ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and S.C.
Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996), upon request for a contested case hearing by
Respondent. Respondent was cited with an administrative violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1996), for allegedly permitting or knowingly allowing the purchase of beer by a person
under twenty-one (21) years of age on or about November 27, 1996. The South Carolina
Department of Revenue (hereinafter referred to as "DOR") seeks a four hundred dollar ($400) fine
for the alleged violation. Respondent denies the allegations. A hearing on several prehearing
motions and a contested case hearing on the merits was held September 26, 1997. Upon review of
the relevant and probative evidence and the applicable law, I find and conclude the violation
occurred. Respondent is ordered to pay a monetary fine of four hundred dollars ($400).
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).
PREHEARING MOTIONS
Several prehearing motions were addressed at the September 26th hearing. A brief
summary of these motions is provided below.
I. Motion in Limine
Respondent's Motion in Limine sought to exclude any and all testimony of Phillip
Schmierer, the underage cooperating individual ("UCI") in this case, and SLED Documents
Examiner Lt. Gail Health on the basis that such testimony would be prejudicial to Respondent's
case. Respondent claims: (1) that he was not properly notified that the UCI would not be testifying
at trial and that such lack of knowledge impeded his ability to effectively cross-examine the witness
at his deposition; and (2) that SLED Lt. Heath should be excluded as an expert witness on the basis
of bias since SLED itself produced the document (UCI's drivers license) in question.
At the hearing, the testimony of both the UCI and Lt. Heath were allowed into the record
due to their nonprejudicial nature upon Respondent's case. With regard to the UCI deposition,
Respondent's counsel became aware of the UCI's plans to move out of state during the taking of the
deposition and therefore had an opportunity to effectively question him after that point. See
Schmierer Dep. at 42. In addition, the inability to cross-examine a deponent witness does not
necessarily indicate prejudice which would warrant exclusion of such testimony. See 26A C.J.S.
Depositions § 92 (deposition admissible even though the party by whom it is taken and introduced
fails or refuses to place deponent on the stand and thus deprives the adverse party of a chance to
cross-examine deponent at trial); See also McAllister v. Smiley, 301 S.C. 10, 389 S.E.2d 857 (1990)
(Toal, J., dissenting) (De bene esse deposition should have been allowed in as evidence even though
Respondent's attorney claimed a lack of opportunity to adequately cross-examine); cf. SCRCP Rule
32(a)(3)(B) ("The deposition of a witness...may be used by any party for any purpose if the court
finds...that the witness is out of the State.").
With regard to the expert testimony of Lt. Heath, Respondent failed to present any
substantive evidence of bias which would warrant exclusion of her testimony. Lt. Heath, who has
testified as an expert witness for over the last fifteen (15) years, is not an employee of the S.C. Dept.
of Revenue and her payment for services rendered does not depend on the result given in this or any
other particular trial in which she participates.
II. Motion to Dismiss
Respondent's Motion to Dismiss, based on ALJD Rule 52 and SCRCP Rule 37(B)(2)(c),
alleged discovery abuse by Petitioner. In particular, Respondent claims that: (1) the scheduled
deposition of SLED Agent Asbill was canceled in reliance upon Petitioner's unfulfilled assurance
that the UCI's personnel file would be made available to Respondent; (2) Petitioner's proposed
witness Youtha Worthy refused to speak with Respondent's counsel on advice of Petitioner's
counsel; (3) Petitioner has refused to produce requested information as to the identity of an alleged
informant in this case; and (4) Respondent reiterates objection to exclude deposition of Philip
Schmierer.
With regard to points (1) and (2), the discovery and trial records are devoid of any evidence
that Petitioner exhibited bad faith or attempted to willfully impede Respondent's collection of
information. Petitioner immediately informed Respondent of SLED's refusal to provide the UCI
personnel file, and upon learning of point (2) immediately spoke with Ms. Worthy and directed her
to cooperate with Respondent's counsel. As to the identity of the alleged informant in this case,
point (3), such information is entirely irrelevant to the administrative action at hand (the issue it
speaks to, entrapment, is applicable in a criminal action). Point (4) has already been addressed with
regard to Respondent's Motion in Limine.
