ORDERS:
ORDER AND DECISION
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. (1986 & Supp. 1995), upon request for a contested case hearing
by Ramniklal C. Shah, d/b/a Buck Saver ("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 persons under twenty-one (21) years of age on or about May
23, 1996. The South Carolina Department of Revenue ("Department") seeks a fine of $400.00
for the alleged violation. The Respondent stipulates to the violation but argues that a lesser
monetary fine in lieu of that proposed by the Department is a more appropriate penalty to be
imposed upon him.
A hearing was held at the Spartanburg County courthouse in Spartanburg, South Carolina on
December 13, 1996. I find that a fine in the amount of $400.00 is the appropriate penalty in this
case to be imposed on the Respondent for the violation.
Any issues raised in the proceedings or hearing of this case but not addressed in this Final
Decision are deemed denied. ALJD Rule 29 (B).
STIPULATIONS
The parties stipulate to the following:
1. This tribunal has jurisdiction.
2. On April 5, 1996, Jody Lee Armstrong, whose birth date is August 25, 1977 and Steven Drew
Munyan, whose birth date is January 21, 1977, were 18 and 19 years of age, respectively.
3. That both Mr. Armstrong and Mr. Munyan entered the Buck Saver at 502 North Harper Street,
Laurens, Laurens County, South Carolina and purchased three (3) twelve packs of Old
Milwaukee beer from James Arthur Blandin, Respondent's employee and salesperson on duty at
the time.
4. That the sale of the beer to Mr. Armstrong and Mr. Munyan was a violation of Regs. 7-9(B)
(Supp. 1995).
5. That the sole issue before this tribunal is the penalty or fine to be imposed on Respondent for
the violation.
ISSUE
Under the facts of this case, what is the appropriate penalty for permitting or knowingly allowing
persons under the age of twenty-one years to purchase beer?
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 both parties.
3. Respondent holds an off-premise beer and wine permit issued by the Department for the
business location known as Buck Saver located at 502 North Harper Street, Laurens, Laurens
County, South Carolina.
4. On April 5, 1996, Jody Lee Armstrong and Steven Drew Munyan, individuals under the age of
twenty-one (21) years, entered the Buck Saver at Laurens, South Carolina and purchased three
twelve packs of Old Milwaukee beer from the salesperson/employee and agent of Respondent,
James Arthur Blandin.
5. The birth date of Mr. Armstrong is August 25, 1977 and the birth date of Mr. Munyan is
January 21, 1977.
6. Respondent stipulates to the violation of Reg. 7-17(B) as a result of the sale by his agent to the
two underage males.
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 Respondent sold three twelve-packs of
beer to the underage individuals who at the date of sale were only eighteen and nineteen years of
age.
The issue is whether the Respondent's employee "knowingly" sold the beer to the underage
individuals. 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 underage
individuals which would have led him to reasonably conclude or form a belief that they were
minors. He thus was required to make inquiry to ascertain if they were minors. 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
underage individuals. The youthful appearance of the underage individuals 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.
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, 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, as stipulated to by the parties, shows that Respondent, through its
employee, permitted the sale of beer to a person under the age of twenty-one years.
10. The record is clear that James Arthur Blandin was acting within the scope of general authority
placed in him by his principal, Ramniklal C. Shah, d/b/a Buck Saver, 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. Blandin was not authorized to be at the
location. Further, he was authorized to sell beer and wine.
11. 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).
12. Accordingly, based upon the evidence, I conclude that the Respondent and/or his agent for
whose action he is responsible violated S.C. Code Regs. 7-9(B)(Supp. 1995) on May 23, 1996,
by selling beer to persons under twenty-one years of age.
13. S.C. Code Ann. § 61-13-510 (Supp.1995) 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 not more than one thousand dollars ($1,000.00).
14. 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, I conclude that a monetary penalty of four hundred dollars
($400.00) should be imposed upon the Respondent.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of law, it is hereby:
ORDERED that Respondent, Ramniklal C. Shah, 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 $400.00 from Ramniklal C. Shah, 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 Ramniklal C. Shah, d/b/a Buck Saver located at 502 North Harper Street,
Laurens, Laurens County, 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
December 19, 1996 |
