ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me upon a request for a hearing by the Respondent pursuant to an
administrative violation written against her beer and wine permit. A citation was issued to the
Respondent for violation of S.C. Code Regs. 7-9(B)(Supp. 1994), for permitting a person under the
age of twenty-one (21) years to purchase a beer at her permitted establishment at 4130 Bethel Church
Road, Columbia, South Carolina.
The South Carolina Department of Revenue and Taxation ("Petitioner" or "Department")
seeks a fifteen (15) day suspension of Respondent's beer and wine permit at this location.
A hearing was held at the Administrative Law Judge Division hearing room on October 18,
1995, pursuant to notice. I find that the Respondent committed the violation and assess a monetary
penalty of two hundred dollars ($200.00).
Any issues raised in the proceedings or hearing of this case but not addressed in this Order
are deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a
prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).
ISSUES
1. Did Respondent or her agent violate 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1994)
on or about June 10, 1995, by permitting or knowingly allowing a person under twenty-one years of
age to purchase a beer?
2. If there is a violation, what is the appropriate penalty?
POSITIONS OF THE PARTIES
The Petitioner asserts that an employee of the Respondent at the permitted premises known
as The Other Store, knowingly sold or allowed the possession of a beer by a person eighteen years
of age, on or about June 10, 1995. Respondent asserts her employee did not knowingly sell beer or
wine to an underage person, but that her employee, concluding the individual was over twenty-one
years of age, did not seek proof of age.
TESTIMONY
Agent Gary Reinhart testified for the Petitioner that he, along with several other agents, sent
an Undercover Cooperating Individual (UCI) in to Respondent's place of business, known as The
Other Store, on June 10, 1995 with instructions to attempt to purchase a beer. He testified that he
saw the UCI go inside the store and purchase a 22 oz. Budweiser; that the UCI then exited
Respondent's store with the beer and he (the agent) then entered the store where he issued a citation
to the clerk and a violation to the Respondent. The Petitioner submitted a photograph of the UCI
which Agent Reinhart testified was taken on June 10, 1995. Further, Agent Reinhart stated that it
was his understanding that selling beer to a person under twenty-one years of age was illegal, and that
the statutory requirement that such a sale be "knowing" to be illegal was not important to him.
The UCI testified that she is a cadet with the Columbia Police Department who was referred
to the State Law Enforcement Division ("SLED") by a police Sergeant for work as a UCI. She
testified that people often tell her she looks older than she is, and she believes that she looks older
than her age of eighteen. She testified that as a UCI for SLED, she has entered approximately thirty
to thirty-five businesses to purchase beer and that on only two occasions has she been asked for proof
of age. She stated that on June 10, 1995 she entered The Other Store and purchased a 22 oz.
Budweiser, and that the Respondent's clerk, Mr. Anthony Warner, did not ask her to show proof of
her age. She further testified that it would not be unreasonable for someone to think she was over
twenty-one years of age that evening. Further, she acknowledged that she can look older depending
on the way she dresses, fixes her hair and wears make-up. She testified that she was not asked by
anyone to dress for the hearing the same way she was dressed on the evening of June 10, 1995 when
she purchased the beer.
The Respondent called Chief Gene Sealy of the Forest Acres Police Department, who was
under subpoena to appear. He testified that he has been a resident of the City of Forest Acres for
many years and that he started with the Police Department in 1973, rising through the ranks to his
present position as Chief of Police. He testified that The Other Store is located within the City of
Forest Acres and that he is familiar both with the location and the respondent Linda E. Sellers. Chief
Sealy stated that he has only had or heard of one complaint involving the sale of alcohol to minors
at The Other Store, and on that occasion the Respondent herself sought the assistance of his
Department to investigate an employee reportedly selling alcohol to minors. Chief Sealy stated that
Ms. Sellers instigated the investigation, and the employee was charged with sale to an underage
person. He stated that if there had been complaints regarding The Other Store to his department he
would know about them because of the small size of the town and his familiarity with the businesses
in the City. He stated that the reputation of The Other Store and Ms. Sellers in the community were
both good.
Anthony Warner testified that he is thirty-three years of age and is employed at The Other
Store as a clerk. He stated that Respondent's policies were to card any patron who looked to be
under thirty years of age and not sell alcohol or cigarettes to minors; and that these policies were
clearly conveyed to him. He stated that when the UCI came up to the counter with the beer, he did
not ask her for identification because she appeared to be in her late twenties or early thirties. He
stated that she looked very different on the day of the hearing, appearing much younger than she had
looked to him on June 10, 1995. Further, he stated that in the picture submitted by the petitioner she
also looked younger than she appeared to him the evening of June 10, 1995.
