ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to the request of Charles Connor, d/b/a Connor’s
Superette (“Respondent”) for a contested care hearing pursuant to an administrative violation
regarding the off-premises beer and wine permit for the Respondent’s premises located at 4210
Highway 15 South, Sumter, South Carolina, 29150 (“location”). The South Carolina Department
of Revenue (“Department”) contends that Respondent permitted the purchase of beer by a person
under the age of twenty-one for the third time in a three-year period, in violation of 23 S.C. Code
Ann. Regs. 7-200.4 (Supp. 2003). For this violation, the Department seeks a forty-five (45) day
suspension of Respondent’s off-premises beer and wine permit.
After notice to the parties, a hearing was conducted on February 26, 2004, at the
Administrative Law Judge Division (“Division”), Columbia, South Carolina. At the beginning of the
hearing, the parties stipulated on the record to the occurrence of the violation. Based upon testimony
and the evidence presented, I find that Respondent’s off-premises beer and wine permit should be
suspended for a period of fifteen (15) days, commencing on March 22, 2004, for violating 23 S.C.
Code Ann. Regs. 7-200.4 (Supp. 2003).
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. The Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all
parties.
3. Respondent holds a permit to sell beer and wine for off-premises consumption (Permit
No.32006716-PBG) for its business location at 4210 Highway 15 South, Sumter, South Carolina,
29150. This location has been in operation since 1988 and is open seven days a week from 6:00 a.m.
to 9:30 p.m..
4. Respondent, Charles Connor, is the sole owner of the location. Respondent is
present at the location every day. However, his hours are limited due to problems related to
glaucoma, for which he has had five surgeries in the past six months.
5.Other than Respondent, the location has five employees, including Hazel Connor,
Respondent’s ex-wife. Ms. Connor is a cashier and manager of the location and has been employed
there since 1990.
6. As stipulated by Respondent, on August 5, 2003, SLED agents conducted an
investigation of Respondent’s business at the permitted location. SLED Agent L. Williams provided
$6.00 in cash to an Underage Confidential Informant (“UCI”), who was seventeen years old at the
time. The UCI entered Respondent’s store and purchased a 24-ounce can of Bud Ice beer from the
clerk. The clerk, Hazel Connor, checked the UCI’s identification, but made the sale nonetheless. The
UCI exited the store and carried the beer to SLED Agent Deloris Green.
7.Agent Green entered the location and issued a Violation Report to Respondent for
violation of 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2003), permitting the purchase of beer by a
person under the age of twenty-one. A Uniform Traffic Ticket was also issued to Ms. Connor for a
violation of S.C. Code Ann. § 61-4-90 (Supp. 2003), transfer of beer to a person under the age of
twenty-one.
8.Respondent has had two prior violations within a three-year period at the permitted
location for permitting an underage person to purchase beer or wine. The first violation occurred on
October 19, 2000. Respondent paid a monetary penalty of Four Hundred Dollars ($400.00) for that
violation. The second violation occurred on April 15, 2003. For that violation, Respondent paid a
monetary penalty of Eight Hundred Dollars ($800.00).
9.The Department issued a final determination on December 2, 2003, sustaining the
August 5, 2003, violation of 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2003) and seeking to suspend
Respondent’s beer and wine permit for forty-five (45) days. Respondent timely appealed the
determination, and the matter was transmitted to the Division for a contested case hearing.
10. Respondent testified at the hearing that he requires all new employees to read and
sign a pamphlet when hired acknowledging that the sale of beer or wine to a minor will result in
immediate termination. Respondent also testified that before leaving the store everyday, he reminds
employees to always check for appropriate identification before selling beer and wine.
11.Hazel Connor, who was the clerk on duty when this violation occurred, was also the
clerk on duty when the April 15, 2003, violation occurred. Respondent testified at trial that he has
not terminated Ms. Connor’s employment as a result of these two violations because Ms. Connor
supports their two children by her job at the location. However, he also testified that if Ms. Connor
committed another violation she would be terminated.
12.Respondent expressed interest in implementing additional training and programs for
employees to safeguard against sales of alcohol to minors. These include SLED training courses on
preventing sales to underage individuals, employing a “secret shopper” of his own, purchasing
training videos and manuals, and buying and installing a cash register that assists in age verification.
13.Respondent also operates a similar location in Wedgefield, South Carolina, where beer
and wine are sold. There have been no violations at this location since its opening in 1994.
CONCLUSIONS OF LAW
Based upon the above-listed findings of fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (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 case hearings in matters governing
alcoholic beverages, beer, and wine.
2.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. 2003).
3.The parties stipulate, and I find, that Respondent violated 23 S.C. Code Ann. Regs.
7-200.4 (Supp. 2003) by permitting the purchase of beer by a person under the age of twenty-one.
Regulation 7-200.4 provides:
To permit or knowingly allow a person under twenty-one year of age to purchase or
possess or consume alcoholic liquors, 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 or permit by the Department.
23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2003).
4. S.C. Code Ann. § 61-4-580(1)(Supp. 2003) provides:
No 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;
S.C. Code Ann. § 61-4-580(1)(Supp. 2003).
