South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Thomas C. Condon, d/b/a Tommy Condon's, d/b/a Food Management Services, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Thomas C. Condon, d/b/a Tommy Condon's, d/b/a Food Management Services, Inc.
 
DOCKET NUMBER:
99-ALJ-17-0259-CC

APPEARANCES:
Petitioner & Representative: South Carolina Department of Revenue, Arlene D. Hand, Esquire

Respondent & Representative: Thomas C. Condon, d/b/a Tommy Condon's, d/b/a Food Management Services, Inc., Kenneth E. Allen, Esquire

Parties Present: All parties present
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case



The South Carolina Department of Revenue (DOR) seeks a $400 fine for the sale of beer to a minor. Tommy Condon (Condon) opposes DOR's position and asserts the sale was not made knowingly and thus is not a violation of the sales-to-minors prohibition. Condon's disagreement with DOR's determination places jurisdiction in the Administrative Law Judge Division (ALJD). S.C. Code Ann. § 61-2-260 (Supp. 1998); S.C. Code Ann. § 1-23-310 et. seq. (Rev. 1986 and Supp. 1998). The hearing in this matter was held August 26, 1999 at the Edgar Brown Building, Columbia, South Carolina. Based upon the evidence and the argument presented by the parties, Condon's sale to a minor was made knowingly and results in a $400 fine.



II. Issues



1. Did Condon violate S.C. Code Ann. Regs. 7-9(B) (Supp. 1998) on October 10, 1998 by knowingly allowing a person under twenty-one years of age to purchase beer?



2. If a violation occurred what is the appropriate penalty?

III. Analysis



A. Sale to Underage Individual



1. Positions of Parties



DOR asserts that on October 10, 1998, Condon, through an employee of his, knowingly sold beer to a person under twenty-one years of age. Condon asserts the employee did not knowingly sell beer to an underage person.



2. Findings of Fact



I find, by a preponderance of the evidence, the following facts:



The facts of the sale are not significantly in dispute. Condon's on-premises beer and wine permit is used at his business location of 160 Church Street, Charleston, South Carolina. On October 10, 1998, an officer with the Charleston Police Vice Unit observed an employee of Condon's sell beer to a male individual having a youthful appearance.



During the sale, the male individual was requested by the employee to produce an identification. As identification, the individual presented his driver's license to the employee. After the employee examined the driver's license, the employee returned the document to the individual, took the funds for the beer from the individual, and provided the individual with the beer.



After the sale was completed, the Vice Unit officer approached the individual who had purchased the beer and asked for the identification used in making the purchase. The individual produced his driver's license which showed that the individual was born on March 21, 1978. Thus, the individual was twenty years old at the time of the purchase.



Based on such information, the Vice Unit officer issued a criminal citation to the employee based on the employee's transfer of a beer to a person under twenty-one. In addition, an administrative violation was subsequently issued against Condon as the permit holder. The citation to Condon was based on a violation of Reg. 7-9(B) for knowingly permitting the sale of beer to a person under twenty-one years of age.



3. Conclusions of Law



Any party operating under a beer and wine permit who knowingly sells beer or wine to a person under twenty-one years of age creates a ground for imposing a penalty or suspension of the holder's permit. S.C. Code Ann. § 61-4-580(1) (Supp. 1998); S.C. Code Regs. 7-9(B) (Supp. 1998). Here, no dispute exists on whether a sale was made to a person under twenty-one. It was. Rather, the issue is whether the sale was made "knowingly."



For the purpose of sales of alcohol, beer, or wine to minors, the term "knowingly" consists of the following:



Within the meaning of the term, "knowingly", as used in the statute, if the clerk knew that the [purchaser] was a minor or had such information, from his appearance or otherwise, as would lead a prudent man to believe that he was a minor, and if followed by inquiry must bring knowledge of that fact home to him, then the sale was made knowingly.



Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). Under Feldman, a sale is made knowingly when two steps are satisfied. First, from the view of a prudent man as opposed to the view of the actual seller, the objectively determined information that such a person would have witnessed must be sufficient to reach a belief that the buyer is under twenty-one. Second, the belief becomes tantamount to knowledge where a mere inquiry is all that is required to confirm the belief.



The first step requires the view of a prudent man. The view of a prudent man is one that is "[p]articularly wise, judicious, careful, ..." Black's Law Dictionary 1226 (6th ed. 1990). While Feldman uses the words "prudent man," there exists dicta that implies the measuring language is that of the "reasonable person." Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990). Even if Daley limits Feldman by using the reasonable man standard to replace the more strict prudent man standard, the reasonable man standard requires the party to exercise the degree of judgment required under all of the known circumstances surrounding the event, with such judgment commiserate with the danger known or reasonably apprehended. Perry v. Carolina Theater, 180 S.C. 130, 185 S.E. 184 (1936). A significant purpose of the statute and regulation under review is to protect not only the underage party but also the public from the harm likely to be caused by a minor's consumption of beer, wine and alcohol. Norton v. Opening Break of Aiken, Inc. 313 S.C. 508, 443 S.E.2d 406 (Ct. App. 1994), aff'd 319 S.C. 469, 462 S.E.2d 861 (1995), rehearing denied (Oct 19, 1995); Whitlaw v. Kroger, 306 S.C. 51, 410 S.E.2d 251 (S.C. 1991). Thus, even the reasonable man standard requires that the information concerning the sale be viewed in light of the dangers associated with underage drinking.



