ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks to revoke a beer and wine permit and a
liquor license of Diamond Mine Billiard Club (Diamond Mine). In addition, DOR seeks to impose
fines of $2,100. Diamond Mine opposes DOR's position and asserts that neither a revocation nor a
fine is warranted. Diamond Mine's disagreement with DOR's determination places jurisdiction in the
Administrative Law Judge Division (ALJD). S.C. Code Ann. § 61-2-260 (Supp. 2002); S.C. Code
Ann. Sec. 1-23-310 et. seq. (Rev. 1986 and Supp. 2002). Based upon the evidence and the
arguments presented by the parties, Diamond Mine's liquor license and beer and wine permit are each
suspended for 15 days.
II. Issues
1.Has Diamond Mine violated S.C. Code Ann. Regs. 7-9(B) (Supp. 2002) by selling beer to a
person under 21 years of age and has Diamond Mine violated S.C. Code Ann. Regs. 7-9(A)
(Supp. 2002) by permitting a person under 21 years of age to purchase liquor?
2.Has Diamond Mine violated S.C. Code Ann. Regs. 7-9(B) (Supp. 2002) by permitting
a person under 21 years of age to be in possession of beer?
3.If the violations alleged are established what is the proper penalty?
III. Analysis
A. Sale to an Underage Person
DOR asserts that a sale of beer and a sale of liquor was made knowingly to an underage individual.
Diamond Mine disagrees. Diamond first asserts the sales were not made knowingly since the
purchaser presented an identification showing she was 21 or older. Second, Diamond Mine argues
in the alternative that the sales were simply errors in judgment not sufficient to constitute making the
sales knowingly.
1. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Diamond Mine holds an on-premises liquor license and an on-premises beer and wine permit utilized
at 705 South Irby Street, Florence, South Carolina. On December 13, 2001, an undercover
cooperating individual (UCI) employed by SLED arrived at the location. She was 19 years old (date
of birth May 31, 1982).
She was dressed in jeans and a tee shirt and did not use any disguise seeking to make her appear
older. The only items in her possession were her South Carolina drivers license, twenty dollars in
currency, and a membership card to the Diamond Mine. The membership card had been issued to
the UCI on November 29, 2001 and carried the UCI’s signature.
The UCI was met at the entrance to the location by an individual employed by the Diamond Mine.
Among other duties, the employee was to check the identification of patrons seeking to enter the
location. In response to the employee's request for identification, the UCI presented her valid South
Carolina drivers license. The license showed a date of birth of May 31, 1982. The employee
examined the license, returned it to the UCI, asked the UCI to sign in, and then provided a wrist band
for the UCI’s arm. The wrist band carried a graphic depicting the letters D.M.S.B.G., a typed
number of 85338, and a hand written number of 54-01-3081.
The UCI proceeded to the bar and ordered a beer and a tequila from the bartender. The bartender
did not ask for any identification but instead relied upon the wrist band as evidence of legal age. The
UCI paid for the drinks and left the bar area but remained in the facility near the billiard tables.
Approximately fifteen minutes after the UCI entered the Diamond Mine, two SLED agents entered
the location and identified themselves to the employee at the entrance door. Within a few minutes,
the employee at the door and the bartender were told by SLED that the UCI was not yet 21. The
employee at the door disagreed and maintained that the identification shown to him was that of an
individual who was at least 21. The female SLED agent then accompanied the UCI to a restroom
within the location where the agent conducted a pat-down search of the UCI. No additional
identification was found.
Civil citations were issued to the Diamond Mine for violating South Carolina Regulation 7-9(B) due
to permitting the purchase of beer by a person under 21 years of age and for violating South Carolina
Regulation 7-9(A) due to permitting the purchase of liquor by a person under 21 years of age. These
two citations are not the first issued at the location.
On October 26, 2001, the Diamond Mine was charged with permitting the possession of liquor by
a person under 21 and charged with permitting the possession of beer by a person under 21. A fine
of $400 was paid for the beer violation and $500 for the liquor violation. In addition, during the year
2000, the Diamond Mine had violations for permitting the consumption of liquor by non-members
for which total fines of $800 were paid.
2. Conclusions of Law
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
a. Introduction
For violations occurring on December 13, 2001, any holder of a permit or a license or any employee
of the permit holder or the license holder who knowingly sells beer or wine or liquor to a person
under twenty-one years of age creates a ground for a sanction against the permit holder or the license
holder. S.C. Code Ann. §§ 61-4- 580(1) and 61-4-590 (Supp. 2002); S.C. Code Ann. Regs. 7-9(A);
S.C. Code Ann. Regs. 7-9(B) (Supp.2002).
In this case, the evidence is undisputable that sales of beer and liquor were made to a 19 year old.
