ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks to impose an $800 fine for a violation of the prohibition on
knowingly selling beer to a person under twenty-one. Tommy Condon (Condon) opposes DOR's position and asserts no
violation occurred since no sale was made knowingly.
Condon's disagreement with DOR's determination placed 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)) and gave rise
to a hearing in this matter held on December 20, 1999 at the Edgar Brown Building, Columbia, South Carolina. Based upon
the evidence and the argument presented by the parties, an $800 fine is proper.
II. Issue
- Did Thomas C. Condon, Food Management Services, violate S.C. Code Ann. § 61-4-580(1) (Supp. 1998) and S.C. Code
Ann. Regs. 7-9(B) (Supp. 1998) by knowingly selling or allowing possession of beer to a person under twenty-one?
- If a violation occurred what is the appropriate penalty?
III. Analysis
A. Sale to an Underage Person
1. Positions of Parties
DOR asserts Condon knowingly permitted possession or purchase of beer by an individual under the age of twenty-one.
Further, DOR argues that since this violation is the licensee's second within a three year period, a fine of $800 is sought.
Condon disagrees and argues no violation occurred since no sale was made knowingly.
2. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Condon holds a beer and wine permit in use at 160 Church Street, Charleston, South Carolina. On February 26, 1999,
Condon utilized the permit to hold a "block party" attended by as many as 250 people at any one point in time.
To mark the end boundaries of the block party, the City of Charleston agreed to provide barricades to block parts of the
street. While end boundaries were designated, no required entrance and exit points were imposed. Instead, individuals
wishing to attend the block party could enter and exit the party at numerous points.
During the block party, beer was sold by three separate and independent vendors. In making their sales, all three vendors
issued the same identical armbands. Condon determined that anyone having a valid armband need not produce proof of age
at the time of purchasing a beer. However, the armbands used by the vendors were not unique to the block party and were
not unique to any of the three vendors. Rather, the armbands were generic in nature by merely carrying the logo of a
popular brand of beer. Of the three sellers, only Condon's methodology for allowing the sale of beer to an individual with an
armband was established at the hearing. For the other two sellers, no significant details explain how an armband was issued.
To issue armbands, Condon operated a "checkpoint." At Condon's checkpoint armbands were provided to individuals who
produced an identification establishing that the individual was twenty-one or older. However, Condon's checkpoint did not
accomplish denying entrance to the party of those under twenty-one since numerous unsupervised entrance points existed.
Thus, individuals without armbands were present at the party. In fact, the lack of armbands was so numerous that a City of
Charleston police officer at the party was unaware that armbands were even being issued.
The events triggering the alleged violation began at approximately 10:00 p.m. on February 26, 1999. At that time, a City of
Charleston police officer observed a sale of beer at the block party. The seller was an employee of Condon. The buyer was
an individual male having no facial hair and having a youthful appearance. At the time of the sale, Condon's employee did
not ask for any age identification. However, at the time of the sale the purchaser was wearing an armband. While not
known to the seller at the time of the sale, the armband worn by the purchaser had been obtained from one of the other
vendors selling beer at the block party.
After the buyer received the beer and paid the bartender, the officer stopped the purchaser for questioning since the
purchaser's youthful appearance suggested that an underage sale had taken place. When questioned, the purchaser
presented to the officer a South Carolina driver's license establishing that the purchaser was nineteen at the time of the
purchase. The officer issued a criminal citation to the purchaser for possession of beer by a person under twenty-one and
issued to the bartender a citation for transfer of beer to a person under twenty-one. Both individuals were found guilty of
the criminal charges.
Subsequently, on March 10, 1999, a SLED officer issued to Condon a notice of violation of Regs. 7-9(B), which notice
seeks to hold Condon responsible for "knowingly allow[ing] a person under twenty-one years of age to purchase or possess
or consume beer or wine in or on a licensed establishment." Condon has challenged the alleged violation of Regs. 7-9(B)
and argues that the sale was not make knowingly and thus no violation has been established.
