SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1997). The South Carolina Department of Revenue contends that Respondent David C. Mitchell, d/b/a Island Grocery & Deli, knowingly permitted an Underage Cooperating Individual (UCI), Andy Strickland, to purchase beer from Respondent's licensed premises on October 18, 1997, in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997). The Department seeks a forty-five day suspension of Respondent's off-premises beer and wine permit for this alleged violation. Respondent admitted that his clerk made the sale. However, he contends that the sale was not made "knowingly" to an underage person.

After a timely notice to the parties, a hearing was conducted on July 29, 1998, at the Administrative Law Judge Division in Columbia, South Carolina. Based on the testimony and evidence presented, the Department's request that this tribunal suspend the Respondent's off-premises beer and wine permit for a period of forty-five days 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.

Respondent holds an off-premises beer and wine permit for the Island Grocery & Deli, located in St. Helena Island, South Carolina. On October 18, 1997, Respondent's employee, Demetria S. Brown (clerk), sold beer to Andy Strickland, a South Carolina Law Enforcement Division (SLED) UCI. Prior to completing the sale, the clerk did not ask the UCI if he was twenty-one years of age, or request any identification, nor did the UCI represent that he was twenty-one years of age. Immediately after purchasing the beer, the UCI exited the store and delivered it to the SLED agents.

As a result of the sale, the agents issued a citation to the licensee, David C. Mitchell, for violating 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997), by permitting purchase of beer by a person under twenty-one years of age. The UCI was seventeen years of age at the time of the sale. At the hearing, the UCI's physical appearance accurately reflected his physical appearance on the afternoon in question. The UCI appeared sufficiently youthful so as to merit an inquiry as to his correct age before allowing him 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 clerk concedes that she made the sale to the UCI on October 18, 1997. However, she contends that she mistook him for a former school mate. Consequently, she did not request that he provide identification, as the person she presumed him to be would be approximately twenty-two years of age.

Respondent has had two previous violations of Regs. 7-9(B) in as many years. Respondent paid a $100 fine for a May 12, 1995 violation and an $800 fine for a June 29, 1996 violation. As this violation represents the third offense in three years, pursuant to its guidelines, the Department seeks a forty-five day suspension of Respondent's permit.

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. 1997). The Department alleges that Respondent violated 23 S.C. Code Ann. Regs. 7-9(B) by permitting or knowingly allowing a minor to purchase 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 beer from Respondent's licensed establishment.

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 beer from the licensed establishment in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997). 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, 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)).

In the case at bar, Respondent concedes that his clerk allowed the UCI to purchase the beer. "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 years of age, especially when a simple inquiry would have confirmed such fact. Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). Feldman 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 instant case, the Department offered testimony establishing that at the time of the sale, the UCI's appearance was such that it would cause a prudent person to believe the UCI was under twenty-one years of age, and to conduct an inquiry to ascertain his correct age. Further, even at the hearing nine months after the sale, the UCI's appearance was sufficiently youthful so as to merit an inquiry to ascertain his correct age before selling him beer or wine. Respondent, therefore, permitted or knowingly allowed the UCI to purchase beer from his licensed establishment.

Even if the contention that the clerk was honestly mistaken as to the UCI's identity is true, mistake does not excuse the duty imposed by statute to not sell beer to minors. The purpose of this statutory prohibition is to protect both the minor and the public at large from the possible adverse consequences of such sales. The sale of alcohol to a minor is a serious offense and cannot be taken lightly. A beer and wine permit is neither a contract nor a property right. It is a "mere permit, issued or granted in the exercise of the police power of the state to do what otherwise would be unlawful to do; and to be enjoyed so long as the restrictions and conditions governing their continuances are complied with." Feldman, 203 S.C. 49, 26 S.E.2d 22, 25 (1943).

Accordingly, there are legal consequences for noncompliance with the alcoholic beverage statutes. Therefore, this tribunal rejects Respondent's argument that his clerk's sale to the UCI does not constitute a violation because the requisite "knowledge" is absent as the clerk made an "honest mistake." Following this line of reasoning, licensees could always elude responsibility by merely claiming that they did not intend to violate the law, thereby rendering the enforcement provisions meaningless. This tribunal does not believe the legislature intended such a consequence.

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. § 61-4-590 (Supp. 1997).

This violation is the third offense for this establishment in three years. With the first two violations, the licensee paid a fine. Here, he requests a fine in lieu of suspension of his license. However, the imposition of a fine apparently has not had a deterrent effect. Further, the forty-five day suspension is consistent with the Department's guidelines for a third violation.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Department's suspension of Respondent's off-premises beer and wine permit for forty-five days is sustained.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

August 17, 1998

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 (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 (Mar. 6, 1996).