ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me upon a request by Garland L. Zuber, d/b/a Li'l Cricket # 233
("Respondent") for a hearing pursuant to an administrative violation written against the off-premise
beer and wine permit for the premises located at 955 Howard Street, Spartanburg, South Carolina
("location"). A citation/violation report was issued at the location for a violation of S.C. Code Regs.
7-9 (B) (Supp. 1997) for allegedly permitting a person under the age of twenty-one (21) years to
purchase a malt beer/wine. Based upon this alleged violation and three (3) prior violations at this
location against the permit held by Respondent, the South Carolina Department of Revenue
("Department") is seeking a revocation of the Respondent's off-premise beer and wine permit.
A hearing was held at the Administrative Law Judge Division ("Division"), 1205 Pendleton
Street, Columbia, South Carolina, on Wednesday, March 18, 1998, pursuant to notice to the parties.
After a thorough review of the file and the evidence presented at the hearing, I find and
conclude that a fine in the amount of One Thousand & no/100 ($1,000.00) Dollars and a suspension
of one hundred eighty (180) days of the Respondent's off-premise beer and wine permit is
appropriate in this case.
Any issues raised in the proceedings or hearing of this case but not addressed in this Order
are deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a
prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).ISSUES
1. Did the Respondent or his agent violate the provisions of 23 S.C. Code Regs. 7-9(B)
(Supp. 1997) on July 16, 1997, by permitting or knowingly allowing a person under twenty-one (21)
years of age to purchase a bottle of beer/wine?
2. If there is a violation, what is the appropriate penalty?
POSITIONS OF THE PARTIES
The Department asserts that Ms. April Jackson, an employee of the Respondent at the
location at 955 Howard Street, Spartanburg, South Carolina, known as Li'l Cricket # 233, knowingly
permitted and allowed the purchase of a bottle of beer by an individual under the age of twenty-one
(21) years. Respondent does not deny that the sale occurred; however, he affirmatively alleges that
the sale by the employee was not authorized by management of Li'l Cricket Stores nor by him and,
that the Underaged Confidential Informant ("UCI") who purchased the beer, told Ms. Jackson that
he was twenty-one (21) years of age. Further, Respondent states that the company conducts training
for its employees in ABC laws and regulations, and that they are instructed to card customers, look
at identifications to determine ages, and to refrain from selling beer or wine to customers unless they
can show satisfactory evidence of the allowable age.
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 all
parties.
3. Respondent holds an off-premise beer and wine permit, as Vice President of Li'l
Cricket Food Stores, Inc., for the convenience store location known as Li'l Cricket # 233, 955
Howard Street, Spartanburg, South Carolina.
4. On July 16, 1997, State Law Enforcement Division ("SLED") agents Brunson Asbill,
M. R. Jones and David Causey were making "controlled buys" at various locations in Spartanburg
County which held permits and licenses issued by the Department. An underage cooperating
individual ("UCI"), Corey Smith, from Columbia, South Carolina was participating in the
"controlled buys," entering the locations and attempting to purchase either a bottle of beer or wine.
The UCI went into approximately eighteen to twenty locations on that date.
5. Corey Smith was born on May 8, 1979 and was eighteen years of age on July 16,
1997. Mr. Smith was unemployed at the time. Presently he is a part-time student at Midlands
Technical College and is employed at a Wal-Mart store in the Columbia, South Carolina area. 6. Mr. Smith held a valid South Carolina driver's license which showed his birth date
and contained in the upper right hand corner the statement: "Under twenty-one until 05-09-2000." 7. At approximately 1:00 p.m. on July 16, 1997, Mr. Smith exited the vehicle driven by
agent Asbill and went inside the location. He had in his possession his South Carolina driver's
license and a small amount of cash.
8. Once inside the location, the UCI went directly to a cooler at the rear, picked up a 20
ounce bottle of beer called "St. Ides" and walked to the counter where the clerk, Ms. April Jackson,
was standing. Upon Ms. Jackson's request, the UCI showed her his South Carolina driver's license
which showed his birth date of May 8, 1979. Upon request of his age by the clerk, the UCI told her
he was eighteen (18) years of age.
