South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Glenda Hicks, d/b/a Foothills Spirits III

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Glenda Hicks, d/b/a Foothills Spirits III
 
DOCKET NUMBER:
02-ALJ-17-0037-CC

APPEARANCES:
Carol I. McMahan, Esq.
For Petitioner

Julian L. Stoudemire, Esq.
For Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001). The South Carolina Department of Revenue ("Department") contends that Respondent Glenda Hicks, d/b/a Foothills Spirits III, permitted the sale of alcoholic liquors to a person under twenty-one years of age at her liquor store located at 1363 Tiger Boulevard, Clemson, South Carolina, in violation of S.C. Code Ann. § 61-6-1500(3)(c) (Supp. 2001). For this first violation of Section 61-6-1500, the Department seeks to levy a $400 fine upon Respondent.

After timely notice to the parties, a hearing was conducted on May 23, 2002, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the testimony and evidence presented at the hearing, I find that Respondent has not violated Section 61-6-1500(3)(c) and that the $400 fine is, therefore, unwarranted.

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 Glenda Hicks holds a retail dealer license (# 32011678-PRL) for the sale of alcoholic liquors at the establishment located at 1363 Tiger Boulevard, Clemson, South Carolina, known as Foothills Spirits III. Respondent co-owns this establishment with her son, Michael Scott Porter.

2. On the evening of Friday, October 19, 2001, South Carolina Law Enforcement Division (SLED) Agent James Patrick Jackson and several other SLED agents were monitoring the establishment and stopping customers leaving the store who appeared to be under the age of twenty-one. Over the course of the evening, the SLED agents stopped approximately five customers leaving Foothills Spirits; however, only one of those customers was determined to be under twenty-one years of age.

3. That customer, Matthew Parker, a seventeen-year-old high school student residing in Central, South Carolina, entered Foothills Spirits on that evening and selected a small bottle of vodka and a larger bottle of rum to purchase. When Parker brought the bottles to one of the cash registers at the establishment, the clerk, O.C. Graham, asked Parker for identification. However, rather than presenting his actual driver's license, Parker showed Graham a doctored South Carolina driver's license that indicated he was twenty-three years old. Graham looked at the license as contained in a plastic photograph holder in Parker's wallet but did not ask Parker to remove the license from the plastic sheathing. Graham then completed the sale of the liquor to Parker.

4. Parker had made the fraudulent driver's license some two to three months earlier by altering a tattered driver's license (1) he had found at a local gas station. Parker inserted a cropped yearbook photograph of himself under the peeling covering of the license and over the original photograph on the license. Parker then re-laminated the license, trimming the edges of the laminating plastic to conform to the size of the original license; however, the edges of the doctored license continued to peel back. Yet, despite the peeling corners on the license, Parker successfully used the doctored license to purchase alcohol approximately ten times from four or five other locations before making the October 19, 2001 purchase at Foothills Spirits III. At the time of the sale, Parker had a goatee and mustache. Further, Parker's physical appearance was consistent with the physical description-i.e., age, sex, height, weight-listed on the altered driver's license.

5. Upon exiting Foothills Spirits, Parker was stopped by Agent Jackson. Agent Jackson identified himself as a SLED agent and asked to see Parker's identification. Parker presented the doctored license, which Agent Jackson requested that Parker remove from his photograph holder. Upon examining the license, Agent Jackson determined that it had been altered and questioned Parker as to his actual name and age. In response to this questioning, Parker admitted that he was under the age of twenty-one and that he had used the doctored license to purchase liquor from Foothills Spirits.

6. Agent Jackson testified that the dark shade of blue on the background of the yearbook photograph Parker had superimposed on the license drew his attention to the license as possibly having been altered. He also noted that the peeling laminate on the corners of the license suggested possible tampering and that, upon closer examination, the edge of the underlying original photograph on the license was visible on one side of Parker's superimposed photograph. On cross-examination, however, Agent Jackson was presented with several South Carolina driver's licenses, each with a different shade of blue as a background for the photograph, and was forced to concede that the shade of blue found in the background of a driver's license photograph is not a reliable means of determining whether the photograph on a license is authentic or not. Agent Jackson also testified that, while suggestive, peeling corners and rough edges on a driver's license can arise from normal wear and tear and do not necessarily indicate that the license has been tampered with.