However, the Diamond Mine argues the sales were not made knowingly. First, the sales were not
made knowingly since the UCI showed an identification representing that she was at least twenty-one.
In other words, the allegation is that the UCI presented a fake identification. Second, in the
alternative, the Diamond Mine argues that the sales were the result of simply misreading the
identification such that the sales were not intentional sales to an underage person. I am unable to
agree with either position.
b. Presenting the Identification
The trial judge exercises discretion in weighing the credibility of testimony. S.C. Dept. of Social
Services v. Forrester, 282 S.C. 512, 320 S.E.2d 39 (Ct.App.1984). In this case, the UCI testified
that she entered the Diamond Mine with only one age identification document, her valid South
Carolina drivers license. That license showed her age as 19. She explained that she had no other age
identification on her.
The UCI’s testimony is corroborated by the testimony of the female SLED Agent who was at the
location the night of the incident. The SLED Agent testified that she searched the UCI before the
UCI entered the Diamond Mine and again while the UCI was still inside the Diamond Mine. In both
cases, no age identification document other than the UCI’s drivers license was in her possession.
Therefore, considering all of the circumstances, I find the UCI had only one age identification
document on her while in the Diamond Mine, the UCI’s valid South Carolina drivers license which
showed her age as 19. Further, I conclude the UCI presented only her valid South Carolina drivers
license to the Diamond Mine employee at the entrance door. Thus, I find the UCI did not present
a fake identification. Accordingly, I conclude the Diamond Mine’s defense that the sales were not
made knowingly due to a fake identification has not been proven.
c. Error in Judgment
The Diamond Mine also argues that the sales were simply errors in judgment not sufficient to
constitute making the sales knowingly. I cannot agree.
The commonly accepted methodology for examining the facts of a sale has been addressed by case
law.
Within the meaning of the term, "knowingly,"as used in the statute, if the clerk knew
that the [purchaser] 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, 26 S.E.2d 22 (1943).
Under Feldman, a sale is made knowingly when two steps are satisfied. First, from the view of a
prudent man (as opposed to the view of the actual seller), the objectively determined information that
such a person would have witnessed must be sufficient to reach a belief that the buyer is under
twenty- one. Second, the belief becomes tantamount to knowledge where a mere inquiry is all that
is required to confirm the belief.
1. Prudent or Reasonable Man
The first step requires the view of a prudent man. The view of a prudent man is one that is
"[p]articularly wise, judicious, careful, ..." Black's Law Dictionary 1226 (6th ed. 1990). While
Feldman uses the words "prudent man," dicta implies the measuring language is that of the
"reasonable person." Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990). Even if Daley
limits Feldman, the reasonable man standard requires the party to exercise that judgment required
under all of the known circumstances surrounding the event with such judgment commiserate with
the danger known or reasonably apprehended. Perry v. Carolina Theater, 180 S.C. 130, 185 S.E.
184 (1936). In determining the danger known or reasonably apprehended, one must acknowledge
the fact that a significant purpose of the statute and regulation under review is to protect not only the
underage party but also 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). Accordingly, before
making a sale, the seller must view all of the circumstances presented in order to determine if a
reasonable man would form a belief that the potential purchaser is not yet 21.
2. Duty to Inquire
The second step of Feldman requires that an "inquiry must bring knowledge of [the age of the
purchaser] home to [the seller]." In other words, the basis for confirming the belief (and thus
converting such belief to knowledge) must be capable of confirmation by simple inquiry.
The inquiry rule of Feldman is reasonable given the highly regulated nature of beer, wine and alcohol.
Just as a person has no right to shut his eyes to avoid information clearly before him, when the
information before the eyes of a prudent or reasonable person is such that a prudent or reasonable
person would have reason to believe the buyer is not yet twenty-one, the seller has no right to prevent
that belief from becoming knowledge when such knowledge is easily obtainable by a simple inquiry.
3. Facts Applied to the Law
Here, the reasonable or prudent man on December 13, 2001 would have seen that the female
purchaser had a youthful appearance. Accordingly, a prudent person or reasonable man would have
reached a belief that the buyer was under twenty-one. Thus, a duty to inquire arose before the sale
could be made.
Under the facts of this case, before making the sale, the bartender did not ask for any age verification
despite the purchaser's youthful appearance. Accordingly, the lack of an age inquiry is the equivalent
of closing one's eyes to the obvious and thus making the sale knowingly.
Further, under the facts of this case, the conclusion that the sales were made knowingly is not altered
by the presence of the wrist band. The evidence establishes that anyone with a wrist band was allowed
to purchase beer or alcohol. However, here, the UCI obtained her wrist band by providing the
employee at the door with a valid South Carolina drivers license which plainly showed the individual
was not yet 21. No misreading of the identification occurred since the date of birth was plainly stated
on the card. Thus, the employee granted the UCI a wrist band despite plain evidence that the
individual was not yet 21. Such an action amounts to knowingly selling beer and alcohol to an
underage individual.
