ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to
S.C. Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2003). The South Carolina Department of
Revenue (Department) seeks a revocation of the Respondent’s beer and wine permit due to its
fourth violation of 23 S.C. Code Ann. Reg. 7-9 [Supp. 2002, now renumbered as S.C. Code Ann.
Reg. 7-200.4 (Supp. 2003) effective June 27, 2003] and S.C. Code Ann. §§12-60-1310, 12-60-1320, 61-4-580 (Supp. 2003) during a three-year period. A hearing was held before me on
January 9, 2004 at the offices of the 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 the evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner and the Respondent.
2. The parties stipulated in writing that the following facts are not in issue:
A.The Respondent, James M. Byars holds a permit to sell beer and wine for
off-premises consumption at the location 511 Pinckney Road, Chester,
South Carolina . He held this permit on July 24, 2003 (No. 32006673).
B.On July 24, 2003, South Carolina Law Enforcement Division (SLED)
agents, in conjunction with a youthful looking underage cooperating
individual (UCI), Charles Ray Reese, Jr. entered the location at the above
address. Charles Ray was seventeen years of age. Charles Ray picked up
a 24 oz “Bud Light” beer from the cooler and took it to the clerk on duty.
The clerk did not request identification or ask Charles Ray his age, but
instead permitted him to purchase the beer.
C.The clerk was charged with transfer of beer to an individual under the age
of twenty-one. The Respondent, Mr. Byars, was issued an administrative
citation for knowingly permitting an underage person to buy beer on a
licensed premises.
D.Mr. Byars has had three prior violations for “permitting the purchase of
beer by a person under the age of twenty-one” within a three year period at
this location. The dates and penalties are set out as:
DatePenalty
September 15, 2001$400.00 fine
January 7, 2002$800.00 fine
January 16, 2003forty-five (45) day suspension of beer and wine
permit
E.Mr. Byars admits that on July 24, 2003, he, as the beer and wine permittee
at this location above referenced , violated for the fourth time within a
three year period, 23 S.C. Code Ann. Regulation 7-200.4 “knowingly
permitting the purchase of beer by a person under the age of twenty-one.”
F.The Department issued its Final Department Determination in this matter
on August 29, 2003, in compliance with the Revenue Procedures Act, S.C.
Code Ann. Sections 12-60-10 et seq. (Supp 2002) and Administrative
Procedures Act, S.C. Code Ann. Sections 1-23-10, et seq. (Supp 2002).
G.Mr. Byars timely appealed the Final Department Determination pursuant to
the Revenue Procedures Act, on September 24, 2003.
H.This matter was timely transmitted to the Administrative Law Judge
Division for a contested case hearing on September 30, 2003.
I.Both parties timely filed Prehearing Statements pursuant to Judge
Matthews’ Order dated October 8, 2003.
3.After the Respondent was cited for this fourth violation, he reduced his verbal
policy concerning alcohol sales to writing which he regularly shares with his employees. The
employees are reminded of the state laws against selling to minors, and that the employee can be
charged criminally for selling alcohol to minors. He further informs his employees that if they
make a sale to someone who is underage, the employee will lose his driver’s license and his
employment will be terminated. The written policy outlines how to check the identification of a
person attempting to purchase alcohol, how to spot fake identification, and how to refuse a sale
to an underage individual politely.
Furthermore, shortly after this violation, the Respondent had new cash registers installed
which require that the cashier manually enter the purchaser’s birth date into the register to
complete the sale. If the purchaser is not over twenty-one years of age, the sale will not be
completed. In addition, Mr. Byars also now conducts a “secret shopper” program monthly where
he sends an underage individual into the store to attempt to purchase alcohol while Mr. Byars
waits outside.
4.JB One Stop is a convenience store located in a middle- to lower-class
neighborhood in Chester. Pinkney Road in front of the store is heavily traveled, and there is a lot
of foot traffic in the store. There are teenagers who “hang around” the store occasionally. The
second violation cited by SLED occurred on January 7, 2002 which was the first day of lottery
sales in South Carolina. Due to its location on a busy road, and the novelty of the lottery, the
store was particularly busy on that date.
