South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Mark T. Jewett, d/b/a Fort Lawn Texaco

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Mark T. Jewett, d/b/a Fort Lawn Texaco
 
DOCKET NUMBER:
00-ALJ-17-0432-CC

APPEARANCES:
Carol I. McMahan, Esquire, for the Petitioner

Edward E. Saleeby, Jr., Esquire, and Michael S. Holt, Esquire for the Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE



This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2000) (1) and S.C. Code Ann. § 1-23-600 (Supp. 2000). The South Carolina Department of Revenue (Department) seeks revocation of the Respondent's beer and wine permit for violating the Alcoholic Beverage Control Act. A hearing was held before me on January 4, 2001 at the Division in Columbia, South Carolina.

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. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner and the Respondent.

2. Mark T. Jewett, d/b/a Fort Lawn Texaco, is the holder of license No. BG 133575. The licensed business is located at 5781 Lancaster Highway in Fort Lawn, SC.

3. On January 26, 2000, an underage cooperating individual (UCI), Benjamin Rudy, entered Fort Lawn Texaco. Rudy carried only his identification and money into the store. While inside the store, Rudy purchased a twenty-four ounce "Icehouse" beer from Judith Smith, the clerk on duty. The clerk did not ask the UCI if he was twenty-one years of age. However, she requested and looked at the UCI's South Carolina Driver's License, which stated his correct age, but proceeded with the sale. The UCI's driver's license accurately reflected his date of birth as "11/15/80." Additionally, "Under twenty-one until 11/15/2001" was displayed in the upper right corner of the driver's license. Furthermore, the UCI appeared sufficiently youthful as to merit an inquiry as to his correct age before allowing him to purchase alcohol.

4. The Respondent contends that Ms. Smith did not intentionally sell the beer to Rudy but rather made this sale only because after examining his license she mistakenly believed he was more than twenty-one years of age. Furthermore, the Respondent has a store policy of checking identification and, in fact, Smith had previously graduated from a course in "Responsible Beverage and Tobacco Sales Training." Additionally, there are numerous signs in the store stating that customers must be twenty-one or older to purchase alcohol. Although Ms. Smith was not fired, previous cashiers had been terminated for selling alcohol to minors. The Respondent did not immediately fire Ms. Smith for the sale in this case because he firmly believed that the sale she made to the UCI was not intentional and because she has a child in college who depends upon her support.

5. I find that though Smith did not deliberately sell beer to a minor, that she ultimately knowingly sold beer to the UCI. The Respondent violated the provisions of 23 S.C. Code Ann. Regs. § 7-9 (B) (Supp. 2000) by permitting the purchase of beer by an individual under the age of twenty-one on January 26, 2000.

CONCLUSIONS OF LAW



Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. The Department enforces the laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 2000). Pursuant to that authority, the Department alleges that the Respondent violated 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) by permitting or knowingly allowing a minor to purchase beer from the Respondent's licensed establishment. After the Department cited the Respondent for the above violation, he requested a contested case hearing. S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the Division to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the Division the authority to hear contested case hearings in matters governing alcoholic beverages, beer and wine.

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) (Supp. 2000). The Department is the party asserting the affirmative fact in this case. Therefore, the Department bears te burden of proof by a preponderance of the evidence that the Respondent or Respondent's agent, servant, or employee permitted or knowingly allowed a person under twenty-one years of age to purchase beer from Respondent's licensed establishment. 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).

In the case at bar, the Respondent concedes that his clerk sold beer to the UCI. However, he contends that the sale was not made knowingly. "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). Therefore, according to its most common meaning "to permit" requires knowledge. "Knowingly" means possessing knowledge, information, or understanding." American Heritage College Dictionary 752 (3rd. Ed. 1993). A party manifests consent and knowledge to allow a person under twenty-one years of age to purchase alcohol if, from the appearance of the person or otherwise, the party has 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.

In Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943), the South Carolina Supreme Court delineated a two-part test for determining whether the required degree of knowledge is present, as used in this statute, as follows:

1. The clerk knew that the purchaser was a minor; or

2. The clerk had such information, from the purchaser's appearance or otherwise:

a. as would lead a prudent man to believe that he was a minor; and

b. if followed by inquiry must bring knowledge of that fact home to him.

Therefore, the statutory definition of knowingly includes, not only actual knowledge of an individuals age, "but also situations where a person has such information, or the circumstances are such, as would lead a prudent man to form a belief as to an individuals age, and if followed by inquiry would have disclosed that age." State v. Thompkins, 263 S.C. 472, 211 S.E.2d 549 (1975) (Court utilized theFeldman analysis in scrutinizing the obscenity statute's definition of "knowingly.")

