ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks a 45 day suspension of the beer and wine
permit of Kwik Fill, Inc., d/b/a Kwik Fill #4 (Kwik Fill). Kwik Fill asserts that the sale in dispute was
not made knowingly, and, in any event, a sanction of a 45 day suspension is too severe. Jurisdiction
is in the Administrative Law Judge Division. S.C. Code Ann. § 61-2-260 (Supp. 2002); S.C. Code
Ann. Sec. 1-23-310 et. seq. (Rev. 1986 and Supp. 2002).
A hearing was held May 27, 2003 in Columbia, South Carolina. Based upon the evidence and the
argument presented, Kwik Fill shall pay a fine of $500 and its permit is suspended for 30 days with
the suspension beginning on the tenth day following the date of this order.
II. Issue
Did Kwik Fill violate S.C. Code Ann. 61-4-580(1) (Supp. 2002) and S.C. Code Ann. Regs. 7-9(B)
(Supp. 2002) by knowingly selling or allowing possession of beer or wine to a person under 21 years
of age and if so what is the appropriate penalty?
III. Analysis
Sale to an Underage Person
1. Positions of Parties
DOR asserts a sale to an underage individual occurred and that the sale was made knowingly. DOR
further argues that this is the third sale to an underage individual within a period of three years.
Given the violations, DOR seeks a sanction of a 45 day suspension.
Kwik Fill argues that while a sale was made the sale was not made knowingly. Further, Kwik Fill
argues that even if an improper sale was made that the penalty of requested 45 day suspension is too
severe since Kwik Fill has undertaken measures to eliminate any future violations.
2. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Kwik Fill holds a beer and wine permit in use at 2100 West Evans Street, Florence, South Carolina.
On May 7, 2002, an undercover cooperating individual (UCI) working with SLED and the Florence
Police Department entered the location. On that date, the UCI was 19 years old.
After entering the store, the UCI picked up a 22 ounce container of beer and brought the beer to the
counter where the clerk was presented with a ten dollar bill with which the UCI intended to purchase
the beer. The UCI was youthful in appearance and was not dressed in a manner to make him appear
older than his actual age.
The employee at the counter was an employee of Kwik Fill. The employee asked for identification
from the UCI and received the UCI a driver's license. The driver's license showed the UCI's correct
name, birth date of January 31, 1983, and stated in the upper right corner “under 21 until 1-31-2004.”
The employee examined the license and entered data from the license into the cash register. The
register was equipped with the means of determining if the entered data established the buyer as being
at least 21 years old. From the data entered, the cash register indicated the buyer was at least 21.
In reliance upon the cash register, the clerk concluded that the buyer was at least 21 years old. The
clerk returned the license to the UCI, gave the UCI change from the ten dollars, delivered the beer
to the UCI, and completed the sale. The UCI left the store with the purchased beer.
Past sales to other individuals under the age of twenty-one have occurred at this same location. Such
sales were made on December 19, 2000 (fine paid of $400) and on November 26, 2001 (fine paid
of $800). Thus, the sale to the UCI on May 7, 2002 was the third violation within less than two years.
Having recognized its past deficiencies, Kwik Fill has increased its efforts to eliminate sales to
underage individuals. For example, further training has been provided to all employees with such
training designed to prevent sales to underage parties. In addition, management has installed special
equipment capable of reading the magnetic strip on the back of typical driver’s license to verify date
of birth and to prevent sales to underage parties. In addition, management is continuing to enforce
awareness of the beer and wine laws on all employees.
3. Conclusions of Law
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
Any party operating under a beer and wine permit who knowingly sells beer or wine to a person
under twenty-one years of age creates a ground for a sanction of a monetary penalty or suspension
or revocation of the holder's permit. S.C. Code Ann. § 61-4-580(1) (Supp. 2002); S.C. Code Ann.
Regs. 7-9(B) (Supp. 2002). Here, Kwik Fill challenges whether the sale was made knowingly and,
if so, whether the penalty is proper.
a. Knowingly
The determination of whether a sale to a party under twenty-one was made "knowingly" is based on
the facts of each case. The methodology for examining the facts of each case has been set by case law.
Within the meaning of the term, "knowingly,"as used in the statute, if the clerk knew
that the [purchaser] was a minor or had such information, from his appearance or
otherwise, as would lead a prudent man to believe that he was a minor, and if
followed by inquiry must bring knowledge of that fact home to him, then the sale was
made knowingly.
Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22, 25 (1943).
Under Feldman, a sale is made knowingly when two steps are satisfied. First, from the view of a
prudent man as opposed to the view of the actual seller, the objectively determined information that
such a person would have witnessed must be sufficient to reach a belief that the buyer is under
twenty-one. Second, the belief becomes tantamount to knowledge where a mere inquiry is all that is
required to confirm the belief.
1. Prudent or Reasonable Man
The first step requires the view of a prudent man. The view of a prudent man is one that is
"[p]articularly wise, judicious, careful, ..." Black's Law Dictionary 1226 (6th ed. 1990). While
Feldman uses the words "prudent man," dicta implies the measuring language is that of the
"reasonable person." Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990). Even if Daley
limits Feldman, by using the reasonable man standard to replace the more strict prudent man
standard, the reasonable man standard still requires the party to exercise that judgment required
under all of the known circumstances surrounding the event with such judgment commiserate with
the danger known or reasonably apprehended. Perry v. Carolina Theater, 180 S.C. 130, 185 S.E.
