SC Administrative Law Court Decisions

This matter comes before me upon a request by Marshall I. Pickens, Jr., d/b/a Ramseur Oil Co., Inc., Holiday Amoco ("permittee") for a hearing pursuant to an administrative violation written against his beer and wine permit for the premises located at 3027 North Main Street, Anderson, South Carolina ("location"). A citation/violation report was issued to the permittee for violation of S.C. Code Regs. 7-9 (B) (Supp. 1995) by permitting a person under the age of twenty one (21) years to purchase beer at the location. Based upon the alleged violation, The Department of Revenue and Taxation ("Department") is seeking to fine the permittee the sum of $200.00.

A hearing was held at the Anderson County Courthouse, Anderson, South Carolina, on July 12, 1996, pursuant to notice to the parties. I find that a fine of $200.00 should be imposed on the permittee for the violation. Any issues raised in the proceedings or hearing of this case 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 the permittee or his agent violate the provisions of 23 S.C. Code Regs. 7-9(B) (Supp. 1995) and/or the provisions of S.C. Code Ann. § 61-3-990(3)(C) (Supp. 1995) on January 25, 1996 , by permitting or knowingly allowing a person under twenty-one years of age to purchase a six-pack of beer?

2. If there is a violation, what is the appropriate penalty?

EXHIBITS

Placed into evidence by the Department were the Violation Report written against the permit holder, Mr. Pickens; a Uniform Traffic Ticket written against the clerk, Ms. Amy M. Miller, for violation of S.C. Code Ann. § 61-13-287; and a picture taken of the underage cooperating individual ("UCI") at 3:40 p.m. on January 25, 1996.

The permittee placed into the record four (4) photographs showing the interior at the location and the "Employee Alcohol Liability Employment Agreement," executed between the clerk, Ms. Miller, and the store manager, Mrs. Janie Sanders on December 28, 1995.

The Department presented the testimony of South Carolina Law Enforcement Division ("SLED") agent James R. Causey and the UCI. The permittee presented the testimony of Marshall I. Pickens; Janie Sanders, the store manager; and Beech Lockwood, Vice-President of Ramseur Oil Co., Inc.

POSITIONS OF THE PARTIES

The Department asserts that Amy M. Miller, an employee of permittee, at permittee's location at 3027 North Main Street, Anderson, South Carolina, known as the Holiday Amoco, knowingly permitted and allowed the purchase of a six pack of beer by the UCI. Permittee does not deny that the sale occurred; however, he affirmatively alleges that the sale by his employee was not authorized by him and such act should not be imputed to him. Further, he alleges that there is an in-house policy, stressed to all employees, that identification of a purchaser of beer or wine must be checked to determine the age of any person attempting such purchase, if that purchaser appears to be under the age of forty years.

FINDINGS OF FACT

After consideration and review of all the evidence and testimony and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties.

3. Permittee holds an off-premise beer and wine permit issued by the Department for the business known as Holiday Amoco located at 3027 North Main Street, Anderson, South Carolina.

4. On January 25, 1996, State Law Enforcement Division ("SLED") agent, James R. Causey, along with a UCI, acting as an undercover agent for SLED, drove in agent Causey's car

to the permittee's location at 3027 North Main Street, Anderson, South Carolina. Once there, SLED agent Causey patted down the UCI, gave him money and sent him into the store.

5. The UCI held a valid South Carolina driver's license showing his birth date of January 26, 1978. Further, the license had the words "Under 21 until 1999" printed on its upper right hand corner.

6. The UCI entered the permitted premises, walked to the cooler, picked up a six pack of Milwaukee Best beer, carried it to the counter and purchased it from permittee's employee, Ms. Amy M. Miller. No questions were asked of the UCI about his age by the employee nor was any identification requested from him. Upon the UCI's inquiry, the clerk told him the price of the beer and told him to "have a nice day." At no time did the UCI provide proof of his age to the clerk.