In the instant case, the Department offered testimony establishing that at the time of the sale, the UCI's appearance was such that it would cause a prudent person to believe the UCI was under twenty-one years of age, and to conduct an inquiry to ascertain his correct age. Therefore, the clerk had information would lead a prudent person to believe that the UCI was a minor. Consequently, the clerk was under a duty to inquire as to whether the UCI was indeed a minor. She made that inquiry by examining the UCI's driver's license. However, the clerk miscalculated the UCI's age and failed to observe the "Under twenty-one until 11/15/2001" disclaimer on the license.

2. In South Carolina Law Enforcement Division v. The "Michael and Lance," 281 S.C. 339, 315 S.E. 2d 171 (S.C. App. 1984), the Court held that "[a] principal is affected with constructive knowledge of all material facts of which its agent receives notice while acting within the scope of his authority." Id. at 173, citing Crystal Ice Co. of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 257 S.E. 2d 496 (1979). Likewise, a licensee may be held liable for violations of liquor statutes and regulations committed by his agent while pursuing the ordinary business entrusted to him. The licensee is liable even though the violations are committed in his absence and without his knowledge, consent or authority. See 48 C.J.S. Intoxicating Liquors 271 (1981). Therefore, a permittee is responsible for all acts of his servants, agents, or employees and cannot seek to avoid the consequences of a violation for lack of personal knowledge.

3. S.C. Code Ann. § 61-4-270 (Supp. 2000) sets forth that the department may revoke the permit of a person failing to comply with the provisions regulating beer and wine permits. Additionally, S.C. Code Ann. § 61-4-250 (Supp. 2000) provides that the Department "may, in its discretion, impose a monetary penalty upon the holder of a beer or wine license in lieu of suspension or revocation." S.C. Code Ann. § 61-4-250 (1) (Supp. 2000) further provides that "beer and wine licensees are subject to a penalty of not less than twenty-five dollars nor more than one thousand dollars." Because this is the Respondent's fifth violation of Regulation 7-9(B) within the past three years, the Department is seeking revocation of the Respondent's beer and wine permit. See Revenue Procedure 95-7.

4. Inherent in and fundamental to the powers of an Administrative Law Judge, as the trier of fact in contested cases under the Administrative Procedures Act, is the authority to decide the appropriate sanction when such is disputed. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E. 2d 633 (1991). The Administrative Law Judge, as fact-finder, must impose a penalty based on the facts presented at the contested case hearing. To that end, the Administrative Law Judge must consider relevant evidence presented in mitigation. Mitigation is defined as a lessening to any extent, great or small. It may be anything between the limits of complete remission on one hand and a denial of any relief on the other. In a legal sense, it necessarily implies the exercise of the judgment of the court as to what is proper under the facts of the particular case. 58 C.J.S., Mitigation p. 834, 835 (1948).

In the present case, the Respondent clearly violated the provisions of 23 S.C. Code Ann. Regs. 7-9 (B) (Supp. 2000) by permitting the purchase of beer by individuals under the age of twenty-one. Furthermore, this incident is the fifth violation by the Respondent in three years. Although the Respondent argues that employees are trained and there is a policy to check identifications, the Respondent's employee still sold beer to an under aged person. However, I find that the mitigating circumstances are enough to merit a suspension of the Respondent's permit rather than revocation. The Respondent has previously been punished as follows:

a. $400 fine for selling beer to a person under twenty-one on October 14, 1997;

b. $800 fine for selling beer to a person under twenty-one on December 11, 1998;

c. $800 fine for selling beer to a person under twenty-one on April 6, 1999; and

d. Forty-five day suspension fine for selling beer to a person under twenty-one on October 19, 1999.

In this case, though the Respondent's employee sold beer to an under-aged person, I find that the Respondent's efforts to prevent sales of beer or wine to under-aged persons and the fact that the clerk did not deliberately sell to an under-aged person, thereby lessening the clerk's culpability, warrants a suspension rather than revocation.

ORDER



Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that Respondent's beer and wine permit be suspended for ninety days.

AND IT IS SO ORDERED.

___________________________

Ralph King Anderson, III

Administrative Law Judge

March 30, 2001

Columbia, South Carolina

1. This Order cites the most recent supplements because the statutes and regulations pertaining to this case have not been amended subsequent to this violation.


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