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 forty-five day suspension of the Respondent’s beer and wine
permit due to its third violation of 23 S.C. Code Ann. Reg. 7-200.4 (Supp. 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 February 19, 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 at the hearing that the following facts are not in issue:
A.The Respondent, Thurston Hiers holds a permit to sell beer and wine for
off-premises consumption at the location 1403 Sniders Highway,
Walterboro, South Carolina . He held this permit on August 5, 2003 (No.
32005592-PBW).
B.On August 5, 2003, South Carolina Law Enforcement Division (SLED)
agents, in conjunction with a youthful looking underage cooperating
individual (UCI), Ryan Hunter Wilson, entered the location at the above
address. Ryan was fifteen years of age. Ryan picked up a 22 oz bottle of
Budweiser beer from the cooler and took it to the clerk on duty. The clerk
asked Ryan his age, asked for his identification, input the information into
the cash register, but then 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. Hiers, was issued an administrative
citation for knowingly permitting an underage person to buy beer on a
licensed premises.
2.Mr. Hiers has had two 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 2, 2000$400.00 fine
October 11, 2001$800.00 fine
3.Mr. Hiers admits that on August 5, 2003, he, as the beer and wine permittee at this
location above referenced, violated for the third 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.” 7.After the Respondent was cited for this third violation, he renewed his efforts to
educate his employees about the company’s policy concerning alcohol sales 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, their employment may be terminated. This written policy
specifically states that “laws for the sale of beer & wine must be strictly followed; proper ID
provided, no Sunday sales, etc.” [sic].
Furthermore, the Respondent has 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.
Hiers also now conducts a “secret shopper” program monthly where he sends an underage
individual into the store to attempt to purchase alcohol while Mr. Hiers waits outside. He also
has purchased TV-VCR combinations and has training tapes from the beer and tobacco merchants
on the importance of not selling these products to minors. These tapes are shown as part of the
employee’s training.
8. Texoland is a convenience store located near Interstate 95 in Walterboro. All of
the convenience stores owned by Mr. Hiers are located along the I-95 corridor.
9.The Department issued its Final Department Determination in this matter on
October 17, 2003, in compliance with the Revenue Procedures Act, S.C. Code Ann. Sections 12-60-10 et seq. (Supp 2003) and Administrative Procedures Act, S.C. Code Ann. Sections 1-23-10,
et seq. (Supp 2003).
10.Mr. Hiers timely appealed the Final Department Determination pursuant to the
Revenue Procedures Act, on October 28, 2003.
11.This matter was transmitted to the Administrative Law Judge Division for a
contested case hearing on October 30, 2003 by the Respondent. Both parties timely filed
Prehearing Statements, and the hearing was held on February 19, 2004, with the parties present as
shown above.
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 forty-five day suspension of the
Respondent’s beer and wine permit for a third 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).
In addition, the Respondent had several of his managers testify. Despite the nature of the
convenience store business, these employees appear to have been employed by Mr. Hiers for quite
some time and are committed to eliminating under-aged drinking. Furthermore, with this location,
and his others, along I-95, the employees have to be aware of different drivers’ licenses from
different states, and a great deal of intermittent vehicle traffic. The Respondent’s testimony
concerning the training that his employees now go through, the written policy on alcohol sales,
the “secret shopper” program that he engages in, and the new cash registers is compelling.
Based on these steps that the Respondent has taken to prevent another violation, the forty-five
day suspension of the Respondent’s permit seems excessive.
The Respondent’s previous penalty was a fine of $800.00 dollars. The Respondent has
requested a less severe penalty than suspension of his license for forty-five days. Therefore, I find
that, in light of the facts of this case, there are sufficient mitigating circumstances to merit an
additional fine and shorter suspension than the forty-five day suspension 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 # 32005592-PBW shall be
suspended for fifteen (15) days. In addition, the Respondent shall pay a fine of One Thousand
Dollars ($1,000) to the Department of Revenue within thirty days of the date of this Order. The
fifteen day suspension shall begin seven calendar days from the date of this Order.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
March 24, 2004
Columbia, South Carolina |
