South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Frankie D. Rogers, d/b/a JR's Hasty Mart, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Frankie D. Rogers, d/b/a JR's Hasty Mart, Inc.
 
DOCKET NUMBER:
98-ALJ-17-0047-CC

APPEARANCES:
For the Petitioner: Arlene D. Hand, Esquire

For the Respondent: Dallas D. Ball, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me upon a request by Frankie D. Rogers, d/b/a JR's Hasty Mart, Inc. ("Respondent") for a hearing pursuant to an administrative violation written against the off-premise beer and wine permit for the premises located at 100 S. Norris Drive, Norris, South Carolina ("location"). A citation/violation report was issued at the location for a violation of S.C. Code Regs. 7-9 (B) (Supp. 1996) for allegedly permitting a person under the age of twenty-one (21) years to purchase a beer. 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 forty-five (45) day suspension 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 Thursday, March 26, 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 suspension of thirty (30 ) 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. 1996) on June 20, 1997, by permitting or knowingly allowing a person under twenty-one (21) years of age to purchase a bottle of beer?

2. If there is a violation, what is the appropriate penalty?

POSITIONS OF THE PARTIES

The Department asserts that Ms. Dianne S. Prince, an employee of the Respondent at the location at 100 S. Norris Drive, Norris, South Carolina, known as JR's Hasty Mart, Inc., knowingly permitted and allowed the purchase of a bottle of beer by an individual under the age of twenty-one (21) years on June 20, 1997. The Respondent does not deny the sale of the beer; however, it alleges that the purchase by the underage purchaser was not for the purpose of consumption but was with the specific intent to entrap the Respondent.

EVIDENCE

The Department presented the testimony of the UCI, David Hill, and SLED agent, Jerry Owen together with various exhibits. The Respondent neither provided testimony nor introduced any exhibits into the record.

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. Notice of the date, time, place and nature of the hearing was timely given to all parties.

2. Respondent holds an off-premise beer and wine permit, as President of JR's Hasty Mart, for the convenience store location known as JR's Hasty Mart, 100 S. Norris Drive, Norris, South Carolina.

3. On June 20, 1997, State Law Enforcement Division ("SLED") agents Jerry Owen and Aaron Jackson were conducting "controlled buys" or purchases of beer at various locations in Pickens County, South Carolina which held permits and licenses issued by the Department. An underage cooperating individual ("UCI"), David Hill, from Anderson, South Carolina was participating in the "controlled buys."

4. Mr. Hill would enter the locations and attempt to purchase either a bottle of beer or a bottle of wine.

5. David Hill was born on June 9, 1979 and was nineteen years of age on June 20, 1997. He is a freshman at Clemson University and is employed part-time with SLED as a UCI and part-time at a Video Production Company in the Pickens, South Carolina area.

6. Mr. Hill 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 06-09-2000." 7. On the morning of June 20, 1997, agent Owen and agent Jackson went to the location with the UCI. At approximately 9:35 a.m., they searched the person of the UCI, gave him $5.00 and sent him into the location. The UCI had in his possession his South Carolina driver's license and the $5.00.

8. Once inside the location, the UCI looked around and then went to a cooler where he picked up a 32 ounce bottle of Busch beer. He then walked to the counter where the clerk, Ms. Dianne Prince, was standing. Ms. Prince did not ask Mr. Hill for any identification, nor did she request of him his age.

9. The UCI purchased the beer from the clerk with the money given to him by the SLED agents and walked out of the store with some change and the beer. He then got into the vehicle driven by agent Owen and handed to the agent the beer he had just purchased. Mr. Hill filled out a "buy" statement.

10. Mr. Hill testified that at no time while he was inside the location did he try to distract the clerk and that he wore no disguise.

11. On the date of the hearing before this court, the UCI's physical appearance accurately reflected his physical appearance on the date in question. On the date in question the UCI was wearing eyeglasses; at the hearing he had contact lenses. He appeared sufficiently youthful so as to merit an inquiry as to his correct age before allowing him to purchase a beer. Based on this court's observation of the UCI at the hearing, a reasonable person would conclude that the UCI was under twenty-one (21) years of age on the date the purchase of the beer was made.

12. Subsequent to the UCI vacating the location, agents Owen and Jackson, together with the UCI, went inside and explained to the clerk that Mr. Hill was under twenty-one (21) years of age. Agent Owen 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. 13. The clerk was also charged by agent Owens with a violation of S.C. Code Ann. § 61-4-90 for transferring a beer to a person under twenty-one (21) years of age.

14. On June 7, 1995, the Respondent was charged by agent Jones with a violation of Regs. 7-9 (B) for permitting the purchase of wine by a person under the age of twenty-one (21) years. Witnessing officers at that incident were agents Jenkins and Asbill. The Respondent voluntarily made payment to the Department of the sum of Four Hundred and no/100 ($400.00) Dollars as the penalty for that violation on July 28, 1995.

15. On May 12, 1995, the Respondent was issued violation reports for a violation of S.C. Code Regs. 7-82, "Refusal to Permit an Inspection," and S.C. Code Ann. § 61-9-410 (5), "Permitting a Criminal Act" (Resisting Arrest pursuant to the provisions of S.C. Code Ann § 16-9-320). As a result of these two violation reports, the Respondent voluntarily made payment to the Department of the sum of Four Hundred and No/100 ($400.00) for each violation on August 22, 1995.