III. Motion to Quash
In response to Respondent's subpoena requesting the UCI personnel file, Petitioner filed a
Motion to Quash on the basis that the contents of the UCI file are irrelevant to the present
proceeding and that such information is privileged and should be protected from disclosure on
public policy grounds. Caroline Tifton, counsel from the S.C. Attorney General's office,
represented SLED's support for the Motion to Quash at the September 26th hearing.
At the hearing, the UCI personnel file was viewed by the Court in camera, and relevant
portions of the file were made available to both parties under a protective order.
DISCUSSION
In addition to the prehearing motions discussed above, Respondent asserted as a defense
that: (1) Mr. Wike (the clerk on duty and employee of Respondent) did not knowingly sell beer to a
person under the age of twenty-one; and (2) Mr. Wike's acquittal on criminal charges arising out of
this incident collaterally estopps Petitioner from pursuing the present administrative action.
In support of the lack of knowledge argument, Respondent points to alleged irregularities
with the UCI's duplicate South Carolina drivers license as suggestive evidence that the actual
license presented to Mr. Wike on November 27, 1996 indicated that the UCI was twenty-one (21)
years of age or older. In particular, Respondent refers to the fact that the license, which was
originally issued in 1993, contains the signature of Governor David Beasley rather than then-Governor Carroll Campbell. The testimony of Youtha Worthy, an employee of the Department of
Public Safety in the Driver Records division, indicated at the hearing that the change in Governor
signatures on duplicate S.C. drivers' licenses was not an irregularity but rather standard procedure
(accomplished by specialized computer software). In addition, Respondent questioned the
authenticity of the UCI's signature on the duplicate license as being inconsistent with samples
procured at the UCI's deposition. SLED Documents Examiner Lt. Gail Heath testified at the
hearing as an expert witness in the field of handwriting analysis. In the opinion of Lt. Heath, the
UCI's signature on the duplicate license was consistent with the deposition signatures provided by
Respondent. Respondent has thus failed to present credible evidence that the UCI driver's license
used at Respondent's place of business was irregular or that it indicated an age of twenty-one (21)
or older.
The doctrine of collateral estoppel does not preclude the litigation of an administrative
violation of 23 S.C. Code Ann. Regs. 7-9(B), where an employee of a licensed establishment was
previously acquitted on criminal charges for an unlawful transfer of beer to a minor. When
applicable, collateral estoppel precludes a party from relitigating an issue which was decided in a
previous action. S.C. Property & Cas. Ins. Guar. Ass'n v. Wal-Mart Stores, Inc., 304 S.C. 210, 403
S.E.2d 625 (1991). The Supreme Court of South Carolina has adopted rules regarding collateral
estoppel as set forth in the Restatement (Second) of Judgments, §§ 27, 28, 29 (1982). Id. Collateral
estoppel is not applicable 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) of Judgments § 28 (1982). Since the burden of proof in the
criminal trial ("beyond a reasonable doubt") was significantly higher than the burden applicable in
the present action ("preponderance of the evidence"), collateral estoppel does not apply.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
1. The ALJD has personal and subject matter jurisdiction in this case.
2. Notice of the time, date, place, and subject matter of the hearing was given to Respondent and DOR.
3. Respondent holds an on-premises beer and wine permit for a convenience store known as Max Saver, Inc., located at 210 Milacron Dr., Fountain Inn, South Carolina.
4. On or about November 27, 1996, Mark Allan Wike, employee and agent of Respondent, was the clerk on duty at Max Saver.
5. On or about November 27, 1996, Agents J.R. Causey and Evatt Asbill of the South Carolina Law Enforcement Division, Alcohol Enforcement Unit (hereinafter referred to as "SLED") and an underage cooperating individual ("UCI") visited the licensed location.
6. The UCI entered the licensed location while Agents Causey and Asbill waited outside.
7. The UCI purchased a six-pack of Budweiser beer from Mr. Wike, who rung up the sale at the register.
8. Mr. Wike requested identification from the UCI.
9. The UCI presented a valid South Carolina Driver's license reflecting he was eighteen (18) years of age.
10. Mr. Wike examined the UCI's drivers license and proceeded to sell the beer to the UCI.
11. Agents Causey and Asbill subsequently took possession of the beer from the UCI, entered the licensed location and cited Mr. Wike with criminal violations and Respondent for administrative violations.
12. Phillip Schmierer, whose date of birth is June 17, 1978, was the UCI working in cooperation with Agents Causey and Asbill.
