South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Stanley Blackmon, d/b/a Blackmon's Mini Mart

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Stanley Blackmon, d/b/a Blackmon's Mini Mart
 
DOCKET NUMBER:
01-ALJ-17-0225-CC

APPEARANCES:
Jeffrey M. Nelson, Attorney for Petitioner

Stanley Blackmon, pro se
 

ORDERS:

FINAL ORDER AND DECISION

I. 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 et seq. (Rev. 1986 and Supp. 2000). The South Carolina Department of Revenue (Department) contends that Respondent Stanley Blackmon, d/b/a Blackmon's Mini Mart (Respondent) permitted or knowingly allowed an underage person to purchase beer from Respondent's licensed establishment located at 7673 North Hampton, Kershaw, 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 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.

II. 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 permit (#32011721PBG) for the convenience store located at 7673 North Hampton, Kershaw, South Carolina.

2. On March 8, 2001, State Law Enforcement Division (SLED) Agents Pat Jackson, Ashley Asbill, and Clayton Pope, with the assistance of Underage Cooperating Individual (UCI) Chad May, conducted a routine sting operation at the licensed premises.

3. Prior to the UCI entering the convenience store, the agents searched the UCI and determined that he had only a valid South Carolina Driver's License and $5 provided by SLED on his person. Shortly thereafter, the agents observed the UCI entering the convenience store.

4. The UCI entered the convenience store at approximately 9:00 p.m., walked to the beer/wine cooler, and took a 24 oz. can of Icehouse Beer from the cooler. The UCI proceeded to purchase the beer from Sarah Lucas, who was employed by Respondent as a sales clerk on March 8, 2001. Ms. Lucas did not request the UCI's Driver's License or any other form of identification for purposes of verifying his age, nor did she inquire as to his age. The UCI did not indicate verbally or through physical gesture or assertion that he was twenty-one years of age. Ms. Lucas completed the sale, and the UCI exited the store and took the beer to the agents who were outside the premises. The UCI was eighteen years old at the time of the purchase.

5. Agent Jackson and the UCI entered the location, approached Ms. Lucas, and introduced themselves as a SLED agent and a UCI.

6. Agent Jackson issued a criminal citation to Ms. Lucas, and issued a citation to Respondent for violating 23 S.C. Code Ann. Regs. § 7-9(B) (Supp. 2000).

7. For the incident occurring on March 8, 2001, Ms. Lucas 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. In a hearing before a magistrate, Ms. Lucas pled guilty and paid a fine of $225.

8. On the date of the hearing before this tribunal, the UCI's physical appearance accurately reflected his physical appearance on the night in question. The UCI appeared sufficiently youthful to merit an inquiry as to his correct 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.

CONCLUSIONS OF LAW

1. 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).

2. 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 person under twenty-one years of age to purchase or possess or consume beer and wine in 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.

3. 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. See State 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 irrespective 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 consonant with the public policy of preventing underage drinking. Ms. Lucas was employed by Respondent at the time the sale was made; therefore, Respondent is liable for her actions.

4. 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 knowingly allowed the UCI to purchase beer from the licensed establishment in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000). (1)

5. Ms. Lucas 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.



6. In the case at hand, the Department offered testimony establishing that Ms. Lucas had information that the UCI was under the age of twenty-one through the UCI's youthful appearance. The UCI's appearance would cause a prudent person to believe the UCI was under twenty-one years of age, and would cause the same prudent person to conduct an inquiry to ascertain his correct age. Nonetheless, Ms. Lucas failed to make this simple inquiry and acquiesced by failing to prevent a person under twenty-one years of age from purchasing beer at the licensed premises of Respondent. (2) Accordingly, because Ms. Lucas 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).7. 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). For example, the Department is authorized to revoke a licensee's permit for only a first violation. See S.C. Code Ann. §§ 61-4-270, 61-4-590 (Supp. 2000); 23 S.C. Code Ann. Regs. 7-9(B). Further, the Department may impose a monetary penalty as an alternative to revocation or suspension. S.C. Code Ann. § 61-4-250 (Supp. 2000). Under S.C. Code Ann. § 61-4-250, a monetary penalty of $25 to $1,000 for any violation relating to retail beer and wine licenses may be imposed.

8. The Department's Revenue Procedure 95-7 sets forth penalty guidelines for violations of the Alcohol Beverage Control laws. For retail beer and wine licenses, Revenue Procedure 95-7 provides for a $400 fine for the first offense, an $800 fine for the second offense, a 45-day suspension of the license for the third offense, and revocation of the license for the fourth offense. This Revenue Procedure only provides guidance to the Department; it is not law and thus is not binding on this Division. Cf. Home Health Serv. v. S.C. Tax Comm'n, 312 S.C. 324, 328, 440 S.E.2d 375, 378 (1994) and Ryder Truck Lines, Inc. v. U.S., 716 F.2d 1369 (11th Cir. 1983).9. In conclusion, the holder of a beer and wine permit is liable for the actions of its employees who sell alcohol to underage persons. Respondent's employee, Ms. Lucas, permitted or knowingly allowed the purchase of beer by a person under the age of twenty-one in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 2000). For the reasons stated above, a fine of $400 is appropriate.

IV. ORDER

IT THEREFORE ORDERED that Petitioner's request that Respondent be fined $400 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.



_________________________________

JOHN D. GEATHERS

Administrative Law Judge



August 8, 2001

Columbia, South Carolina

1. The preponderance of the evidence is "[t]he greater weight of the evidence" or "superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." Black's Law Dictionary 1201 (7th ed. 1999). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (2000) (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).

2. "Knowingly" in this context means if the clerk "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 at 25 (citations omitted). See also Norris v. Greenville, S. & A. Ry. Co., 111 S.C. 322, 97 S.E. 848, 850 (1919) ("When a person has notice of such facts as are sufficient to put him upon inquiry, which, if pursued with due diligence, would lead to knowledge of other facts, he must be presumed to have knowledge of the undisclosed facts.").


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