ORDERS:
ORDER AND DECISION on Motion to Clarify Order and
for Reconsideration
STATEMENT OF THE CASE
This matter comes before me pursuant to Linda Sellers' (Respondent) Motion to Clarify Order
and For Reconsideration (Motion) dated November 16, 1995, of my Order and Decision dated
November 8, 1995 (incorporated herein by reference and referred to hereafter as Previous Order).
Respondent also filed on November 17, 1995, a Motion to Stay my Previous Order
contemporaneously with the filing of the Motion for Reconsideration. By Order dated November 20,
1995, a stay of enforcement of the previous Order was granted.
The hearing on the Motion for Reconsideration was held at The Administrative Law Judge
Division Hearing Room, Edgar A. Brown Building, Columbia, South Carolina, on December 14,
1995. Oral arguments were made by counsel for both parties.
In her Motion, Respondent seeks a review of my Previous Order upon the following grounds:
1. That the Hearing Judge erred in his conclusions of law numbered (12) and (14) in
that insofar as these conclusions of law are based upon Feldman v. S.C. Tax Comm'n,
203 S.C. 49, 26 S.E.2d 22, and the definition of "permit" in Black's Law Dictionary,
they are unsupported by the evidence, which clearly showed that the UCI appeared
to be in her late twenties or early thirties and there was nothing whatsoever about the
physical appearance or actions of the UCI to indicate that any inquiry regarding proof
of age was needed, as discussed below.
2. That the Hearing Judge erred in failing to make a finding of fact regarding the age
the UCI appeared to be on the night of the alleged violation, in that such a finding is
necessary to an analysis of the case under Feldman, Regulation 7-9 (b) and other
applicable South Carolina law. Respondent asserts that Feldman requires that the
seller have information before him at the time of the sale which renders a failure to
require positive identification an omission which imputes knowledge of facts which
he might have ascertained with further inquiry. She further asserts that the only
information before Mr. Warner at the time of the sale was the UCI's physical
appearance, which was not only an appearance of advanced age, but a deliberate
deception of the clerk by SLED designed to create the appearance of a technical
violation where no actual violation occurred.
3. That the Hearing Judge erred in his Conclusions of Law numbered (12) and (14)
in that such conclusions are unsupported by any Finding of Fact that the clerk had
sufficient information before him at the time of the purchase to render his failure to
request proof of age "permitting" the purchase of beer by a person under 21. The
Respondent asserts that there was nothing whatsoever about the physical appearance
or actions of the UCI to indicate that proof of age was needed, and that all of the
credible testimony at the hearing showed that the UCI appeared to be in her late
twenties or early thirties.
4. That the hearing Judge erred in failing to set forth findings of fact which
adequately support his conclusions of law numbered (12) and (14), and that such
findings were based on an error of law.
5. That the hearing Judge erred in denying Respondent's motion at the conclusion of
the hearing to dismiss the charges based upon the presence of a violation of the South
Carolina Constitution prohibition against unreasonable searches and seizures, in that
the totality of the circumstances surrounding the use of the physically deceptive UCI
where there is no evidence in the record of a basis for investigating the Respondent
or her location and testimony indicates that there is no standard or basis for SLED
accessing businesses for the purpose of inspection constitutes an abuse of the
regulatory discretion of SLED and an unwarranted intrusion into even a traditionally
heavily regulated business. Respondent asserts that such an abuse is a violation of her
constitutional rights warranting dismissal of any ensuing charges.
The South Carolina Department of Revenue and Taxation (Department) filed a Response to
Respondent's Motion, setting forth specific grounds for denial of Respondent's Motion and for
affirmation of my previous Order.
DISCUSSION
Each of the five grounds raised by Respondent in her Motion as well as the Department's
Responses thereto are addressed hereafter.
The thrust of Respondent's argument is that this tribunal erred in not making a specific finding
of fact of the UCI's age as of June 10, 1995, the date the beer was sold to her. Further, not having
made such a finding, this Tribunal cannot apply the legal analysis as enunciated in Feldman v. S.C.
Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
In Feldman, the clerk at a retail liquor store sold an alcoholic liquor to a male who was five
feet tall and seventeen years of age. One witness at trial stated that the purchaser appeared to be 14
or 15 years of age. The clerk had reason to believe the purchaser was twenty-one years of age, giving
as the basis of his belief an incident about eight years prior to the sale when he, while employed as
a police officer in the town of Summerton, had arrested him and the boy's mother had told him the
boy was about twelve years of age. The Court stated that from that information it could only be
inferred the boy was twenty years old on the date the sale occurred. Further, the clerk never
questioned the boy concerning his age. The Court affirmed the decision of the South Carolina Tax
Commission whereby it found the clerk had violated the statute forbidding the sale of alcoholic
liquors to a person under twenty-one years of age.
In Feldman, the Court held that under the meaning of the term "knowingly," if the clerk knew
that the boy was a minor or had such information, from his appearance or otherwise, as would lead
a prudent person to believe he was a minor, then if followed by inquiry whereby knowledge of the
minor's age was ascertained, then the sale was made knowingly. Further, the Court held that under
a statute so worded, "it is generally held that knowledge by the seller of the minority of the buyer is
an essential element of the offense."
Thus, the phrase "knowingly" as enunciated in S.C. Code Regs. 7-9(B) (Supp. 1995), requires
the Department to show that Respondent had knowledge that the UCI was under twenty-one years
of age.
The tests are:
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.
In this case, Respondent's clerk, another employee and a customer in the store each testified
that the UCI on the date she purchased the beer at Respondent's location looked to be at least twenty-five years of age and possibly as old as thirty-five years of age.
At a reconvened hearing on February 8, 1996, at the Administrative Law Judge Division
Offices, Columbia, South Carolina, the UCI appeared dressed in the same clothing (excepting a black
top or vest) she wore on the evening she made the purchase of the beer. The testimony of the same
three witnesses, after viewing her at this hearing, was that her appearance on the hearing date was
the same except that her hair had been cut somewhat and she did not have on a black vest or shirt as
worn on the evening of June 10, 1995.
Thus, the issue rests on the credibility accorded to the testimony of the Department's
witnesses (SLED agents) versus that of Respondent's witnesses. Having viewed the UCI now on two
occasions and upon review of the photograph of the UCI(1), I find and conclude that on June 10, 1995,
when the UCI made the purchase of the beer at Respondent's store, she was sufficiently youthful in
appearance to require any person selling an alcoholic beverage to her to make independent inquiry
into her age. I do not find the testimony of Respondent's witnesses to be credible concerning the
UCI's age.
ORDER
Accordingly, it is hereby
ORDERED that my Previous Order dated November 8, 1995, remain in effect in all respects,
except as hereinafter amended:
1. Finding of Fact No. 12 is deleted in its entirety and the following is substituted in lieu
thereof:
The UCI appeared youthful in appearance at both hearings. In neither instance did
she appear to be twenty-five years of age or older. Her appearance was that of an
individual in her late teens or early twenties.
2. The last paragraph on page 9 in the Discussion section is deleted in its entirety and the
following is substituted in lieu thereof:
In the instant case, even considering the youthful appearance of the UCI (Ms. Pagan),
Mr. Warner failed to make independent inquiry about her age and failed to ask to
review her driver's license. A cursory glance at her driver's license would have
revealed the statement in the upper right-hand corner that Ms. Pagan "Will not be
twenty-one until May 23, 1998." Accordingly, having failed to exercise that caution
which is required of a prudent man under the same circumstances, followed by an
inquiry of Ms. Pagan's age, Mr. Warner knowingly sold the beer to her and knowingly
permitted her to reduce it to her possession.
3. The following is added at the end of Conclusion of Law #8:
The tests are whether the Respondent knew that the UCI was under 21 years of age
through independent knowledge, or had such information from the UCI's appearance
or from other information, which would cause a prudent person to believe the UCI
was under 21 years of age and, would cause the same prudent person to conduct an
inquiry to ascertain the correct age.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
February 13, 1996
1. Petitioner's Exhibit #1 |