7. The UCI then exited the location, walked to the car where agent Causey was, handed him the change and related to him the particulars of the beer purchase.

8. The clerk at the location was not extremely busy when the UCI made the purchase; only one other customer was in the store at that time.

9. The UCI was seventeen (17) years of age on January 25, 1996.

10. At all times while the UCI was in the location, he was observed and seen by agent Causey.

11. A review of the photograph taken of the UCI on January 25, 1996, which was the date of the "buy," indicated that he looked youthful in appearance. His appearance has not changed from that date to the date of the hearing. His appearance at the time of the purchase was such that a prudent or reasonable person under the circumstances would have believed that he was under the age of twenty one years.

12. Permittee has a policy at all of his locations, which are permitted to sell beer and wine for off-premise consumption, that requires a purchaser to furnish proof of age if he or she appears to be under the age of forty years. Further, he requires each employee upon hire to sign an Employee Alcohol Liability Employment Agreement which defines his company's policy on selling beer and wine and the probability of employment termination if a violation of the agreement occurs. In this case, Ms. Miller was initially suspended and then terminated.

DISCUSSION

In South Carolina there is a strong public policy to prevent the sale of beer, wine and other alcoholic beverages to individuals under the age of twenty one years. Any party operating under a permit who knowingly sells beer or wine to a person under twenty one years of age is subject to revocation or suspension of the permit. S.C. Code Ann. § 61-9-410 (Supp. 1995). Such an act constitutes a violation against the permit. S.C. Code Regs. 7-9(B) (Supp. 1995). In this case, the uncontradicted evidence is that an employee of the permittee sold a six pack of beer to the UCI who at the date of sale was only seventeen years of age.

The issue is whether the permittee's employee "knowingly" sold the beer to the UCI. The statute and regulation involved require the sales clerk to make a decision on the age of the purchaser. A duty rests on the clerk to observe the appearance of the purchaser in an effort to determine his/her age. The facts of each case may require different actions on the part of the clerk. One may not shut his eyes or ears to avoid information and then say that he had no choice; he cannot remain willfully ignorant of a thing readily ascertainable. 58 Am. Jur. 2d Notice, §13 (1989).

Further, the South Carolina Supreme Court has held that when construing an obscenity statute, the definition of "knowingly" 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. 472, 211 S.E.2d 549 (1975). In this case, the clerk had sufficient information from the youthful appearance of the UCI which would have led her to reasonably conclude or form a belief that he was a minor. She thus was required to make inquiry to ascertain if he was a minor. This failure to make further inquiry is a necessary element in determining whether the sale was made knowingly. Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). Under the rationale of Feldman, two steps are required to be proved to establish that a sale of beer or wine was made knowingly. First, from the view of a prudent man as opposed to the view of the actual seller, the objectively determined information gained by such a seller either from his/her view of the purchaser or otherwise, must be sufficient to cause him/her to form a belief that the purchaser is under twenty one. Second, this belief becomes tantamount to knowledge where a mere inquiry of the purchaser's age is all that is required to confirm the belief.

The clerk failed to take that additional step of inquiring into and demanding proof of age of the UCI. The youthful appearance of the UCI requires such an inquiry under Feldman. A salesperson must make the determination from the purchaser's appearance whether he/she appears to be youthful and if so, then one cannot assert in defense that a sale was made unknowingly to a person under twenty one years of age where further inquiry was not made as proof of age.

Although permittee asserts that the sales clerk did not have permission to make the sale of beer to the UCI and was acting outside her scope of authority, the evidence is clear that on January 25, 1996, she was an employee of the permittee and was authorized to sell beer and wine at the location. Although in making the sale of beer to the UCI she deviated from the policy of her employer, she was still under his supervision and control and her acts were those of the permittee. Not only is a permittee required to adhere to statutes and regulations prohibiting sales to minors, he or she is also responsible for the conduct and actions of his or her agents or employees operating under the permit. 48 C.J.S. Intoxicating Liquors § 168 (1981). Accordingly, the act on the part of the salesperson in making the sale of beer to the UCI is imputed to the permittee.