3. Conclusions of Law
a. Introduction
Any holder of a permit or employee of the permit holder 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.
1998); S.C. Code Ann. Regs. 7-9(B) (Supp.1998) No dispute exists in this case on whether a sale was made to a person
under twenty-one. The sale was made and the purchaser was under twenty-one. Rather, Condon asserts the sale was not
made knowingly. Determining whether a sale is made knowingly is dependent upon the circumstances of each case.
b. Facts and Circumstances Analysis
The commonly accepted methodology for examining the facts of a sale has been addressed 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); Whitlaw v. Kroger, 306 S.C. 51,
410 S.E.2d 251 (S.C. 1991).
2. Duty to Inquire
The second step of Feldman imposes a duty to inquire as to age. However, before discussing that step, two points should
be made. 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 individual was under twenty-one. In fact, 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 a prudent or reasonable person 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.
c. Facts Applied to the Law
Here, the reasonable or prudent man on February 26, 1999 would have seen that the male purchaser had no facial hair and
was of youthful appearance. Under the evidence in this case, the individual did not have clear characteristics demonstrating
he was over twenty-one. Rather, just the opposite was true in that the youthful appearance would have been such that a
prudent person or reasonable man would have reached a belief that the buyer was under twenty-one. Thus, since the facts
demonstrate a reasonable belief existed that the individual was under twenty-one, a duty to inquire arose before the sale
could be made. Here, the facts pertaining to the duty to inquire about age involve considering two distinctly different points
of view.
The first point of view focuses on the employee's words to the purchaser at the time of the sale. In this case, the employee
did not ask for any age verification. Indeed, the evidence establishes that the employee asked no questions related to the
age of the purchaser despite the purchaser's youthful appearance. Accordingly, in the absence of other factors, a lack of an
age inquiry is the equivalent of closing one's eyes to the obvious and thus making the sale knowingly, since here the
purchaser had a youthful appearance, which appearance would have caused a prudent man to form a belief that the purchaser
was under twenty-one.
However, Condon asserts a second point of view. He argues that no duty existed for the employee to verbally ask for age
identification. In Condon's view, the employee saw that the purchaser had an armband and the armband was a statement
that the purchaser was at least twenty-one. Accordingly, Condon argues that the Feldman duty-to-inquire test was satisfied
since the purchaser presented a valid armband and that armband answered the implied inquiry of "do you have proof of being
at least twenty-one."
Thus, both DOR and Condon agree that the duty to inquire is an obligation of the seller. However, the parties disagree on
how that duty can be satisfied. I conclude that the fundamental consideration in satisfying the duty to inquire as to age is the
degree of reliability of the information produced by the seller's inquiry. Whether the degree of reliability is sufficient to
satisfy the Feldman duty-to-inquire test depends upon the facts of each case.
For example, faced with a purchaser who objectively appears to be under twenty-one (the first stage of the Feldman test), a
seller seeking to satisfy the inquiry test obtains information having a very low degree of reliability if the sole inquiry is one of
asking, "Are you at least twenty-one?" If the seller receives an answer of "yes" and then relies upon such inherently
unreliable information in making the sale to a minor, a conclusion that the sale was made knowingly is very likely. On the
other hand, a state drivers license is information having a very high degree of reliability. Even when a minor produces a fake
drivers license showing an age of twenty-one, the sale is not likely to be determined to have been made knowingly so long as
the fake drivers license is of such a "high quality" that it would have fooled most careful sellers.
Where does the armband used in this case fall on the reliability scale? I find that the facts of this case demonstrate that the
armband was inherently unreliable in establishing the age of the purchaser and that (under the facts of this case) the armband
does not pass the duty to inquire test imposed by Feldman. Here, the evidence is undisputed that at the time of the sale the
seller relied solely upon an armband to verify the age of the purchaser and for at least two reasons, the armband was an
unreliable indicator of age.
