ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) for a contested case hearing. The
South Carolina Department of Revenue (Department) contends that Respondent Cooks Corner, Inc.,
d/b/a Cooks Corner, permitted or knowingly allowed an underage person to purchase beer from its
licensed convenience store located at 5722 Highway 34 East, Ridgeway, South Carolina, in violation
of S.C. Code Ann. § 61-4-580(1) (Supp. 2002) and 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002).
For this second violation of Section 61-4-580(1) and Regulation 7-9(B) in as many years, the
Department seeks to impose an $800 fine against Respondent.
After timely notice to the parties, a hearing of this matter was conducted on June 5, 2003, at
the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence and
arguments offered by the parties and upon the applicable law, I find that the Department’s requested
penalty is appropriate and must be sustained.
FINDINGS OF FACT
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 Cooks Corner, Inc. holds an off-premises beer and wine permit
(#32025403-PBW) for its Cooks Corner convenience store located at 5722 Highway 34 East in
Ridgeway, South Carolina.
2.On September 9, 2002, State Law Enforcement Division (SLED) Agents Clayton
Pope and Patrick Jackson, with the assistance of an Underage Cooperating Individual (UCI),
Jonathan Hilton, conducted a routine sting operation of several businesses, including the Cooks
Corner convenience store in Ridgeway. Prior to beginning the operation, the agents had the UCI turn
over any forms of identification other than his State-issued driver’s license and searched him to
confirm that he had no other identification or other items that might impact the investigation on his
person. At the time of the investigation, Jonathan Hilton was eighteen years old.
3.In addition to this initial search, the SLED agents searched the UCI both prior to and
after entering each location to ensure that he had no identification other than his driver’s license in
his possession. Specifically, before entering the Cooks Corner convenience store, Agent Pope
searched the UCI and determined that the only items in his possession were his valid South Carolina
driver’s license and five dollars provided him by SLED for the attempted purchase of alcohol at the
location. The UCI’s driver’s license indicated his date of birth as “06-09-1984" and further contained
a notice in the upper right-hand corner that the UCI was “UNDER 18 UNTIL 06-09-2002.”
4.After entering Cooks Corner, the UCI selected a beer from the cooler and took the
beer to the store’s sales counter. Before proceeding with the sale, Respondent’s cashier on duty at
the time, Ms. Celeasha Hanna, requested identification from the UCI, at which time the UCI
produced his valid driver’s license. Ms. Hanna held the license in her hand, examined it, and, after
returning the license to the UCI, completed the sale of the beer. The UCI then exited the store and
turned the beer and his change over to the SLED agents.
5.On the date of the hearing before this tribunal, the UCI’s physical appearance
accurately reflected his appearance on the night in question. The UCI appeared sufficiently youthful
to merit an inquiry as to his age before allowing him to purchase alcohol. Based upon this tribunal’s
observation of the UCI at the hearing, a reasonable person would conclude that the UCI was under
twenty-one years of age.
6.After collecting evidence of the sale from the UCI, the SLED agents entered Cooks
Corner, identified themselves to the cashier and to the president of Cooks Corner, who was on the
premises at the time, and informed them of the violation that had occurred. Agent Jackson then
issued a violation report to Respondent for the sale of beer to a person under twenty-one years of age
in violation of Regulation 7-9(B) and a criminal citation to Ms. Hanna for the transfer of beer to a
person under the age of twenty-one in violation of S.C. Code Ann. § 61-4-90 (Supp. 2002). In
response to these charges, Ms. Hanna contended that the driver’s license presented to her by the UCI
at the time of the sale indicated that he was over twenty-one years old, and that the driver’s license
shown her by the SLED agents to substantiate the violation was not the license presented by the UCI.
In her testimony at the hearing of this matter, Ms. Hanna maintained that the license presented to her
by the SLED agents after the violation was not the license used by the UCI to purchase the beer. Ms.
Hanna’s criminal charge based upon the sale in question is still pending.
7.On November 7, 2002, the Department issued a Final Determination to Respondent
sustaining the citation issued by the SLED agents against Respondent and imposing an $800 fine
upon Respondent as a penalty for the violation. This violation is not Respondent’s first violation of
this nature. Respondent was also cited for selling beer to an underage individual at this location on
August 4, 2001, and paid a $400 fine to the Department for that violation.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.The Department is charged with the responsibility of administering and enforcing the
laws and regulations governing the sale of alcoholic beverages, including beer and wine. S.C. Code
Ann. § 61-2-20 (Supp. 2002).