A prudent or reasonable person would acquire information by visually observing the appearance of the buyer, noting the common signs of maturity or lack of maturity (whether physical or mental) associated with teenage and early twenty's years, giving consideration to the sound of the buyer's voice, and noting the mannerisms of the buyer, etc. In short, all sensory forms of perception are relevant to the issue.



Based on the evidence describing the objective information available on the night of the sale, a prudent or reasonable person would have reached a belief that the individual in this case was not yet twenty-one. Indeed, the testimony of the Vice Unit officer supports such a conclusion and that testimony is undisputed.



The undisputed testimony establishes that the individual was youthful in appearance and had the manner and features of a typical college student likely to be less than twenty-one. Such information, especially when combined with the view of a reasonable or prudent person aware of the risks associated with underage drinking, is more than sufficient information upon which a reasonable or prudent person would have believed the individual was under twenty one.



The second step of Feldman requires that an "inquiry must bring knowledge of [the age of the purchaser] home to [the seller]." In other words, the degree of inquiry needed to confirm the belief must be minimal. For example, the basis for confirming the belief (and thus converting such belief to knowledge) must be capable of confirmation by simple inquiry. Indeed, if the confirmation of the belief required extended research and significant study, the mere belief (which had arisen prior to the sale) could not be converted to knowledge before the sale took place. Thus, the sale would not be made "knowingly." Thus, Feldman teaches that where an objective belief has arisen that a person is under twenty-one, that belief becomes knowledge if a mere simple inquiry is all that is needed to confirm that belief.



The teaching of Feldman is reasonable given the highly regulated nature of beer, wine and alcohol and such a rule presents no hardship to the seller since an inquiry as to age can be quickly accomplished before the sale is made. Just as a person has no right to shut his eyes to avoid information clearly before him, when the information before the eyes of a prudent or reasonable person would give that person reason to believe the buyer is not yet twenty-one, the seller has no right to prevent that belief from becoming knowledge when such knowledge is easily obtainable by a simple inquiry.



In the instant case, the objective belief that the individual was under twenty-one was plainly converted to knowledge since a simple inquiry as to age was all that was necessary to confirm that belief. Even more telling in this case is the fact that the employee received and examined an identification which plainly showed the individual was not yet twenty-one. Accordingly, Condon's employee made the sale knowingly since, at the time of the sale, she had knowledge that the purchaser was under twenty-one years of age.



B. Extent of Penalty



1. Positions of Parties



Condon asserts the penalty should not be $400 since this is the first violation. DOR argues its standard policy seeks a $400 fine from all parties selling to a person under twenty-one.



2. Findings of Fact



The remaining issue is deciding the penalty which must flow from the violation. As with the violation itself, no significant dispute exists as to the facts.



Condon's policy is that his employees must check for identification for sales of beer to anyone who does not appear to be twenty-one years of age. Indeed, the identification rule was followed in this case since Condon's employee complied with the instructions by checking the identification at the time of the sale. However, even after checking the age of the individual, the employee failed to comply with the no-sale rule designed to prohibit sales to individuals not yet twenty-one.



To prevent future violations, Condon has provided more security for his location with uniformed personnel who attempt to prohibit anyone under twenty-one from acquiring beer. In addition, wrist bands are issued to all persons after establishing their age as being twenty-one or older so that no sales can be made to an individual not wearing a wrist band.



3. Conclusions of Law



The sale of beer or wine to any person under twenty-one years of age subjects the permit holder to revocation or suspension. S.C. Code Ann. § 61-4-580 (Supp. 1998); S.C. Code Ann. Regs. 7-9(B). In disputes concerning the penalty to be imposed for such a violation, the Administrative Law Judge, as the fact-finder, is empowered to impose the appropriate penalty based on the facts presented. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991).



Here, a $400 fine is appropriate. While plans for avoiding future violations have been undertaken, the single current violation of selling to a party under twenty-one is a very serious violation and by itself is a basis for a suspension or even a revocation. Considered as a whole, the imposition of a $400 fine is proper.



IV. Order



Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:



Condon is liable for a fine of $400 for violating S.C. Code Ann. § 61-4-580(1) (Supp. 1998) and S.C. Code Ann. Regs. 7-9(B) (Supp. 1998). The fine shall be paid within ten days of the date of this order.



AND IT IS SO ORDERED.



_______________________________

RAY N. STEVENS

Administrative Law Judge



Dated: September 2, 1999

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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