Christopher Sine testified for the Respondent. He stated that he was a customer in the store
when the UCI entered and took the beer to the counter. He stated that she looked much older than
twenty-one and that it did not occur to him that Anthony Warner should ask her for proof of her age.
He testified that he was very surprised to hear that the UCI was under twenty-one years of age. He
stated that she looked to be thirty-two to thirty-five years of age and appeared quite different to him
or younger on the day of the hearing than she appeared the evening of June 10, 1995. He stated that
the reputation of The Other Store and Mrs. Sellers were both really good in the community.
Denise Caraman also testified for the Respondent. She stated that she was working in the deli
at Respondent's store when the UCI entered the location. She stated that the UCI looked around for
a couple of minutes before taking the beer to the counter. She testified that the UCI appeared to be
in her late twenties or early thirties, and that she would not have thought to ask for proof of age. She
stated that she works as a clerk for the Respondent and that the Respondent has conveyed a clear
policy of preventing sales of alcohol and cigarettes to minors. She also testified that the UCI
appeared very different on the day of the hearing, i.e., dressing more immaturely and like a teenager,
than on the evening of June 10, 1995. Further, Ms. Caraman stated that on the evening of June 10,
1995, the UCI appeared older than on the day of the hearing. She stated that the reputation of The
Other Store and Mrs. Sellers were both excellent.
Mrs. Linda E. Sellers testified that she has owned The Other Store for fourteen years and that
her store is located in a neighborhood setting where she depends a great deal on repeat business in
its small, close-knit community. She stated she works at the store seven days a week, at least ten
hours every day. She stated she has a clear policy of preventing sales of alcohol or cigarettes to
underage persons, that she knows all of her employees personally and talks to them herself about her
policies. Further, she stated that anyone who looks to be under thirty years of age is to be "carded."
She personally trains each employee about her policies. She testified that once when she suspected
an employee of selling to underage persons, she reported her suspicions to the Forest Acres Police
Department and requested an investigation. Upon confirmation of her suspicions by the arrest of the
clerk for selling beer to an underage person, she fired the clerk immediately and worked the rest of
that shift herself. Mrs. Sellers has attended an ABC small business owner's seminar to help her learn
how to identify fake I.D.'s and has conveyed this information to her employees. She herself has
denied sales of beer to persons under twenty-one years of age and has impressed upon her employees
the importance of enforcing this policy. She further stated that she has never previously had a
warning or violation written against her beer and wine permit.
In rebuttal, SLED Agent Alex Underwood testified for the Petitioner that there was no set
standard for checking permitted locations nor is he told by a supervisor where to utilize the services
of a UCI.
FINDINGS OF FACT
Having observed the witnesses and closely passed upon their credibility, taking into
consideration the burden of persuasion of the parties, I make the following findings by a
preponderance of the evidence:
1. This Court has subject matter jurisdiction in this case.
2. The Respondent holds an off-premise beer and wine permit for The Other Store
located at 4130 Bethel Church Road, Columbia, South Carolina.
3. Notice of the date, time, place and subject matter of the hearing was given to the
parties.
4. On June 10, 1995, State Law Enforcement Division ("SLED") agents Alex
Underwood and Gary Reinhart went to Respondent's location, The Other Store, located at 4130
Bethel Church Road, Columbia, South Carolina, with an Underage Cooperating Individual ("UCI"),
Yesenia Pagan. At the time of the incident, Ms. Pagan was eighteen (18) years of age.
5. Ms. Pagan held a valid South Carolina driver's license showing her birth date and
containing in the upper right-hand corner the statement: "Will not be twenty-one until May 23,
1998."
6. Ms. Pagan was born on May 23, 1977, and on June 10, 1995, was eighteen years of
age.
7. Ms. Pagan entered the permitted premises with a valid South Carolina driver's license,
five dollars in cash and with no beer on her person.
8. Anthony Warner was the only employee working at the sales counter although there
was at least one other employee in the permitted premises.
9. After entering the premises, Pagan picked up a twenty-two ounce bottle of Budweiser
beer she intended to purchase.