B. Possession By An Underage Person
DOR argues that a second offense occurred on December 13, 2003 since two underage patrons were
present at or near the bar area and each had possession of beer. The Diamond Mine argues no
violation occurred since the bartender did not serve the two and had no knowledge that the two were
in possession of beer.
1. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
When the UCI entered the location, several patrons were present in the facility. Two patrons of
youthful appearance had containers of beer and were at or near the bar. Approximately fifteen
minutes later when the two SLED Agents entered the Diamond Mine, the two were still seated at or
near the bar and each was either holding an open container of beer or had a beer container in front
of him. Neither Subject 1 nor Subject 2 had on a wristband indicating they were 21 nor did either
have any other marking provided by Diamond Mine to indicate the two were under 21. In fact, both
were under 21 (Subject One was 20 with a date of birth June 16, 1981 and Subject Two was 18 with
a date of birth July 26, 1983).
Both were within view of the bartender who was at a distance of approximately three or four feet
from the two. However, the bartender did not serve beer to them. Further, the bartender did not
observe the two drinking the beer.
After determining the ages of Subject One and Subject Two, a SLED Agent issued a citation to each
for possession of beer by a person under 21.
2. Conclusions of Law
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
For acts occurring on December 13, 2001, S.C. Code Ann. Regs. 7-9(B) (Supp. 2002) explains that
“to permit or knowingly allow a person under twenty-one years of age to . . . possess . . . beer or
wine in or on a licensed establishment which holds a license or permit issued by the South Carolina
department is prohibited.” Accordingly, the issue is whether the Diamond Mine permitted or
knowingly allowed the possession of beer by the two individuals.
Possession is established since the term “means to have the actual dominion, control, care, and
management of the liquor." See 48 C.J.S. Intoxicating Liquors § 266 at 783 (1981). Here, each was
either holding a beer or had a beer container immediately in front of them. Such is sufficient evidence
of control to warrant possession.
In addition, the Diamond Mine permitted the possession. Permitted means “to consent to formally
(permit the inspection to be carried out); to give opportunity for (lax security permitted the escape);
or “to allow or admit of (if the law so permits). Black's Law Dictionary (7th ed. 1999). Given the
highly regulated nature of beer and alcohol coupled with the express desire of the General Assembly
to limit access to beer of individuals under 21, the inquiry most appropriate here is whether the
Diamond Mine permitted the possession by giving an opportunity for the two individuals to possess
the beer. The answer is yes.
Under the established evidence, the bartender was within three or four feet of Subject One and
Subject Two. Further, the two had containers of beer when the UCI came in and were still in
possession of the beer when the two SLED Agents entered fifteen minutes later. Such a time period
is sufficient to allow the employees of the Diamond Mine to realize that the two individuals were in
possession of beer. Indeed, having admitted patrons who were not yet 21, the Diamond Mine had
a heightened duty to observe and investigate patrons who were without wrist bands but who were
in possession of beer or alcohol. Accordingly, the Diamond Mine permitted the two individuals to
possess beer.
C. Penalty Imposed
Given the violations found above, the remaining decision is what penalty is proper. DOR seeks to
revoke the beer and wine permit and the liquor license. In addition, DOR seeks to impose fines of
$2,100.
In the final analysis, a decision of whether to impose a monetary fine, or a suspension, or a
revocation, or some combination of these is left to the Administrative Law Judge as the fact-finder
based on the totality of the facts presented. Walker v. South Carolina ABC Comm'n, 305 S.C. 209,
407 S.E.2d 633 (1991). Under the facts of this case, I conclude that a revocation is not warranted
and that a fine is not in order. Rather, the violations warrant a suspension of 15 days for the beer and
wine permit and for the liquor license.
Here, the primary concern is whether the occurrence of past violations of selling to underage
individuals is likely to continue in the future. If yes, a revocation and a fine may be proper. However,
a major mitigating factor rendering a revocation and a fine improper is management’s decision to
prohibit entrance to anyone not yet 21. Thus, sales or possession for underage parties will no longer
be a concern in the future.
Obviously, management must be diligent in enforcing the new policy. However, I conclude
management will be vigilant since testimony from a knowledgeable SLED agent characterized
management at the Diamond Mine as being that of one “who tries to stay in compliance.”
Accordingly, a 15 day suspension is proper as a sanction for the existing violations.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
The liquor license and the beer and wine permit for the Diamond Mine Billiard Club is suspended
for 15 days with that suspension beginning five days from the date of this Order.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: November 26, 2002
Columbia, South Carolina |
