ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to an
administrative violation written against the beer and wine permit of Paula B. Green, d/b/a
the Pier at Garden City Beach, South Carolina ("location"), by an agent of the State Law
Enforcement Division's Alcohol Enforcement Unit. A citation was issued to Mrs. Green
for violation of ABC Regulation 7-9(B) by permitting possession of beer by a person
under twenty-one (21) years of age on or about April 2, 1994. The South Carolina
Department of Revenue and Taxation ("Department") is seeking a monetary penalty for
this alleged violation in the amount of $400.00 or a suspension of the beer and wine
permit for 15 days. Mrs. Green made a timely request for a hearing on the charge and
notice of the time, place and nature of the hearing was timely served upon the parties. On
October 18, 1994, a hearing was held at the Administrative Law Judge Division hearing
room in Columbia, South Carolina.
Prior to taking testimony, the Respondent moved for a dismissal of the charge and
administrative violation on the grounds that it violated the Double Jeopardy Clause of the
United States Constitution (U.S. Constitution, Amendment 5) and Article I Section 12 of
the South Carolina Constitution. The Respondent also raised entrapment as a defense.
Ruling on the motions was held in abeyance pending submission of written briefs by the
respective parties, which have now been filed. The motions are dismissed for the
reasons as set forth hereinafter.
I find the respondent guilty of the alleged violation and assess a monetary penalty
of $250.00.
EXHIBITS
Without objection, the Petitioner introduced the following two exhibits which were made
a part of the record:
1. A SLED fund expense voucher dated 4/2/94
2. A copy of the S.C. Drivers License of Reuben Alex Hardee, undercover agent of
SLED.
SUMMARY OF THE EVIDENCE
Paula A. Williamson, an agent of SLED assigned to the Alcoholic Beverage Control
Division of the Department testified that at approximately 5:30 p.m. on April 2, 1994 she, along
with undercover agent Reuben Hardee and special agent Aaron David Jackson, went to the Pier
location which is a bar/game room/fishbait and tackle store. She stated she searched Mr. Hardee
prior to him going into the location and he had $20.00 on his person. She further stated that she
then waited approximately fifteen (15) minutes before entering at which time Mr. Hardee told her
he had purchased a beer from the bartender. Upon Mr. Hardee's subsequent return to the car, she
stated he had $18.50 on his person.
Reuben Hardee stated he was born on June 23, 1974 and was nineteen (19) years of age
on April 2, 1994 when, acting as an undercover agent for the ABC enforcement section of SLED,
went upstairs and into the Pier with special agent Aaron David Jackson. He stated he and Mr.
Jackson went up to the bar, that Mr. Jackson first ordered and purchased a beer from the
bartender, Ricky Bradshaw, and approximately one minute later he then told the bartender he
wanted the same. He stated he paid for his beer and was not asked by anyone for an I.D. He said
he then went outside with the beer. He stated he had $20.00 when he went inside and $18.50
when he left. He further stated he has participated in a number of these operations, is paid a flat
fee of $50.00 and is always accompanied by a special agent.
Special agent Aaron David Jackson testified next, stating that he and Reuben Hardee went
inside the bar location at the Pier, with him going to the bar first and Reuben coming up beside
him shortly thereafter. He said he purchased a beer and paid for it. He testified that he heard
Reuben ask for the same thing he had purchased and saw Reuben pay for a beer as he was
walking away from the bar. He said the bar area was not busy and no one else was on the pier.
Ricky Gray Bradshaw, now a resident of Forest City, North Carolina, next testified as to
his employment on April 2, 1994, as a bartender at the Pier owned by Paula B. Green. He stated
that on April 2, 1994, when the SLED agent and the undercover agent came in, he was sitting on
a stool at the end of the bar and that only he and his wife were inside. He said agent Jackson
came up to the bar first, asked for a couple of beers and that after he got them, the other fellow
was then standing at the bar. He stated he placed both beers on the counter side by side. He
further said that when Mr. Jackson came to the counter he had $3.00 in his hand and thus he
didn't ask Mr. Hardee for an I.D., assuming he was selling both beers to Mr. Jackson.
Subsequently, he said that Mr. Jackson stated he was paying for his beer, pushed one beer aside,
and only paid for one beer. He stated Mr. Hardee then gave him a $20.00 bill and he gave him
change back. He stated he felt Mr. Hardee was "of age" and thus asked him for no identification.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. Paula B. Green owns a bar/game room/fishbait and tackle store and does business
under the name of the Pier at Garden City Beach, South Carolina. She is incorporated under the
name of The Pier, Inc.
3. Paula B. Green holds a permit to sell beer and wine for on-site consumption at this
location.
4. On April 2, 1994, Reuben Hardee, purchased a beer from Ricky Bradshaw, the
bartender and agent/employee of Paula B. Green, at the location known as the Pier, paying $1.50
for it. He was not questioned about his age nor was identification requested from him.
5. Mr. Hardee was accompanied to the location by special agent Pamela A.
Williamson, and went inside the location with special agent Aaron David Jackson.
6. Mr. Hardee was born on June 23, 1974 and was nineteen (19) years of age on
April 2, 1994.