4.The Department has jurisdiction to revoke or suspend permits authorizing the sale of beer or
wine. S.C. Code Ann. § 61-4-590 (Supp. 2003). The Department may suspend or revoke a beer and
wine permit if the permittee has knowingly sold beer or wine to a person under the age of twenty-one.
S.C. Code Ann. §§ 61-4-580 (Supp. 2003); 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2003). See
also S.C. Code Ann. § 61-4-270 (Supp. 2003) (authorizing the Department to “revoke the permit of
a person failing to comply with any requirements” in Chapter 4 of Title 61). Further, the Department
may exercise this authority to suspend or revoke a permit for a first violation of the prohibition
against selling beer and wine to minors. See S.C. Code Ann. §§ 61-4-270, 61-4-580, and 61-4-590
(Supp. 2003); 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2003). In lieu of such suspension or
revocation, the Department may, in its discretion, impose a monetary penalty upon the holder of a
beer or wine permit. S.C. Code Ann. § 61-4-250 (Supp. 2003). For retail beer and wine permittees,
this monetary penalty must be no less than $25 and no greater than $1,000. Id.
5.The Department’s Revenue Procedure 95-7 sets forth penalty guidelines for violations of the
statutes and regulations governing the sale, distribution, and possession of alcohol, beer, and wine.
For retail beer and wine permits, Revenue Procedure 95-7 provides for a $400 fine for the first
offense, an $800 fine for the second offense, a forty-five (45) day suspension of the permit for the
third offense, and revocation of the permit for the fourth offense. This Revenue Procedure only
provides guidance to the Department; it is not law and thus is not binding on the Division.
6.It is a generally recognized principle of administrative law that the fact finder has the authority
to determine an appropriate administrative penalty, within the statutory limits established by the
legislature, after the parties have had an opportunity for a hearing on the issues. See, e.g., Walker
v. S.C. ABC Comm’n, 305 S.C. 209, 407 S.E.2d 633 (1991). Further, in assessing a penalty, the
finder of fact “should give effect to the major purpose of a civil penalty - deterrence.” Midlands Util.,
Inc. v. S.C. Dep’t of Health & Envtl. Control, 313 S.C. 210, 212, 437 S.E.2d 120, 121 (Ct. App.
1993).
7.The purpose of the statutory prohibition against selling alcohol to underage individuals is to
protect both the underage individuals who purchase the alcohol and the public at large from the
possible adverse consequences of such purchases. Norton v. Opening Break of Aiken, Inc., 313 S.C.
508, 443 S.E.2d 406 (Ct. App. 1994), aff’d 319 S.C. 469, 462 S.E.2d 861 (1995); Whitlaw v. Kroger
Co., 306 S.C. 51, 410 S.E.2d 251 (1991). The sale of alcohol to an underage individual is a serious
offense and cannot be taken lightly.
8.A permit to sell beer and wine is neither a contract nor a property right. Rather, it is merely
a permit to do what otherwise would be unlawful to do, and is to be enjoyed only so long as the
restrictions and conditions governing its continuance are complied with. Feldman v. S.C. Tax
Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). Accordingly, there are legal consequences for a
permittee’s noncompliance with the alcoholic beverage laws of this State.
Although this is the third violation at this location in three years, I find that there are many
mitigating factors in this case, which are as follows:
1.The location at issue in this case has been open since 1988, and the first violation at this
location did not occur until October 19, 2000.
2.Respondent has operated a similar location in Wedgefield, South Carolina since 1994 with
out any fines or violations for selling beer and wine to underage individuals.
3.Due to Respondent’s medical problems, Respondent’s ability to oversee his employees
during the year 2003 when the second and third violations occurred at the location has been limited.
4.Respondent counsels with his employees on a daily basis to carefully inspect the driver’s
license or identification of each consumer seeking to purchase beer or wine at the location.
5.Respondent requires that each employee review and sign a statement acknowledging their
review and understanding of the store policy on alcohol sales and that the sale of beer or wine to a
minor will result in immediate termination.
6.Respondent intends to immediately contact employees of SLED to engage in education
sessions on preventing sales to underage individuals and to purchase videos and other training
manuals for employees.
Therefore, I find that a fifteen (15) day suspension of Respondent’s beer and wine permit at
the subject location is an appropriate sanction in this case. In addition, Respondent is required, within
30 days of the date of this Order, to purchase and use a cash register or swipe machine designed to
automatically identify customers under the age of twenty-one years. Respondent is also encouraged
to contact other convenience store companies and agents of SLED to ascertain how to purchase and
use additional training and educational programs on beer and wine sales at the store.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that Respondent’s beer and wine permit (Permit No. 32006716-PBG) for the business located at 4210 Highway 15 South, Sumter, South Carolina, 29150, be
suspended for a period of fifteen (15) days, commencing on March 22, 2004, for Respondent’s third
violation of 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2003). Furthermore, Respondent, within 30
days of the date of this Order, must purchase and use a cash register or swipe machine at the location
which is designed to automatically identify customers under the age of twenty-one years.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
March 11, 2004
Columbia, South Carolina |