First, the armband is inherently unreliable since the seller chose to make the sale to a person who appeared to be under
twenty-one even though the seller knew at least two other vendors were also providing the same armbands and even though
the seller knew he had inadequate knowledge of the methodology used by those vendors in distributing armbands. A seller
who chooses to blindly rely upon the age verification practices of another unrelated and independent beer vendor does so at
his peril.
Knowing other sellers were distributing armbands, the seller should not have made any sales without adequate assurance that
the other vendors distributing armbands did so only after valid age verifications were obtained. Indeed, in the facts of this
case, the seller knew only that Condon operated a checkpoint from which armbands were distributed to those individuals
who presented an identification showing an age of at least twenty-one. However, the seller did not know the details of the
armband distribution of the other two vendors.
The facts as developed in this case establish that the other two vendors were not as meticulous as Condon. In this case, the
evidence supports a finding that the armband was obtained from one of the other two vendors since Condon's checkpoint
gave armbands only to those twenty-one and over. The lack of verification of age from the other two vendors is supported
by the fact that the evidence establishes that the minor obtained his armband even though he had in his possession a valid
drivers license showing he was only nineteen. Thus, in this case, the seller chose to rely upon other vendors for verification
of age even though he had no knowledge of the verification method used by those vendors. Such reliance is misplaced and
does not satisfy the duty to inquire when faced with a buyer who objectively appears to be under twenty-one.
Second, the armband was inherently unreliable when making a sale to a purchaser that appeared to be under twenty-one
since the armband was generic in nature. While the armband was not placed in evidence, the description is that of a plastic
strap clamped at the wrist with the strap having only the logo of a popular beer. The lack of uniqueness makes the armband
subject to being obtained outside the block party under circumstances requiring little or no age verification. Further, under
the facts of this case, the lack of uniqueness is made all the more critical since no controlled access point was in place at the
block party. With numerous entrances and exits, the ability existed to obtain the generic armband from other sources
regardless of age. Thus, reliance upon the armband was unwarranted.
Accordingly, under the facts of this case, I conclude Condon's employee failed the Feldman duty to inquire since he relied
upon the purchaser's armband when the armband was an inherently unreliable means of establishing proof of age.
B. Extent of Penalty
1. Positions of Parties
Condon asserts the penalty should not be $800 since after the violation in this case he has taken extensive steps to assure
that no sales are made to minors. Further, he believes that his reliance upon the presence of an armband is a mitigating
factor such that an $800 fine is too high. DOR argues its standard policy seeks an $800 fine from all parties for a second
offense and that the current violation is Condon's second for selling to a person under twenty-one.
2. Findings of Fact
The remaining issue is deciding the penalty resulting from the violation. As with the violation itself, no significant dispute
exists as to the facts.
The violation here is the second in less than a year. The first violation occurred on October 10, 1998 and resulted in a $400
fine.
Condon's policy is that his employees are instructed not to sell to anyone who does not appear to be twenty-one years of age
without adequate proof of age. Likewise, Condon has given extensive training to his employees and the employee involved
in this matter has undergone such training. Further, to prevent future violations, Condon has imposed the use of a wrist
band having a symbol unique to Condon with his employees instructed to distribute wrist bands only upon verification that
the individual is at least twenty-one.
3. Conclusions of Law
Knowingly selling 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, an $800 fine is appropriate. While clearly Condon has instituted plans which he believes will avoid future violations,
the fact that the current violation is the second in less than a year is significant. Indeed, a single violation for selling to a
party under twenty-one is considered a very serious violation and can result in a suspension or even a revocation. While
Condon's initiative to avoid future violations is laudable, a fine of $800 for a second violation in less than a year is not
excessive. Accordingly, a fine of $800 is imposed.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
Condon is liable for a fine of $800 for violating S.C. Code Ann. § 61-4-580(1) (Supp. 1998) and S.C. Code Ann. Regs. 7-9(B) (Supp. 1998).
AND IT IS SO ORDERED.
_______________________________
RAY N. STEVENS
Administrative Law Judge
Dated: February 2, 2000
Columbia, South Carolina |
