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.
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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.
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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.
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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).
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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).
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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
allow a personunder
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.
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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).
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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 |