ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999), S.C.
Code Ann. § 1-23-600(B) (Supp. 1999) and S.C. Code Ann. § 1-23-310 (Supp. 1999). The Petitioner, South Carolina
Department of Revenue (Department) issued a citation against the Respondent for violating provisions of 23 S.C. Code
Regs. 7-9(B) (Supp. 1999) for the sale of alcohol to a person under the age of twenty-one. The Department seeks the
imposition of a forty-five (45) day suspension of the Respondent's off-premises beer and wine permit. The Respondent
requested a contested case hearing, asserting that the penalty the Department sought to impose is excessive. After notice to
all parties, a hearing was conducted on June 7, 2000.
FINDINGS OF FACT
Having carefully considered the testimony and the arguments of both sides, and taking into account the credibility of the
evidence and witnesses, I find by a preponderance of the evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to all parties in a timely manner.
2. The Respondent operates a convenience store located at 2790 Maybank Highway, Charleston, South Carolina, in
Charleston County.
3. On July 28, 1999, an Underage Cooperating Individual (UCI) entered the Respondent's store and purchased four wine
coolers. The UCI was nineteen years old.
4. Lachondria Legare, the clerk who sold the alcohol to the UCI, did not ask the UCI for any form of identification. A
reasonable person would conclude that the UCI was under the age of twenty-one.
5. After the sale, a SLED agent issued an administrative violation to the Respondent for knowingly permitting an underage
person to purchase alcohol on a licensed premises.
6. This is the third violation in three years at this location. The first offense occurred on November 13, 1997, and the second
offense occurred on July 16, 1998.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 1999) grants jurisdiction to the Administrative Law Judge Division to hear contested
cases under the Administrative Procedures Act.
2. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 2 Am. Jur. 2d
Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases
(1999). 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 Reg. 7-9(b), by selling alcohol to a person under the age of twenty-one.. See Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998) (standard of proof in an
administrative proceeding is preponderance of the evidence).
3. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of
fact. See S.C. Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992).
Furthermore, a trial judge, who observes a witness is in the better position to judge the witness's demeanor and veracity and
evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194
S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534,
320 S.E.2d 44 (Ct. App. 1984).
4. The Department of Revenue contends the Respondent violated 23 S.C. Code Ann. Reg. 7-9(B) which provides:
To permit or knowingly allow a person under twenty-one years of age to purchase or possess or consume beer or wine in
or on a licensed establishment which holds a license or permit issued by the [The Department] is prohibited and
consitutes a violation against the license or permit. Such violation shall be sufficient cause to suspend or revoke the license
or permit by [The Department].
5. The sale of the four wine coolers to the UCI was a violation of 23 S.C. Code Ann. Reg. 7-B.
6. The Respondent first argues that it should not be held responsible for the violation because the Department cannot prove
that it "knowingly " committed the violation. The Respondent argues that it could not have knowingly made the sale
because it was unaware that its employee had sold the alcohol to the UCI. The South Carolina Court of Appeals recently
addressed this issue in Save More, Inc. v. S.C. Department of Revenue, Unpublished Opinion No. 2000-UP-318, Filed April
26, 2000. The Court held that "the knowledge test . . . includes not only actual knowledge of a fact, but also situations
where a person has such information that would lead a prudent person to form a belief as to the fact, and if followed by
proper inquiry would have disclosed its character." The Court further held that "the knowledge requirement is satisfied with
either actual or constructive knowledge." I find that the Respondent had constructive knowledge of the UCI's age and that
it violated Reg 7-9(B).
7. The Respondent also argues that the penalty imposed by the Department, revocation for 45 days, is excessive given the
facts and circumstances of this case. Internal Department policies call for the imposition of this penalty when a license
holder receives a third violation within a three year time period.
The amount of the penalty imposed is within the sound discretion of the Administrative Law Judge. Walker v. South
Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). In the case at bar, the Respondent did demonstrate that it
had taken steps to prevent sale of alcohol to underage people. I find that under the facts and circumstances of this case,
revocation of the permit for 45 days is excessive. I find that a monetary penalty of $1500.00 and revocation of the permit for
15 days is appropriate.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Respondent pay to the Department of Revenue a fine in the amount of One Thousand Five Hundred
($1500.00) Dollars within thirty days of the date of this Order;
AND IT IS FURTHER ORDERED that the Respondent's beer and wine permit for the premises at 2790 Maybank
Highway, Charleston, South Carolina is revoked for a period of fifteen (15) days beginning at 12:01 a.m. on the twentieth
day following the date of this Order.
AND IT IS SO ORDERED.
_____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
June 22, 2000
Columbia, South Carolina |
