms. McMahan submitted a letter on behalf of the Department reiterating
the Department's opposition to any such reduction and pointing out that Respondent had not offered
evidence of any extenuating circumstances by way of affidavit. |