13. The UCI was nineteen (19) years old as of November 27, 1996.
14. At the time he entered the store, the only items in the possession of the UCI were his valid South Carolina driver's license, a small amount of cash, and his wallet.
15. Agent Asbill searched the UCI just prior to his entrance into the licensed location and found
no other items on his person (including any other ID's).
16. The driver's license used by the UCI to purchase beer at Respondent's place of business was a valid South Carolina duplicate driver's license issued by the Division of Motor Vehicles. The duplicate license was issued by DOR on June, 6, 1995.
17. The UCI's signature on the duplicate S.C. driver's license used at Respondent's place of business was consistent with other signatures of the UCI provided by Respondent's counsel.
18. The UCI had not changed his normal appearance to attempt to look older than his age.
19. The UCI has worked with SLED in the past as an UCI and was paid $50 each night he cooperated.
20. The UCI has no criminal record or criminal charges against him.
21. Curran Smith has no previous administrative violations as the owner/licensee of Max Saver,
Inc.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996), the South Carolina Administrative Law Judge Division has jurisdiction in this matter.
2. Beer and wine licenses are neither contracts nor property rights. They are mere permits,
issued or granted in the exercise of the State's police power and to be enjoyed only so long
as the restrictions and conditions governing their continuance 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. Feldman v. S.C.
Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).
3. 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1996) prohibits a licensee from knowingly allowing
the purchase or possession of beer by a person under the age of twenty-one (21) years on the
licensed premises. A violation constitutes grounds for suspension or revocation of the beer
and wine permit.
4. S.C. Code Ann. § 61-4-250 (Supp. 1996) authorizes the discretionary imposition of a
monetary penalty as an alternative to the suspension or revocation of a license or permit.
5. "Knowingly" includes, not only actual knowledge of a fact, but also situations where a
person has such information, or the circumstances are such, as would lead a prudent person
to form a belief as to the fact, and if followed by inquiry would have disclosed its character.
State v. Thompkins, 263 S.C. 472, 211 S.E.2d 549 (1975); Feldman, supra; Daley v. Ward,
303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990).
6. 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).
7. Phillip Schmierer was under the age of twenty-one (21) at the time he purchased the beer at
Respondent's place of business.
8. Mark Allan Wike inspected the UCI's valid S.C. driver's license, indicating Mr. Wike knew
or should have known that Schmierer was not twenty-one years of age.
9. Mr. Wike was acting within the scope of general authority placed in him by his principal,
Curran Smith, in selling beer and wine at the location. Mr. Wike's actions in doing so were
within the knowledge and consent of his principal.
10. Respondent knowingly allowed the purchase of beer by a person under the age of twenty-one on November 27, 1996, in violation of R. 7-9(B).
11. Respondent was not entrapped. The defense of entrapment is available only in criminal
cases and requires a showing that a defendant was induced, tricked, or incited to commit a
crime he would not have otherwise committed, not merely provided an opportunity to
commit the crime charged. State v. Johnson, 295 S.C. 215, 367 S.E.2d 700 (1988); State v.
Hayden, 268 S.C. 214, 232 S.E.2d 889 (1977).
12. S.C. Code Ann. § 61-4-250 (Supp. 1996) authorizes, for any violation of any regulation
promulgated by DOR 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).
13. 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
IT IS THEREFORE ORDERED that Curran A. Smith pay a monetary penalty in the
amount of four hundred dollars ($400) for the offense of permitting the purchase of beer by a
person under the age of twenty-one (21) years in violation of 23 S.C. Code Ann. Regs. 7-9(B)
(Supp. 1996). If DOR does not receive payment of the assessed fine within fifteen (15) days from
the date of this Order, it is ordered that the beer and wine permit held by Curran Smith for Max
Saver, Inc. at 210 Milacron Dr., Fountain Inn, South Carolina, be suspended for a period of fifteen
(15) days. If the assessed fine is not paid, a SLED agent shall serve a copy of this Order on Curran
Smith and take possession of the permit. Upon service of fifteen (15) days suspension, said agent
shall return the permit to Respondent.
Respondent and his agents are to post a copy of this Order at a visible location and cease and desist
all sales of beer and wine at the location during the suspension period.
________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
November 19, 1997
Columbia, South Carolina |
