ORDERS:
ORDER AND DECISION
This matter comes before me on the citation issued by the Department of Revenue and
Taxation for a violation of 23 S.C. Code Regs. 7-9(B), sale of beer and wine to a person under the
age of 21. The Department seeks a fifteen day suspension or a $400 fine. After notice to the parties,
a hearing was conducted on October 19, 1995. Based upon the evidence and the law, a violation of
23 S.C. Code Ann. Regs. 7-9(B) occurred and a fine of $100 is imposed.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases by a preponderance of the evidence and taking into account the
credibility of the witnesses:
1. Walter B. Todd is the holder of an off-premises beer and wine permit for the Pantry
convenience store located in Camden, South Carolina.
2. On the evening of July 22, 1995 Sandra Collins, an underage individual cooperating
with the Alcohol Enforcement Unit ("AEU") of SLED, entered Pantry #558 located at 301 Dekalb
Street in Camden, South Carolina.
3. Collins entered the Pantry with a valid South Carolina driver's license and ten dollars
in cash. The driver's license showed her date of birth as June 12, 1979 and in red at the top of the
license was a statement that the licensee was under twenty-one years of age until 06-12-2000. On
July 22, 1995, Collins was 16 years old.
4. Collins' appearance at the time she entered the store was youthful and was not of
someone who would obviously be assumed to be twenty-one years of age or older. At the time she
entered the store, there was only one sales clerk and two other customers.
5. After entering the store, Collins proceeded to the refrigerated case and selected a six
pack of Budweiser beer and walked to the counter to make the purchase. While Collins was at the
counter waiting to purchase the beer, another person stood in line behind her. Another person was
walking around the store.
6. The sales clerk requested identification from Collins, which she produced. While
examining the driver's license, the clerk attempted to calculate in her head Collins' age. In doing so
she said words to the effect of "1979 ... how old does that make you?" Collins started to answer
when the clerk interrupted and said " ... 24?". She then completed the sale. The clerk doesn't recall
saying anything aloud.
7. Collins left the store with the beer and got into the van parked in front of the store
where an AEU agent was waiting. Collins began to write her report of the transaction.
8. The clerk completed the sale of the other person in line, then she recalculated Collins'
age using a calculator located behind the counter. At that time she discovered her mistake.
9. The sales clerk left the store and went to the van. She tapped on the window and
offered Collins a refund for her purchase. At that time she realized that Collins was working
undercover. The clerk was informed that she would have to discuss the matter with the AEU agent
in charge who was approaching.
10. The AEU agent told her they could discuss the refund inside. The clerk indicated to
the agent she miscalculated the age of Collins. A citation was issued by the agent.
11. The Pantry stores have a strict policy prohibiting the sale of alcohol to minors. An
employee will be terminated if, through its investigation, an employee violated the policy. All
employees are trained regarding such sales through literature, videotapes and testing. The company
also conducts undercover spot checks similar to those conducted by SLED.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law:
1. Jurisdiction is vested in the Administrative Law Judge Division pursuant to S.C. Code
Ann. § 61-1-55 (Supp. 1994) with the hearing held under S.C. Code Ann. § 1-23-600(B) and 1-23-310 (Supp. 1994).
2. A permit holder is subject to revocation or suspension if the holder of an employee
on the licensed premises sells beer or wine to any person under twenty-one years of age. S.C. Code
Ann. § 61-9-410(1) (Supp. 1994).
3. All regulations promulgated by the former Alcoholic Beverage Control Commission,
effective on the date of the Government Restructuring Act of 1993, remain in force until modified
or rescinded by the Department of Revenue and Taxation or the State Law Enforcement Division.
1993 S.C. Acts 181, §1604.
4. 23 S.C. Code Regs. 7-9(B) (Supp. 1994) provides that it is prohibited to permit or
knowingly allow a person under twenty-one years of age to purchase beer or wine in or on a licensed
establishment.
5. A party manifests consent and knowledge to allowing a person under twenty-one years
of age to purchase beer if, from the appearance of the person or otherwise, the party had sufficient
information that would lead a prudent man to believe the person was under twenty-one especially
where simple inquiry would have confirmed such fact. Feldman v. S.C. Tax Comm'n, 203 S.C. 49,
26 S.E.2d 22 (1943); see 58 Am. Jur. 2d Notice § 14.
6. 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 § 168 (1981).
7. A sale of beer to a minor is forbidden irrespective of whether the sale is made by the
permit holder or by an employee. 48 C.J.S. Intoxicating Liquors § 259 (1981).
8. The sales clerk had before her the information she needed to determine that Collins
was under 21. The license clearly stated that Collins would not be 21 before June 12, 2000. The
clerk also had available a calculator to assist her in determining the age of Collins and in fact made
use of the calculator after the sale was complete.
9. The facts do support that once the error was recognized, the clerk attempted to
retrieve the beer through offering a refund. This evidence provides some mitigation in the sale.
Clearly, the clerk knew the sale should not have taken place and attempted to correct the error before
she learned that Collins was cooperating with the Alcohol Enforcement Unit.
10. S.C. Code Ann. § 61-13-510 (Supp. 1994) allows the imposition of a fine for the
violation of any regulation promulgated by the Department pertaining to beer and wine in lieu of
suspension or revocation. For a beer and wine permit the penalty shall be a fine of not less than $25
nor more than $1000. Under the circumstances described above a monetary penalty is imposed. The
mitigating factors set forth by the Respondent warrant a reduced penalty.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that a violation of 23 S.C. Code Ann. Regs. 7-9(B) was committed by Walter
B. Todd for the Pantry #558 located in Camden, South Carolina. Walter B. Todd shall pay a
monetary penalty of $100 within ten days of the date of this Order or the beer and wine permit shall
be suspended for a period of ten days.
AND IT IS SO ORDERED.
______________________________
ALISON RENEE LEE
Administrative Law Judge
November ____, 1995
Columbia, South Carolina |