16. On May 12, 1995, the Respondent was also issued violation reports for a violation of S.C. Code Ann. § 61-9-410 (5), "Permitting a Criminal Act" (Public Disorderly Conduct pursuant to the provisions of S.C. Code Ann. § 16-17-530), and S.C. Code Ann. § 61-5-190, "Violation of a Stipulation" on the off-premise permit. As a result of these two violation reports, the Respondent voluntarily made payment to the Department of the sum of Four Hundred and No/100 ($400.00) Dollars for each violation on August 22, 1995.

17. It is obvious that two incidents occurred at the location prior to the present alleged violation occurrence. Thus, this violation constitutes the third violation written against the beer and wine permit for this store, JR's Hasty Mart, Inc. A period of more than two years have passed between the violation on June 7, 1995 and this alleged violation on June 20, 1997.

18. This court finds the testimony of the SLED agent and the UCI to be credible.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:

A. Jurisdiction

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.

B. Violation of S.C. Code Regs. 7-9(B)

3. 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. 1997).

4. 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. 1996).

5. 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.

6. To warrant a violation of 23 S. C. Code Regs. 7-9 (B), the Department must establish that either the Respondent or the Respondent's servant, agent or employee permitted or knowingly allowed a person under the age of twenty-one (21) years to purchase a bottle of beer or wine from the permitted establishment. It is well established that, in interpreting a regulation, the sole function of this court 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. State v. Ramsey, 311 S. C. 555, 430 S. E. 2d 511 (1993).

7. 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.

8. 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.

9. A person has no right to shut his eyes to avoid information clearly before him. 58 Am.Jur.2d Notice § 13 (1989).

10. 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). When the meaning of the language, the subject matter, and the purpose of Regs. 7-9 (B) are considered together, it becomes apparent that the drafters of the regulation intended for beer and wine permit holders to be responsible for the actions and conduct of their agents or employees. 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. Such an interpretation is consonant with the public policy of prevention underage drinking. The clerk, Ms. Prince, was employed by the Respondent at the time the sale of the beer was made to the UCI and therefore, the Respondent is liable for the actions of Ms. Prince.

11. 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 the Respondent or the Respondent's agent, servant, or employee permitted or knowingly allowed the UCI to purchase a beer from the permitted establishment in violation of Regs. 7-9 (B). 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 at 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." Frazier v. Frazier, 228 S. C. 149, 89 S. E. 2d 225 (1955).

12. 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 did not ask for identification. Mr. Hill had a valid South Carolina driver's license which clearly shows that he was under the age of twenty-one years and would not reach that age until the year 2000. "To permit" means to allow, consent, let; to acquiesce by failure to prevent, or to expressly assent to agree to the doing of an act. Black's Law Dictionary at 1140 (6th ed. 1990). This court 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 (21) years of age to purchase a beer 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 for determining whether the required degree of knowledge is present:

1. Whether the Respondent knew that the UCI was under twenty one (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 that the UCI was under twenty one (21) years of age, and

b. Would cause the same prudent person to conduct an inquiry to

ascertain the correct age.

In this case, the Department offered testimony establishing that Ms. Prince had knowledge that the UCI was under the age of twenty-one (21) years through his youthful appearance. Further, the UCI had on his person proof of his age which was not checked by the clerk. The youthful appearance of the UCI would cause a prudent person to believe that he was under the age of twenty-one (21) years and would cause that person to conduct an inquiry as to the UCI's correct age. No evidence was presented to show that the appearance of the UCI was any different at the hearing from the date of the purchase of the beer, nor had any attempt been made to alter his appearance.

C. Entrapment

13. The Respondent asserts that its employee 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 may not be shown by evidence that the government agent initiated the contact with the Defendant (Respondent) 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, 106 S. Ct. 815 (1986). Rather, more is needed to show inducement, such as trickery by disguise.

In this case, the UCI did not induce, trick or incite the clerk to sell him the beer. The SLED agent did nothing more than to employ the UCI for the sum of $50.00 on the date in question to make "buys." The UCI did nothing to alter his appearance to make him appear older than his true age. Further, the UCI had his South Carolina driver's license on his person which reflected his correct age. The Respondent provided no evidence at the hearing nor offered any testimony in rebuttal to that offered by the Department in its case in chief to prove that any entrapment occurred on the date in question. Upon taking reasonable action, considering the youthful appearance of the UCI, the Respondent would have determined that he was only eighteen (18) years of age and that the sale should not have been made.

In this case, the Department used an informant to purchase a bottle of beer. The only action taken by the UCI was the placement of the bottle of beer on the counter in anticipation of completing the purchase. The actions of the UCI (informant) constituted mere solicitation. Those actions are not sufficient to establish the element of the government's having engaged in a forbidden inducement. The seller was not deceived or tricked into making the sale. There being no proof that the Respondent was induced, tricked, or incited to commit the offense, nor any proof that the sale would not have been made except for some trickery or inducement on the part of the UCI, I conclude as a matter of law that the Respondent has failed to prove the defense of entrapment.

D. Penalty for the Violation

14. 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. Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

15. Based upon the evidence, I conclude that the Respondent violated S.C. Code Ann. § 61-4-580 (Supp. 1996) and 23 S.C. Code Ann. Regs. 7-9(B)(1976) on June 20, 1997, by selling a beer to a person under twenty-one (21) years of age.

16. 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).

17. 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).

18. Based upon the evidence presented and after considering the credibility of the witnesses, I conclude that a suspension of the off-premise beer and wine permit for a period of thirty (30) 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, Frankie D. Rogers, d/b/a JR's Hasty Mart, Inc., 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 June 20, 1997 and, it is further

ORDERED that the off-premise beer and wine permit issued by the Department to the Respondent at 100 S. Norris Drive, Norris, South Carolina is suspended for a period of thirty (30) 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

April 20, 1998


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