ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me upon a request by Marshall I. Pickens, Jr., d/b/a Ramseur Oil
Co., Inc., Fant Street Amoco ("permittee") for a hearing pursuant to an administrative violation
written against his beer and wine permit for the premises located at 501 East Greenville Street, 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 $400.00.
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 $400.00 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 a photocopy of the drivers license of the UCI;
a photocopy of the Violation Report written against the permit holder, Mr. Pickens; a photocopy of
the Uniform Traffic Ticket written against the salesperson/clerk at the store, Mr. Douglas Skaar; and
a photocopy of a picture taken of the underage cooperating individual ("UCI") at 3:40 p.m. on
January 25, 1996, the original of which is an exhibit in 96-ALJ-17-0241-CC.
The permittee placed into the record four (4) photographs showing the interior at the location
and a photocopy of the "Employ Alcohol Liability Employment Agreement," executed between the
clerk, Mr. Skaar, and the store manager, Richard L. Earle on January 8, 1996.
The Department presented the testimony of South Carolina Law Enforcement Division
("SLED") agent James R. Causey and the UCI. The permittee offered no testimony.
POSITIONS OF THE PARTIES
The Department asserts that Douglas Skaar, an employee of permittee, at permittee's
location at 501 East Greenville Street, Anderson, South Carolina, known as the Fant Street 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 Fant Street Amoco located at 501 East Greenville 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 501 East Greenville 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 a cooler, picked up a six pack
of "Old Milwaukee Ice," carried it to the counter and purchased it from permittee's employee,
Mr. Douglas Skaar. The clerk was talking to two males and two females at the time the sale was
made. Mr. Skaar asked the UCI how old he was and was informed by the UCI that he was 17
years old. The response from Mr. Skaar was "well, I don't care anyway." The identification of
the UCI was not checked by the clerk nor was any proof of age requested of him.
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 UCI was seventeen (17) years of age on January 25, 1996.
9. Immediately after the UCI returned to the car and while he was talking with SLED
agent Causey, permittee's employee Beech Lockwood, who assists him in the management of and
training of employees at the various stores permittee owns, drove up and was informed of the
violations.
10. A review of the photograph taken of the UCI on January 25, 1996, which was the
date of the "buy," indicates 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.
11. 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, Mr. Skaar 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).
However, in this case, the requirement that the clerk observe the purchaser's appearance
and independently ascertain whether he was 21 years of age was unnecessary since the UCI told
him he was only 17 years old. When the clerk was informed by the UCI that he was only 17 years
of age, he should not have sold the beer. He had been informed by his employer and management
that a purchaser must be at least 21 years of age to lawfully purchase beer and wine in South
Carolina. He acted contrary to the directions of management.
Although permittee asserts that the sales clerk did not have permission to make the sale of
beer to the UCI and was acting outside his scope of authority, the evidence is clear that on
January 25, 1996, he 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 he deviated from the policy of his
employer, he was still under his supervision and control and his 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, this 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 $400.00. 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 $400.00 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. Further, permittee's
employee, Douglas Skaar, was informed by the UCI that he was only 17 years of age, and thus
not of lawful age to purchase the beer.
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 Mr. Skaar was acting within the scope of general authority
placed in him by his principal, Mr. Pickens, in selling beer and wine at the location. Further, his
actions in so doing were with the knowledge and consent of his principal. No evidence was
placed in the record that Mr. Skaar was not authorized to be at the location. Further, he 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 four hundred dollars ($400.00) 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 four hundred dollars ($400.00), 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., Fant
Street Amoco located at 501 East Greenville 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 |
