ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) and S.C. Code Ann. §§ 1-23-310 et seq.
(Supp. 1998). The South Carolina Department of Revenue contends that Respondent Walter B. Todd, Jr., d/b/a The Pantry,
Inc., knowingly permitted an Underage Cooperating Individual (UCI), Teresa Brady, to purchase beer from Respondent's
licensed premises on October 14, 1998, thus violating 23 S.C. Code Ann. Regs. 7-9(B) (Supp. 1998). The Department
seeks a forty-five-day suspension of Respondent's off-premises beer and wine permit for this alleged violation. Respondent
does not challenge whether his clerk made the sale. Instead, he contends that the suspension of the off-premises beer and
wine permit by the Department is an excessive penalty and a fine in lieu of suspension is the appropriate penalty.
After timely notice to the parties, a hearing was conducted on October 12, 1999 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.
FINDINGS OF FACT
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 Pantry, Inc., which is a convenience store located at 5830
Dorchester Road in North Charleston, South Carolina. On October 14, 1998, Respondent's employee, Patricia A. Brown
(clerk), sold beer to Teresa Brady, a North Charleston Police Department Underage Cooperating Individual (UCI). Prior to
completing the sale, the clerk did not ask the UCI if she was twenty-one years of age or request any identification; nor did
the UCI represent that she was twenty-one years of age. Immediately after purchasing the beer, the UCI exited the store and
delivered it to the police officers waiting outside.
On October 21, 1998, as a result of the sale, a South Carolina Law Enforcement Division agent and police officers issued a
citation to Walter B. Todd, Jr., the licensee, for violating 23 S.C. Code Ann. Regs. 7-9(B) by permitting the purchase of beer
by a person under twenty-one years of age. The UCI was eighteen years of age at the time of the sale. At the hearing, the
UCI appeared sufficiently youthful so as to merit an inquiry from a clerk as to her correct age before allowing her to
purchase alcohol. Based on this tribunal's observation of the UCI, a reasonable person would conclude that the UCI was
under the age of twenty-one.
Respondent has had two previous violations of Regulation 7-9(B) in as many years. These violations occurred on April 16,
1997 and August 7, 1997. As the violation at issue in the instant case represents Respondent's third offense in three years,
the Department, pursuant to its guidelines, seeks a forty-five-day suspension of Respondent's off-premises beer and wine
permit.
CONCLUSIONS OF LAW AND DISCUSSION
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. 1998). The Department alleges that
Respondent violated Regulation 7-9(B) by permitting or knowingly allowing a minor to purchase beer from Respondent's
licensed establishment. 23 S.C. Code Ann. Regs. 7-9(B). The Regulation 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.
23 S.C. Code Ann. Regs. 7-9(B) (emphasis added). To warrant a violation of Regulation 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 Regulation 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 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 does not dispute that his clerk allowed the UCI to purchase the beer. The record also reflects
that Respondent did, in fact, "permit or knowingly allow" 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 both common meaning and legal
usage, requires knowledge. A party manifests such knowledge by allowing a person under the age of twenty-one 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 the age of twenty-one, 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.
Applying the Feldman test to 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 her correct age. Further, even at the hearing, two days shy of a year after the sale, the
UCI's appearance was sufficiently youthful so as to merit an inquiry to ascertain her correct age before selling her beer or
wine. Respondent, therefore, permitted or knowingly allowed the UCI to purchase beer from his licensed establishment.
Respondent contends that the imposition of a forty-five-day suspension is excessive. Alternatively, Respondent argues that a
fine in lieu of a suspension would be a more appropriate penalty. This argument, however, ignores the leniency underlying
the Department's imposition of a forty-five-day suspension. For example, the Department is authorized to revoke a
licensee's permit for only a first violation. See S.C. Code Ann. §§ 61-4-270, 61-4-590 (Supp. 1998); 23 S.C. Code Ann.
Regs. 7-9(B). Here, it seeks merely to suspend Respondent's permit for a third offense. Furthermore, such an argument
ignores the purpose of the statutory prohibition against selling alcohol to underage individuals: to protect both the
individuals and the public at-large from the possible adverse consequences of such sales. The sale of alcohol to an underage
individual 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 only so long as the restrictions and conditions governing [its] continuance 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 a forty-five-day suspension is excessive. Following Respondent's line of reasoning,
licensees could always elude responsibility by merely claiming that they did not intend to violate the law and are willing to
pay a monetary fine. Such a conclusion would cheapen the enforcement provisions. This tribunal does not believe the
legislature intended such a consequence.
The Department has legislative authority 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. Importantly, this violation is the third offense for this establishment in three years. Nevertheless,
Respondent requests a fine in lieu of suspension of his permit. Unfortunately, the mere 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 and should be sustained.
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
October 19, 1999
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). |
