South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Hess Mart, Inc., d/b/a Hess Mart #40261

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Hess Mart, Inc., d/b/a Hess Mart #40261
 
DOCKET NUMBER:
01-ALJ-17-0094-CC

APPEARANCES:
For Petitioner: Jeffrey M. Nelson, Esquire

For Respondent: Kenneth E. Allen, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE


This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and S.C. Code Ann. §§ 1-23-310 etseq. (Rev. 1986 and Supp. 2000). The South Carolina Department of Revenue (Department) contends that Respondent Hess Mart, Inc., d/b/a Hess Mart #40261 (Respondent) permitted or knowingly allowed an underage person to purchase beer from Respondent's licensed establishment located at 10148 Two Notch Road, Columbia, South Carolina. Accordingly, the Department seeks to impose a $400 fine against Respondent for this first violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000).

After timely notice to the parties, a hearing was conducted on August 7, 2001, at the Administrative Law Judge Division, Columbia, South Carolina. Based upon testimony and the evidence presented, the Department's request to fine Respondent $400 for violating 23 S.C. Code Ann. Regs. 7-9(B) is granted.

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 holds an off-premises beer and wine license (#32001947PBG) for the convenience store located at 10148 Two Notch Road, Columbia, South Carolina.

2. On January 11, 2001, State Law Enforcement Division (SLED) Agents Ben Moore and Jill Turner, with the assistance of Underage Cooperating Individual (UCI) Douglas Bruner, conducted a routine investigative operation at the licensed premises.

3. Prior to the UCI entering the convenience store, Agent Moore searched the UCI and determined that he had nothing in his possession other than money and a valid South Carolina Driver's License.

  • The UCI's drivers license stated his age as nineteen (19) years old with a date of birth
of December 23, 1981. The license was stamped "UNDER 21 until 12-23-2002" in bold red letters.

5. Shortly after searching the UCI, the agents observed the UCI entering the

convenience store.

6. The UCI entered the convenience store at approximately 11:44 a.m. and walked to the cooler at the rear of the store. He took a twenty-two ounce bottle of Bud Light from the cooler and purchased the beer from Rosalinda Sosa, the clerk on duty employed by Respondent. Ms. Sosa requested to see the UCI's Driver's License. The UCI provided the license to Ms. Sosa. The identification presented was the UCI's South Carolina Driver's License, which indicated his birth date to be "12-23-1981." Nonetheless, Ms. Sosa sold the beer to the UCI. The UCI exited the store and took the beer to the agents who were outside the premises. The UCI was nineteen years old at the time of the purchase.

7. On January 11, 2001, Agent Moore issued a citation to Respondent for violating 23 S.C. Code Ann. Regs. § 7-9(B) (Supp. 2000) by permitting the purchase of beer by a person under the age of 21.

8. For the incident occurring on January 11, 2001, Ms. Sosa was charged with a criminal violation of S.C. Code Ann. § 61-4-90 (Supp. 2000), for the transfer of beer to a person under the age of twenty-one.

  • On the date of the hearing before this tribunal, the UCI's physical appearance
accurately reflected his physical appearance on January 11, 2001. The UCI appeared sufficiently youthful to merit an inquiry as to his age before allowing him to purchase alcohol. Based on this tribunal's observation of the UCI at the hearing, a reasonable person would conclude that the UCI was under the age of twenty-one.

10. A four hundred ($400.00) dollar monetary fine is an appropriate penalty for a first

violation pursuant to Revenue Procedure #95-7.

CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the ALJD to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the ALJD the authority to hear contested case hearings in matters governing alcoholic beverages, beer and wine.

  • 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 that govern them. SeeFeldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

3. Holders of beer and wine permits are forbidden from permitting "any act, the

commission of which tends to create a public nuisance or which constitutes a crime...." S.C. Code Ann. § 61-4-580(5) (Supp. 2000).

  • The Department is charged with the responsibility of administering and enforcing the
laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-2-20 (Supp. 2000).
  • The Department alleges Respondent violated 23 S.C. Code Ann. Regs. § 7-
9(B)(Supp. 2000) by permitting or knowingly allowing a minor to purchase beer from Respondent's licensed establishment. Regulation 7-9(B) provides:

To permit or knowingly allowpersonunder twenty-one years of age to purchase or possess or consume beer and winein 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.
 

23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) (emphasis added). To warrant a finding of a violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000), the Department must establish that either Respondent or Respondent's servant, agent or employee permitted or knowingly allowed a person under twenty-one years of age to purchase beer from Respondent's licensed establishment.