2.S.C. Code Ann. § 61-4-580(1) (Supp. 2002) prohibits holders of beer and wine
permits from selling beer or wine to persons under twenty-one years of age. This Section states:
No holder of a permit authorizing the sale of beer or wine or a servant, agent, or
employee of the permittee may knowingly commit any of the following acts upon the
licensed premises covered by the holder’s permit:
(1)sell beer or wine to a person under twenty-one years of age . . . .
Id. A violation of that provision is “a ground for the revocation or suspension of the holder’s
permit.” S.C. Code Ann. § 61-4-580 (Supp. 2002). Regulation 7-9(B) contains a similar prohibition
on the sale of beer or wine to minors:
To permit or knowingly allow a person under twenty-one years of age to purchase or
possess or consume beer or wine in or on a licensed establishment which holds a
license or permit issued by the [Department] 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 [Department].
23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002). Here, the Department alleges that Respondent,
through its employee, Celeasha Hanna, knowingly allowed the UCI, a person under twenty-one years
of age, to purchase a beer at its Cooks Corner convenience store in violation of Section 61-4-580(1)
and Regulation 7-9(B).
3.Generally, in administrative proceedings, the burden of proof rests upon the party who
asserts the affirmative of the issue. Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118,
132-33, 530 S.E.2d 643, 651 (Ct. App. 2000); 2 Am. Jur. 2d Administrative Law § 360 (1994); see
also Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 9.3, at 366-69
(2d ed. 2001) (stating that the burden of proof in civil matters is generally upon the party asserting
the affirmative of an issue). More specifically, before the ALJD, “[i]n matters involving the
assessment of civil penalties, the imposition [of] sanctions, or the enforcement of administrative
orders, the agency shall have the burden of proof.” ALJD Rule 29(B). Therefore, in the case at
hand, the Department must prove by a preponderance of the evidence that Respondent, through its
employee, permitted or knowingly allowed the UCI to purchase a beer from its permitted premises.
See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding
that the standard of proof in an administrative proceeding is generally the preponderance of the
evidence).
4.The weight and credibility assigned to evidence presented at the hearing of a matter
is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co.,
308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d
854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as finder of fact, “has the authority
to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate
the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157
(1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
5.Under Section 61-4-580(1), a beer and wine permit may be suspended or revoked for
the sale of beer or wine to an underage individual knowingly made either by the permit holder or by
a servant, agent, or employee of the permittee upon the licensed premises. Such liability of permit
holders for sales of beer and wine made to underage individuals by their employees and agents should
also be read into Regulation 7-9(B). See S.C. Dep’t of Revenue v. Blackmon, Docket No. 01-ALJ-17-0225-CC, at 3 (S.C. Admin. Law Judge Div. Aug. 8, 2001) (holding that, under Regulation 7-9(B), “the sale of beer or wine to a minor is forbidden irrespective of whether the sale is made by the
permit holder or by an employee of the permit holder”). Therefore, pursuant to Section 61-4-580(1)
and Regulation 7-9(B), Respondent is responsible for the sale of beer made to the UCI by its
employee, Ms. Hanna.
6.For a violation of Section 61-4-580(1) and Regulation 7-9(B) to lie, a permit holder
or its agent must have knowingly sold beer or wine to an underage individual. In the present case,
the Department contends that Ms. Hanna had at least constructive knowledge that the UCI was under
twenty-one years of age when she sold the beer to the UCI.
7.In Feldman v. South Carolina Tax Commission, the South Carolina Supreme Court
set forth a test for determining whether a sales clerk has knowingly sold an alcoholic beverage to an
underage individual:
Within the meaning of the term, “knowingly,” as used in [the alcoholic beverage
laws], if the clerk knew that the [customer] 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, 56, 26 S.E.2d 22, 25 (1943); see also Norris v.
Greenville, Spartanburg & Anderson Ry. Co., 111 S.C. 322, 330, 97 S.E. 848, 850 (1919) (“When
a person has notice of such facts as are sufficient to put him upon inquiry, which, if pursued with due
diligence, would lead to knowledge of other facts, he must be presumed to have knowledge of the
undisclosed facts.”). Thus, if, when she sold the beer to the UCI, Ms. Hanna either (1) had actual
knowledge that the UCI was under twenty-one years of age or (2) had constructive knowledge that
the UCI was underage because the UCI’s appearance would cause a prudent person to believe the
UCI was under twenty-one years of age and would lead such a prudent person to conduct an inquiry
to ascertain the age of the UCI, then Ms. Hanna knowingly sold beer to a person under twenty-one
years of age.
