ORDERS:
ORDER AND DECISION
I. 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. (Supp. 1995). The South Carolina Department of Revenue
("Department") contends that David S. Evans permitted or knowingly allowed a minor to
purchase a wine cooler from Respondent's licensed establishment, Save More, Inc., located at
439 North Duncan By-Pass, Union, South Carolina. Accordingly, the Department seeks to
impose an $800 fine against Respondent for a violation of 23 S.C. Code Regs. 7-9(B) (Supp.
1995).
After timely notice to the parties, a hearing was conducted on March 18, 1997 at the
Administrative Law Judge Division, Columbia, South Carolina. Based upon testimony and the
evidence presented, the Department's request that Respondent be fined $800 for violating 23
S.C. Code Regs. 7-9(B) is granted.
II. FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of the evidence, I
make the following Findings of Fact by a preponderance of the evidence:
1. Respondent David Evans, president of Save More, Inc., holds an off-premises
beer and wine permit (BG-824891) for Save More, Inc., a convenience store located at 439 North
Duncan By-Pass, Union, South Carolina.
2. On May 16, 1996, State Law Enforcement Division ("SLED") Agent Brunson
Asbill, with the assistance of Underage Cooperating Individual ("UCI"), Kristen E. Arms,
conducted a routine sting operation at the licensed premises.
3. Prior to the UCI entering Save More, Inc., Agent Asbill searched the UCI and
determined that she had only a valid South Carolina Beginner's Permit and $5.00 in cash on her
person. Shortly thereafter, Agent Asbill observed the UCI enter Save More, Inc.
4. The UCI entered Save More, Inc. at approximately 8:30 p.m. and walked back to
the beer/wine cooler. She took a tropical flavored Bartles and James wine cooler from the
cooler. The UCI proceeded to purchase the wine cooler from Janice Hughes, who was employed
by Respondent as a sales clerk on May 16, 1996. Ms. Hughes collected the UCI's money for the
wine cooler, then asked the UCI if she was "twenty-one." The UCI did not indicate that she was
twenty-one. The UCI merely handed Ms. Hughes identification, making no verbal or physical
assertion that she was twenty-one. The identification presented was the UCI's South Carolina
Beginner's Permit which indicated that her birth date is "11/18/1979" and she was under the age
of twenty-one. The permit conspicuously indicated in bold letters that it was a "Beginner
Permit." After looking at the UCI's identification, Ms. Hughes passed the wine cooler to the
UCI. The UCI exited the store and took the wine cooler over to the undercover agent who was
outside the premises. The UCI was sixteen years old at the time of the purchase.
5. Agent Asbill and the UCI reentered the location and approached Ms. Hughes and
introduced themselves as a SLED agent and UCI.
6. On May 16, 1996, Respondent David Evans, d/b/a Save More, Inc., was issued a
citation for violating 23 S.C. Code Regs. § 7-9(B).
7. On June 18, 1996, the South Carolina Department of Revenue issued a notice to
Respondent sustaining the violation and imposing an $800 penalty. Respondent has been cited
for a violation of this nature within the last three years. On October 20, 1995, Respondent was
charged with permitting the purchase of beer/wine by a person under the age of twenty-one.
Respondent paid a $400 monetary penalty for that violation.
8. For the events occurring on May 16, 1996, Ms. Hughes was charged with a
criminal violation of S.C. Code Ann. § 61-13-287 (Supp. 1995), transfer of wine to a person
under the age of twenty-one. In a hearing before a magistrate, Ms. Hughes was found not guilty.
9. On the date of the hearing before this tribunal, the UCI's physical appearance
accurately reflected her physical appearance on the night in question. The UCI was not wearing
any make-up on the night in question. The UCI appeared sufficiently youthful so as to merit an
inquiry as to her correct age before allowing her to purchase alcohol. Based on this tribunal's
observation of the UCI at the hearing, a reasonable person would conclude that the UCI was
under the age of twenty-one.
