SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 61-2-20 and 61-2-260 (Supp. 2001). The South Carolina Department of Revenue (Department) seeks revocation of the Respondent's beer and wine permit for its fourth violation of 23 S.C. Code Ann. Regs. 7-9 (Supp. 2001). A hearing was held before me on September 5, 2002 at the offices of the Administrative Law Judge Division in Columbia, South Carolina.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner and the Respondent.

2. 3S Corporation, d/b/a Food Shoppe (Food Shoppe), holds off-premises beer and wine permit No. 32016892-PBG for the Food Shoppe located at 1300 Highway 501 Business, Conway, South Carolina.

3. The Food Shoppe has its new employees train with experienced employees for approximately forty (40) hours before they are allowed to sell merchandise on their own. The new employees are trained to ask for and check the identification of customers prior to the sale of alcoholic beverages. Also, employees are constantly reminded to check identification and the import of doing so. Furthermore, employees are told that the repercussion of selling to a minor is termination. ⁽¹⁾ This location also has a register that requires the cashier to enter the customer's date of birth prior to a sale of merchandise from a certain "department." This system has also been recently updated since the State lottery was implemented.

4. On January 24, 2002, an underage cooperating individual (UCI) entered the Food Shoppe. The UCI carried only his identification and money into the store. Additionally, at the time of this violation, the UCI was seventeen (17) years old and did not appear to be over the age of twenty-one (21).

While inside the store, the UCI purchased a twenty-two (22) ounce "Coors Light" bottled beer from Ms. Marlowe, the clerk on duty. Ms. Marlowe did not request to see the UCI's identification which stated the UCI's correct age. She also did not ask the UCI his age. The UCI testified that he handed the money directly to the clerk and received the change back from her. On the other hand, Bill Mott, a customer of the store who was in line behind the UCI, testified that the UCI placed the bottled of beer and money on the counter. After the clerk "rang up" the purchase, the change was automatically dispensed by the cash register. The UCI then picked up the change and the beer and began leaving the store. At that point, Ms. Marlowe called out to the UCI to stop although he did exit the store. ⁽²⁾

The clerk's attempt to stop the UCI is indicative of the fact that she did not intend to sell the beer to the UCI. Moreover, the UCI was standing behind the cash register rather than in the area where customers normally stood when purchasing items. On the other hand, Mr. Mott was standing in the area where customers making a purchase normally stand and, consequently, it seemingly appeared the he was the individual making the purchase. Therefore, I find that Ms. Marlowe was confused at the time of the UCI's purchase and mistakenly thought the beer belonged to Mr. Mott. That finding is further supported by the fact that at the time of the sale, the clerk was the only cashier on the premises and was responsible not only for attending to the fuel sales at one register, but also the in-store sales at another register.

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

1. S.C. Code Ann. § 1-23-600 (1986 & Supp. 2001) grants jurisdiction to the Division to hear contested cases under the Administrative Procedures Act. Specifically, 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. 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 governing them. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).

3. S.C. Code Ann. § 61-4-580 (Supp. 2001) sets forth that "No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder's permit: (1) sell beer or wine to a person under twenty-one years of age . . . ." Regulation 7-9 (B) further provides that:

To permit or knowingly allow a person under twenty-one years of age to purchase or possess or consume alcoholic beverages in or upon a licensed establishment which holds a license issued by the South Carolina Alcoholic Beverage Control Commission for the sale and consumption of alcoholic beverages in sealed containers of two (2) ounces or less is prohibited and constitutes a violation against the license. Such violation shall be sufficient cause to suspend or revoke the license by the Alcoholic Beverage Control Commission.

(Emphasis added). Accordingly, Regulation 7-9 (B) adds the term "to permit" a sale as part of the violation. However, "[a]lthough a regulation has the force of law, it may not alter or add to a statute." Goodman v. City of Columbia, 318 S.C. 488, 490, 458 S.E.2d 531, 532 (1995). Moreover, "[e]ach part of a statute should be given effect and each word given its plain meaning if this can be accomplished by any reasonable construction." Sea Island Scenic Parkway Coalition v. Beaufort County Bd. of Adjustments and Appeals, 316 S.C. 231, 236, 449 S.E.2d 254, 257 (Ct. App. 1994). Furthermore, the license holder is responsible for the actions and conduct of employees utilizing the permit upon the permitted premises. 48 C.J.S. Intoxicating Liquors § 259 (1981). ⁽³⁾ Therefore, I conclude that the language in Regulation 7-9 (B) insures that the permittee cannot seek to avoid the consequences of a violation for lack of personal knowledge because the permittee is responsible for the acts of his servants, agents, or employees. Nevertheless, in this case, the employee did not knowingly sell the beer to the minor. I therefore find that the evidence reflects that she believed that she was selling the beer to Mr. Mott. ⁽⁴⁾

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Department's revocation of the Respondent's beer and wine permit is denied.

AND IT IS SO ORDERED.

___________________________

Ralph King Anderson, III

Administrative Law Judge

December 17, 2002

Columbia, South Carolina

1. The part-owner of this location, Larry Sanders, who was not at the Food Shoppe when this sale was made, testified that he did not fire Ms. Marlowe after this incident because he did not believe she "knowingly" sold alcohol to the UCI. However, she did voluntarily leave his employ about a month later.

2. I do not find that the UCI intentionally left the store in a deliberate attempt to avoid the clerk's request. He most probably never heard the clerk's request that he return. Moreover, I find that the UCI was a credible individual. Nevertheless, the UCI had participated in twenty-four (24) "stings" the day this sale took place. Consequently, his recollection of the events surrounding this purchase were not specific. Also, the report he filled out after this incident did not contain many details and, in particular, details that would refresh his memory as to the specific events that were in dispute during this hearing.

3. Following that principle, the South Carolina Supreme Court likewise upheld a civil forfeiture of a corporation's boat based upon an employee's transporting drugs even though the corporation claimed the use of the boat to transport drugs was without its knowledge. South Carolina Law Enforcement Division v. The "Michael and Lance," 281 S.C. 339, 315 S.E. 2d 171 (S.C. App. 1984). The Court held that "[a] principal is affected with constructive knowledge of all material facts of which its agent receives notice while acting within the scope of his authority." Id. at 173, citing Crystal Ice Co. of Columbia, Inc. v. First Colonial Corp., 273 S.C. 306, 257 S.E. 2d 496 (1979).

4. At the time of the sale, the clerk was the only cashier but she was responsible for attending to the fuel sales at one register and the in-store sales at another register. This fact reflects why the clerk would be confused. However, the owner created the potential for such confusion by failing to have more than one cashier. Consequently, if permitting the purchase by a minor was the standard, rather than a "knowing" violation, I would find the owner in violation. Furthermore, the owners' action would certainly be a consideration in determining a proper penalty. Nevertheless, since I do not find this sale was made "knowingly," there can be no penalty for the owners' negligence.