Medley v. Maryville City Beer Board

OPINION HARBISON, Justice. These two cases were consolidated for trial. Both appellee Medley and appellee Milsaps held licenses for the sale of beer issued by the City of Maryville for the period December 3, 1983, through December 2, 1984. Employees of each of these licensees sold a six-pack of beer to a seventeen-year-old youth on October 12, 1984. Because it was his first established violation of the liquor laws, the Beer Board suspended the license of Medley for ten days. The offense was the second violation occurring at the premises of Milsaps, and [892] his license was suspended for a period of one year. Both licensees sought review in the Chancery Court pursuant to the provisions of T.C.A. § 57-5-109. The Chancellor found that both licensees had violated a municipal ordinance prohibiting the sale of beer to minors, as well as the state statute, T.C.A. § 57-5-301(a). Because the minor had been employed by the municipal police to attempt to make purchases at all premises licensed in the city on October 12, 1984, however, the trial judge held that the violations were technical only and that punishment should be mitigated to a simple reprimand in each case. The municipal beer board appealed to this Court. We reverse and reinstate the decision of the Beer Board. Neither appellee has insisted before this Court that the principles of entrapment, applicable in criminal law, should be extended to this case.1 However, both they and the Chancellor deem the fact situation to be somewhat analogous to oné of entrapment. In effect, the licensees seek to place responsibility for their illegal sales upon the licensing authority or other municipal officials. It appears without dispute that police officials in Maryville had received a number of complaints from parents and others concerning the illegal sale of beer to minors in the area. Some forty establishments held beer permits from the City of Maryville, and the police enlisted the aid of a seventeen-year-old youth, Larry Gregory, to go to these establishments and attempt to purchase beer there. He was instructed not to falsify his age or identification, but to produce his true identification if requested. He was casually dressed in jeans and an open flannel shirt. He wore a baseball cap, was clean-shaven and wore photosensitive glasses, the lenses of which darkened in sunlight. Gregory had finished the eleventh grade and was interested in becoming a police cadet. He had been acquainted with a Maryville police officer for some time, and both he and his parents agreed to his participating in the operation, for which he was paid twenty dollars by the City. He drove alone to each establishment, entered and attempted to purchase beer. He was wearing a sound transmitter, so that police officials in an accompanying van could monitor his conversation with store employees. He was photographed entering and leaving each of the establishments involved here, as well as several others. Both he and the listening police officers testified that in neither of the places of business operated by appellees was Gregory questioned about his age, asked to show his identity or otherwise investigated with respect to whether he was of legal age to purchase beer. Neither of the licensees offered any testimony before the Chancellor. One of them gave some brief evidence before the Beer Board. None of the - employees of either establishment was called as a witness. Through cross-examination, counsel for ap-pellees sought to establish that the minor appeared to be more than eighteen years of age, but the trial judge did not so find. The trial judge found that Gregory “could be taken either way.” Gregory testified that neither of the establishments was crowded or busy when he made his purchase, and in one of the stores only a single additional customer was even present. It clearly appears from the record that the employees of the two establishments made no effort to determine whether Gregory was or was not of legal age, nor is there any evidence in the record that they were misled or deceived in any manner. Sales were made to him without question and without investigation. There is, in this state, no right to sell beer. It is a privilege extended only by license or permit. Both the state statutes and municipal ordinance in question flatly forbid sales to minors, and there is no mitigation provided in either if the minor is under eighteen years of age, as was true in this case.2 [893] Appellees strongly argue that a minor purchasing beer violates the law and is himself guilty of a misdemeanor. T.C.A. § 57-5-301(d). While this is true, it is hardly a defense to the seller. Were it a defense, the seller would be immune from revocation or suspension of his license in any instance when a sale was made to a minor. Nor, in our opinion, is there any defense or mitigation because the police had the minor under surveillance in order to