10. At the hearing, the UCI's new Beginner's Permit was submitted into evidence, as
the Beginner's Permit shown to Ms. Hughes on May 16, 1996 expired and has been replaced by
the new Beginner's Permit. The new permit is virtually identical to the permit shown to Ms.
Hughes.
11. At the hearing, Ms. Hughes testified that the UCI presented identification which
indicated the UCI was born in 1974, as opposed to 1979. She further testified that once the UCI
reentered the store with Agent Asbill, an identification was presented to her which indicated the
UCI was born in 1977. Ms. Hughes also stated that at the magistrate court hearing, Agent Asbill
presented identification indicating that the UCI was born in 1979. This statement contradicts the
testimony of Agent Asbill, who testified that no identification was presented in magistrate's
court. This tribunal finds the testimony of Ms. Hughes to be less credible than that of other
witnesses she contradicted.
III. CONCLUSIONS OF LAW AND DISCUSSION
A. Violation of Regulation 7-9(B)
The Department is charged with the responsibility of administering and enforcing the
laws and regulations governing alcoholic beverages, including beer and wine. S.C. Code Ann. §
61-1-60 (Supp. 1995). The Department alleges Respondent David Evans, d/b/a Save More, Inc.,
violated 23 S.C. Code Regs. § 7-9(B) by permitting or knowingly allowing a minor to purchase a
wine cooler from Respondent's licensed establishment. Regulation 7-9(B) provides:
To permit or knowingly allow a person under twenty-one years of
age to purchase or possess or consume beer and wine in or on a
licensed establishment which holds a license or permit issued by
the South Carolina Alcoholic Beverage Control Commission is
prohibited and constitutes a violation against the license or permit.
Such violation shall be sufficient cause to suspend or revoke the
license or permit by the Alcoholic Beverage Control Commission.
(emphasis added).To warrant a violation of 23 S.C. Code Regs. 7-9(B), the Department must establish that either
Respondent or Respondent's servant, agent or employee permitted or knowingly allowed a person
under twenty-one years of age to purchase a wine cooler from Respondent's licensed
establishment. It is well established that, in interpreting a regulation, the sole function of this
tribunal is to determine and give effect to the intention of the drafter, with reference to the
meaning of the language used and the subject matter and purpose of the regulation. See State v.
Ramsey, 311 S.C. 555, 430 S.E.2d 511 (1993). When the meaning of the language, the subject
matter, and the purpose of the regulation are considered together, it becomes apparent that the
drafters of 23 S.C. Code Regs. 7-9(B) intended for beer and wine permit holders to be
responsible for the actions and conduct of their agents or employees. See S.C. Code Ann. § 61-9-410; 48 C.J.S. Intoxicating Liquors, § 168 (1981). Thus, the sale of beer or wine to a minor is
forbidden irrespective of whether the sale is made by the permit holder or by an employee of the
permit holder. 48 C.J.S. Intoxicating Liquors, § 259 (1981). Such an interpretation is consonant
with the public policy of preventing underage drinking. Ms. Hughes was employed by
Respondent at the time the sale was made, therefore, Respondent is liable for the actions of Ms.
Hughes.
In civil cases, generally, the burden of proof rests upon the party who asserts the
affirmative of an issue. 29 Am. Jur. 2d, Evidence § 127 (2d ed. 1994); Alex Sanders, et al. South
Carolina Trial Handbook, § 9:3 Party With Burden, Civil Cases (1994). The Department is the
party asserting the affirmative in this case, therefore, the Department must prove by a
preponderance of the evidence that Respondent or Respondent's agent, servant, or employee
permitted or knowingly allowed the UCI to purchase a wine cooler from the licensed
establishment in violation of 23 S.C. Code Regs. 7-9(B) (Supp. 1995). The preponderance of the
evidence "is evidence which is of the greater weight or more convincing than the evidence which
is offered in opposition to it . . . ." Black's Law Dictionary 1182 (6th ed. 1990). "The
preponderance of the evidence means such evidence as, when considered and compared with that
opposed to it, has more convincing force and produces in the mind the belief that what is sought
to be proved is more likely true than not true." Alex Sanders, et al. South Carolina Trial
Handbook, § 9:5 Quantum of Evidence in Civil Cases (1994), (citing Frazier v. Frazier, 228 S.C.
