South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Gerald R. Baker, d/b/a Parrot Bar and Grill

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Gerald R. Baker, d/b/a Parrot Bar and Grill
 
DOCKET NUMBER:
96-ALJ-17-0133-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER AND DECISION

I. STATEMENT OF THE CASE


This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C. Code Ann. § 1-23-310, et seq. (Supp. 1995). The South Carolina Department of Revenue ("Department") contends that Gerald R. Baker ("Respondent") permitted or knowingly allowed a minor to possess a beer in Respondent's licensed establishment, the Parrot Bar and Grille, Myrtle Beach, South Carolina. Accordingly, the Department seeks to impose a $1000 fine against the Respondent for a violation of S.C. Code Ann. Regs. 7-9(B) (Supp. 1995).

After timely notice to the parties, a hearing was conducted on May 16, 1996 at the Administrative Law Judge Division, Columbia, South Carolina. Based upon testimony and evidence presented, the Department's request that the Respondent be fined $1000 for violating S.C. Code Ann. Regs. 7-9(B) is granted.

II. FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Respondent holds an on-premises beer and wine permit and an off-premises beer and wine permit for the Parrot Bar and Grill, Myrtle Beach, South Carolina.

2. Respondent is the sole proprietor of the Parrot Bar and Grill, and employs five bartenders.

3. On October 12, 1995, Mr. Louis DeLuca was employed by the Respondent as a bartender at the Parrot Bar and Grill.

4. On the night in question, State Law Enforcement Division ("SLED") Agent Pamela Williamson and Underage Cooperating Individual ("UCI") Quentin Robinson engaged in approximately 10 sting operations, one of which was conducted at the Respondent's establishment.

5. Prior to entering the Parrot Bar and Grill, Agent Williamson searched the UCI and determined that he had only a valid South Carolina Driver's License and $15.95 in cash on his person. Shortly thereafter, Agent Williamson observed the UCI enter the Parrot Bar and Grill.

6. After entering the Parrot Bar and Grill, the UCI proceeded to order a Bud Light beer from the bartender, Mr. Louis DeLuca. Mr. DeLuca did not ask the UCI for identification before serving him the beer. At the time, the UCI was 19 years of age.

7. On the date of this hearing, the UCI's physical appearance accurately reflected his physical appearance on the night in question.

8. Mr. Baker's testimony at the hearing indicated that the UCI looked sufficiently youthful so as to merit an inquiry as to his age before being served alcohol.

9. After paying for the beer, the UCI walked toward undercover Detective George Merritt, who was on the premises and participating in the sting, and remained there until Agent Williamson entered the Parrot Bar and Grill.

10. Detective Merritt observed and overheard the entire transaction between the UCI and Mr. DeLuca.

11. After Agent Williamson entered the Parrot Bar and Grill, she, the UCI and Detective Merritt approached Mr. DeLuca and introduced themselves as SLED agents.

12. The Respondent and Mr. DeLuca were charged with violating S.C. Code Ann. Regs. § 7-9(B).

III. CONCLUSIONS OF LAW AND DISCUSSION


A. Violation of Regulation 7-9(B)

The Department is charged with the responsibility of administering and enforcing the laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. § 61-1-60 (Supp. 1995). Furthermore, the Department is authorized to revoke or suspend the beer and wine permit of any licensee for a violation of laws pertaining to alcoholic beverages or any regulation it has promulgated. See S.C. Code Ann. § 61-9-410 (Supp. 1995). Finally, the Department may impose a monetary penalty as an alternative to revocation or suspension. S.C. Code Ann. § 61-1-80 (Supp. 1995).

The Department argues that the Respondent violated S.C. Code Ann. Regs. § 7-9(B), which states:

To permit or knowingly allow a person under twenty-one years of age to purchase or possess or consume beer and wine in or on a licensed establishment which holds a license or permit issued by the South Carolina Alcoholic Beverage Control Commission is prohibited and constitutes a violation against the license or permit. Such violation shall be sufficient cause to suspend or revoke the license or permit by the Alcoholic Beverage Control Commission.

(emphasis added).

It is well established that, in interpreting a regulation, the sole function of this tribunal is to determine and give effect to the intention of the drafter, with reference to the meaning of the language used and the subject matter and purpose of the regulation. See State v. Ramsey, 311 S.C. 555, 430 S.E.2d 511 (1993). When the meaning of the language, the subject matter, and the purpose of the regulation are considered together, it becomes apparent that the drafters of S.C. Code Ann. Regs. 7-9(B) intended for beer and wine permit holders to be responsible for the actions and conduct of their agents or employees. See S.C. Code Ann. § 61-9-410; 48 C.J.S. Intoxicating Liquors, § 168 (1981). Thus, the sale of beer to a minor is forbidden irrespective of whether the sale is made by the permit holder or by an employee of the permit holder. 48 C.J.S. Intoxicating Liquors, § 259 (1981). Clearly, Mr. DeLuca was employed by the Respondent at the time the sale was made, therefore, the Respondent is liable for the actions of Mr. DeLuca.

