SC Administrative Law Court Decisions

The South Carolina Department of Revenue and Taxation (DOR) received notice that the State Law Enforcement Division (SLED) asserted a violation of S.C. Code Regs. 7-9(B) (Supp. 1995) had been committed by Idell B. Harriott, (Harriott) a permit holder of an off-premises beer and wine permit for the permitted premises located at Highway 321, Luray, South Carolina. Based upon the asserted violation, DOR seeks to suspend for fifteen (15) days Harriott's beer and wine permit. The matter is now before me since Harriott has challenged DOR's action by seeking a contested case hearing. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S. C. Code Ann. § 61-1-55 (Supp. 1995), with the hearing held on February 20, 1996 under S. C. Code Ann. §§1-23-600(B) and 1-23-310 (Supp. 1995).

I find the permit must be suspended for 15 days with such suspension beginning on the eleventh day after the date of this order. 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).

1. Did Harriott violate S.C. Code Regs. 7-9(B) (Supp. 1995) on June 24, 1995 by knowingly allowing a person under twenty-one years of age to purchase wine?

2. If there is a violation, is the violation ineffective due to the defense of entrapment?

A. Sale of Wine Coolers To A Minor

1. Positions of Parties

DOR asserts that on June 24, 1995, Harriott, as the permit holder at the licensed premises of Harriott's Grocery, knowingly sold wine coolers to a person under twenty-one years of age. Harriott asserts she did not knowingly sell wine coolers to an underage person since the individual appeared to be an adult of twenty-one years or older who was fully mature in manner and appearance and gave Harriott no reason to check the individual's driver's license.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. On June 24, 1995, an underage cooperating individual (UCI), acting as an undercover agent for SLED, entered Harriott's Grocery at Highway 321, Luray, South Carolina.

2. The UCI held a valid South Carolina driver's license showing her birth date of September 3, 1977 and a statement that the UCI was under twenty-one years of age.

3. On June 24, 1995, the UCI was seventeen years old.

4. The UCI entered the permitted premises with her valid South Carolina driver's license, a small amount in cash and no alcohol on her person.

5. Harriott was working at the sales counter when the UCI entered the permitted premises,

6. After entering the premises, the UCI picked up four 12-ounce bottles of wine coolers, proceeded to the sales counter, and placed the wine coolers on the counter.

7. Harriott told the UCI the price of the coolers and the UCI presented to Harriot funds to purchase the coolers.

8. Harriott received from the UCI funds in excess of the purchase price, returned change to the UCI, placed the coolers in a bag, presented the coolers to the UCI, and the UCI left the building with the purchased coolers in her possession.

9. Before making the sale to the UCI, Harriott did not ask for nor did she receive the UCI's driver's license.

10. Harriott asked no questions of the UCI related to the age of the UCI.

11. After the purchase of the wine coolers, the UCI left the premises and presented the wine coolers to SLED Agent Neil in the parking lot and subsequently to SLED Agent Roberts who was in the immediate vicinity.

12. At the time of the purchase the UCI had acne over a significant portion of her face.

13. At the time of the purchase the UCI's figure showed signs of development but not signs of the full figure of a mature woman.

14. At the time of the purchase the UCI's height of five feet ten and slight build showed signs of a growth spurt unaccompanied by mature development.

15. At the time of the purchase the UCI's appearance showed a female of youthful appearance.

16. The UCI's appearance at the time of the purchase was such that a prudent or reasonable person under the circumstances would have believed the UCI was under twenty-one years of age.

3. Discussion

Any party operating under a permit who knowingly sells wine 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. 1995); S.C. Code Regs. 7-9(B) (Supp. 1995). Here, it is established that Harriott sold wine to the UCI and that the UCI was not twenty-one at the time of the sale. The issue is whether the sale was made knowingly.

It is significant to state the obvious. A seller cannot avoid the "knowingly" standard by simply refusing to make a decision on the age of the purchaser and thereby claim lack of knowledge. 58 Am.Jur.2d Notice § 13 (1989) (a person has no right to shut his eyes to avoid information clearly before him). On the other hand, the sole factor of failure to secure proof of age prior to the sale is not by itself conclusive proof of a sale made "knowingly." In a criminal case, the failure to obtain age identification is only prima facie (as opposed to conclusive) evidence of a violation and prima facie evidence may be rebutted by contrary evidence. See S.C. Code Ann. § 61-9-40 (Supp. 1995) and McKenzie v. Standard Acc. Ins. Co., 198 S.C. 109, 16 S.E.2d 529 (1941). Thus, rather than being guided by a single act or failure to act, the determination of whether a sale to a party under twenty-one was made "knowingly" must be based upon the facts present in each case.