9. The UCI purchased the beer from the clerk and walked out of the store. He then
proceeded to get into the vehicle driven by agent Asbill and handed the agent the malted beer he had
just purchased.
10. Agent Asbill immediately radioed to Agents Causey and Jones, who were in a
separate vehicle, that the "buy" had been consummated. The agents drove to the location and agent
Jones, together with the UCI, went inside and explained to the clerk that Mr. Smith was under
twenty-one (21) years of age. Agent Jones then wrote out the administrative citation against the
location for violating S. C. Code Regs. 7-9 (B) by permitting the purchase of beer by a person under
twenty-one (21) years of age.
11. This violation constitutes the fourth violation of Regs. 7-9 (B) written against the beer
and wine permit for this store, Li'l Cricket # 233. The first violation report is dated November 10,
1995; Respondent paid a monetary penalty/fine of Four Hundred and no/100 ($400.00) Dollars for
that violation.
13. On November 6, 1996, another violation report was issued to Respondent for
violation of Regs. 7-9 (B) at the location. A monetary penalty of Eight Hundred & no/100 ($800.00)
Dollars was paid by Respondent for that violation.
14. On January 31, 1997, another violation report was issued to Respondent for a similar
violation of Regs. 7-9 (B) at the location. The penalty imposed by the Department for this violation
was the suspension of the permit for a period of forty-five (45) days, pursuant to an internal order
dated September 30, 1997.
15. Li'l Cricket Stores, Inc. owns and operates approximately eighty (80) Li'l Cricket
convenience stores in the upstate area of South Carolina. The company headquarters is located in
Spartanburg, South Carolina.
16. A large portion of the business at each of Respondent's convenience stores consists
of the sale of beer and wine for off-premise consumption.
17. Li'l Cricket Food Stores, Inc. employs Mr. Wayne Butler as its chief of security. He
has twenty-eight (28) years of law enforcement background and last served as the Chief of Police
for the city of Cowpens, South Carolina. His job requires him to visit each of the stores frequently,
to check them for security, to prepare and train the employees in ABC laws, especially regarding the
proper procedure for checking the identification of all purchasers of beer or wine to ensure they are
twenty-one years of age or older. Further, he investigates thefts and monitors cameras at the stores.
18. Li'l Cricket Food Stores, Inc. requires all new employees to sign a statement on the
employment form/agreement that they will "abide by all South Carolina Alcoholic Beverage
Commission Laws" and that they will "I.D. anyone who appears under 30 years old." Also, memos
are sent to employees reminding them to check customers for their identification if they appear to
be under 30 years of age.
19. The clerk at Li'l Cricket # 233, Ms. April Jackson, has not been terminated by the Li'l
Cricket Food Stores, Inc.
20. During the year 1994, there were no administrative violations under the South
Carolina Alcoholic Beverage Control laws or regulations written against any of the stores owned by
Li'l Cricket Food Stores, Inc. During the year 1995, five (5) administrative violations of ABC laws
were written, in 1996 nine (9) were written, and in 1997 only four (4) were written against the
approximately eighty (80) stores.
21. All new employees are required to read the company's procedure manual during the
first two days of their employment. It contains information on the ABC laws and regulations.
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. 1997) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. S. C. Code Ann. § 61-2-260 (Supp. 1997) provides that contested case hearings
arising under the provisions of Title 61 must be heard by an Administrative Law Judge with the
Division.
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 the age of twenty-one (21)
years. S.C. Code Ann. § 61-4-580(1) (Supp. 1997).
4. 23 S.C. Code Ann. Regs. 7-9(B) (1976) prohibits a permittee from permitting or
knowingly allowing a person under twenty-one (21) 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. For a violation of any provision contained in Chapter 4 of Title 61, S.C. Code Ann.
§ 61-4-250 (Supp. 1997) authorizes discretion in the trier-of-fact to impose a monetary penalty on
the holder of a beer or wine permit in lieu of suspension or revocation. It provides certain
parameters for retail beer and wine licenses and for wholesale beer and wine licenses. It further
provides that the monetary penalty may be suspended.
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 (21)
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
(21) 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 clearly shows that the Respondent, through his employee,
permitted the sale of beer to a person under twenty-one (21) years of age. Despite the youthful
appearance of the UCI, Respondent's employee ignored the valid South Carolina driver's license of
the UCI which clearly showed he was under the age of twenty-one years and would not reach that
age until the year 2000.
