South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Group Therapy, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Group Therapy, Inc.
 
DOCKET NUMBER:
01-ALJ-17-0170-CC

APPEARANCES:
For the Petitioner: Jeffrey M. Nelson, Esquire

For the Respondent: Joseph M. McCulloch, Jr., Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

The South Carolina Department of Revenue (DOR) seeks to impose an $400 fine for a violation of the prohibition on knowingly selling beer to a person under the age of twenty-one. The Respondent opposes the fine and asserts no violation occurred since no sale was made knowingly.

This matter came before this Division for a contested case hearing on November 27, 2001, in Columbia, South Carolina.

FINDINGS OF FACT

Having carefully considered the testimony and the arguments of both sides, and taking into account the credibility of the evidence and witnesses, I find by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to all parties in a timely manner.

2. Respondent Group Therapy is a bar located at 2107 Greene Street, Columbia, South Carolina. Respondent holds an on-premises beer and wine permit (#3200569-PBG) for this location.

3. On October 26, 2000, the South Carolina State Law Enforcement Division (SLED)

conducted an undercover operation in the Five Points area of Columbia, South Carolina. The intent of the operation was identify and charge persons and businesses who were not following the alcohol laws of this state.

4. On October 26, 2000, there was an event underway in Five Points known as the

Carolina Bar Crawl. A patron who wished to participate in the Bar Crawl would go to a bar that was participating in the event. For a fee, the patron would receive a t-shirt, a mug and a wristband. The wristband was meant to signify that the initial bar had checked the patron's identification and that the patron was at least twenty-one years of age. As an official participant in the event, the patron could then go to a participating bar and have the mug filled with beer for $1.00.

5. On this night, Melanie Asche was working as an underage confidential informant

(UCI) for SLED. She was nineteen years of age. She was searched by the SLED agents. She was allowed to keep her valid Maryland drivers license in her possession. SLED also provided her with a small amount of cash. She went to a bar other than the Respondent's and followed the procedure set out above for becoming a participant in the Bar Crawl. Later the UCI went to the Respondent's bar. She was at all times accompanied by a plain-clothed SLED agent.

6. At the Respondent's bar, she presented her mug to the bartender and requested it be

filled with beer. The bartender, Mary Phillips, did not ask for age identification. Ms. Phillips filled the mug with beer. The UCI and the SLED agent poured a sample of the liquid for evidentiary purposes. At the hearing, the parties stipulated that the content of the sample was beer.

7. Ms. Phillips was then charged with a criminal violation of transferring beer to a person

under the age of twenty-one. The Respondent was charged with an administrative violation of permitting the purchase of beer by a person under the age of twenty-one.

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.2001) grants jurisdiction to the Division to hear

contested cases under the Administrative Procedures Act. S.C. Code Ann. §61-2-260 (Supp.2001) grants the Division the authority to hear contested case hearings in matters governing alcoholic beverages, beer, and wine.

2. Any holder of a permit or employee of the permit holder who knowingly sells beer

or wine to a person under twenty-one years of age creates a ground for a penalty or suspension of the holder's permit. S.C. Code Ann.§61-4-580(1)(Supp.2000); S.C. Code Regs. 7-9 (B) (Supp.2000).

3. The term "knowingly" is defined by case law in South Carolina.

Within the meaning of the term, "knowingly," as used in this 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). The Respondent claims that the bartender did not knowingly sell to a minor because the UCI was wearing a wristband and she had no reason to believe that the patron was under twenty-one years of age.

4. However, in this case that issue need not be reached. In this instance there is no

evidence that the bartender relied on the wristband. There is an affidavit in evidence from Scott Linaberry, manager of Group Therapy. He states that it was his understanding the procedure to be followed at the Pub Crawl was that "[i]f a patron arrived at our venue with the proper credentials it was understood that they had been appropriately checked and of age to legally purchase alcohol." However, Mr. Linaberry was not the bartender who served the UCI. His affidavit goes primarily to what he believed in terms of being allowed entrance to the bar. There is no evidence as to what the bartender believed or if the bartender had received any instructions from the manager contrary to normal operating procedure.

Additionally, the Employee Manual of Group Therapy, Inc., which Respondent placed into evidence tells bartenders that the final responsibility to make sure a patron is at least twenty-one years of age belongs to them. Therefore, I find based on what is before me that the bartender "knowingly" delivered the mug of beer to her.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Respondent pay a monetary fine in the amount of Four Hundred dollars ($400) to the Department of Revenue within thirty days of the date of this order.









AND IT IS SO ORDERED.



___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge



January 29, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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