SC Administrative Law Court Decisions

This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1996). The South Carolina Department of Revenue contends that John W. Carrigg permitted or knowingly allowed a minor to purchase a beer from his licensed establishment, JC's, located at 1017 Wappoo Road, Charleston, South Carolina. Accordingly, the Department seeks to impose a $400 fine against Respondent for a violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1996).

After timely notice to the parties, a hearing was conducted on November 19, 1997 at the Administrative Law Judge Division, Columbia, South Carolina. Based upon the testimony and evidence presented, the Department's request that Respondent be fined $400 for violating 23 S.C. Code Ann. Regs. 7-9(B) is granted.

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 John W. Carrigg holds an off-premises beer and wine permit (BG-816261) for JC's, a lounge located at 1017 Wappoo Road, Charleston, South Carolina.

2. On April 11, 1997, State Law Enforcement Division ("SLED") Agent C.N. Clarke, with the assistance of Underage Cooperating Individual ("UCI"), Sarah Robinson, conducted a routine sting operation at the licensed premises.

3. Before the UCI entered JC's, Agent Clarke searched her and determined that she had only a valid South Carolina driver's license, and an undetermined amount of cash on her person. Shortly thereafter, Agent Clarke observed the UCI enter JC's at approximately 4:45 p.m.

4. After entering JC's, the UCI asked Karen B. Mack, who was employed by Respondent as a sales clerk, for a "Budweiser." Ms. Mack gave the UCI the beer and collected her money without asking if she was "twenty-one." The UCI did not make any representations that she was twenty-one years of age.

As the UCI walked out of the location with the beer in her hand, a gentleman called out to her that she needed to get a bag. When the UCI reentered the store to get the bag, Ms. Mack asked to see her identification. The UCI merely handed Ms. Mack her identification, making no verbal or physical assertion that she was twenty-one years old. The identification presented was the UCI's South Carolina driver's license which indicated that her birth date is 9/16/80 and that she was "Under 21 until 09-16-2001." After looking at the UCI's identification, Ms. Mack handed it back to her without attempting to nullify the sale. The UCI exited the store and took the beer to Agent Clarke and Corporal Hazel of the Charleston Police Department, who were across the street from the premises. The UCI was sixteen years old at the time of the purchase.

5. Agent Clarke and the UCI entered the location, approached Ms. Mack, and introduced themselves. Agent Clarke issued Ms. Mack a citation for violating 23 S.C. Code Ann. Regs. 7-9(B) by permitting the purchase of beer by a person under twenty-one years of age.

6. On August 6, 1997, Respondent John W. Carrigg, d/b/a JC's, was issued a Final Agency Determination sustaining the citation for violating 23 S.C. Code Ann. Regs. 7-9(B).

7. On the date of the hearing before this tribunal, the UCI's physical appearance accurately reflected her physical appearance on the afternoon in question. The UCI was not wearing any make-up on the afternoon 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.

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. § 61-2-20 (Supp. 1996). The Department alleges Respondent John Carrigg, d/b/a JC's, violated 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1996) by permitting or knowingly allowing a minor to purchase a beer 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 Ann. 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 beer 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 drafter of 23 S.C. Code Ann. 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. § 61-4-580 (Supp. 1996); 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. Mack was employed by Respondent at the time the sale was made, therefore, Respondent is liable for the actions of Ms. Mack.

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 (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 beer from the licensed establishment in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1996). 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." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (1994), (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).

Ms. Mack permitted or knowingly allowed the UCI to purchase a beer 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 the age of twenty-one, especially when a simple inquiry would have confirmed such fact. Feldman v. SouthCarolina 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 twenty-one 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. Mack had knowledge that the UCI was under the age of twenty-one through the UCI's youthful appearance and Ms. Mack's inspection of the UCI's driver's license. 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 afternoon in question, and that she had made no attempt to alter her appearance to look older on the afternoon she visited JC's. 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. Mack had actual knowledge of the UCI's age once the UCI gave her driver's license to Ms. Mack. The driver's license clearly indicated that the UCI was born September 16, 1980 and was under the age of twenty-one. Even though Ms. Mack inquired, albeit after the sale, she apparently misread the UCI's identification, and acquiesced by failing to prevent a person under twenty-one years of age from purchasing beer at the licensed premises of Respondent. Respondent contends that the UCI presented false identification to Ms. Mack. However, no evidence was presented to substantiate this contention. Additionally, because Ms. Mack was an employee of Respondent at the time of the sale, Respondent is liable for a violation of 23 S.C. Code Ann. Regs. 7-9(B).

Respondent cannot absolve himself of this responsibility by asserting that the sale was made by Ms. Mack and not by him. The law imposes the responsibility on the licensee and the licensed establishment. The purpose of the statutory prohibition is to protect both the minor and the public at large from the adverse consequences of the sale of alcohol to minors. The sale of alcohol to a minor is a serious offense and cannot be taken lightly.

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. Mack, permitted or knowingly allowed the purchase of wine by a person under the age of twenty-one in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1996).

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. § 61-4-580 (Supp. 1996). Further, the Department may impose a monetary penalty as an alternative to revocation or suspension. S.C. Code Ann. § 61-4-250 (Supp. 1996). For the reasons stated above, a fine of $400 against John Carrigg, d/b/a JC's, is appropriate.

IT IS THEREFORE ORDERED that the Department shall impose a fine of $400 against Respondent and such fine shall be remitted to the Department within thirty days of the date of this order.

AND IT IS SO ORDERED.

_________________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

December 3, 1997

Columbia, South Carolina

1. The Administrative Law Judge Division has applied the Feldman analysis in at least two other cases: South Carolina 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); South Carolina 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).