The penalty sought by the Department is a monetary sum of $200.00. Such a penalty is supported by the facts in this case. Under the discretionary authority granted to the trier of fact in determining the appropriate penalty, a monetary sum of $200.00 is imposed.

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 is subject to revocation or suspension if the holder or an employee on the permitted 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. § 61-8-80 (Supp. 1995) authorizes the imposition of a monetary penalty as an alternative to the suspension or revocation of a license or permit where the discretion is provided by statute.

6. 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.

7. 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 Am.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).

8. 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).

9. The evidence in the record clearly shows that the permittee, through his employee, permitted the sale of beer to a person under twenty one years of age. Despite the youthful appearance of the UCI, permittee's employee did not make independent inquiry of the UCI about his age nor seek identification to determine such information.

10. If an agent is doing some act in furtherance of the principal's business, he will be regarded as acting within the scope of his authority. On the other hand, a principal is generally not liable when an agent is acting for his own independent purposes, wholly disconnected from furtherance of his employer's business; such conduct falls outside the scope of his employment. Crittenden v. Thompson-Walker Co., Inc., 288 S.C. 112, 341 S.E.2d 385 (Ct. App. 1986).

11. The record is clear that Ms. Miller was acting within the scope of general authority placed in her by her principal, Mr. Pickens, in selling beer and wine at the location. Further, her actions in so doing were with the knowledge and consent of her principal. No evidence was placed in the record that Ms. Miller was not authorized to be at the location. Further, she was authorized to sell beer and wine.

12. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. The Administrative Law Judge Division, as the tribunal authorized to grant the issuance of a permit, is likewise authorized for cause to revoke or suspend the permit. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

13. Accordingly, based upon the evidence, I conclude that the permittee and/or his agent for whose action he is responsible violated S.C. Code Regs. 7-9(B)(Supp. 1995) on January 25, 1996, by selling beer to a person under twenty-one years of age.

14. S.C. Code Ann. § 61-13-510 (Supp.1994) authorizes, for any violation of any regulation promulgated by the Department pertaining to beer and wine, in lieu of a suspension or revocation of the beer and wine permit, the imposition of a monetary penalty not less than twenty-five dollars ($25.00) and nor more than one thousand dollars ($1,000.00).

15. The fact-finder in a case has the authority to impose a penalty consistent with the facts presented. Walker v. S.C. ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Accordingly, based upon the evidence presented and after considering the sincerity and credibility of the permittee and his employees who testified at the hearing, I conclude that a monetary penalty of two hundred dollars ($200.00) should be imposed upon the permittee.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of law, it is hereby:

ORDERED that Respondent, Marshall I. Pickens, Jr., shall pay a monetary penalty in the amount of two hundred dollars ($200.00), within fifteen (15) days of the date of this Order, for violation of S.C. Code Regs. 7-9(B) (Supp.1995) as enumerated above. If the Petitioner does not receive a total of $200.00 from Marshall I. Pickens, Jr., within fifteen (15) days from the date of this Order, it is Ordered that the beer and wine permit be suspended for a period of fifteen (15) days. If the Petitioner does not receive the funds as stated, any agent of the State Law Enforcement Division shall serve a copy of this Order on Respondent and shall take possession of the beer and wine permit issued to Marshall I. Pickens, Jr., d/b/a Ramseur Oil Co., Inc., Holiday Amoco located at 3027 North Main Street, Anderson, South Carolina. Said agent shall hold the permit for fifteen (15) days. Upon expiration of the fifteen (15) day suspension, said agent shall return the permit to Respondent. During the period of this suspension, Respondent is ordered to post of copy of this Order at a visible location at his place of business, and to cease and desist all sales of beer and wine.

AND IT IS SO ORDERED.

_____________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

July 18, 1996