  • It is well established that, in interpreting a regulation, the sole function of this
tribunal is to determine and give effect to the intention of the drafter, with reference to the meaning of the language used and the subject matter and purpose of the regulation. SeeState v. Ramsey, 311 S.C. 555, 430 S.E.2d 511 (1993). When the meaning of the language, the subject matter, and the purpose of the regulation are considered together, it becomes apparent that the drafters of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) intended beer and wine permit holders to be responsible for the actions and conduct of their agents or employees. See 48 C.J.S. Intoxicating Liquors § 168 (1981). Thus, the sale of beer or wine to a minor is forbidden regardless of whether the sale is made by the permit holder or by an employee of the permit holder. 48 C.J.S. Intoxicating Liquors § 259 (1981). Such an interpretation is consistent with the public policy of preventing underage drinking. Ms. Sosa was employed by Respondent at the time the sale was made; therefore, Respondent is liable for her actions.

7. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 Am. Jur. 2d.Evidence § 127 (2d ed. 1994); Alex Sanders et al.Trial Handbook for S.C. Lawyers § 9:3 Party With Burden, Civil Cases (2000). The Department is the party asserting the affirmative in this case; therefore, the Department must prove by a preponderance of the evidence that Respondent through its agent, servant, or employee permitted or knowinglyallowed the UCI to purchase beer from the licensed establishment in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000).

  • Ms. Sosa permitted or knowingly allowed the UCI to purchase beer from the licensed
establishment. To "permit" means "[t]o consent to formally" or "[t]o give opportunity for" or "[t]o allow or admit of." Black's Law Dictionary 1160 (7th ed. 1999). This tribunal concludes that to "permit," according to its common meaning, clearly requires knowledge. A party manifests knowledge and consent to allowing a person under twenty-one years of age to purchase alcohol if, from the appearance of the person or otherwise, the party had sufficient information that would lead a prudent person to believe the person was under twenty-one, especially when a simple inquiry would have confirmed such fact. Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). The Feldman case delineated a two-part test for determining whether the required degree of knowledge is present:

1. Whether the Respondent knew that the UCI was under 21 years of age through independent knowledge, or
 

2. Had such information from the UCI's appearance or from other information

a. which would cause a prudent person to believe the UCI was under 21 years of age, and

b. would cause the same prudent person to conduct an inquiry to ascertain the correct age.
 

In the case at hand, the Department offered testimony establishing that Ms. Sosa had information that the UCI was under the age of twenty-one through Ms. Sosa's inspection of the UCI's driver's license, which clearly indicated that the UCI was born on December 23, 1981, and that he would be under the age of twenty-one until December 23, 2002. In addition, given the UCI's youthful appearance, any prudent person would have inquired about the UCI's correct age. Accordingly, because Ms. Sosa was an employee of Respondent at the time of the sale, Respondent is liable for a violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000).

9. The Department is authorized to revoke or suspend the beer and wine permit of any 

licensee for committing a violation of the laws pertaining to alcoholic beverages or any regulation promulgated by the Department. See S.C. Code Ann. §§ 61-4-270 & 61-4-590 (Supp. 2000).Further, the Department may impose a monetary penalty as an alternative to revocation or suspension. S.C. Code Ann. § 61-4-250 (Supp. 2000). For the reasons stated above, a fine of four hundred ($400.00) dollars is appropriate.Arguments

At the hearing before the ALJD, counsel for Respondent argued that there was no

probable cause for Ms. Sosa's charge of S.C. Code Ann. § 61-4-90 (Supp. 2000), which states, in pertinent part:

It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption beer or wine at any place in the State.
 

S.C. Code Ann. § 61-4-90 (Supp. 2000).

Because there is no evidence that the UCI ever intended to consume the beer he purchased, counsel argued, Ms. Sosa could not possibly be guilty of violating § 61-4-90. Consequently, counsel argued, a finding that Respondent Hess violated 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) would allow the "rotten apple" of Ms. Sosa's allegedly erroneous arrest to taint Respondent's administrative proceedings. Counsel's "rotten apple" argument may be a valid one for criminal proceedings; however, this tribunal has jurisdiction over the administrative violation only. Ms. Sosa's criminal charge of transferring beer for a underage person's consumption is not before this tribunal. Instead, Respondent's alleged violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000) is the sole issue to be determined. The Department need not, and does not, rely on Ms. Bailey's arrest to establish Respondent's violation of 7-9(B). It relies only on Ms. Sosa's actions, including selling a beer to an obviously under-aged individual after checking his ID, which unequivocally pronounced that the bearer would be "UNDER 21 until 12-23-2002."

In conclusion, 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 an individual under the age of twenty-one.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that Petitioner's request that Respondent be fined $400.00 for violating 23 S.C.Code Ann. Regs. 7-9(B) (Supp. 2000) is granted. Respondent shall remit $400 to the Department within thirty (30) days of the date of this Order to satisfy the fine.

AND IT IS SO ORDERED.

_________________________________

C. DUKES SCOTT

Administrative Law Judge

October 8, 2001

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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