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 Paul D. DeLoach, d/b/a Piggly Wiggly #44, knowingly permitted an Underage Cooperating Individual (UCI), Andy Strickland, to purchase beer from Respondent's licensed premises on January 17, 1997, in violation of 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997). The Department seeks to impose an $800 fine against Respondent 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 September 28, 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 sustain its decision to impose the monetary fine against Respondent 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 Piggly Wiggly #44, located in Estill, South Carolina. On January 17, 1997, Respondent's employee, Betty DeLoach (clerk), sold beer to Andy Strickland, a UCI for the South Carolina Law Enforcement Division (SLED). The UCI was seventeen years of age at the time of the sale. Prior to completing the sale, the clerk did not ask the UCI if he was twenty-one years of age; however, she did request identification. After the UCI gave the clerk his South Carolina Driver's License, she glanced quickly at it and completed the sale. The UCI's driver's license accurately reflected his date of birth as "10/30/79." Further, "Under 21 until 10/30/2000" was displayed in the upper right corner of the driver's license. Immediately after purchasing the beer, the UCI exited the store and delivered it to SLED Agent Lonnie Roberts, Jr. The clerk concedes that she made the sale to the UCI on January 17, 1997. However, she contends that she miscalculated his age.

As a result of the sale, Agent Roberts issued a citation to the licensee, Paul D. DeLoach, for violating 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1997) by permitting the purchase of beer by a person under twenty-one years of age. At the hearing, 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.

Respondent had one previous violation of Regs. 7-9(B) on August 31, 1995. As the alleged January 17, 1997 violation would represent the second offense in three years, pursuant to its guidelines, the Department seeks an $800 fine against Respondent.

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 sold beer to the UCI; however, he contends that such sale was not made knowingly. "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. "Knowingly" means possessing knowledge, information, or understanding." American Heritage College Dictionary 752 (3rd. Ed. 1993). 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 has 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. Although the clerk testified that she requested the UCI's identification, she admitted to glancing hastily at the driver's license because of the crowded lines in the store. The clerk had information, namely the UCI's driver's license, which clearly demonstrated that the UCI was a minor. Respondent, therefore, permitted or knowingly allowed the UCI to purchase beer from his licensed establishment.

Even if the contention that the clerk miscalculated the UCI's age 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 [its continuance is] complied with." Feldman, 203 S.C. at 57, 26 S.E.2d at 25. Accordingly, there are legal consequences for noncompliance with the alcoholic beverage statutes.

This tribunal rejects Respondent's argument that the requisite "knowledge was absent from the sale because the clerk made a 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. See S.C. Code Ann. § 61-4-590 (Supp. 1997).

This violation is the second offense for this establishment in three years. The imposition of an $800 fine is reasonable and consistent with the Department's guidelines for a second violation.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the $800 fine is sustained.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

October 5, 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).