149, 89 S.E.2d 225 (1955)).
Ms. Hughes permitted or knowingly allowed the UCI to purchase a wine cooler from the
licensed establishment. "To permit" means to allow, consent, let; to acquiesce by failure to
prevent, or to expressly assent or agree to the doing of an act. Black's Law Dictionary 1140 (6th
ed. 1990). This tribunal concludes that "to permit," according to its most common meaning,
clearly requires knowledge. A party manifests consent and knowledge to allowing a person
under twenty-one years of age to purchase alcohol if, from the appearance of the person or
otherwise, the party had sufficient information that would lead a prudent person to believe the
person was under twenty-one, especially when a simple inquiry would have confirmed such fact.
Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). The Feldman case delineated a
two-part test(1) for determining whether the required degree of knowledge is present:
1. Whether the Respondent knew that the UCI was under 21 years of age through independent knowledge, or
2. Had such information from the UCI's appearance or from other information
a. which would cause a prudent person to believe
the UCI was under 21 years of age, and
b. would cause the same prudent person to conduct an inquiry to ascertain the correct age.
In the case at hand, the Department offered testimony establishing that Ms. Hughes had
knowledge that the UCI was under the age of twenty-one through the UCI's youthful appearance
and Ms. Hughes' inspection of the UCI's Beginner's Permit. The UCI's appearance would cause
a prudent person to believe the UCI was under twenty-one years of age, and would cause the
same prudent person to conduct an inquiry to ascertain her correct age. The UCI testified that her
physical appearance at the hearing was the same as the night in question, and that she had made
no attempt to alter her appearance to look older on the night she visited Save More, Inc. The
UCI's appearance at the trial was sufficiently youthful so as to merit an inquiry to ascertain her
correct age before selling her beer or wine. Ms. Hughes had actual knowledge of the UCI's age
once the UCI gave her Beginner's Permit to Ms. Hughes. The Beginner's Permit clearly indicated
that the UCI was born November 18, 1979 and was under the age of twenty-one. Even though
Ms. Hughes inquired, she apparently misread the UCI's identification, and acquiesced by failing
to prevent a person under twenty-one years of age from purchasing wine at the licensed premises
of Respondent. Additionally, because Ms. Hughes was an employee of Respondent at the time of
the sale, Respondent is liable for a violation of 23 S.C. Code Regs. 7-9(B).
This tribunal finds the testimony of the UCI to be more credible than the testimony
presented by Ms. Hughes. The weight and credibility assigned to evidence presented at the
hearing of a matter is within the province of the trier of fact. See S.C. Cable Tel. Assn. v.
Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial
judge, who observes a witness, is in the better position to judge the witness's demeanor and
veracity and evaluate their testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App.
1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984); McAlister v.
Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392
(1973). At the hearing of this matter, Ms. Hughes's testimony appeared less credible than other
witnesses she contradicted.
B. Entrapment
Respondent asserts that Ms. Hughes was entrapped into selling the beer to the UCI. The
burden is upon the party claiming the defense of entrapment to prove he was induced, tricked, or
incited to commit a crime which he would otherwise not have committed. State v. Johnson, 295
S.C. 215, 367 S.E.2d 700 (1988). "Inducement" may be defined as government conduct which
creates a substantial risk that an undisposed person or otherwise law-abiding citizen would
commit the offense. U.S. v. Ortiz, 804 F.2d 1161 (10th Cir. 1986). However, proof of
government inducement requires more than mere solicitation. U.S. v. Prytz, 822 F.Supp. 311
(D.S.C. 1993), aff'd, 35 F.3d 557 (4th Cir. 1994). Further, inducement also will not be shown by
evidence that the government agent initiated the contact with the Defendant or proposed the
crime. Ortiz, 804 F.2d at 1165 (citing U.S. v. Andrews, 765 F.2d 1491, 1499 (11th Cir. 1985),
cert. denied, U.S. , 106 S. Ct. 815, 88 L.Ed.2d 789 (1986). Rather, more is needed to show
inducement, such as trickery by disguise. See U.S. v. Healy, 202 F. 349 (D. Mont. 1913), Voves
v. U.S., 249 F. 191 (7th Cir. 1918).
