ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (ALC or Court)
pursuant to S.C.
Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2002). The South Carolina Department of Revenue
(Department) seeks a forty-five (45) day suspension of the Respondent’s beer and wine permit
for its third violation of 23 S.C. Code Ann. Regs. 7-200.4 (eff. June 27, 2003). A hearing was
held before me on July 20, 2004 at the offices of the Administrative Law Court in Columbia,
South Carolina.
STIPULATIONS OF FACT
At the hearing into this matter and pursuant to ALC Rule 25(C), the parties entered the
following written stipulations of fact into the Record:
1.That the Respondent holds a license to sell beer and wine for off-premises
consumption, License Number 32003579-PBG, for licensed premises located at 7621 Garners
Ferry Road, Columbia, South Carolina 29209.
2.That the Respondent was the license holder at the above stated location on July
22, 2003.
3.That Tara N. Frazier was an agent, employee or other representative of the
Respondent on July 22, 2003.
4.That, on July 22, 2003, at approximately 11:19 a.m., Tara Frazier sold a 24-ounce
can of Budweiser beer to Melvin Trevon Warren, an underage cooperating individual.
5.That Melvin Warren was less than 21 years of age at the time of the sale.
6.That, before transacting the sale, Tara Frazier asked for and inspected Melvin
Warren’s driver’s license, which showed that Melvin Warren was 15 years old on the day in
question.
7.That, as a result of the foregoing, the Respondent violated 23 S.C. Code Ann.
Regs. 7-200.4 by permitting purchase of beer by a person under the age of 21.
8.That the attached documents, which are copies of Melvin Warren’s driver’s
license and photograph, are genuine and admissible documents that show that Melvin Warren
was a person under the age of 21 at the time of the alleged sale and that he has a youthful
appearance.
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 Respondent’s store has operated for fourteen (14) years as a family business.
Mr. Vallimohamed has managed the store since 1990. In the last three (3) years he has two prior
violations of selling beer to minors. He paid a $400.00 fine for the first violation and an $800.00
fine for the second violation. During that time period he had a verbal policy and used verbal
training regarding the sale of beer/wine to minors. The policy prohibited the sale of beer/wine to
minors and required that any employee convicted of selling beer/wine to a minor would be
terminated upon conviction in court. He also instructed employees to check “ids” if a person
appeared to be under the age of forty.
Since the violation in this case -- the third in the last three (3) years -- the Respondent has
implemented written policies and testing procedures. The Respondent now administers a test
once a month in which the employees must fill in answers that reflect their understanding of the
laws regarding sales to minors and the implications of selling beer/wine to minors. The
Respondent has also recently implemented a secret shopper program to test whether his
employees are complying with the law prohibiting the sale to minors. If an employee improperly
sells beer or wine to an underage secret shopper, they are either terminated or sent to work at
another business that does not involve beer or wine sales. Finally, the Respondent recently
purchased a “Ruby 2” cash register which cost $25,000.00. That register requires an employee
to enter the date of birth of a purchaser who is buying beer or wine. If the wrong date is entered,
the register will not allow the sale to proceed.
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 (Supp. 2002) grants jurisdiction to the Court to hear
contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann.
§ 61-2-260 (Supp. 2002) grants the ALC the authority to hear contested case hearings 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.Holders of beer and wine permits are forbidden from permitting “any act, the
commission of which tends to create a public nuisance or which constitutes a crime. . . . ” S.C.
Code Ann. § 61-4-580(5) (Supp. 2002).
4.Permitting or knowingly allowing a person under the age of twenty-one (21) to
purchase or possess beer upon the licensed premises is a violation against a license or a permit.
Such a violation constitutes sufficient grounds for either suspension or revocation of the beer and
wine permit. 23 S.C. Code Ann. Regs. 7-200.4 (eff. June 27, 2003).
5.The permittee is responsible for all acts of his servants, agents, or employees and
cannot seek to avoid the consequences of a violation for lack of personal knowledge. Following
that principle, the South Carolina Supreme Court upheld a civil forfeiture of a corporation’s boat
based upon an employee’s transporting drugs even though the corporation claimed the use of the
boat to transport drugs was without its knowledge. South Carolina Law Enforcement Division v.
The "Michael and Lance,” 281 S.C. 339, 315 S.E. 2d 171 (S.C. App. 1984). The Court held that
“[a] principal is affected with constructive knowledge of all material facts of which its agent
receives notice while acting within the scope of his authority.” Id. at 173, citing Crystal Ice Co.
of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 257 S.E. 2d 496 (1979). Likewise, 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).
6.In this case, the Department imposed a forty-five (45) day suspension of the
Respondent’s beer and wine permit for a third violation of Regulation 7-200.4 within the past
three (3) years. See Revenue Procedure 95-7.
7.Inherent in and fundamental to the powers of an Administrative Law Judge, as the
trier of fact in contested cases under the Administrative Procedures Act, 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). The Administrative Law Judge, as fact-finder, must impose a
penalty based on the facts presented at the contested case hearing. To that end, an 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 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).
In the present case, the Respondent clearly violated the provisions of 23 S.C. Code Ann.
Regs. 7-200.4 (eff. June 27, 2003) by permitting the purchase of beer by an individual under the
age of twenty-one (21). Although the Respondent argues that employees are trained to check
identification, that training was limited to verbal instruction even after two previous violations.
Moreover, the sale of a 24-ounce can of beer that occurred in this case was inexcusably to a
fifteen (15) year old boy. Nevertheless, the recent testing efforts and the purchase of a
$25,000.00 cash register by this company in an attempt to insure compliance with Regulation 7-200.4 deserves some limited consideration.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that the Respondent’s beer and wine permit be suspended for thirty-five (35) days
beginning September 15, 2004.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
September 1, 2004
Columbia, South Carolina |