ascertain whether particular establishments were or were not complying with the law in the conduct of their business. This Court has held that retail beer permits may be suspended or revoked for one year because of sales to minors. See Richards v. Lewisburg Alcoholic Beverage Commission, 543 S.W.2d 852 (Tenn.1977). If such sales occur, whether under police surveillance or not, the terms and provisions under which the license was issued are violated and the Beer Board has authority to suspend or revoke. This Court stated many years ago: “The revocation of a license is not intended as a punishment of the holder but to insure as far as possible the decent and orderly conduct of his establishment.” Flowers v. Benton County Beer Board, 202 Tenn. 56, 64, 302 S.W.2d 335, 339 (1957). There is some authority for extending the doctrine of “entrapment” to certain types of civil cases, including regulatory proceedings. See Patty v. Board of Medical Examiners, 9 Cal.3d 356, 107 Cal.Rptr. 473, 508 P.2d 1121 (1973). Appellees in their briefs before this Court have not actually sought an extension of that principle to these proceedings.3 In all events we do not deem it appropriate to extend it to civil cases such as this, especially in a field so highly regulated and controlled as that involving the sale and distribution of alcoholic beverages. While there is some division of authority on the point, most of the cases cited to us involving a civil suspension or license revocation, rather than a criminal prosecution, have not permitted a defense similar to that of entrapment in criminal cases, where police did no more than use a minor as a decoy to attempt to make illegal purchases. See generally Roberts v. Illinois Liquor Control Commission, 58 Ill.App.2d 171, 206 N.E.2d 799 (1965); People v. Reynolds, 139 Mich.App. 471, 362 N.W.2d 763 (1984); Kerns v. Aragon, 65 N.M. 119, 333 P.2d 607 (1959) and the numerous authorities cited in those opinions. Even in criminal proceedings arising out of such sales, the doctrine of entrapment has frequently been held not to be established when the police did no more than to employ a minor as a decoy and to place him under surveillance while he requested the sale of an intoxicant. See State v. Boylan, 158 Minn. 263, 197 N.W. 281 (1924); State v. Parr, 129 Mont. 175 283 P.2d 1086 (1955); Annot. 55 A.L.R.2d 1322, 1351 (1957). We are of the opinion that there was no showing of “unclean hands” or other impropriety on the part of municipal police which would justify the licensees in this case in making an illegal sale without any kind of investigation whatever, nor does police conduct justify any mitigation of sanctions imposed upon the licensees under a principle such as “unclean hands” or “trickery” as urged by appellees. The unlawful sale of alcoholic beverages to minors is a major social problem throughout the state and nation. Police officials in this case did no more than to attempt to reach the source of it and to try to determine whether one of such sources consisted of regularly licensed retail outlets. The result was somewhat startling. Of nearly forty licensees, ten, or over twen [894] ty-five percent, made sales to the seventeen-year-old Larry Gregory without any inquiry, request for identification or other investigation. The judgment of the Chancellor in mitigating the sanctions to a reprimand is reversed. The cause will be remanded to the Chancery Court with directions to remand it to the Beer Board for enforcement of its original judgment or for such modification by reason of passage of time or changed circumstances as the Board deems necessary. At the time of the hearing before the Beer Board and the Chancellor, one of the licensees was in bankruptcy. The licenses involved were issued for only one year. It may be that the sanctions originally imposed are no longer appropriate. We cannot make that determination from the present record, but the Beer Board has discretion to impose such sanctions as it now finds appropriate, not to exceed those originally assessed. All costs are taxed to appellees. BROCK, C.J., and DROWOTA and COOPER, JJ., concur. FONES, J., files dissent. Footnotes [1] See State v. Jones, 598 S.W.2d 209 (1980). [2] Under some circumstances, if the minor is over eighteen years of age, suspension, rather than outright revocation, is prescribed if the minor exhibits false identification or if his appearance is such that he might reasonably be [893] presumed to be over twenty-one years of age and is unknown to the person making the sale. T.C.A. § 57-5-109(b). [3] The brief of appellee Medley states: ‘The ap-pellee submits that the entrapment defense has no application to the issues before the Court.” Brief p. 12. Appellee Milsaps states that "entrapment is not a principal (sic) of the civil law” but that the Chancellor analogized to it in applying the principles of "clean hands” and "good faith” by the enforcing authorities. Brief, p. 5.