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). |