For the purpose of sales of alcohol, beer, or wine to minors, the term "knowingly" consists of the following:

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 (1943). Under Feldman, a sale is made knowingly when two steps are undertaken. 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.

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," there exists dicta that 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 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). 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. ___ S.C. ___, 443 S.E.2d 406 (Ct. App. 1994); Whitlaw v. Kroger, 306 S.C. 51, 410 S.E.2d 251 (S.C. 1991). Thus, even the reasonable man standard requires that the information concerning the sale be viewed in light of the dangers associated with underage drinking.

A prudent or reasonable person would acquire information by visually observing the appearance of the buyer, noting the common signs of maturity or lack of maturity (whether physical or mental) associated with teenage and early twenty's years, giving consideration to the sound of the buyers voice, and noting the mannerisms of the buyer, etc. In short, all sensory forms of perception are relevant to the issue.

Based on the evidence describing the objective information available on the night of the sale, a prudent or reasonable person would have reached a belief that the UCI was under twenty-one. On the night of the sale, the evidence establishes that the UCI had many of the characteristics of a teenager. Her complexion was typical of a teenager in that acne was present over a significant portion of her face. Her figure showed obvious signs of development but not the full figure of a mature woman. Her height of five feet ten, when coupled with her slight build, gives the typical growth spurt appearance of a teenager. The photograph taken approximately sixty days before the wine purchase, the testimony concerning her appearance on the night of the purchase, and her actual appearance in the hearing room all show a female of youthful appearance. Such information, when combined with the view of a reasonable or prudent person aware of the risks associated with underage drinking, provides sufficient information upon which a reasonable or prudent person would have believed the UCI was under twenty one.

Before reaching the second step of Feldman, it is important to note two things. 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. In fact, 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. It is the degree of confirmation that is critical. For example, if the confirmation of the belief required extended research and significant study, the belief at the time of sale could not be converted to knowledge prior to the sale and thus there is no sale made "knowingly." Feldman, however, teaches that where mere simple inquiry is all that is needed, such can be quickly accomplished before the sale is made and thus the belief can be converted to knowledge prior to consummating the sale. The 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 a prudent or reasonable person 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. Thus, once the objective information is sufficient to provide a belief that the person is under twenty-one, Feldman requires a simple inquiry as to age.

In the instant case, the belief that the UCI was under twenty-one was capable of confirmation by the mere device of asking for an age identification. Harriott did not ask for any age identification. Since a prudent or reasonable person would have formed a belief the UCI was not yet twenty-one, and since Harriott did not inquire as to the age of the UCI, Harriott was the instrument that prevented the belief from becoming knowledge. A person cannot avoid knowledge by merely refusing to make a simple inquiry. Accordingly, Harriott made the sale with the knowledge that the purchaser was under twenty-one years of age.

Finally, the penalty sought is a fifteen day suspension. Such a penalty is supported by the nature of the offense and is appropriate to the occasion here. S.C. Code Ann. § 61-9-410 (Supp. 1995); S.C. Code Regs. 7-9(B) (Supp. 1995).

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. A permit holder is subject to revocation or suspension if the holder or an employee on the licensed premises sells beer or wine to any person under twenty-one years of age. S.C. Code Ann. § 61-9-410(1) (Supp. 1995).

2. All regulations promulgated by the former ABC Commission, effective on the date of the Government Restructuring Act of 1993, remain in force until modified or rescinded by DOR or SLED. 1993 S.C. Acts 181, §1604.

3. 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 licensed establishment. S.C. Code Ann. Regs. 7-9(B) (Supp. 1995).

4. A party manifests consent and knowledge to allowing a person under twenty-one years of age to purchase wine if, from the appearance of the person or otherwise, the party had sufficient information that would lead a prudent or reasonable man to believe the person was under twenty-one and if 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 (1989).

5. A person has no right to shut his eyes to avoid information clearly before him. 58 Am.Jur.2d Notice § 13 (1989).

6. A violation of S.C. Code Ann. § 61-9-410(1) (Supp. 1995) and S.C. Code Ann. Regs. 7-9(B) (Supp. 1995) occurred by Harriott's sale of wine to the UCI.

7. A suspension of fifteen days is a penalty supported by the nature of the offense and is appropriate to the occasion here. S.C. Code Ann. § 61-9-410 (Supp. 1995); S.C. Code Regs. 7-9(B) (Supp. 1995).

