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 Express, Inc., d/b/a Hess Express #40229
(Respondent) permitted or knowingly allowed an underage person to purchase
beer from Respondent's licensed establishment located at 1602 Highway 17
Sam Rittenburg Boulevard, Charleston, 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 October 2, 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 (#32022986P7B) for the convenience store located
at 1602 Highway 17 Sam Rittenburg Boulevard, Charleston, South Carolina.
2. On January 25, 2001, Katrina
Rivers, an officer with the Charleston City Police Department, with the
assistance of Underage Cooperating Individual (UCI) Michael Scognamiglio,
conducted a routine investigative operation at the licensed premises.
3. Prior to the UCI entering
the convenience store, Officer Rivers 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 October 11, 1981. The license
was stamped "UNDER 21 until 10-11-2002" in bold red letters.
5. Shortly after searching
the UCI, Officer Rivers observed the UCI entering the
convenience store.
6. The UCI entered the convenience
store at approximately 9:00 p.m. and walked to the cooler at the rear of
the store. He took a six pack of Miller Light bottles from the cooler and
purchased the beer from Charla Bailey, the clerk on duty employed by Respondent.
Ms. Bailey requested to see the UCI's Driver's License. The UCI provided
the license to Ms. Bailey. The identification presented was the UCI's South
Carolina Driver's License, which indicated his birth date to be "10-11-1981."
Nonetheless, Ms. Bailey sold the beer to the UCI. The UCI exited the store
and took the beer to Officer Rivers, who was outside the premises. The
UCI was nineteen years old at the time of the purchase.
7. On January 31, 2001, State
Law Enforcement Division (SLED) Agent Calvin Clark, with information obtained
from Officer Rivers, 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 25, 2001, Ms. Bailey 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 25, 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 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.
-
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).
8. Ms. Bailey 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. Bailey had information
that the UCI was under the age of twenty-one through Ms. Bailey's inspection
of the UCI's driver's license, which clearly indicated that the UCI was
born on October 11, 1981, and that he would be under the age of twenty-one
until October 11, 2002. In addition, given the UCI's youthful appearance,
any prudent person would have inquired about the UCI's correct age. Accordingly,
because Ms. Bailey 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. Bailey'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. Bailey could not possibly be guilty of violating § 61-4-90. Consequently,
counsel argued, a finding that Respondent Hess Express violated 23 S.C.
Code Ann. Regs. 7-9(B) (Supp. 2000) would allow the "rotten apple" of Ms.
Bailey'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. Bailey'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. Bailey'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 10-11-2002."
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 |