ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
These matters come before me upon a request by Respondent for hearings pursuant to
S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C. Code Ann. § 1-93-310, et seq. (Supp. 1995).
An administrative violation was written against Respondent's beer and wine permit, the South
Carolina Department of Revenue and Taxation (Petitioner or Department) alleging that
Respondent and/or his employee violated S.C. Code Regs. 7-9(B)(Supp. 1995), by "permitting" a
person under the age of twenty-one (91) years to purchase a beer on July 19, 1995, at the
permitted establishment known as Bill's Party Shop located at Highway #170, #9 Beaufort Plaza
Annex, Beaufort, South Carolina (permitted location). Also, an administrative violation was
written against Respondent's retail liquor license, the Department alleging that Respondent and/or
his employee violated S.C. Code Ann. § 61-3-990(3)(C) (Supp. 1995) by "permitting" the sale of
liquor to a person under twenty-one years of age on July 19, 1995 at the licensed establishment
known as Bill's ABC Store, Highway #170, Beaufort Plaza Annex, Beaufort, South Carolina
(licensed location).
The Department seeks a thirty (30) day suspension of Respondent's beer and wine permit
at the permitted location and a thirty (30) day suspension of Respondent's retail liquor license at
the licensed location.
Pursuant to notice, a hearing was held at the Administrative Law Judge Division hearing
room in Columbia, South Carolina on November 91, 1995. At the hearing, the parties requested
of the Court and agreed for both violation cases (Docket Nos. 95-ALJ-17-0591-CC and 95-ALJ-17-0591-CC) to be heard together and consolidated for trial. The Motion was granted.
Accordingly, this Order addresses both alleged violations and disposes of each case. I find that
Respondent violated S.C. Code Regs. 7-9(B) (Supp.1995) and S.C. Code Ann. § 61-3-990(3)(C)
(Supp. 1995) and assess a monetary penalty in the amount of three hundred and fifty dollars
($350.00) for the violation occurring at the permitted location and assess a monetary penalty in
the amount of seven hundred and fifty dollars ($750.00) for the violation occurring at the licensed
location.
Any issues raised in the proceedings or hearing of these cases but not addressed in this
Order are deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration
is not a prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).
ISSUES
1. Did Respondent or his agent violate the provisions 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1995) and/or the provisions of S.C. Code Ann. § 61-3-990(3)(C) (Supp. 1995) on or
about July 19, 1995, by permitting or knowingly allowing a person under twenty-one years of age
to purchase a beer and a container of gin?
2. If there are violations, what are the appropriate penalties?
POSITIONS OF THE PARTIES
Petitioner asserts that an employee of Respondent at the permitted location known as
Bill's Party Shop knowingly permitted the purchase of a beer by a person under twenty-one (21)
years of age, on or about July 19, 1995. Respondent asserts his employee, suspicious of an
underage individual when he entered the location, asked for and reviewed his driver's license,
misread it, concluded he was older than twenty-one (21) years and, thus did not intentionally or
willfully sell the beer to the underaged individual.
No testimony was presented by Respondent's employee at the licensed location, only that
of Respondent, who made the general statement as to standard practices applicable at all his
permitted and licensed locations for checking the ages of, and the sales of beer/ wine or alcoholic
beverages, to underaged individuals.
FINDINGS OF FACT
Having observed the witnesses and closely passed upon their credibility, taking into consideration
the burden of persuasion of the parties, I find that clear and convincing evidence establishes the
following facts:
FINDINGS OF FACT
1. This Court has subject matter jurisdiction in this case.
2. Respondent holds an off-premise beer and wine permit for Bill's Party Shop, and a
retail liquor license for Bill's ABC Store, each place of business located on Highway #170, in the
Beaufort Plaza Annex, Beaufort, South Carolina.
3. Notice of the date, time, place and subject matter of the hearing was given to the
parties.
4. On July 19, 1995, Special Agents Neill and Roberts, employees with the State Law
Enforcement Division (SLED), went to Respondent's permitted location (party shop), and
Respondent's licensed location (retail liquor store), both located at Highway #170, Beaufort Plaza
Annex, Beaufort, South Carolina, with an Underage Cooperating Individual (UCI), Randolph
Kyle Blackmon (Blackmon).
5. After entering the licensed location, Blackmon picked up a bottle of gin and
presented it to the salesperson for purchase. The salesperson at the licensed location was neither
Mr. Massalon nor the salesperson at the permitted location. The salesperson was not present at
the hearing, or if he was, he did not testify.