Also, Mr. DeLuca knowingly allowed the sale of beer to the underage cooperating individual ("UCI"). "To permit" means to allow, consent, let; to acquiesce by failure to prevent, or to expressly assent or agree to the doing of an act. Black's Law Dictionary (6th ed. 1990). This tribunal concludes that "to permit," according to its most common meaning, clearly requires knowledge. A party manifests consent and knowledge to allowing a person under twenty-one years of age to purchase alcohol 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 when a simple inquiry would have confirmed such fact. Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). The Feldman case delineated a two-part test(1) for determining whether the required degree of knowledge is present:

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 the case at hand, the Department offered no testimony that Mr. DeLuca had actual knowledge of the UCI's age. However, the testimony of the UCI and Mr. Baker proves that Mr. DeLuca had such information from the UCI's appearance which would cause a prudent person to believe the UCI was under twenty-one years of age, and would cause the same prudent person to conduct an inquiry to ascertain his actual age. The UCI testified that his physical appearance at the hearing was exactly the same as it was on the night in question, and that he had made no attempt to alter his appearance to look older on the night he visited the Parrot Bar and Grill. Mr. Baker testified that the UCI's appearance at the trial was sufficiently youthful so as to merit an inquiry into his age before serving him with alcohol:

Ms. Hand: "Was it not your testimony that your policy for identifying underage individuals is to card everyone?"

Mr. Baker: "Everyone unless they look like anyone in this court other than that young gentleman back there [referring to the UCI, Quentin Robinson]."

Ms. Hand: "So everyone other than--"

Mr. Baker: "And possibly this young student back here that's, uh-- [referring to a law clerk of the Administrative Law Judge Division]."

Ms. Hand: "Everyone other than Quentin Robinson--"

Mr. Baker: "If you don't look 30 you get carded."

Ms. Hand: "But you're aware that Mr. DeLuca did not card Mr. Robinson is that correct?"

Mr. Baker: "Yes ma'am I am."

Thus, while Mr. DeLuca had no actual knowledge of the UCI's age, Mr. Baker clearly identified the UCI as looking youthful enough to cause a prudent person to believe the UCI was under twenty-one years of age. When Mr. DeLuca failed to ask the UCI for identification to verify that he was of legal age, he knowingly allowed a person under twenty-one years of age to purchase a beer on the licensed premises of the Respondent. Additionally, because Mr. DeLuca was an employee of the Respondent at the time of the sale, the Respondent is liable for a violation of S.C. Code Ann. Regs. 7-9(B).





B. Use of UCIs in undercover sting operations

The Respondent argues that the use of UCIs by SLED is illegal. S.C. Code Ann. § 61-9-85 states:

If a person is charged with a violation of § 61-9-40 (the unlawful sale of beer or wine to minors), the minor shall also be charged with a violation of § 20-7-370 (unlawful purchase or possession of beer or wine) . . . Unless the provisions of this section are followed, no person charged with a violation of § 61-9-40 shall be convicted of such offense. . . . (emphasis added).

S.C. Code Ann. § 61-9-85 (Supp. 1995). In 1986, in construing South Carolina Code Ann. § 61-9-85, the South Carolina Attorney General opined that a law enforcement agency may not use an underage agent to purchase alcoholic beverages for the purpose of obtaining convictions for the sale of alcoholic beverages to underage individuals. 1986 S.C. Att'y Gen. Op. No. 86-124 at 357. The reason for this interpretation is that the plain language of S.C. Code Ann. § 61-9-85 specifically requires the minor to be charged with unlawful possession of beer or wine in all cases of unlawful sales of beer and wine to minors, thus, precluding the use of a UCI in undercover sting operations.

However, in 1988, the legislature passed S.C. Code Ann. § 61-13-287, which states that "it is unlawful for a person to transfer or give to any person under the age of twenty-one years for the purpose of consumption any beer, wine or alcoholic liquor at any place within the state." S.C. Code Ann. § 61-13-287 (Supp. 1995). S.C. Code Ann. § 61-13-287 does not require the minor to be charged with unlawful possession of beer or wine in order to prosecute the person for transferring or giving beer or an alcoholic liquor to the minor. Hence, the use of UCIs in such sting operations is permissible. Furthermore, in 1993, the Attorney General reasoned that because the language of S.C. Code Ann. § 61-13-287 does not specifically or in effect preclude the use of minors in sting operations, "it appears that law enforcement officers could utilize underage individuals to cause 'transfers' prohibited by S.C. Code Ann. § 61-13-287." 1993 Op. Att'y Gen. No. 93-94. Therefore, it logically follows that because S.C. Code Ann. Regs. 7-9(B) does not require the minor as well as the licensee to be charged in all cases, S.C. Code Ann. Regs. 7-9(B) falls within the guidelines set forth by S.C. Code Ann. § 61-13-287, and SLED acted legally when using the UCI in its sting operations.