7. Petitioner seeks a monetary penalty of $400.00 against the respondent or a
suspension of respondent's beer and wine permit for fifteen (15) days.
DISCUSSION
The respondent by motion at the hearing raised as a defense to the charge against her the
doctrine of Double Jeopardy. She argued that the criminal action against her employee
(bartender) in Magistrate's Court and the violation charge against her personally in this Court
violate the Double Jeopardy Clause of both the United States Constitution (U.S. Constitution,
Amendment 5) and Article 1, Section 12 of the South Carolina Constitution. It is her contention
that these are actions against agents of the corporate entity, The Pier, Inc., which is the "party"
forced to defend each action in these two separate forums. No cases were cited by the respondent
which have extended the protection of the Double Jeopardy clause to a corporation on the basis
of having to defend multiple agents in charges arising from the same incident. Also, this violation
charge is against Paula B. Green individually and not as an agent of her corporation. S.C. Code
Ann. § 61-9-320 sets out the qualifications for a beer and wine permit and specifically require an
applicant to be a legal resident of the United States, be of good moral character and be twenty-one (21) years of age or older. There is no authority to issue a license to a corporation and no
authority allowing an individual to assign it to a corporation. Thus, to impute the ownership of
the permit to the corporation which is required to make this argument, is without merit as is this
argument of the respondent.
The respondent also raised by motion at the hearing as a defense to the violation charge
the argument that the SLED agents induced, tricked or incited the respondent's agent to commit
the illegal act (sale of beer) and that but for their actions he would not have committed the crime.
However, there was no testimony that any SLED agent demanded that the bartender sell the beer
to undercover agent Reuben Hardee, used any undue influence based on personal relationships
with the bartender or promised and/or offered any bribe to the bartender. Here there was only a
simple request to purchase a beer. One pleading entrapment has the burden of showing that he
was induced, tricked or incited to commit a crime which he would not otherwise have committed.
State v. Johnson, 295 S.C. 215, 367 S.E. 2d 700 (1988). Entrapment has been defined as the
inducement of one to commit a crime not contemplated by him, for the mere purpose of
instituting a criminal prosecution against him. 21 Am.Jur. 2d, § 202, p. 363. The type of
entrapment that the law forbids is the inducing of another to violate the law, i.e. the origination of
the criminal intent in the mind of the entrapping person (police officer), luring and aiding the
accused into the commission of the offense. Here the intent originated in the mind of the
bartender. The South Carolina Supreme Court and the South Carolina Attorney General have
examined on several occasions the issue as it relates to sending undercover police officers into
establishments to elicit purchases and have consistently upheld this procedure. See 1957-58 Op.
Atty. Gen. 58 and 1975 Op. Atty. Gen. 22. Accordingly, this defense raised by motion is
dismissed as being without merit.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact and Discussion, I conclude as a matter of law
the following:
1. S.C.Code Ann. Section 1-23-600 (Supp. 1993) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative Procedures
Act.
2. S.C.Code Ann. Section 61-1-55 (Supp. 1993) grants to the Administrative Law
Judge Division the powers, duties and responsibilities as a hearing officer in protested and
contested matters governing alcoholic beverages, beer and wine.
3. ABC Regulation 7-9(B) prohibits a permit holder from permitting a person under
twenty-one years of age to possess beer in a licensed establishment. Based on the facts found
above, I conclude that the permittee and/or her agent violated ABC Regulation 7-9(B) on April 2,
1994.
4. Permits and licenses issued by the State for sale of liquor, beer, and wine are not
rights or property, but are rather privileges granted in the exercise of the police power of the State
to be used and enjoyed only so long as the restrictions and conditions governing them are
complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for
cause to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the
permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E. 2d 22
(1943).
5. S.C. Code Ann § 61-13-510 (1990) authorizes, in lieu of suspension or revocation
of a permit, the imposition of a monetary penalty of not less than twenty-five dollars nor more
than one thousand dollars for the violation of any regulation promulgated by the Department.
6. For reasons stated in the Discussion portion of this Order, the defenses of Double
Jeopardy and entrapment have no merit.
ORDER
Based upon the Findings of Fact, Discussion and the Conclusions of Law, Paula B.
Green, d/b/a Pier violated the provisions of Regulation 7-9(B) on April 2, 1994. It is therefore
ORDERED that Paula B. Green pay a monetary penalty in the amount of $250.00 for the
offense cited above. If the Petitioner does not receive a total of $250.00 from Paula B. Green
within fifteen (15) days from the date of this Order, it is Ordered that the beer and wine permit
#521996 be suspended for a period of fifteen (15) days. If the Petitioner does not receive the
funds as stated, any agent of the State Law Enforcement Division shall serve a copy of this Order
on Paula B. Green, and shall take possession of the beer and wine permit issued to Paula B.
Green, 110 S. Waccamaw Drive, Garden City Beach, South Carolina. Said agent shall hold the
permit for fifteen (15) days. Upon service of the fifteen (15) days suspension, said agent shall
return the permit to Mrs. Green. During the period of this suspension, Paula B. Green is ordered
to post a copy of this Order at a visible location at her place of business, and to cease and desist
all sales of beer and wine.
AND IT IS SO ORDERED.
_________________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
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