The use of UCIs in such sting operations is permissible. In 1993, the Attorney General
reasoned that because the language of S.C. Code Ann. § 61-13-287 does not specifically or in
effect preclude the use of minors in sting operations, "it appears that law enforcement officers
could utilize underage individuals to cause 'transfers' prohibited by S.C. Code Ann. § 61-13-287." 1993 Op. Att'y Gen. No. 93-94. In the case at hand, the SLED agent did nothing more
than employ a person under the age of twenty-one to purchase a bottle of wine. The UCI did not
induce, trick or incite Ms. Hughes to sell her the wine cooler. When asked if she was twenty-one, the UCI handed Ms. Hughes her Beginner's Permit which indicated that she was under the
age of twenty-one and her birth date is November 18, 1979. Furthermore, the UCI did not alter
her appearance to appear older than her true age. For these reasons, Respondent has failed to
prove the defense of entrapment.
C. Res Judicata, Collateral Estoppel, Issue Preclusion
Additionally, Respondent contends that the Department is precluded by the doctrines of
res judicata, collateral estoppel, and issue preclusion from bringing this action against him.
The doctrine of res judicata may not be used to preclude the litigation of an administrative
violation of 23 S.C. Code Regs. 7-9(B), where an employee of the licensed establishment was
previously acquitted on criminal charges for an unlawful transfer of wine to a minor in violation
of S.C. Code Ann. § 61-13-287 (Supp. 1995). Under the doctrine of res judicata, a final
judgement on the merits in a prior action will preclude the parties from relitigating any issues
actually litigated or those that might have been litigated in the first action. Foran v. USAA
Casualty Ins. Co., 311 S.C. 189, 427 S.E.2d 918 (Ct. App. 1993). The defense of res judicata
requires a showing of three essential elements: (1) the prior judgement must be final, valid and
on the merits; (2) the parties in the subsequent action must be identical to those in the first; and
(3) the second action must involve matters properly included in the first action. Owenby v.
Owens Corning Fiberglass, 313 S.C. 181, 437 S.E.2d 130 (Ct. App. 1993). Here, the parties are
not identical and this case does not involve a matter which was included in the first action. Ms.
Hughes was charged with the criminal violation of S.C. Code Ann. § 61-13-287 (Supp. 1995),
transfer of wine to a person under the age of twenty-one. In a hearing before a magistrate court
judge, Ms. Hughes was found not guilty. The parties to the action in magistrate's court were the
State of South Carolina and Ms. Hughes. In the case at hand, the parties are the South Carolina
Department of Revenue and David Evans, d/b/a Save More, Inc. Therefore, the parties are not
identical. Furthermore, the matter before this tribunal is an administrative violation against the
licensee of the establishment where the UCI purchased the wine cooler. The matter before the
magistrate court involved a criminal charge against the sales clerk of the convenience store. For
the foregoing reasons, this tribunal concludes that res judicata is not applicable to the case at
hand.
As stated above, Respondent further alleges that the Department should be prevented
from bringing this action because of the doctrines of collateral estoppel and issue preclusion.
The modern trend is to refer to collateral estoppel as issue preclusion. See Town of Sullivan's
Island v. Felger, 318 S.C. 340, 457 S.E.2d 626 (Ct. App. 1995); Peoples Federal Savings & Loan
Ass'n v. Myrtle Beach Golf & Yacht Club, 310 S.C. 132, 425 S.E.2d 764 (Ct. App. 1992); Price
v. City of Georgetown, 297 S.C. 185, 375 S.E.2d 335 (Ct. App. 1988). The doctrine of collateral
estoppel occurs when a party in a second action seeks to preclude a party from relitigating an
issue which was decided in a previous action. S.C. Property and Cas. Ins. Guar. Ass'n v. Wal-Mart Stores, Inc., 304 S.C. 210, 403 S.E.2d 625 (1991). "In order to successfully assert collateral
estoppel, the party seeking issue preclusion must show that the issue was actually litigated and
directly determined in the prior action, and that the matter or fact directly in issue was necessary
to support the first judgement." Town of Sullivan's Island v. Felger, 318 S.C. 340, 457 S.E.2d
626 (Ct. App. 1995); Richburg v. Baughman, 290 S.C. 431, 351 S.E.2d 164 (1986); Beal v. Doe,
