ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks the revocation of the off-premises beer and wine permit held by
The Pantry #313 (Pantry #313). The Pantry #313 opposes DOR's position and asserts that if a violation occurred a penalty
less than a revocation should be imposed. Pantry #313's disagreement with DOR's determination places jurisdiction in the
Administrative Law Judge Division (ALJD). S.C. Code Ann. § 61-2-260 (Supp. 1999); S.C. Code Ann. § 1-23-310 et.
seq. (Supp. 1999). The hearing in this matter was held March 16, 2000 at the Edgar Brown Building, Columbia, South
Carolina. Based upon the evidence and the argument presented by the parties, a suspension of 90 days is imposed, and a
fine of $1,600.
II. Issue
Did Pantry #313 violate S.C. Code Ann. 61-4-580(1) (Supp. 1999) and S.C. Code Ann. Regs. 7-9(B) (Supp. 1999) by
selling or allowing possession of beer or wine or alcohol to a person under 21 years of age, and if a violation occurred,
what is the appropriate penalty?
III. Analysis
Sale to an Underage Person
1. Positions of Parties
DOR asserts that a sale to an underage individual occurred, and that the sale was made knowingly. DOR further argues
that this is the fourth sale to an underage individual within less than two (2) years and thus warrants a revocation of the
beer and wine permit.
Pantry #313 disagrees. It asserts the sale was not made knowingly but rather was simply a mistake. Further, it argues that
if a sale is found to have been made knowingly, no revocation is warranted due to the extensive steps it has taken to correct
the problem.
2. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Pantry #313 holds an off-premises beer and wine permit identified as AI-0110169, with that permit in use at Pantry #313's
location of 5830 Dorchester Road, Charleston, South Carolina. On December 30, 1998, an undercover cooperating
individual (UCI) in the employment of the North Charleston Police Department entered the location.
The UCI on December 30, 1998 was eighteen years old (date of birth June 6, 1980) and was not wearing make-up. After
entering the store, the UCI picked up a container of beer and brought the beer to the counter. The employee at the counter
was an employee of Pantry #313. The employee asked no questions of the UCI and did not ask for or receive any
identification from the UCI. The UCI placed the beer on the counter, gave the clerk the purchase price, and then left the
store with the purchased beer.
After the purchase, an officer for the North Charleston Police Department entered the store and explained that the
employee had just performed an illegal act by making a transfer of beer to a person under the age of twenty-one. A
criminal citation was issued to the employee for illegally making the transfer, and the employee subsequently pled guilty to
the criminal charge.
Sales to other individuals under the age of twenty-one have occurred at this same location in the past. Sales to persons
under the age of twenty-one were made on April 16, 1997, August 7, 1997, and October 14, 1998. The respective fines for
each violation were $400, $800, and a forty-five day suspension. Thus, the sale to the UCI on December 30, 1998 was the
fourth within less than a two year period.
Given the past record of sales to underage parties, Pantry #313 has taken steps directed at preventing such sales from
occurring in the future. For example, an electronic device is in place that reads the magnetic strip on drivers' licenses to
give the date of birth of the potential purchaser. Such is a useful tool since the Pantry #313 is near a military installation
housing customers having drivers licenses from numerous states. Many of these states, unlike South Carolina, do not place
a red-lettered statement on the license stating that the holder is not yet twenty-one. Further, the cash register in use will not
allow a sale of beer and wine unless the date of birth of the customer is entered.
In addition, Pantry #313 has a new manager who has established an extensive range of policies and procedures that will
both educate and discipline employees who violate those policies and procedures. In fact, the new manager has terminated
three employees for failure to follow her requirements. Under the new manager, the store policy is to require all purchasers
who appear less than thirty-five to show proof of age. No violations for underage sales have been issued since the new
manager began at Pantry #313 almost a year and a half ago.
3. Conclusions of Law
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
a. Introduction
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 a penalty or suspension of the holder's permit. S.C. Code Ann. § 61-4-580(1) (Supp. 1999); S.C.
Code Ann. Regs. 7-9(B) (Supp. 1999). Here, no dispute exists on whether a sale was made to a person under 21. Rather,
Pantry #313 asserts the sale was not made knowingly.
On the one hand, a seller cannot avoid the "knowingly" standard by simply refusing to make a decision on the age of the
purchaser and thereby claim lack of knowledge. 58 Am.Jur.2d Notice § 13 (1989) (a person has no right to shut his eyes to
avoid information clearly before him). Equally as true, on the other hand, the sole factor of failure to secure proof of age
prior to the sale is not by itself conclusive proof of a sale made "knowingly" since, even in a criminal case, the failure to
obtain age identification is only prima facie (as opposed to conclusive) evidence of a violation and prima facie evidence
may be rebutted by contrary evidence. See S.C. Code Ann. § 61-4-50 (Supp. 1999) and McKenzie v. Standard Acc. Ins.