7. Having determined that Foothills Spirits had sold liquor to an underage person, Agent Jackson confiscated the liquor and the altered driver's license from Parker and issued several citations. Parker was issued a criminal citation for the purchase and possession of alcoholic liquors by a person under the age of twenty-one in violation of S.C. Code Ann. § 20-7-8925 (Supp. 2001), and Graham was issued a criminal citation for transferring alcoholic liquors to a person under twenty-one years of age in violation of S.C. Code Ann. § 61-6-4070 (Supp. 2001). Parker entered into, and successfully completed, Pre-Trial Intervention on his alcohol charge. On November 21, 2001, the Honorable Gary M. Barnes, Municipal Judge for the City of Clemson, tried Graham on the charge of transferring liquor to a minor and found him not guilty of the charge. In addition to these criminal charges, Agent Jackson issued an administrative citation to Glenda Hicks, the named licensee of Foothills Spirits III, for permitting a person under the age of twenty-one to purchase alcoholic liquor from the licensed establishment in violation of S.C. Code Ann. § 61-6-1500(3)(c) (Supp. 2001).

8. In its final agency determination on the administrative citation, the Department found that a reasonable clerk: (1) would have required Parker to completely remove the driver's license from his wallet before allowing him to purchase liquor; (2) upon such removal, would have noticed that the driver's license had been altered; and thus, (3) would have refused the sale. Accordingly, the Department determined that Respondent Glenda Hicks, through her employee, O.C. Graham, had permitted a person under twenty-one years of age to purchase liquor from Foothills Spirits. For this alleged violation of Section 61-6-1500(3)(c), the Department seeks to impose a $400 fine on Respondent.

9. Respondent, however, argues that Graham conducted a reasonable examination of Parker and the identification he presented and reasonably concluded that Parker was over twenty-one years of age before completing the sale of the liquor. Therefore, Respondent contends, Graham, and by extension, Respondent, cannot be said to have permitted the sale of liquor to an underage individual.

10. I find that Graham reasonably concluded that Parker was over the age of twenty-one before he allowed Parker to purchase alcohol from the establishment. Therefore, I further find that Respondent did not permit an underage person to purchase liquor from her licensed establishment.

CONCLUSIONS OF LAW

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

1. The Department and SLED are charged with the responsibility of administering and enforcing the laws and regulations governing the sale and manufacture of alcoholic beverages in South Carolina. S.C. Code Ann. § 61-2-20 (Supp. 2001).

2. S.C. Code Ann. § 61-6-1500(3)(c) (Supp. 2001) prohibits holders of retail liquor licenses from selling liquor to persons under twenty-one years of age. This section provides that:

No retail dealer may:

. . . .

(3) sell, barter, exchange, give, transfer, or deliver, offer for sale, barter, or exchange or permit the sale, barter, exchange, gift, transfer, or delivery of alcoholic liquors . . . (c) to a person under twenty-one years of age . . . .



§ 61-6-1500(3)(c) (emphasis added).

3. Pursuant to S.C. Code Ann. § 61-6-100 (Supp. 2001), the Department has the authority to suspend or revoke a retail dealer's liquor license for violations of the Alcoholic Beverage Control (ABC) Act, which includes Section 61-6-1500. Further, for a violation of the statutes or regulations pertaining to the sale of alcoholic liquors, "the [D]epartment may, in its discretion, impose a monetary penalty upon the holder of a liquor license in lieu of suspension or revocation." S.C. Code Ann. § 61-6-4270 (Supp. 2001). For retail liquor licensees, this monetary penalty must be not less than $100 nor more than $1500. Id.

4. Here, the Department contends that Respondent, through her employee, permitted the sale of alcoholic liquors to a person under twenty-one years of age in violation of Section 61-6-1500(3)(c) and that the appropriate penalty for that violation under Section 61-6-4270 is a $400 fine.

5. Generally, in administrative proceedings, the burden of proof rests upon the party who asserts the affirmative of the issue. Leventis v. S.C. Dep't of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000); 2 Am. Jur. 2d Administrative Law § 360 (1994); see also Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 9.3, at 366-69 (2d ed. 2001) (stating that the burden of proof in civil matters is generally upon the party asserting the affirmative of an issue). More specifically, before the ALJD, "[i]n matters involving the assessment of civil penalties, the imposition [of] sanctions, or the enforcement of administrative orders, the agency shall have the burden of proof." ALJD Rule 29B. Therefore, in the case at hand, the Department must prove by a preponderance of the evidence that Respondent, through her employee, permitted the sale of liquor to an underage person.