281 S.C. 363, 315 S.E.2d 186 (Ct. App. 1984).
Our Supreme Court and Court of Appeals have adopted the general rule and exceptions as
set forth in the Restatement (Second) of Judgements, §§ 27, 28, 29 (1982). See S.C. Property
and Cas. Ins. Guar. Ass'n v. Wal-Mart Stores, Inc., 304 S.C. 210, 403 S.E.2d 625 (1991).
Restatement (Second) § 27 provides:
When an issue of fact or law is actually litigated and determined by
a valid and final judgement, and the determination is essential to
the judgement, the determination is conclusive in a subsequent
action between parties, whether on the same or different claim.
As previously enunciated, the present case and the criminal case involving Ms. Hughes are not
between the same parties. Therefore, the determination of the issue of fact in the criminal
proceeding is not conclusive in the present case. This is consistent with Restatement (Second) §
27.
Additionally, there are five exceptions to the general rule which are stated in Restatement
(Second) § 28. This tribunal finds the fourth exception applicable to this matter. This exception
applies when "the party against whom preclusion is sought had a significantly heavier burden of
persuasion with respect to the issue in the initial action than in the subsequent action . . . ."
Restatement (Second) § 28 (1982). It may be argued that the issues are similar, however, the
burden of proof in magistrate's court was a higher burden than the preponderance of the evidence,
which is the applicable burden of proof in this matter. For these reasons, I conclude that the
issue before this tribunal is not precluded by the doctrine(s) of collateral estoppel (issue
preclusion).
D. Conclusion
In conclusion, the holder of a beer and wine permit maintains liability for the actions of
his employees who sell alcohol to underage persons. Respondent's employee, Ms. Hughes,
permitted or knowingly allowed the purchase of wine by a person under the age of twenty-one in
violation of 23 S.C. Code Regs. 7-9(B) (Supp. 1995). Additionally, the defense of entrapment
has not been proven and SLED agents may lawfully employ UCIs to regulate licensees for
compliance with 23 S.C. Code Regs. 7-9(B). Furthermore, the doctrines of res judicata,
collateral estoppel, and issue preclusion do not prevent the adjudication of the administrative
violation by this tribunal.
The Department is authorized to revoke or suspend the beer and wine permit of any
licensee for committing a violation of the laws pertaining to alcoholic beverages or any regulation
promulgated by the Department. See S.C. Code Ann. § 61-9-410 (Supp. 1995). Further, the
Department may impose a monetary penalty as an alternative to revocation or suspension. S.C.
Code Ann. § 61-1-80 (Supp. 1995). For the reasons stated above, a fine of $800 against David
Evans, d/b/a Save More, Inc., is appropriate.
IV. ORDER
IT THEREFORE ORDERED that Petitioner's request that Respondent be fined $800
for violating 23 S.C. Code Regs. 7-9(B) is granted and Respondent shall remit $800 to the
Petitioner within thirty (30) days to satisfy the fine.
AND IT IS SO ORDERED.
_________________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 25, 1997
Columbia, South Carolina
1. The Administrative Law Judge Division has applied the Feldman analysis in at least two
other cases: S.C. Dep't of Revenue and Taxation v. Linda E. Sellers, d/b/a The Other Store,
Docket No. 95-ALJ-17-0535-CC (filed Feb. 13, 1996); S.C. Dep't of Revenue and Taxation v.
Idell B. Harriott, d/b/a Harriott's Grocery, Docket No. 95-ALJ-17-0595-CC (filed Mar. 6, 1996). |