1. Positions of Parties:

Harriott asserts she had no intent to sell to an underage party and that the violation occurred because DOR deceived her into making the sale. Accordingly, she asserts the violation should be dismissed since DOR obtained the violation by means of entrapment. DOR asserts the sale was made voluntarily by Harriott and no trick or deceit was involved and thus no entrapment occurred.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. SLED originated the idea of using the UCI to make a purchase from Harriott.

2. By placing the wine on the counter, the UCI requested that Harriott sell the wine to her.

3. The UCI did not speak to Harriott prior to the sale being completed.

4. The UCI did not perform any act to induce, trick, or deceive Harriott in making the sale to her.

5. The UCI's actions constituted solicitation to purchase wine from Harriott.

6. Harriott sold the wine to the UCI.

7. The UCI's appearance at the time of the purchase demonstrated features typical of a seventeen-year-old female.

3. Discussion

Entrapment is an affirmative defense in which a law enforcement officer originates the idea of a crime and then induces a party to carry out conduct that constitutes the crime when the induced party was not otherwise disposed to commit the crime. U.S. v. Prytz, 822 F.Supp. 311 (D.S.C. 1993), aff'd, 35 F.3d. 557 (4th Cir. 1994). While predominantly a criminal defense, in some jurisdictions entrapment has been found available in administrative matters where the administrative penalty seeks to prevent a party from carrying on a significant portion of his livelihood. Patty v. Board of Medical Examiners, 508 P.2d 1121 (1973). Other jurisdictions have prohibited the defense in administrative matters. In re Kennedy, 466 S.E.2d 1 (1996). No South Carolina case has been discovered on the issue. I find, however, even if entrapment is viable in an administrative matter, the defense has not been proven by Harriott.

The burden is upon the party claiming the defense to prove he was induced, tricked, or incited to commit a crime which he would otherwise not have committed. State v. Johnson, 295 S.C. 215, 367 S.E.2d 700 (1988). Proof of government inducement requires more than mere solicitation. U.S. v. Prytz, supra. Further, the fact that the government uses an underage informant to purchase alcohol does not by itself constitute inducement within an entrapment defense. State v. Parr, 283 P.2d 1086 (Mont. 1955). Rather, more is needed to show inducement. For example, entrapment may be shown by the use of an informant who has insufficient features to put the party on notice that a sale to the informant would be illegal. U.S. v Healy, 202 F. 349 (D. Mont. 1913) (liquor sales to Indians prohibited and seller entrapped where purchase made by an Indian informant who had none of the traditional characteristics of an Indian); Voves v. U.S., 249 F. 191 (7th Cir. 1918) (sales to Indians prohibited and entrapment proven where sale made to Indian whose appearance was that of a Mexican where Mexican's had moved into the area.)

In the instant case, the government used an informant to purchase wine with the only action taken by the UCI being the placement of the wine coolers on the counter in anticipation of completing the purchase. The actions of the informant constituted mere solicitation. Those actions are not sufficient to establish the element of the government's having engaged in a forbidden inducement. In addition, there was no deception or trickery by the government since the appearance of the UCI is that of a teenager. Accordingly, the seller was not deceived or tricked into making the sale and thus Harriott has not proven the defense of entrapment.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. Entrapment is an affirmative defense in which a law enforcement officer originates the idea of a crime and then induces a party to carry out conduct that constitutes the crime when the induced party was not otherwise disposed to commit the crime. U.S. v. Prytz, 822 F.Supp. 311 (D.S.C. 1993), aff'd, 35 F.3d. 557(1994).

2. The burden is upon the party claiming the defense to prove he was induced, tricked, or incited to commit a crime which he would otherwise not have committed. State v. Johnson, 295 S.C. 215, 367 S.E.2d 700 (1988).

3. Proof of government inducement requires more than mere solicitation. U.S. v. Prytz, supra.

4. The fact that the government uses an underage informant to purchase alcohol does not by itself constitute inducement within an entrapment defense. State v. Parr, 283 P.2d 1086 (Mont. 1955).

5. The use of an informant who has insufficient features to put a party on notice that a sale to the informant would be illegal may present evidence of a forbidden inducement. U.S. v Healy, 202 F. 349 (D. Mont. 1913); Voves v. U.S., 249 F. 191 (7th Cir. 1918).

6. Harriott failed to prove the government induced, tricked, or deceived her into making a sale to the UCI.

Based upon the foregoing Findings of Fact, Discussion and Conclusions of Law, the following ORDER is issued:

DOR is ordered to suspend Harriott's beer and wine permit for Highway 321, Harriott's Grocery, in Luray, South Carolina with such suspension to be imposed for fifteen (15) days beginning on the eleventh day after the date of this order.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 6th day of March, 1996