Co., 198 S.C. 109, 16 S.E.2d 529 (1941).
b. Violation Analysis
Thus, the determination of whether a sale to a party under twenty-one was made "knowingly" is based on the facts of each
case. The methodology for examining the facts of each case has been set by case law.
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.
1. Prudent or Reasonable Man
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," dicta 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 that 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).
In determining the danger known or reasonably apprehended, attention must be given to the fact that 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 by Norton v. Opening Break of Aiken, Inc., 319 S.C. 469, 462 S.E.2d 861 (1995);
Whitlaw v. Kroger, 306 S.C. 51, 410 S.E.2d 251 (S.C. 1991). Accordingly, the view of a reasonable man must be
examined based on the facts of this case with that view being one that is aware of the danger both to the public and the
purchaser reasonably associated with sales to underage parties.
2. Duty to Inquire
Before discussing the second step of Feldman, two points are important. First, if the objective information from a prudent
or reasonable man's view does not create a belief that the buyer is under twenty-one, then the sale is not made knowingly.
Second, the objective information does not need to conclusively prove the buyer is under twenty-one. Rather, under the
rationale of Feldman, the characteristics must be enough to have a prudent or reasonable man believe the UCI was under
twenty-one. Indeed, the purpose of the second step in the Feldman analysis is to ensure that the belief (formed by
objective information observed by a prudent or reasonable person) is tantamount to knowledge by imposing the most
minimal duty of inquiry to confirm what the prudent man's information has already established as a belief.
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 basis for confirming the belief (and thus converting such belief to knowledge) must be capable
of confirmation by simple inquiry. Accordingly, after the reasonable man test is satisfied, Feldman imposes a duty to
inquire of the purchaser.
The inquiry rule of Feldman is reasonable given the highly regulated nature of beer, wine and alcohol. 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 is such that he would have 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.
3. Facts Applied to the Law
Here, the reasonable or prudent man on December 30, 1998 would have reached the conclusion that the individual was not
yet twenty-one, since at the time of the sale the UCI was eighteen years old (date of birth June 6, 1980), was not wearing
make-up, and had the youthful appearance typical of a teenager. Further, the lack of make-up demonstrates no attempt was
made to have the UCI appear older than her actual age. Since the facts demonstrate a reasonable belief that the individual
was under twenty-one, Pantry #313 had a duty to inquire into the patron's age.
The testimony establishes that Pantry #313 failed in its duty of inquiry. Rather, the employee on duty for Pantry #313
asked no questions of the UCI and did not receive or ask for any identification. Rather, the UCI placed the beer on the
counter, gave the clerk the purchase price which the clerk received, and then the UCI left the store with the purchased beer.
Thus, given the UCI's youthful appearance and the total lack of any inquiry as to age or identification, the sale to the
underage purchaser was made knowingly.
c. Penalty Analysis
Given that the sale in the instant case was made knowingly, the remaining decision is what penalty is proper. DOR seeks a
revocation. Pantry #313 believes a revocation is not warranted. In the final analysis, a decision of what monetary fine, or
suspension, or revocation, or some combination, is one the Administrative Law Judge, as the fact-finder, is empowered to
determine from the totality of the facts presented. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d
633 (1991). Under the facts of this case, I conclude that a suspension of 90 days plus a fine of $1600 is proper.
First, one must note that even a single sale of beer or wine to any person under twenty-one years of age can subject the
permit holder to revocation. S.C. Code Ann. Sec. 61-4-580 (Supp. 1999); S.C. Code Ann. Regs. 7-9(B). Here, the
instant violation is the fourth in less than two years. Such repetitive actions require a significant suspension and a fine.
Second, in this case, revocation would be imposed were it not for the significant mitigating actions involving both
equipment and personnel taken to remedy the problem of selling to underage individuals. Here, management has installed
reading devices for drivers licenses and a cash register requiring a date of birth in an attempt to avoid illegal sales.
However, and more importantly, machines are no substitute for quality employees committed to complying with the law.
Here, management has hired and continues to support a no-nonsense manager at Pantry #313. During her tenure beginning
in January 1999, she has terminated three employees for failing to follow her beer and wine requirements. Further, her
actions have apparently been successful to date in that no further violations have been imposed. Accordingly, considering
the case as a whole, a suspension of 90 days and a fine of $1,600 is imposed.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
Walter Todd, Jr., d/b/a The Pantry #313, shall have his beer and wine permit suspended for 90 days, with such suspension
beginning on the tenth day from the date of this order. Further, on that tenth day, Walter Todd, Jr., d/b/a The Pantry #313,
shall pay a fine of $1,600 to DOR.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: May 5, 2000
Columbia, South Carolina |