6. The salesperson at the licensed location did not ask Blackmon for proof of age. He
sold the bottle of gin to Blackmon. Blackmon left the store and immediately gave the bottle to
SLED Agent Neill.
7. Thereafter, Blackmon went to the permitted location, picked up a 39 ounce bottle
of beer and presented it to Woodrow Dantzler, Jr. (Dantzler), the clerk on duty, for purchase.
8. Dantzler checked the driver's license of Blackmon, misread the birth date, and sold
the beer to Blackmon.
9. After purchasing the beer, Blackmon left the premises and gave the beer to Agent
Neill.
10. On July 19, 1995, Blackmon went into nine (9) separate permitted or licensed
establishments and made six (6) purchases of beer or other alcoholic beverages (buys).
11. On July 19, 1995, Blackmon was sixteen (16) years of age.
12. Blackmon held a valid South Carolina driver's license showing his birth date of
September 95, 1978.
13. Blackmon's driver's license had "Under 91" stamped on it.
14. Dantzler is a resident of Beaufort, South Carolina and has been an employee of the
Respondent for twenty-three (93) years, twenty years of which he has worked for Respondent in
his liquor store(s) or party shop(s).
15. Dantzler has never previously been charged with selling any liquor, beer or wine to
a person under twenty-one (91) years of age.
16. The policy at Respondent's stores, whether retail liquor or beer and wine, is that
any purchaser must furnish proof of age if he or she appears to be under thirty (30) years of age.
17. Respondent provides training in alcoholic beverage control laws and regulations to
his employees.
18. In an effort to discourage underaged individuals from entering his stores and to
comply with ABC requirements prohibiting sales to individuals under twenty-one years of age,
Respondent has placed on the front of both the party shop and liquor store signs which read "No
one under 21 allowed in store per ABC." Further, he has signs affixed to the cash registers which
read "Must be 21."
19. Respondent has been licensed or permitted for the sale of intoxicating beverages
by the State of South Carolina for over twenty-seven (27) years.
20. The licensed location was cited by the Department on January 29, 1993 for the
"sale of liquor to a person under 21." (Petitioner's Exhibit No. 3). Respondent paid a fine of four
hundred dollars on February 95, 1993. No other violation charges have been made by the
Department against the subject license and permit nor any other permit or license issued to
Respondent.
DISCUSSION
Preventing the sales of beer, wine and other alcoholic beverages to minors and
subsequently to individuals under twenty-one years of age, has long been a matter of public policy
in South Carolina.(1)
Not only is a permittee required to adhere to statutes and regulations prohibiting these
sales, he or she is also responsible for the conduct and actions of their agents or employees
operating under the permit. 48 C.J.S. Intoxicating Liquors § 168 (1981). Further, if either the
holder of the permit or employee operating under the permit knowingly sells beer or wine to a
person under twenty-one years of age, such an act constitutes grounds for suspension of the
permit. S.C. Code Ann. § 61-9-410 (Supp. 1995) (Emphasis added). Further, if a holder of a
retail liquor license or an employee operating thereunder permits the sale of an intoxicating
beverage (liquor) to a person under twenty-one years of age, such an act constitutes grounds for
suspension of the license. S.C. Code Ann. § 61-3-990(3)(C) (Supp. 1995).
The definition of knowledge is best expressed in the following:
A person has no right to shut his eves or ears to avoid information and then say
that he had no notice, and it is wrong not to heed the "signs and signals" that one
sees. It will not do to remain willfully ignorant of a thing readily ascertainable.
(Emphasis added).
58 Am. Jur. 2d Notice, § 13 (1989).
Means of knowledge and knowledge itself are, in legal effect, the same thing where
there is enough to put a party on inquiry knowledge which one has or should have
under the circumstances imputed to him. In other words, whatever fairly puts a
person on inquiry is sufficient notice where the means of knowledge are at hand.
And if one omits to inquire. he is then chargeable with all the facts which. by a
proper inquiry, he might have ascertained. (Emphasis added).
58 Am. Jur. 2d Notice, § 14 (1989).
Further, The South Carolina Supreme Court has held that the definition of "knowingly"
when construing an obscenity statute, included not only actual knowledge of the subject matter,
but also situations where a person has such information, or the circumstances are such, as would
lead a prudent man to form a belief as to the subject matter of the material and if followed by
inquiry would have disclosed its character. State v.-Thompkins, 263 S.C. 477, 211 S.E.2d 549
(1975). Our legislature has defined "knowingly" under the obscenity statute (S.C. Code Ann. §
16-15-305(C)(5) (Supp. 1995)) as "having general knowledge of the subject matter or
performance, or failing after reasonable opportunity to exercise reasonable inspection which
would have disclosed the character of the material or performance."
