SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1996). The South Carolina Department of Revenue ("Department") contends that Kiran K. Shah permitted or knowingly allowed a minor to purchase beer from his licensed establishment, Imperial Tobacco and Candy, Inc., located at 103 Jacob Smart Blvd., Ridgeland, South Carolina. Accordingly, the Department seeks to suspend Respondent's permit for forty-five days for violating 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1996).

After timely notice to the parties, a hearing was conducted on November 7, 1997 at the Administrative Law Judge Division, Columbia, South Carolina. Based upon testimony and the evidence presented, the Department's request that Respondent's permit be suspended for violating 23 S.C. Code Ann. Regs. 7-9(B) is granted.

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Respondent Kiran K. Shah, President of Imperial Tobacco and Candy, Inc., holds an off-premises beer and wine permit (BG-816124) for Imperial Tobacco and Candy, Inc., a convenience store located at 103 Jacob Smart Boulevard, Ridgeland, South Carolina.

2. On January 7, 1997, State Law Enforcement Division ("SLED") Agent Lonnie Roberts, Jr., with the assistance of Underage Cooperating Individual ("UCI"), Robert A. Strickland, conducted a routine sting operation at the licensed premises.

3. Prior to the UCI entering Imperial Tobacco and Candy, Inc., Agent Roberts searched the UCI and determined that he had only a valid South Carolina Driver's License and $10.00 in cash on his person. Shortly thereafter, at approximately 5:51 p.m., Agent Roberts observed the UCI enter Imperial Tobacco and Candy, Inc.

4. After entering Imperial Tobacco and Candy, Inc., the UCI walked back to the beer/wine cooler. He took a "twelve-pack" of 12-ounce cans of Bud Light beer from the cooler. The UCI proceeded to purchase the beer from Kiran K. Shah. Mr. Shah collected the UCI's money for the beer. He did not ask the UCI if he was twenty-one years of age, or request any identification prior to making the sale. The UCI did not indicate that he was twenty-one years of age. The UCI exited the store and took the beer to the undercover agent who was outside the premises. The UCI was seventeen years old at the time of the purchase.

5. Agent Roberts and the UCI reentered the location, approached Mr. Shah, and introduced themselves as a SLED agent and UCI. Agent Roberts then issued Respondent Kiran K. Shah, d/b/a Imperial Tobacco and Candy, Inc., a citation for violating 23 S.C. Code Ann. Regs. 7-9(B), permitting purchase of beer by a person under twenty-one years of age.

6. Respondent has been cited for two other violations of this nature within the last three years. On October 22, 1994, Respondent was charged with permitting the purchase of beer/wine by a person under the age of twenty-one years of age. Respondent paid a $400 fine for that violation. On July 27, 1995, Respondent was cited for an identical violation and paid another $400 fine.

7. On the date of the hearing before this tribunal, the UCI's physical appearance accurately reflected his physical appearance on the afternoon in question. The UCI appeared sufficiently youthful so as to merit an inquiry as to his correct age before allowing him to purchase alcohol. Based on this tribunal's observation of the UCI at the hearing, a reasonable person would conclude that the UCI was under the age of twenty-one.

The Department is charged with the responsibility of administering and enforcing the laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 1996). The Department alleges Respondent Kiran K. Shah, d/b/a Imperial Tobacco and Candy, Inc., violated 23 S.C. Code Ann. Regs. 7-9(B) by permitting or knowingly allowing a minor to purchase beer from Respondent's licensed establishment. Regulation 7-9(B) provides: To permit or knowingly allow a person under twenty-one years of age to purchase or possess or consume beer and wine in or on a licensed establishment which holds a license or permit issued by the South Carolina Alcoholic Beverage Control Commission is prohibited and constitutes a violation against the license or permit. Such violation shall be sufficient cause to suspend or revoke the license or permit by the Alcoholic Beverage Control Commission.