10. She proceeded to the sales counter where she was allowed to purchase the beer
without presenting any identification and without being questioned concerning her age.
11. After the purchase of the beer, Pagan left the premises and presented the beer to SLED
Agent Gary W. Reinhart who was waiting in the parking lot.
12. In the photograph of the UCI, she appears to be older than she appeared at the time
of the hearing.
13. There is no evidence in the record of any complaint or other reason for SLED to
investigate The Other Store or Linda E. Sellers.
14. The testimony of Chief Sealy of the Forest Acres Police Department was particularly
credible.
15. The Respondent Linda E. Sellers has a clear policy against the sale of beer to persons
under twenty-one years of age and she has gone to great lengths to prevent the sales of beer and wine
to such persons.
16. Prior to the instant citation from Petitioner, neither the Respondent nor Mr. Warner
had committed any prior action resulting in a citation.
17. The Petitioner contends that Respondent's beer and wine permit should be suspended
for fifteen (15) days. No evidence was placed in the record impugning the integrity, credibility or
morality of the Respondent.
DISCUSSION
Beer and wine permit holders are responsible for the actions and conduct of their agents or
employees operating under the permit. 48 C.J.S. Intoxicating Liquors §168 (1981). Further, an
employee operating under the permit who knowingly sells beer to a person under twenty-one years
of age creates a ground for the suspension of the holder's permit. S.C. Code Ann. § 61-9-410 (Supp.
1994). Here, it is established that Ms. Pagan possessed a valid driver's license with her picture,
correct date of birth, and a statement advising that she was not twenty-one years old. Thus, Mrs.
Sellers and Mr. Warner, through the acts of Mr. Warner, had the ability to readily ascertain that Ms.
Pagan was under twenty-one years of age. Mrs. Sellers has attempted to excuse Mr. Warner's failure
to check Ms. Pagan's identification by asserting that Ms. Pagan reasonably appeared to be over
twenty-one years old. This court takes notice that many people look significantly older than the
majority of persons who have the same chronological age. Likewise, many people look significantly
younger. The privilege of selling a highly regulated product such as alcohol brings with it the
responsibility of being certain that the purchaser is old enough to buy the product lawfully. If there
is any possibility that the purchaser is under twenty-one, the permittee/licensee (and his/her agents)
have the clear and unavoidable duty to check the purchaser's age through requiring positive
identification. The process of checking takes no more than 10 to 20 seconds and imposes only a
slight burden on the efficient operation of the permittee's/licensee's store and only a slight
inconvenience to the purchaser. The hardships imposed are limited compared to the potential adverse
consequences of permitting underage persons to purchase and thereby consume alcoholic beverages.
It is not unduly burdensome to require permittees/licensees to take modest, reasonable steps to
minimize the possibility of this behavior, and it is not too severe to sanction those permittees/licensees
who fail to do so.
Given the facts in the instant case, the sale of a beer to Ms. Pagan, an underage party, was
made knowingly. A person has no right to shut his eyes to avoid information clearly before him. 58
Am.Jur.2d Notice § 13. A party manifests consent and knowledge in allowing a person under twenty-one years of age to purchase beer if, from the appearance of the person or from other submission of
evidence of age, the party had sufficient information that would lead a prudent person to believe the
purchaser was under twenty-one years of age. Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.
2d 22 (1943); 58 Am.Jur.2d Notice §14.
In the instant case, Mr. Warner failed to question Ms. Pagan about her age and failed to ask
to see her driver's license. A cursory glance at the driver's license would have revealed the statement
in the upper right-hand corner that Ms. Pagan "Will not be twenty-one until May 23, 1998."
Accordingly, armed with such information, Mr. Warner is deemed to have known Ms. Pagan was not
twenty-one years of age and thus he did knowingly sell a beer to her and knowingly permitted her to
reduce it to her possession a beer.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1994) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1994) grants to the Administrative Law Judge
Division the powers, duties and responsibilities as a hearing officer in protested and contested matters
governing alcoholic beverages, beer and wine.
3. A permit holder is subject to revocation or suspension of the permit if the holder or
an employee on the licensed premises knowingly sells beer or wine to any person under twenty-one
years of age. S.C. Code Ann. § 61-9-410(1) (Supp. 1994).
