ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann.§ 61-1-55 (Supp. 1994) and
S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1994) upon request for a hearing by
Respondent after being cited for sale of beer to a person under the age of twenty-one, an alleged
administrative violation of S.C. Code Ann. § 61-9-410 (Supp. 1994) and 23 S.C. Code Ann.
Regs. 7-9(B) (Supp. 1994) against his beer and wine permit occurring on or about April 6, 1995.
The South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR")
seeks a thirty-day suspension of Respondent's permit for the alleged violation. A hearing was held
on August 28, 1995. The facts presented do not constitute a violation of the cited charges. The
citation is dismissed.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Respondent holds an on-premises beer and wine permit, permit #BW 608922, at
7467 A-2 St. Andrews Road, Columbia, South Carolina, for a restaurant and bar known as
Gooney Bird's.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
parties.
(3) The licensed location is a family-oriented restaurant with a bar area. Bar sales
comprise approximately 15% of the location's business.
(4) On April 6, 1995, Amie Renee Watts, an underage individual working in cooperation
with Agent James Causey of the South Carolina Law Enforcement Division, Alcohol Enforcement
Unit (hereinafter referred to as "SLED"), entered the licensed premises.
(5) Amie Watts' date of birth is August 8, 1975, making her nineteen (19) years of age on
April 6, 1995.
(6) Amie Watts went to the bar of Gooney Bird's and ordered a Budweiser beer from
Joanne Prince, the bartender.
(7) Joanne Prince served Watts an opened bottle of Budweiser beer with a mug.
(8) Amie Watts did not drink any portion of the beer.
(9) Joanne Prince did not request payment for the beer and Amie Watts did not offer
payment.
(10) Payment for the beer was never made.
(11) SLED Agent James Causey entered the licensed premises approximately six to eight
minutes after Amie Watts and approached Watts and Prince.
(12) Agent Causey observed the beer on the bar in front of Watts and believed Watts had
paid for the beer.
(13) Agent Causey issued a criminal citation to Joanne Prince and an administrative
citation against Respondent, licensee, for sale of beer to a person under the age of twenty-one.
(14) The criminal charge against Joanne Prince is pending and unresolved.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
(1) Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and Chapter 23 of Title I of the
1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in
this matter.
(2) S.C. Code Ann. § 61-9-410(1) (Supp. 1994) prohibits the sale of beer or wine to a
person under the age of twenty-one.
(3) 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1994) prohibits a licensee from knowingly
allowing the purchase or possession of beer by a person under the age of twenty-one (21) years
on the licensed premises. Respondent, however, was cited only for allowing the purchase of beer
by a person under twenty-one, not the possession.
(4) A "sale" or "purchase" requires more than just a transfer of possession. "[T]he terms
`sale' and `transfer' are not synonymous. The word `transfer' is more comprehensive than the
word `sale', and may involve a mode of dispensing and parting with property other than by sale.
So a mere transfer of a chattel is not a sale, nor is a mere contract to transfer a sale." 77A C.J.S.
Sales § 3(a) (1994). "While the essence of a sale is the transfer of the property in the thing from
seller to buyer for a price, in order to constitute a valid sale at common law there must be a
concurrence of elements...." 77A C.J.S. Sales § 9 (1994).
(5) "[W]here a customer enters a restaurant and receives, eats, and pays for food
delivered to him on his order, the transaction is a purchase and sale of goods." 77A C.J.S. Sales
§ 3 (1994).
(6) Amie Watts had possession of the beer, but a sales transaction was not completed.
The requisite elements do not exist to constitute a sale or purchase.
(7) Respondent or Respondent's agent did not sell beer to a person under the age of
twenty-one in violation of S.C. Code Ann. § 61-9-410(1) (Supp. 1994).
(8) Respondent did not allow 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. 1994).
ORDER
IT IS THEREFORE ORDERED that the citation issued against Respondent's beer and
wine permit is dismissed.
________________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
September 5, 1995
Columbia, South Carolina |