As to the sale of the beer, the salesman (Dantzler) had sufficient information, both from
the actions of the UCI and also from his youthful appearance, which required him to act prudently
and make sufficient inquiry to determine the UCI's age. Further, the imprint "Under 21" on the
UCI's drivers license would require even further scrutiny on his part prior to making the sale.
Although the salesman made a mistake in misreading the birth date, for reasons discussed below,
that mistake lacks validity based upon all the circumstances surrounding the transaction. Also,
such mistake does not relieve one from compliance with the laws of the state of South Carolina.
With regard to the alleged sale of beer, Dantzler testified he had never previously sold any
alcoholic beverage to a minor or person under twenty-one years of age, although they had made
efforts in the past to effect purchases; obviously, Dantzler has not previously been cited for any
alcoholic beverage violations. In this case, he testified he was wary of the UCI when he came into
the par y store, left, and subsequently returned. He was uncertain whether the UCI was twenty-one years of age. Considering the youthful appearance of the UCI, Dantzler proceeded to
ascertain his age by examining his driver's license ("carding"). From a review of the license,
Dantzler admitted seeing the "Under 91 " imprint thereon. However, he stated he misread the
birth date, thinking it read "1968." If the year 1968 had been the year of birth, Blackmon would
have been twenty-six years of age on the date he made the purchases.
This Court takes judicial notice that the Department, which is the agency in South
Carolina charged with the duty and responsibility of issuing drivers licenses, follows statutory
mandates which require new licenses to be issued regularly.(2) Further, the Department issues
drivers licenses stamped with the phrase "Under 21" thereon to individuals under twenty-one
years of age. An individual may attain the age of twenty-one prior to the expiration date of
his/her license. However, the implication by Dantzler that the phrase "Under 21" had no import,
since the birth date on the drivers license is controlling, is misplaced.
Common sense and an elementary knowledge of the law pertaining to the reissuance of
drivers licenses required Dantzler to seek clarification of Blackmon's birth date. If Blackmon had
been born during the year 1968, he would have been twenty-six years of age. Further, he would
have had his license reissued, based upon the five year renewal statute, when he was twenty-one
years of age. The phrase "Under 21" would not have been stamped on the reissued license.
Dantzler's argument is not persuasive. Dantzler appeared credible at the hearing and the record
substantiates that he is a good employee who consistently adheres to Respondent's admonitions
against sales to individuals under twenty-one. However, in this instance he failed to thoroughly
investigate the age of the UCI, even after having been placed on notice by the phrase "Under 21"
imprinted on the drivers license, and also by the conduct, actions and youthful appearance of the
UCI.
With regard to the sale of the bottle of gin (alcohol) by Respondent's clerk to the UCI at
the licensed location on July 19, 1995, there was no testimony by the clerk refuting Blackmon's
that the sale actually occurred, and that no inquiry was made by the clerk concerning his age. The
only refutation was offered by Respondent who testified that neither he nor any of his employees
had ever knowingly sold beer or liquor to anyone under twenty-one years of age.
The evidence in the record clearly demonstrates that Respondent's employees took no
steps to hinder the sale to or possession of the bottle of beer by the UCI, and the container of gin,
despite the fact he was youthful in appearance, had the imprint "Under 21" on his driver's license,
and was acting unusual.
The Respondent further argues that the statutes involved are "penal statutes" which are to
be strictly construed. A penal statute is defined as "one that imposes penalties upon offenses
committed 'or' one that imposes a penalty for some violation of its own 'provisions.'" Ward v.
Bochino, 46 N.Y.S.2d 54 (1944). Although penal statutes are to be strictly construed, in this case
there is no ambiguity in statutory phraseology or verbiage. The legislature has specifically created
by these statutes carefully constructed sentences, the import of which make it a violation to
knowingly sell alcoholic beverages to individuals under twenty-one years of age. Further, they
impose penalties.
The Department has met its burden of proving a violation of both S.C. Code Ann. § 61-3990(3)(c) (Supp. 1995) and S.C. Code Regs. 7-9(B) (Supp. 1995) by Respondent. Knowledge of
the UCI's age is inferred to Respondent in both instances from the surrounding circumstances,
acts of Respondent's employees and observations brought to their attention. Accordingly, I
conclude that the beer and gin were knowingly sold by Respondent's employees to Blackmon.
