South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Charles Lindsey, d/b/a Wayward Oyster Pub & Rawbar

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Charles Lindsey, d/b/a Wayward Oyster Pub & Rawbar
 
DOCKET NUMBER:
96-ALJ-17-0414-CC

APPEARANCES:
Arlene D. Hand, Esquire for Petitioner
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division on citations issued by the South Carolina Department of Revenue (Department) against Charles Lindsey for violating the provisions of 23 S.C. Regs. 7-9(B) for sale of beer to a person under the age of twenty-one. The Respondent requested a contested case hearing. After notice to the parties, hearing was conducted on January 29, 1997. The Respondent, Charles Lindsey, failed to appear at the hearing and pursuant to ALJD Rule 53, he is held in default. Based upon the evidence presented at the hearing, the Respondent has violated the provisions of Reg. 7-9(B) and is fined $800.00.

FINDINGS OF FACT

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into account the credibility of the witnesses:

1. Charles Lindsey is the holder of a beer and wine permits issued for the Wayward Oyster Pub & Rawbar located at 125 Atlantic Avenue in Garden City, South Carolina.

2. On March 7, 1996, an agent with the Alcohol Enforcement Unit of State Law Enforcement Division (SLED) entered the licensed location and sat at the bar.

3. An underage individual cooperating with SLED entered the bar with a valid South Carolina driver's license and enough money to make a purchase.

4. The underage individual approached the bar near the seated SLED agent and ordered a "Bud Light" from the bartender.

5. The bartender requested identification. The underage individual produced his valid South Carolina driver's license showing his true birth date. The bartender looked at the license and then sold the underage individual the beer for $2.00.

6. On March 7, 1996, the underage individual was 17 years old.

7. Shortly after the transaction occurred, another SLED agent entered the location and saw the underage individual seated at the bar with a 12 ounce can of Bud Light in front of him. The agent inquired about the transaction and then issued a citation to Charles Lindsey.

8. In documents filed with the Division, Respondent states that the bartender did not intend to serve a minor, he simply misread the driver's license.

CONCLUSIONS OF LAW

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

1. Jurisdiction is vested in the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) with the hearing held under S.C. Code Ann. §§ 1-23-600 (B) and 1-23-310 (Supp. 1995).

2. A permit holder is subject to revocation or suspension if the holder of a permit or an employee of the licensed premises knowingly sells beer or wine to any person under twenty-one of age. S.C. Code Ann. § 61-9-410(1) (Supp. 1995).

3. All regulations promulgated by the former Alcoholic Beverage Control Commission, effective on the date of the Government Restructuring Act of 1993, remain in force until modified or rescinded by the Department of Revenue or the State Law Enforcement Division. 1993 S.C. Acts 181, §1604.

4. 23 S.C. Regs. 7-9(B) (Supp. 1995) provides that it is prohibited to permit or knowingly allow a person under twenty-one years of age to purchase beer or wine in or on a licensed establishment.

5. 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 person to believe the purchaser was under twenty-one especially where simple inquiry would have confirmed such fact. Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943); see 58 Am. Jur. 2d Notice § 14 (1989).

6. The license holder is responsible for the actions and conduct of employees utilizing the permit upon the permitted premises. 48 C.J.S. Intoxicating Liquors § 168 (1981).

7. The sale of beer to a minor is forbidden irrespective of whether the sale is made by the permit holder or by an employee. 48 C.J.S. Intoxicating Liquors § 259 (1981).

8. The bartender had before him the information needed to determine that the purchaser was under the age of 21.

9. S.C. Code Ann. § 61-13-510 (Supp. 1995) allows the imposition of a fine for the violation of any regulation promulgated by the Department pertaining to beer and wine in lieu of suspension or revocation. For a beer and wine permit the penalty shall be a fine of not less than $25 nor more than $1000.

10. The Department's policy is to fine a license holder $800 for a second violation. A previous violation occurred on October 12, 1995 for which the Respondent was fined and paid $400. No mitigating circumstances were presented to warrant the reduction of the proposed fine.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that a violation of 23 S.C. Regs. 7-9(B) was committed by Charles Lindsey for the Wayward Oyster Pub & Rawbar located in Garden City, South Carolina. Charles Lindsey shall pay a monetary penalty of $800 within twenty days of the date of this Order.

AND IT IS SO ORDERED.







______________________________

ALISON RENEE LEE

Administrative Law Judge



February 4, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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