Respondent's Liability for the Actions of her Employee

6. It is well established that, in interpreting a statute, the sole function of this tribunal is to determine and give effect to the intention of the legislature, with reference to the meaning of the language used and the subject matter and purpose of the statute. State v. Ramsey, 311 S.C. 555, 561, 430 S.E.2d 511, 515 (1993); see also Whitner v. State, 328 S.C. 1, 6, 492 S.E.2d 777, 779 (1997) ("We should consider, however, not merely the language of the particular clause being construed, but the word and its meaning in conjunction with the purpose of the whole statute and the policy of the law."). When the meaning of the language, the subject matter, and the purpose of Section 61-6-1500(3)(c) are considered together, it becomes apparent that the General Assembly intended holders of retail liquor licenses to be responsible for the actions and conduct of their agents and employees in violation of that section. Cf. 48 C.J.S. Intoxicating Liquors § 168 (1981). Therefore, the sale of liquor to a minor is forbidden under Section 61-6-1500(3)(c) irrespective of whether the sale is made by the named permit holder or by an employee of the permit holder. See 48 C.J.S. Intoxicating Liquors § 259 (1981). Moreover, this interpretation of Section 61-6-1500(3)(c) is consonant with South Carolina's public policy of preventing underage drinking.

7. Graham, the clerk who sold the liquor to Parker, was employed by Respondent at the time of the sale. Therefore, Respondent is liable for his actions, including the sale of liquor to Parker.

Whether Respondent Permitted the Sale of Liquor to an Underage Person

8. Section 61-6-1500(3)(c) prohibits retail liquor dealers from "permit[ting] the sale . . . of alcoholic liquors . . . to a person under twenty-one years of age." 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: i.e., if an individual is to "permit" something, the individual must have knowledge of what is being permitted. Therefore, for the holder of a liquor license to permit the sale of liquor to an underage person in violation of Section 61-6-1500(3)(c), the holder or its employee must have knowledge, either actual or constructive, that liquor is being sold to a person under the age of twenty-one.

9. In Feldman v. South Carolina Tax Commission, the South Carolina Supreme Court set forth a test for determining whether a sales clerk has knowingly sold an alcoholic beverage to an underage individual:

Within the meaning of the term, "knowingly," as used in [the alcoholic beverage laws], if the clerk knew that the [customer] 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, 56, 26 S.E.2d 22, 25 (1943); see also Norris v. Greenville, Spartanburg & Anderson Ry. Co., 111 S.C. 322, 330, 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."). Thus, if, when he sold the liquor to Parker, Graham either (1) had actual knowledge that Parker was under twenty-one years of age, or (2) had constructive knowledge that Parker was underage because Parker's appearance would have caused a prudent person to believe he was under twenty-one years of age and a subsequent reasonable inquiry into Parker's age would have revealed his true age, then Graham permitted the sale of liquor to an underage person.

10. Here, there is no evidence that Graham had any actual knowledge of Parker's age. Further, even if Parker's physical appearance was sufficiently youthful to merit an inquiry as to his age, I find that a reasonable inquiry into his age would not have revealed his true age. While, in an over-abundance of caution, a liquor-store clerk could require a customer to remove his driver's license from his wallet and physically manipulate the license to test its authenticity, a reasonable clerk could also rely on his visual inspection of a customer's license as contained in plastic sheathing in the customer's wallet as sufficient proof of the customer's age. Such were the circumstances in this case. Graham, finding Parker to appear sufficiently youthful to warrant an inquiry as to his age, requested proof of age from Parker. Parker presented a driver's license, which Graham visually examined. The license was plainly visible through the plastic photograph holder in the wallet and appeared to be Parker's valid license indicating that he was twenty-three years of age.

This visual examination did not reveal the license to be fraudulent. The license contained a properly-sized photograph of Parker on a blue background that reasonably appeared to be the authentic photograph on the license, and the physical description of the true holder of the license generally corresponded to Parker's physical appearance. Further, a reasonable clerk could find that the dog-eared corners of the license suggest normal wear and tear (e.g., the damage a license would receive from being washed or dropped in a parking lot), rather than illegal tampering. While Graham did not require Parker to remove the license he presented from the plastic case in his wallet, Graham did conduct a reasonable inquiry into Parker's true age by visually examining the license, and the results of that inquiry suggested that Parker was over the age of twenty-one.

11. In the case at hand, I find that Graham, and thus Respondent, did not permit the sale of liquor to a person under the age of twenty-one. Graham had no actual knowledge that Parker was under the age of twenty-one and, because his reasonable inquiry into Parker's age did not put him on notice that Parker was underage, he had no constructive knowledge that Parker was under twenty-one years of age.

12. Therefore, as neither Respondent nor her sales clerk permitted the sale of liquor to Parker, I find that Respondent did not violate Section 61-6-1500(3)(c) and that the imposition of a $400 fine for such a violation is unwarranted.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS THEREFORE ORDERED that the Department of Revenue's request for the imposition of a $400 fine upon Respondent for a violation of Section 61-6-1500(3)(c) is DENIED.

AND IT IS SO ORDERED.





______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667



June 17, 2002

Columbia, South Carolina

1. The license was a South Carolina driver's license issued on February 5, 1998. The licensed indicated that it was issued to a Columbia man born on July 27, 1978, who weighed 150 pounds and stood roughly six feet tall.


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