4. S.C. Code Regs. 7-9(B)(Supp. 1994) prohibits a permittee from permitting or
knowingly allowing a person under twenty-one years of age to purchase or possess beer upon the
licensed premises. Such an act is a violation against the permit and constitutes grounds for
suspension or revocation of the beer and wine permit.
5. All regulations promulgated by the Commission (now Department), effective on the
date of the Government Restructuring Act of 1993, remain in force until modified or rescinded by the
Department or the State Law Enforcement Division. 1993 S.C. Acts 181, §1604.
6. Applicable regulations in effect on the effective date of the Government Restructuring
Act of 1993 provide that a party holding a beer and wine permit commits a violation if the holder
permits or knowingly allows a person under twenty-one years of age to purchase beer in or on a
permitted establishment. S.C. Code Ann. Regs. 7-9(B) (Supp. 1994).
7. Black's Law Dictionary defines "permit" as: "(1) To suffer, allow, consent, let; (2) to
give leave or license; (3) to acquiesce, by failure to prevent, or to expressly assent or agree to the
doing of an act." Black's Law Dictionary 1140 (6th ed. 1990).
8. A party manifests consent and knowledge to allowing a person under twenty-one years
of age to purchase beer if, from the appearance of the person or otherwise, the party had sufficient
information that would lead a prudent man to believe the person was under twenty-one especially
where simple inquiry would have confirmed such fact. Feldman v. S.C. Tax Comm'n, 203 S.C. 49,
26 S.E. 2d 22 (1943); see 58 Am.Jur.2d Notice §14.
9. A person has no right to shut his eyes to avoid information clearly before him. 58
Am.Jur.2d Notice § 13.
10. 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 §168 (1981).
11. A sale of beer to a minor is forbidden irrespective of whether the sale is made by the
permit holder or by an employee. 48 C.J.S. Intoxicating Liquors § 259 (1981).
12. The evidence in the record clearly shows that the permittee, through her employee,
permitted the sale of beer to a person under twenty-one years of age. Permittee's employee did not
seek to review the driver's license of the UCI, nor did he seek other identification from the UCI to
determine her age.
13. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights
or property, but are rather privileges granted in the exercise of the police power of the State to be
used and enjoyed only so long as the restrictions and conditions governing them are complied with.
The Administrative Law Judge Division, being the tribunal authorized to grant the issuance of a
permit, is likewise authorized for cause to revoke or suspend the permit. See Feldman v. S.C. Tax
Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
14. Accordingly, based upon the evidence in the record, I conclude that the permittee
and/or her agent violated S.C. Code Regs. 7-9(B)(Supp. 1994) on June 10, 1995, by selling beer to
a person under twenty-one years of age.
15. S.C. Code Ann. § 61-13-510 (Supp.1994) authorizes, for any violation of any
regulation promulgated by the Department pertaining to beer and wine, in lieu of a suspension or
revocation of the beer and wine permit, the imposition of a monetary penalty in an amount not less
than twenty-five dollars ($25.00) and not more than one thousand dollars ($1,000.00).
16. Based upon the evidence and considering the sincerity and credibility of both the
Respondent and her employee, I conclude that an appropriate sanction in this case is monetary penalty
in the amount of two hundred dollars ($200.00), which shall be imposed upon the Respondent in lieu
of suspension or revocation of the permit.
ORDER
Based upon the foregoing Findings of Fact, Discussion and Conclusions of law, it is hereby:
ORDERED that Respondent, Linda E. Sellers, shall pay a monetary penalty in the amount
of two hundred dollars ($200.00), within fifteen (15) days of the date of this Order, for violation of
S.C. Code Ann. § 61-9-410(1) (Supp. 1994) and S.C. Code Regs. 7-9(B)(Supp.1994) as enumerated
above. If the Petitioner does not receive a total of $200.00 from Respondent within fifteen (15) days
from the date of this Order, it is Ordered that the beer and wine permit issued to the Respondent be
suspended for a period of fifteen (15) days. If the Petitioner does not receive the funds as stated, any
agent of the State Law Enforcement Division shall serve a copy of this Order on Respondent and shall
take possession of the beer and wine permit issued to Linda E. Sellers, d/b/a The Other Store. Said
agent shall hold the permit for fifteen (15) days. Upon expiration of the fifteen (15) day suspension,
said agent shall return the permit to Respondent. During the period of this suspension, Respondent
is ordered to post of a copy of this Order at a visible location at her place of business, and to cease
and desist all sales of beer and wine.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
November 8, 1995 |