C. The Respondent's alleged confession

The Respondent also argues that Mr. DeLuca's admission of guilt was illegally obtained. However, the testimony of the UCI and Detective Merritt makes the necessity of a confession immaterial. Additionally, the fact that Mr. DeLuca was not convicted of violating S.C. Code Ann. § 61-9-287 has no preclusive effect on the case at hand. Because administrative hearings are distinct from criminal proceedings, an acquittal or failure to prosecute for the alleged commission of a criminal offense by a licensee will not preclude the Department from instituting revocation or suspension proceedings against the licensee based upon the alleged criminal conduct. 1968 Ops. Att'y Gen. No. 2710 at 160.

D. Entrapment

Additionally, the Respondent asserts that Mr. DeLuca was entrapped into selling the beer to the UCI. The burden is upon the party claiming the defense to prove he was induced, tricked, or incited to commit a crime which he would otherwise not have committed. State v. Johnson, 295 S.C. 215, 367 S.E.2d 700 (1988). "Inducement" may be defined as government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense. U.S. v. Ortiz, 804 F.2d 1161 (10th Cir. 1986). However, proof of government inducement requires more than mere solicitation. U.S. v. Prytz, 822 F.Supp. 311 (D.S.C. 1993), aff'd, 35 F. 3d 557 (4th Cir. 1994). Further, inducement also will not be shown by evidence that the government agent initiated the contact with the Defendant or proposed the crime. Ortiz, 804 F.2d at 1165 (citing U.S. v. Andrews, 765 F.2d 1491, 1499 (11th Cir. 1985), cert. denied, U.S. , 106 S. Ct. 815, 88 L.Ed.2d 789 (1986). Rather, more is needed to show inducement, such as trickery by disguise. See U.S. v. Healy, 202 F. 349 (D. Mont. 1913), Voves v. U.S., 249 F. 191 (7th Cir. 1918).

In the case at hand, the UCI did not induce, trick or incite Mr. DeLuca to sell him the beer. The SLED agents did nothing more than employ a person under the age of twenty-one to purchase a beer. Also, the UCI did not alter his appearance to appear older than his true age. Therefore, the Respondent has failed to prove the defense of entrapment.



E. Vindictiveness

Finally, the Respondent argues that Agent Williamson practiced unlawful vindictiveness against him. The Respondent states that the vindictiveness is evidenced by the abnormally high number of sting operations conducted against the Parrot Bar and Grill by Agent Williamson, and her specific targeting of the Parrot Bar and Grill for sting operations because the Respondent had appealed several citations written by her in the past. However, Agent Williamson testified that the process of choosing which establishments to sting is mandated by the number of formal complaints filed against the establishment. Also, Agent Williamson informed the court that SLED agents do not become aware of appeals filed against their charges until they receive notice to appear in court. The argument of unlawful vindictiveness is not supported by the facts.

F. Conclusion

In conclusion, the holder of a beer and wine permit maintains liability for the actions of his employees who sell alcohol to underage persons. Also, SLED agents may lawfully employ UCIs to cite licensees for violating S.C. Code Ann. Regs. 7-9(B). Additionally, the defense of entrapment has not been proven. Finally, the admissibility of DeLuca's confession in the criminal proceeding and lack of criminal conviction is immaterial, and the charge of unlawful vindictiveness is baseless. For the reasons stated above, a fine of $1000 against Gerald R. Baker is appropriate.

IV. ORDER

IT THEREFORE ORDERED that Petitioner's request that Respondent be fined $1000 for violating S.C. Code Ann. Regs. 7-9(B) is granted and Respondent shall remit $1000 to the Petitioner within thirty (30) days to satisfy the fine.

AND IT IS SO ORDERED.

_________________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street

Columbia, South Carolina 29201

June 28, 1996

Columbia, South Carolina

1. The Administrative Law Judge Division has applied the Feldman analysis in at least two other cases: S.C. Dep't of Revenue and Taxation v. Linda E. Sellers, d/b/a The Other Store, Docket No. 95-ALJ-17-0535-CC (filed Feb. 13, 1996); S.C. Dep't of Revenue and Taxation v. Idell B. Harriott, d/b/a Harriott's Grocery, Docket No. 95-ALJ-17-0595-CC (filed Mar. 6, 1996).


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court