ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the South Carolina Administrative Law Judge Division ("Division") for a hearing request pursuant to an
administrative violation issued in a Final Agency Determination by the South Carolina Department of Revenue
("Department"), based upon and in conjunction with a citation issued by an agent of the South Carolina Law Enforcement
Division ("SLED"). The citation/violation report was issued against the on-premise beer and wine permit of Aimon T.
Kopera, DLP, Lemongrass, L.L.C., d/b/a, Lemongrass, L.L.C. ("Respondent"), for violation of 23 S.C. Code Ann. Reg. 7-9(B) (Supp. 1998), for allegedly permitting a person under the age of twenty-one (21) to purchase beer on a licensed
premises. For the violation, the Department levied a $400 fine, as penalty upon the Respondent. The Respondent sought
review of the Department's determination. After notice to the parties, a hearing commenced on October 11, 1999, in
Anderson County, South Carolina. Any issues raised or presented during the proceeding or hearing of the matter that are
not specifically addressed in this order are deemed denied. ALJD Rule 29B.
FINDINGS OF FACT
I make the following Findings of Fact, after reviewing all of the evidence and testimony, taking into consideration the burden
of the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of
the witnesses:
1. The Division has personal and subject matter jurisdiction.
2. Notice of the time, date, place and nature of the hearing was timely given to all parties.
3. Respondent holds an on-premises beer and wine permit, in the name of Aimon T. Kopera, DLP, Lemongrass, L.L.C.,
d/b/a, Lemongrass, L.L.C., located at 106 North Main Street, Greenville, South Carolina.
4. On June 25, 1998, an agent with the South Carolina Law Enforcement Division (SLED) sent underage coopering
individual # S96-2584 ("UCI") into the location at 105 North Main Street, Greenville, South Carolina. The UCI's birth date
is 11/18/79, which made her 18 years old at the time of the purchase.
5. Prior to entering the location, the SLED agent searched the UCI and found her only to be in possession of her valid South
Carolina Driver's License. The agent gave the UCI $10.00 and instructed her to enter the location and attempt to purchase
beer. Prior to the UCI, an undercover police officer entered the location in order to observe the sale. The UCI entered and
proceeded to the bar and requested a bottle of "Bud Light" beer.
6. The bartender, Cynthia R. Zatocil ("employee") requested identification, and the UCI gave the employee her driver's
license. The employee, took the license, looked at it, returned it to the UCI, and served her the beer, for which the UCI paid
$2.25. At the time of the purchase, the UCI's driver's license clearly indicated, "UNDER 21 until 11-18-2000."
7. The SLED agent then confiscated the beer and identified himself to the employee. After presenting the UCI's driver's
license to the bartender again, the employee stated she must have misread the date.
8. The employee, was arrested for violation of S.C. Code Ann. § 61-9-40 for transfer of beer to a person under twenty-one
(21) years of age. In addition, an administrative violation was issued to the permittee for violation of S.C. Ann. Regs. 7-9(B)
for permitting the purchase of beer by a person under twenty-one (21) years of age. The violation was explained to the
employee and she signed for the violation report.
9. In it's Final Agency Determination dated November 25, 1999, the Department levied a fine of $400.00 upon Respondent
for the alleged violation.
10. This is the first such violation for Respondent within a three-year period. In addition, the employee is thirty-three (33)
years old, with fourteen (14) years experience in the restaurant business. In that time period, the employee has never before
been cited for such a violation.CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. Jurisdiction relative to this matter is vested in the South Carolina Administrative Law Judge Division pursuant to S.C.
Code Ann. § 12-60-30(4)(a) (Supp. 1998), with the hearing held pursuant to §§ 1-23-600(B) (Supp. 1998) and 1-23-310
(Supp. 1998).
2. A permit holder is subject to revocation or suspension if the permittee or an employee of the licensed premises knowingly
sells beer or wine to any person under twenty-one (21) years of age. S.C. Code Ann §§ 61-4-580(1) (Supp. 1998).
3. 23 S.C. Regs 7-9(B) (Supp. 1998) provides that it is prohibited to permit or knowingly allow a person under twenty-one
(21) years of age to purchase beer or wine in or on a licensed establishment.
4. The employee had before her the information needed to determine that the purchaser was under the age of twenty-one, in
that the UCI's driver's license clearly indicated, "UNDER 21 until 11-18-2000."
5. The permit holder is responsible for the actions and conduct of employees utilizing the permit upon the licensed premises.
48 C.J.S. Intoxicating Liquors § 168 (1981).
6. Furthermore, a sale of beer to a minor is forbidden irrespective of whether the sale is made by the permittee or by an
employee. 48 C.J.S. Intoxicating Liquors § 259 (1981).
7. The prohibition against selling beer to minors is designed to protect both the underage party and 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); Whitlaw v. Kroger, 306 S.C. 51, 410 S.E. 2d 251 (S.C. 1991).
8. The harm of selling beer to minors is of such a significant nature that a single violation can carry a sanction of revocation.
23 S.C. Regs 7-9(B) (Supp. 1998) and S.C. Code Ann. § 61-4-590 (Supp. 1998).
9. A party manifests consent and knowledge to allowing a person under twenty-one (21) 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, 903 S.C. 49, 26 S.E. 2d 22 (1943); S.C. Atty. Gen. Op. 3395 (1972); see 58 Am.Jur.2d Notice § 14 (1989).
A person has no right to shut his eyes to avoid information clearly before him. 58 Am.Jur.2d Notice § 13 (1989).
10. Permits and licenses issued by the State of South Carolina 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 of South Carolina to be used and enjoyed only
so long as the restrictions and conditions governing them are complied with. The South Carolina Administrative Law Judge
Division, as 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).
11. Accordingly, based upon the evidence, I conclude that the permittee, by the conduct of his agent/employee, for whose
action he is responsible, violated S.C. Code Regs. 7-9(B) (Supp. 1998) on June 25, 1998, by selling beer to a person under
twenty-one (21) years of age.
12. S.C. Code Ann. § 61-4-250 (Supp. 1998) 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 not less than Twenty-Five dollars ($25.00) and not more than One Thousand dollars ($1,000.00). Based upon the
evidence in this case, I find that the appropriate fine is Two Hundred ($200.00).
ORDER
After considering the position of the parties, the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Respondent, Aimon T. Kopera, DLP, Lemongrass, L.L.C., d/b/a, Lemongrass, L.L.C., violated S.C.
Code Ann. Regs. 7-9(B) (1976) by selling a bottle of beer to a person under the age of twenty-one (21) years on June 25,
1998.
IT IS FURTHER ORDERED that the Respondent shall pay a monetary penalty in the amount of Two Hundred and no/100
dollars ($200.00) to the Department within fifteen (15) days of the date of this Order.
AND IT IS SO ORDERED.
_________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
November 22, 1999
Columbia, South Carolina. |