ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2007). The South Carolina Department of Revenue (Department) seeks a $500 fine from Respondent for its first alleged violation of 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2007). After notice of the date, time, place, and nature of the hearing was timely given to all parties, a hearing was held before me on January 3, 2008 at the offices of the Administrative Law Court.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:
1. The Respondent, Daryl Kay Thomson, Jr., holds an on-premises beer and wine permit for The Palmetto Club (Palmetto Club). The store is located at 91 Highway 72 West, Abbeville, South Carolina.
2. On July 11, 2007, an underage cooperating individual (UCI) entered the Palmetto Club. The UCI carried only his identification, money and cell phone into the club. At the time that he entered the club, the only employee working at the club, Sheila Fleming, was in the restroom. The UCI took a seat at the bar and was told that the bartender was away.
After a minute or two had elapsed, one of the regular patrons of the club, John S. Timms, upon prompting by other patrons, asked the UCI what he wanted to drink. Mr. Timms, who had been consuming alcohol that day, then went behind the bar and obtained a 12 ounce bottle of Bud Light beer for the UCI, who in Mr. Timm’s opinion, looked to be over the age of twenty-one (21). Mr. Timms handed the beer to the UCI and took the UCI’s five-dollar bill. He opened the club’s cash register by pushing the “No Sale” sign, deposited the five-dollar bill into it, and gave the UCI his change.
For the past six or seven years, Mr. Timms generally has been going to the club every day that it is open. He learned how to open the cash register by watching club employees. However, Mr. Timms was not an employee of the club and has never been given permission by Respondent to sell beer at the club. Moreover, except for the incident in question, Mr. Timms has never gone behind the bar to get a beer.
Nevertheless, in selling the beer to the UCI, Mr. Timms did not request to see the UCI’s identification, which stated the UCI’s correct age. He also did not ask the UCI his age. At the time of the sale, the UCI, who has a muscular build and not a particularly youthful appearance, was eighteen (18) years old.
After Mr. Timms sold the beer to the UCI, Ms. Fleming returned from the restroom. She asked the UCI if he needed anything. The UCI showed Ms. Fleming the beer and pointed to Mr. Timms, stating that Mr. Timms had taken care of it. Ms. Fleming then turned away from the UCI and put out a cigarette. However, Ms. Fleming was a distracted because, at the same time as her inquiry to the UCI, some of the patrons at the club were peppering her with questions as to why she took such a long time in the restroom. Moreover, within moments after Ms. Fleming’s encounter with the UCI, SLED agents entered the club.
3. Respondent was issued an administrative citation for permitting the purchase of beer by a person under twenty-one (21) in violation 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2007). Within the three years prior to July 11, 2007, Respondent had not, at any point, been found guilty of violating the laws regulating its beer and wine permit. The Department subsequently issued its Final Agency Determination on September 24, 2007 from which Respondent timely filed a request for a contested case hearing with the ALC on October 16, 2007.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 2007) grants jurisdiction to the Court to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2007) grants the ALC the authority to hear contested case hearings in matters governing alcoholic beverages, beer and wine.
2. Permits and licenses issued by this state for the sale of liquor, beer and wine are privileges to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
3. Permitting or knowingly allowing a person under the age of twenty-one (21) to purchase or possess beer upon the licensed premises is a violation against a license or a permit. Such a violation constitutes sufficient grounds for either suspension or revocation of the beer and wine permit. 23 S.C. Code Ann. Regs. 7-200.4 (Supp. 2007). Furthermore, the permittee is responsible for the acts of his servants, agents, or employees and cannot seek to avoid the consequences of a violation for lack of personal knowledge. See, e.g., Crystal Ice Co. of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 309, 257 S.E. 2d 496, 497 (1979) (“It is well established that a principal is affected with constructive knowledge of all material facts of which his agent receives notice while acting within the scope of his authority.”); S.C. Law Enforcement Div. v. The “Michael and Lance,” 284 S.C. 368, 327 S.E.2d 327 (1985) (determining that civil forfeiture of a corporation’s boat based upon an employee’s illegal transporting of drugs was warranted even though the corporation claimed that the use of the boat to transport drugs was without its knowledge); 48 C.J.S. Intoxicating Liquors § 259 (1981) (a permit holder is responsible for the actions and conduct of employees utilizing the permit upon the permitted premises).