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 (1986 & Supp. 2003) grants jurisdiction to the
Division to hear contested cases under the Administrative Procedures Act. Specifically, S.C.
Code Ann. § 61-2-260 (Supp. 2003) grants the Division the authority to hear contested cases in
matters governing alcoholic beverages, beer and wine.
2.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).
3.S.C. Code Ann. § 61-4-580 (Supp. 2003) sets forth that “[n]o holder of a permit
authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may
knowingly commit any of the following acts upon the licensed premises covered by the holder's
permit: (1) sell beer or wine to a person under twenty-one years of age . . . .” Regulation 7-200.4
further provides that:
To permit or knowingly allow a person under twenty-one year [sic] of age to
purchase or possess or consume alcoholic beverages, beer or wine in or on a
licensed place of business which holds a license or permit issued by the
Department is prohibited and constitutes a violation against the license or permit.
Such violation shall be sufficient cause to suspend or revoke the license by the
Department. (Supp. 2003) (Emphasis added).
Accordingly, Regulation 7-200.4 adds the term “to permit” a sale as part of the violation.
However, “[a]lthough a regulation has the force of law, it may not alter or add to a statute.”
Goodman v. City of Columbia, 318 S.C. 488, 490, 458 S.E.2d 531, 532 (1995). Moreover,
“[e]ach part of a statute should be given effect and each word given its plain meaning if this can
be accomplished by any reasonable construction.” Sea Island Scenic Parkway Coalition v.
Beaufort County Bd. of Adjustments and Appeals, 316 S.C. 231, 236, 449 S.E.2d 254, 257 (Ct.
App. 1994). Furthermore, 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). Therefore, I conclude that the language in Regulation 7-200.4 insures that the permittee
cannot seek to avoid the consequences of a violation for lack of personal knowledge because the
permittee is responsible for the acts of his servants, agents, or employees.
4.In this case, the Department imposed a revocation of the Respondent’s beer and
wine permit for a fourth violation of 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2003) within the
past three years. See Revenue Procedure 95-7. The Administrative Law Judge Division, as the
trier of fact in contested cases under the Administrative Procedures Act, has the authority to
establish the facts supporting the imposition of a penalty for a violation. Inherent in and
fundamental to the quasi-judicial powers of an Administrative Law Judge is the authority to
decide the appropriate sanction when such is disputed. Walker v. South Carolina ABC Comm’n,
305 S.C. 209, 407 S.E. 2d 633 (1991). To that end, the Administrative Law Judge must consider
relevant evidence presented in mitigation. Mitigation is defined as a lessening to any extent, great
or small. It may be anything between the limits of complete remission on the one hand and a
denial of any relief on the other. In a legal sense, it necessarily implies the exercise of the
judgment of the court as to what is proper under the facts of the particular case. 58 C.J.S.
Mitigation p. 834-835 (1948). A legitimate as well as a significant consideration is whether the
alleged mitigating factor demonstrates reasonable cause to reduce the penalty. Kroger Co. v.
Department of Revenue, 673 N.E. 2d 710 (Ill. 1996).
The Respondent’s testimony concerning the training that his employees now go through,
the written policy on alcohol sales, the monthly “secret shopper” program and the new cash
registers is compelling. Based on these steps that the Respondent has taken to prevent another
violation, the revocation of the Respondent’s permit seems excessive.
The Respondent’s previous penalty was the suspension of his permit for forty-five (45)
days. He has suggested a ninety (90) day suspension as a valid punishment in light of the
mitigating factors he has undertaken to prevent a recurrence of these violations. Therefore, I find
that, in light of the facts of this case, there are sufficient mitigating circumstances to merit
suspension instead of the revocation which the Department seeks.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that the Respondent’s off-premises beer and wine permit # 32006673 shall be
revoked for ninety (90) days. This revocation shall begin seven calendar days from the date of
this Order.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
January 21, 2004
Columbia, South Carolina |