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. § 1-23-600 (Supp. 1995) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1995) 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. A permit holder is subject to revocation or suspension of the permit if the holder or
an employee on the licensed premises knowingly sells beer or wine to any person under twenty-one years of age. S.C. Code Ann. § 61-9-410(1) (Supp. 1995).
4. S.C. Code Regs. 7-9(B)(Supp. 1995) prohibits a permittee from permitting or
knowingly allowing a person under twenty-one years of age to purchase or possess or consume
beer or wine in or on the licensed premises. Such an act is a violation against the permit and
constitutes grounds for suspension or revocation of the beer and wine permit.
5. S.C. Code Ann. § 61-3-410(3) (Supp. 1995) provides that the Department shall
have the power to issue retail dealer liquor licenses and the licensee shall store, keep, possess and
sell the alcoholic liquors at retails in compliance with the provisions of Chapter 3, Chapter 7 and
Article 3 of Chapter 13.
6. S.C. Code Ann § 61-3-990(3) (Supp. 1995) provides that no retail liquor dealer
shall:
sell, barter, exchange, give, transfer or deliver, offer for sale, barter or exchange or
permit the sale, barter, exchange, gift, transfer or delivering of alcoholic liquors (a)
between the hours of 7:00 p.m and 9:00 am., (b) for consumption on the premises
(c) to a person under twenty-one years of age (d) to any intoxicated person or (e)
to any insane person. (Emphasis added).
7. S.C. Code Ann. § 61-8-80 (Supp. 1995) authorizes the imposition of a monetary
penalty as an alternate to the suspension or revocation of a license or permit where the discretion
is provided by statute.
8. S.C. Code Ann. § 61-13-510 (Supp. 1995) states that for all violations of Chapters
3, 7, 9 and 13 of this Title, or of Chapter 21 or 33 or Title 12, and for violation of any regulation
promulgated by the Department pertaining to beer, wine or liquor, a monetary penalty may be
imposed upon the holder of the beer, wine or liquor license in lieu of the suspension or revocation
thereof. For any such violation, retail beer and wine licensees shall be subject to a penalty of not
less than twenty-five dollars nor more than one thousand dollars. Wholesale beer and wine
licensees and retail liquor licensees shall be subject to a penalty of not less than one hundred
dollars nor more than one thousand five hundred dollars. (Emphasis added).
9. Pursuant to S.C. Code Regs. 7-52 (Supp. 1995), when a licensed retail liquor
dealer has been found to have sold alcoholic liquors to a person under the age of twenty-one or
permitted the sale of alcoholic liquors to a person under the age of twenty-one four (4) or more
times within three (3) years, the retail liquor license shall be suspended or revoked and no
monetary penalty will be accepted in lieu of suspension or revocation. (Emphasis added).
10. All regulations promulgated by the Commission (now Department), effective on
the date of the Government Restructuring Act of 1993, remain in force until modified or
rescinded by the Department or the State Law Enforcement Division. 1993 S.C. Acts 181,
§1604.
11. There is no South Carolina statutory or case law definition of "to permit,"
therefore, this tribunal consulted other authorities for a definition. "Permit" is defined as "(l)[t]o
allow the doing of(something); consent to (2) to grant leave or consent to (someone); authorize
(3) to afford opportunity or possibility for." The American Heritage College Dictionary 1018
(3rd ed. 1993). The preface of this dictionary states that "...the most frequently sought [or
common] meanings are placed first so that the basic meanings of a word are grasped quickly."
The American Heritage College Dictionary vii (3rd ed. 1993). Further, Black's Law Dictionary
defines "permit" as: "(1) To suffer, allow, consent, let; (2) to give leave or license; (3) to
acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act. " Black's
Law Dictionary 1140 (6th ed. 1990). This tribunal concludes that "to permit," according to its
most common meaning clearly requires knowledge. It is well settled that a person's knowledge
can be proven through circumstantial evidence or manifestations of the individual. See Eason v.
United States, 28 F.2d 818 (9th Cir. 1960); State v. Attardo, 263 S.C. 546, 211 S.E.2d 868
(1975).
12. 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,
903 S.C. 49, 26 S.E. 2d 22 (1943); S.C. Atty. Gen. Op. 3395 (1972); see 58 Arn.Jur.2d Notice
§14 (1989). A person has no right to shut his eyes to avoid information clearly before him. 58
Am.Jur.2d Notice § 13 (1989).
13. A licensee may be held liable for violations of liquor statutes and regulations
committed by his agent while pursuing the ordinary business entrusted to him. The licensee is
liable even though the violations are committed in his absence and without his knowledge, consent
or authority. See 48 C.J.S. Intoxicating Liquors § 276 (1981).