184 (1936). In determining the danger known or reasonably apprehended, attention must be given
to the fact that a significant purpose of the statute and regulation under review is to protect not only
the underage party but also the public from the harm likely to be caused by a minor's consumption
of beer, wine and alcohol. Norton v. Opening Break of Aiken, Inc. 313 S.C. 508, 443 S.E.2d 406
(Ct. App. 1994) aff'd by Norton v. Opening Break of Aiken, Inc., 319 S.C. 469, 462 S.E.2d 861
(1995); Whitlaw v. Kroger, 306 S.C. 51, 410 S.E.2d 251 (S.C. 1991). Accordingly, the view of a
reasonable man must be examined based on the facts of this case with that view being one that is
aware of the danger both to the public and the purchaser reasonably associated with sales to underage
parties.
2. Duty to Inquire
Before discussing the second step of Feldman, two points are important. First, if the objective
information from a prudent or reasonable man's view does not create a belief that the buyer is under
twenty-one, then the sale is not made knowingly. Second, the objective information does not need
to conclusively prove the buyer is under twenty-one. Rather, under the rationale of Feldman, the
characteristics must be enough to have a prudent or reasonable man believe the UCI was under
twenty-one. Indeed, the purpose of the second step in the Feldman analysis is to ensure that the belief
(formed by objective information observed by a prudent or reasonable person) is tantamount to
knowledge by imposing the most minimal duty of inquiry to confirm what the prudent man's
information has already established as a belief.
The second step of Feldman requires that an "inquiry must bring knowledge of [the age of the
purchaser] home to [the seller]." In other words, the basis for confirming the belief (and thus
converting such belief to knowledge) must be capable of confirmation by simple inquiry. Accordingly,
after the reasonable man test is satisfied, Feldman imposes a duty to inquire of the purchaser. The
inquiry rule of Feldman is reasonable given the highly regulated nature of beer, wine and alcohol. Just
as a person has no right to shut his eyes to avoid information clearly before him, when the information
before the eyes of a prudent or reasonable person is such that he would have reason to believe the
buyer is not yet twenty-one, the seller has no right to prevent that belief from becoming knowledge
when such knowledge is easily obtainable by a simple inquiry.
3. Facts Applied to the Law
Here, the reasonable or prudent man on May 7, 2002 would have reached the belief that the individual
was not yet twenty-one. First, at the time of the sale the UCI was nineteen years old (date of birth
January 31, 1983) and had the youthful appearance typical of a teenager. Further, the UCI was
dressed normally with no attempt made to have the UCI appear older than his actual age. Since the
facts demonstrate a reasonable belief that the individual was under twenty-one, Kwik Fill had a duty
to inquire into the patron's age.
In this case, the duty of inquiry was carried out since the employee asked for the UCI’s identification.
However, the employee’s actions after making the inquiry demonstrate that the sale was made
knowingly.
Here, the driver’s license reviewed by the clerk plainly stated the UCI was “under 21 until 1-31-2004.” That information did not stop the clerk from making the sale but rather such information was
ignored. Ignoring such explicit information results in the sale having been made knowingly.
Further, the conclusion that the sale was made knowingly is not changed by the cash register’s
apparent determination that the buyer was at least 21 years of age. Indeed, in light of the plain
statement on the driver’s license, no basis exists for any justifiable reliance upon the machine’s
determination since at the time of the sale the machine determination was diametrically opposed by
a valid driver’s license issued by the State of South Carolina explicitly stating that the buyer was not
yet 21.
In short, the evidence shows that an objective prudent and reasonable person would have formed the
belief that the UCI was not yet 21. Further, that belief was confirmed by the receipt of a valid South
Carolina driver’s license plainly stating that the UCI was not yet 21. Thus, the sale was made
knowingly and a violation occurred.
b. Penalty Analysis
Since a violation occurred, a sanction is warranted. In the final analysis, the decision of what
monetary fine, or suspension, or revocation, or some combination, is to be imposed is one for the
Administrative Law Judge as the fact-finder. Walker v. South Carolina ABC Comm'n, 305 S.C.
209, 407 S.E.2d 633 (1991). The instant violation is the third in a period of less than two years.
Such repeated sales present a serious concern since "a rule forbidding a licensee of the [DOR] to
facilitate consumption of alcohol by a minor is designed to protect both the minor who consumes the
alcohol and those members of the public likely to be harmed by the minor's consumption of that
alcohol." Norton v. Opening Break of Aiken, Inc.,313 S.C. 508, 443 S.E.2d 406, 408 - 409 (Ct.
App. 1994). When repeated violations of sales to persons under twenty-one occur in a period as short
as two years, a significant sanction is proper to foster protection of the public at large and minors in
particular. In addition, the past performance of this location demonstrates that monetary fines alone
are insufficient to halt the violations. Accordingly, in this case a $500 fine and a thirty day suspension
is imposed with the suspension beginning on the tenth day following the date of this order.
In this case a suspension of less than 45 days is warranted. Management is concerned with the illegal
sales and has taken meaningful steps to eliminate future violations. For example, following earlier
violations, more extensive training is now being provided to prevent sales to underage parties. In
addition, specific equipment has been installed to read the magnetic strip on driver’s licenses to
determine the age of the buyer. Given the meaningful and renewed efforts to comply with the law
and the need of the permit holder to rely upon proper actions of employees, a $500 fine and a 30 day
suspension is imposed.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
Kwik Fill shall pay a fine of $500 and its permit shall be suspended for 30 days with the suspension
beginning on the tenth day following the date of this order.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: June 26, 2003
Columbia, South Carolina |