Thus, while it is clear that Respondent is responsible for the acts of Ms. Fleming, the issue of whether or not Respondent is responsible for the acts of Mr. Timms is a much different matter. Generally, guilt arises if the act was done in the permittee’s interest and behalf, with authority or consent, by persons in the employ or under control of the permittee. 48 C.J.S. Intoxicating Liquors § 380 (2004). Here, the evidence presented at the hearing demonstrates that Respondent did not authorize Mr. Timms to sell alcohol at the premises, and that Mr. Timms was neither in the employ nor under the control of Respondent at the time of the sale. Therefore, this Court concludes that Respondent was not responsible for the acts of Mr. Timms.
4. The Department, nevertheless, argues that Ms. Fleming effectively validated the sale after the fact by failing to take any action following her encounter with the UIC. The Department points to the UIC’s testimony in which he stated that when Ms. Fleming asked him if he needed anything, he held up the beer and said that Mr. Timms had taken care of it. However, assuming that Ms. Fleming could violate the Department’s regulations by approving of a prior sale, the evidence did not sufficiently establish that Ms. Fleming acquired enough information within the very short timeframe between her return from the restroom and the SLED agents’ entry into the club to knowingly endorse the sale to the UCI by Mr. Timms. Here, after asking the UCI if he needed anything, Ms. Fleming turned to put out a cigarette and, within seconds thereafter, the SLED agents entered the club.
Furthermore, recognizing the short timeframe involved here, the facts did not establish that Ms. Fleming even understood that a sale had been made to the UIC on the licensed premises. First, it is not clear that Ms. Fleming heard the UCI’s comment about Mr. Timms obtaining the beer for him. Ms. Fleming does not recall the comment, and, during the time in which the comment was made, others in the club were questioning Ms. Fleming about the length of her restroom break. Second, even assuming that Ms. Fleming heard the UCI’s comment, she had never seen Mr. Timms obtain alcohol from behind the bar before and thus, in all likelihood, did not immediately understand the comment’s full implications. In fact, on cross-examination, the UIC admitted that it was possible that Ms. Fleming could have thought that he entered the club with the beer after obtaining it off-premises. Based on the foregoing testimony, I conclude that there is insufficient evidence to establish that Ms. Fleming had the requisite knowledge of the beer sale necessary to validate it by her inaction.
5. The Department also argues that Respondent violated the provisions of Regulation 7-200.4 by knowingly permitting the possession of beer by an individual under the age of twenty-one (21). According to the Department, Ms. Fleming had the duty to inquire about the age of the UCI after she saw him with a beer. Respondent, on the other hand, claims that Ms. Fleming did not have enough time to react after seeing the UCI with a beer before SLED agents entered the club.
In other contexts, courts have held that an individual does not violate his duty to act where the individual does not have sufficient time to perform the act in question. See, e.g., Davis v. Rennie, 264 F.3d 86 (1st Cir. 2001) (law enforcement officer has duty to act to prevent another officer from using excessive force if the officer could realistically prevent that force and had sufficient time to do so); Rettig v. Coca-Cola Bottling Co., 156 P.2d 914 (Wash. 1945) (in order to apply the doctrine of last clear chance, party must have had sufficient time to act).
Here, as explained above, after Ms. Fleming asked the UCI if he needed anything, only seconds passed before the SLED agents entered the club. Moreover, during that time, Ms. Fleming was distracted because other patrons in the club were asking her questions about why she took such a long time in the restroom. Furthermore, as discussed above, the UCI does not have a particularly youthful appearance and Ms. Fleming was never told in detail about how the UCI obtained the beer. Therefore, based on the foregoing, it does not appear that Ms. Fleming had sufficient time, before SLED agents entered the club, to fully appreciate and rectify the situation at issue. Accordingly, I conclude that Respondent did not violate the provisions of Regulation 7-200.4 by failing to inquire about the age of the UCI prior to SLED’s entry into the club.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that this matter is dismissed.
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
January 24, 2008
Columbia, South Carolina
|
