SC Administrative Law Court Decisions

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. (1986 & Supp. 1995), upon request for a contested case hearing by Respondent. Respondent was cited with an administrative violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1995), for allegedly permitting the purchase of beer by a person under twenty-one (21) years of age on or about August 3, 1995. The South Carolina Department of Revenue (hereinafter referred to as "DOR") seeks a $400 fine for the alleged violation. A hearing was held July 19, 1996. Respondent admitted the sale took place but asserted that DOR's action amounted to entrapment and/or that Respondent did not make the sale to an underage person "knowingly." I find that the violation did occur. Respondent is ordered to pay a monetary fine of Four Hundred Dollars ($400) or have his beer and wine permit suspended for fifteen (15) days.

By a preponderance of the evidence, I find:

1. Notice of the time, date, place, and subject matter of the hearing was given to Respondent and DOR.
2. Respondent holds an on-premises beer and wine permit for a convenience store known as Kick Booty, located at 772 Autumn Street, Orangeburg, South Carolina.

1. On or about August 3, 1995, at approximately 6:56 p.m., two cash registers were in operation at the licensed location, with approximately six or seven customers in the store.
2. Respondent Gerald Lawson, the owner/operator of Kick Booty, was operating one of the cash registers.
3. On or about August 3, 1995, at approximately 6:56 p.m., Agents J.B. Rowland and

James B. Williams, of the South Carolina Law Enforcement Division, Alcohol Enforcement Unit (hereinafter referred to as "SLED"), and an underage cooperating individual ("UCI") visited the licensed location.

1. Agent Rowland entered the licensed location with the UCI while Agent Williams waited outside.
2. The UCI purchased a six-pack of Bud Light bottled beer from Lawson, who rung up the sale at the register. Lawson did not ask the UCI her age or ask for identification.
3. Agent Rowland observed the UCI purchase the beer from Lawson.
4. Lawson admits selling the beer to the UCI without asking for identification.
5. Agent Williams subsequently took possession of the beer from the UCI, entered the licensed location and cited Lawson with criminal and administrative violations.
6. Sandra Elizabeth Collins, whose date of birth is June 12, 1979, was the UCI working in cooperation with Agents Rowland and Williams.
7. The UCI was sixteen (16) years old as of August 3, 1995.
8. At the time she entered the store, the only items in the possession of the UCI were her valid South Carolina driver's license and a small amount of cash.
9. The UCI was dressed in blue jeans and had not changed her normal appearance to attempt to look older than her age.
10. The UCI has worked with SLED in the past as a UCI and was paid $50 each night she cooperated.
11. The UCI has no criminal record or criminal charges against her.
12. As manager, Lawson does not normally operate a cash register, but because the store was busy on the night of August 3, 1995, he worked as a cashier.

1. Gerald Lawson has been the owner/operator of Kick Booty since approximately September, 1994.
2. Lawson has no previous violations.

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title I of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.
2. Beer and wine licenses are neither contracts nor property rights. They are mere permits, issued or granted in the exercise of the State's police power and to be enjoyed only so long as the restrictions and conditions governing their continuance are complied with. The same tribunal authorized to grant the issuance of a license is likewise authorized, for cause, to revoke it. Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
3. 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1995) prohibits a licensee from knowingly allowing the purchase or possession of beer by a person under the age of twenty-one (21) years on the licensed premises. A violation constitutes grounds for suspension or revocation of the beer and wine permit.
4. "Knowingly" includes not only actual knowledge of a fact, but also situations where a person has such information, or the circumstances are such, as would lead a prudent person to form a belief as to the fact, and if followed by inquiry would have disclosed its character. State v. Thompkins, 263 S.C. 472, 211 S.E.2d 549 (1975); Feldman v. South Carolina Tax Commission, supra; Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990).
5. Sandra Elizabeth Collins was sixteen (16) years of age at the time she purchased the beer.
6. Collins' appearance would lead a reasonable or prudent person to believe she was under twenty-one or, at least, to inquire as to her age and require identification.
7. Lawson knew or should have known that Collins was not twenty-one years or age.

1. Respondent knowingly allowed the purchase of beer by a person under the age of twenty-one on August 3, 1995, in violation Regs. 7-9(B).
2. Respondent was not entrapped. The defense of entrapment is available only in criminal cases and requires a showing that a defendant was induced, tricked, or incited to commit a crime he would not have otherwise committed, not merely provided an opportunity to commit the crime charged. State v. Johnson, 295 S.C. 215, 367 S.E.2d 700 (1988); State v. Hayden, 268 S.C. 214, 232 S.E.2d 889 (1977).
3. S.C. Code Ann. § 61-13-510 (Supp. 1995) provides that a violation of ABC law or regulation may be punished by imposition of a monetary fine in lieu of license suspension or revocation.

IT IS THEREFORE ORDERED that Gerald D. Lawson pay a monetary penalty in the amount of Four Hundred Dollars ($400) for the offense of permitting the purchase of beer by a person under the age of twenty-one (21) years.

IT IS FURTHER ORDERED that if DOR does not receive payment of the assessed fine within fifteen (15) days from the date of this Order, the beer and wine permit held by Gerald D. Lawson, d/b/a Kick Booty at 772 Autumn Street, Orangeburg, South Carolina, shall be suspended for a period of fifteen (15) days. If the assessed fine is not paid, a SLED agent shall serve a copy of this Order on Gerald D. Lawson and take possession of the permit. Upon service of fifteen (15) days suspension, said agent shall return the permit to Respondent. Respondent and his agents are to cease and desist all sales of beer and wine at the location during the suspension period.

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STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

September 11, 1996

Columbia, South Carolina