14. The statute legalizing the sale of alcoholic liquors is a penal statute which calls for
a strict construction of the language used and adherence to the precise expressions of legislative
intent in interpretation of the statute. Jackson v. South Carolina Tax Comm'n, 192 S.C. 350, 6
S.E.2d 745 (1940). A penal statute is strictly one which imposes a penalty for violations of its
provisions and is for the sole purpose of punishment and to deter other from offending in a like
manner. City of Omaha v. Adams, 26 N.W.2d 24 (Feb. 1947). Penal Statutes are strictly
construed against the state and any doubt must be resolved in favor of the citizen. Feldman v.
South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
15. Where the subject of an administrative violation also implicates a violation of
criminal law as well, the administrative violation must be established by the standard of proof of
clear and convincing evidence. Anonymous (M-156-90) v. State Board of Medical Examiners,
South Carolina Court of Appeals Op. #2417 (filed November 13, 1995). The sale of beer to a
person under the age of twenty-one implicates a violation of criminal law since a finding may lead
to criminal charges for the seller as well as the purchaser. S.C. Code Ann. §§ 61-9-40, 61-9-85
and 20-7-370 (Supp. 1995). The sale of alcoholic liquors to a person under the age of twenty-one
implicates a violation of criminal law since a finding may lead to criminal charges against the
seller. S.C. Code Ann. § 61-13-287 (Supp. 1995).
16. The evidence in the record clearly shows that the permittee, through his employee
at the licensed location, permitted the sale of a bottle of gin to a person under twenty-one years of
age. The permittee's employee did not attempt any review of the driver's license of the UCI, nor
seek other identification to determine the UCI's age. Further, the evidence clearly shows that the
permittee, through his employee, knowingly sold a beer to a person under twenty-one years of
age. Although the UCI appeared youthful in age, and his drivers license was stamped "Under
21," Respondent's employee failed to carefully examine the license and question the UCI to
correctly determine his age.
17. Based upon the evidence, considering the efforts by Respondent to provide
training to his employees in sales to individuals under twenty-one years of age, the credibility of
his employee Dantzler, and further considering no previous history of any violations at the
permitted location, I conclude an appropriate sanction for the violation of Respondent's beer and
wine permit is a monetary penalty of three-hundred fifty dollars ($350.00). Based upon the
evidence and considering the sincerity of Respondent, this being the second violation of his retail
liquor license, I conclude that an appropriate sanction for this violation is a monetary penalty of
seven-hundred fifty dollars ($750.00).
ORDER
Based upon the foregoing Findings of Fact, Discussion and Conclusions of law, it is
hereby:
ORDERED that Respondent, William N. Massalon, shall pay monetary penalties in the
amounts of three hundred fifty dollars ($350.00) and seven hundred fifty dollars ($750.00), within
fifteen (15) days of the date of this Order, for respective violations of S.C. Code Regs. 7
9(B)(Supp.1995) and S.C. Code Ann. § 61-3-990(3)(c) (Supp. 1995), as enumerated above. It is
further ORDERED that upon failure of the Respondent to make payment of either monetary
penalty within fifteen (15) days from the date of this Order, an agent of the State Law
Enforcement Division shall serve a copy of this Order on Respondent and shall take possession of
the respective permit or license for which the penalty has not been paid. Upon expiration of the
fifteen (15) day suspension, said agent shall return the permit or license to Respondent. During
the period of this suspension, Respondent is ordered to post of a copy of this Order at a visible
location at the respective place of business, and to cease and desist all sales of beer, wine and/or
liquor at the suspended location.
AND IT IS SO ORDERED.
s/Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
January 29, 1996
1. By Act No. 117 of 1 985, the General Assembly established that it is unlawful for any
person to sell beer, ale, porter, wine, or any other similar malt or fermented beverage to a person
under twenty-one years of age. See S.C. Code Ann. § 61-9-40 (Supp. 1995). S.C. Code Regs.
7-9 (Supp. 1995) and S.C. Code Regs. 7-31 (Supp. 1995) prohibit the sale of alcoholic beverages
or liquors to person under the age of twenty-one.
2. Pursuant to Act. No. 497 of 1994, effective January 1, 1995, a driver's license expires on
the licensee's birth date on the fifth calendar year after the calendar year in which it is issued.
Every license is renewable on or before its expiration date. Prior to passage of this Act, renewals
were required every four years. See S.C. Code Ann. § 56-1-210
(Supp. 1995) |