8.In the case at hand, Ms. Hanna had constructive, if not actual, knowledge that the UCI
was underage when she sold him the beer. Here, the UCI’s youthful 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 age before selling alcohol to him. And, while
Ms. Hanna began such an inquiry by requesting identification from the UCI, and in fact, had actual
information of the UCI’s correct age placed before her on the UCI’s driver’s license, she did not
follow that inquiry to its natural and reasonable conclusion by correctly ascertaining the UCI’s age
from the information on his license. Simply put, Ms. Hanna failed to conduct an adequate inquiry into
the age of the UCI before selling him the beer.
Therefore, given the youthful appearance of the
eighteen-year-old UCI and the actual information of the UCI’s age presented to the sales clerk,
Respondent’s clerk, Ms. Hanna, had constructive knowledge that the UCI was under twenty-one
years of age when she sold him a beer from Respondent’s convenience store. Accordingly, for this
knowing sale of beer to an underage individual, Respondent is liable for a violation of Section 61-4-580(1) and Regulation 7-9(B).
9.The Department has jurisdiction to revoke or suspend permits authorizing the sale of
beer and wine. S.C. Code Ann. § 61-4-590 (Supp. 2002). Pursuant to such authority, the
Department may suspend or revoke a beer and wine permit if the permittee has knowingly sold beer
or wine to a person under twenty-one years of age. S.C. Code Ann. § 61-4-580 (Supp. 2002); 23
S.C. Code Ann. Regs. 7-9(B) (Supp. 2002); see also S.C. Code Ann. § 61-4-270 (Supp. 2002)
(authorizing the Department to “revoke the permit of a person failing to comply with any
requirements” in Chapter 4 of Title 61). Further, the Department may exercise this authority to
suspend or revoke a permit for a first violation of the prohibition against selling beer and wine to
underage persons. See S.C. Code Ann. §§ 61-4-270, 61-4-580, 61-4-590; 23 S.C. Code Ann. Regs.
7-9(B). In lieu of such suspension or revocation, the Department may also impose a monetary
penalty upon a permittee for selling beer and wine to underage individuals. S.C. Code Ann. § 61-4-250 (Supp. 2002). For retail beer and wine permittees, this monetary penalty must be no less than
$25 and no greater than $1,000. Id.
10.S.C. Revenue Procedure 95-7 (1995) sets forth the Department’s penalty guidelines
for violations of the alcoholic beverage control laws. For retail beer and wine permits, Revenue
Procedure 95-7 provides for a $400 fine for the first violation by a permittee, an $800 fine for the
second violation, a 45-day suspension of the permit for the third violation, and revocation of the
permit for the fourth violation. However, this document does not set binding norms for the
Department, but rather only provides guidance to the Department in assessing penalties for violations
of the alcoholic beverage control laws. See Revenue Procedure 95-7, at ¶ 4 (“These are guidelines
only and this advisory opinion does not establish a binding norm.”). As such, Revenue Procedure 95-7 is not law and thus is not binding upon this Division. Cf. Home Health Serv., Inc. v. S.C. Tax
Comm’n, 312 S.C. 324, 328, 440 S.E.2d 375, 378 (1994) (holding that “whether a particular agency
proceeding announces a rule or a general policy statement depends upon whether the agency action
establishes a binding norm”) (citing Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369 (11th
Cir. 1983)).
11.The holder of a beer and wine permit is liable for the actions of its employees who sell
alcohol to underage persons. Here, Respondent’s employee, Celeasha Hanna, knowingly allowed the
purchase of beer by a person under the age of twenty-one in violation of Section 61-4-580(1) and
Regulation 7-9(B). This offense is Respondent’s second such violation at this location within two
years. Therefore, the Department’s decision to impose an $800 fine upon Respondent for this
violation is appropriate.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department’s decision to impose an $800 fine upon
Respondent Cooks Corner, Inc. for its second violation of S.C. Code Ann. § 61-4-580(1) (Supp.
2002) and 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2002) within two years at its Cooks Corner
convenience store in Ridgeway, South Carolina, is SUSTAINED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
June 19, 2003
Columbia, South Carolina |