It is not sufficient to ask for proper identification of a customer; an employee or owner must
review the identification to determine if the customer has reached the statutorily prescribed age of
twenty-one years. When an employee fails to perform that job function and requirement, as in this
case, such conduct constitutes a failure to comply with the provisions of § 61-4-580 (Supp. 1997)
and Regs. § 7-9(B).
10. If an agent is doing some act in furtherance of the principal's business, he will be
regarded as acting within the scope of his authority. On the other hand, a principal is generally not
liable when an agent is acting for his own independent purposes, wholly disconnected from
furtherance of his employer's business; such conduct falls outside the scope of his employment
Crittenden v. Thompson-Walker Co., Inc., 288 S.C. 112, 341 S.E.2d 385 (Ct. App. 1986).
11. The record is clear that the clerk, Ms. April Jackson was acting within the scope of
general authority placed in her by her principal, Mr. Zuber and Li'l Cricket Food Stores, Inc. in
selling beer and wine at the location. Further, her actions in so doing are and were with the
knowledge and consent of her principal. No evidence was placed in the record that Ms. Jackson was
not authorized to be at the location nor to make sales of beer and wine. Further, the evidence is
overwhelming that she did sell a beer to the UCI.
12. Permits and licenses issued by the state of South Carolina for the sale of liquor, beer,
and wine are not rights or property, but are rather privileges granted in the exercise of the police
power of this 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).
13. Based upon the evidence, I conclude that the Respondent and/or his agent for whose
action he is responsible violated S. C. Code Ann. § 61-4-580 (Supp. 1997) and 23 S.C. Code Ann.
Regs. 7-9(B)(1976) on July 16, 1997, by selling a beer to a person under twenty-one (21) years of
age.
14. S.C. Code Ann. § 61-4-250 (Supp.1997) 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).
15. It is a generally recognized principle of administrative law that the fact-finder has the
authority to impose an administrative penalty, as established by the legislature, after the parties have
had an opportunity to have a hearing and be heard on the issues. Walker v. S. C. ABC Comm'n, 305
S.C. 209, 407 S.E.2d 633 (1991). See also City of Louisville v. Milligan, 798 S. W. 2d 454 (Ky.
1990); Matter of Henry Youth Hockey Ass'n, 511 N. W. 2d 452 (Minn. Ct. App. 1994); Shadow
Lake of Noel, Inc. v. Supervisor of Liquor Control, 893 S. W. 2d 835 (Mo. Ct. App. 1995); Ohio
Real Estate Comm'n v. Aqua Sun Inv., 655 N. E. 2d 266 (Ohio 1995); State Police v. Cantina
Gloria's, 639 A. 2d 14 (Pa.1994); Vermont Agency of Natural Resources v. Duranleau, 617 A. 2d
143 (Vt. 1992).
16. Based upon the evidence presented and after considering the credibility of the
witnesses, together with the Respondent's policies regarding the adherence to ABC statutes at his
convenience stores, I conclude that a monetary penalty of One Thousand & no/100 ($1,000.00)
Dollars, together with a suspension of the off-premise beer and wine permit for a period of one
hundred eighty (180) days, is the appropriate penalty in this case.
ORDER
After considering the positions of the parties, the Findings of Fact and the Conclusions of
Law, it is hereby:
ORDERED that the Respondent, Garland L. Zuber, d/b/a Li'l Cricket #233, is in violation
of 23 S. C. Code Ann. Regs. 7-9 (B) (1976) for selling a bottle of beer to a person under the age of
twenty-one (21) years on July 16, 1997 and, it is further
ORDERED that the Respondent shall pay a monetary penalty in the amount of One
Thousand and no/100 ($1,000.00) Dollars to the Department within fifteen (15) days of the date of
this Order and, it is further
ORDERED that the off-premise beer and wine permit issued by the Department to the
Respondent at 955 Howard Street, Spartanburg, South Carolina is suspended for a period of One
Hundred Eighty (180) days, to begin on the fifteenth day from the date of this Order and,
IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
March 25, 1998 |