(emphasis added).To warrant a violation of 23 S.C. Code Ann. Regs. 7-9(B), the Department must establish that either Respondent or Respondent's servant, agent or employee permitted or knowingly allowed a person under twenty-one years of age to purchase beer from Respondent's licensed establishment. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 Am. Jur. 2d, Evidence § 127 (2d ed. 1994); Alex Sanders, et al. South Carolina Trial Handbook, § 9:3 Party With Burden, Civil Cases (1994). The Department is the party asserting the affirmative in this case, therefore, the Department must prove by a preponderance of the evidence that Respondent or Respondent's agent, servant, or employee permitted or knowingly allowed the UCI to purchase beer from the licensed establishment in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1996). The preponderance of the evidence "is evidence which is of the greater weight or more convincing than the evidence which is offered in opposition to it . . . ." Black's Law Dictionary 1182 (6th ed. 1990). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, supra, South Carolina Trial Handbook, § 9:5 Quantum of Evidence in Civil Cases (1994), (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).

Respondent concedes he allowed the UCI to purchase the beer. Mr. Shah permitted or knowingly allowed the UCI to purchase beer from his licensed establishment. "To permit" means to allow, consent, let; 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). This tribunal concludes that "to permit," according to its most common meaning, clearly requires knowledge. A party manifests consent and knowledge to allowing a person under twenty-one years of age to purchase alcohol if, from the appearance of the person or otherwise, the party had sufficient information that would lead a prudent person to believe the person was under twenty-one years of age, especially when a simple inquiry would have confirmed such fact. Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). The Feldman case delineated a two-part test⁽¹⁾ for determining whether the required degree of knowledge is present:

1. Whether the Respondent knew that the UCI was under 21 years of age through independent knowledge, or

2. Had such information from the UCI's appearance or from other information

a. which would cause a prudent person to believe

the UCI was under 21 years of age, and

b. would cause the same prudent person to conduct an inquiry to ascertain the correct age.

In the case at hand, the Department offered testimony establishing that Mr. Shah had knowledge that the UCI was under the age of twenty-one through the UCI's youthful appearance. The UCI's appearance would cause a prudent person to believe the UCI was under twenty-one years of age, and would cause the same prudent person to conduct an inquiry to ascertain his correct age. The UCI testified that his physical appearance at the hearing was virtually the same as the afternoon in question, and that he had made no attempt to alter his appearance to look older on the afternoon he visited the licensed establishment. The UCI's appearance at the trial was sufficiently youthful so as to merit an inquiry to ascertain his correct age before selling him beer or wine.

Mr. Shah concedes that he sold beer to the UCI and apologizes for doing so. Further, Mr. Shah testified that he was ill and under the influence of medication at the time of the illegal sale. Even if this contention is true, it does not excuse the duty imposed by statute not to sell beer to minors. The purpose of such a statutory prohibition is to protect both the minor and the public at large from the possible adverse consequences of such sales. The sale of alcohol to a minor is a serious offense and cannot be taken lightly.

The Department is authorized to revoke or suspend the beer and wine permit of any licensee for committing a violation of the laws pertaining to alcoholic beverages or any regulation promulgated by the Department. See S.C. Code Ann. § 61-4-590 (Supp. 1996).

In the instant case, this is the third offense for this establishment in three years. With the first two violations, the licensee paid a fine. Here, he requests a fine in lieu of suspension of his license. However, the imposition of a fine apparently has not had a deterrent effect. Further, the forty-five day suspension is consistent with the Department's guidelines for a third violation.

IV. ORDER

IT IS THEREFORE ORDERED that Petitioner's request that Respondent's permit (BG-816124) be suspended for forty-five days for violating 23 S.C. Code Ann. Regs. 7-9(B) is granted.

IT IS FURTHER ORDERED that a SLED agent shall serve a copy of this order on Kiran K. Shah and take possession of the permit cited above. Upon service of the forty-five (45) day suspension, an agent shall return the permit to Mr. Shah. During the period of suspension, Mr. Shah is ordered to post a copy of this order at a visible location at the licensed premises, and to cease and desist all sales of beer and wine.

AND IT IS SO ORDERED.

_________________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

November 20, 1997

Columbia, South Carolina

1. The Administrative Law Judge Division has applied the Feldman analysis in at least two other cases: South Carolina Dep't of Revenue and Taxation v. Linda E. Sellers, d/b/a The Other Store, Docket No. 95-ALJ-17-0535-CC (Feb. 13, 1996); South Carolina Dep't of Revenue and Taxation v. Idell B. Harriott, d/b/a Harriott's Grocery, Docket No. 95-ALJ-17-0595-CC (Mar. 6, 1996).