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PROVIGO CORPORATION v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD

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Court of Appeal, First District, Division 4, California.

PROVIGO CORPORATION, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent.

LUCKY STORES, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent.

Nos. A058137, A058534.

Decided: January 27, 1993

Renée D. Wasserman, A. Clifford Allen, Donahue, Gallagher, Thomas & Woods, Oakland, John A. Hinman, Lynne A. Carmichael, Hinman & Carmichael, San Francisco, for petitioners Provigo Corp. and Lucky Stores. Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., Henry G. Ullerich, Asst. Atty. Gen., Martin H. Milas, Supervising Deputy Atty. Gen., Thomas Scheerer, Deputy Atty. Gen., Los Angeles, Floyd D. Shimomura, Sr. Asst. Atty. Gen., Linda A. Cabatic, Supervising Deputy Atty. Gen., Susan P. Underwood, Deputy Atty. Gen., Sacramento, for respondent. Dale A. Stern, Kahn, Soares & Conway, Sacramento, for amicus curiae California Grocers Ass'n.

In these consolidated proceedings pursuant to Business and Professions Code section 23090, we address the permissibility under the California Constitution of the use of underage youths as decoys in the enforcement of the prohibition against selling alcohol to minors.1

In both cases, Accusations were filed with the Department of Alcoholic Beverage Control (department) charging petitioners with selling alcohol to minors in violation of section 25658, subdivision (a).2  The minors who purchased the alcoholic beverages in both cases were working in a decoy program for their respective police departments.   The decoys walked through the check-out counters of petitioners' grocery stores and purchased alcoholic beverages, in one case a pack of wine coolers and in the other a six-pack of beer.

In protesting license suspension, petitioners argued that the use of underage police agents to purchase alcoholic beverages was unconstitutional and required dismissal of the charges.   Petitioners also raised the defense of entrapment and violation of due process in the failure to follow department guidelines for a decoy program.

After suspension by the department, petitioners pursued their arguments in appeals to the Alcoholic Beverage Control Appeals Board (board).   The board interpreted the constitutional provision that “no person under the age of 21 years shall purchase any alcoholic beverage” (Cal. Const., art. XX, § 22) to exclude persons in decoy programs supervised by the department or other law enforcement agency.

DISCUSSION

Unlike the Uniform Controlled Substances Act (Health & Saf.Code, div. 10, § 11000 et seq.), the constitutional and statutory provisions covering the prohibition against buying alcohol contain no express exception for persons working in a law enforcement capacity.3  Section 25658, subdivision (b) provides in pertinent part:  “Any person under the age of 21 years who purchases any alcoholic beverage ․ is guilty of a misdemeanor.”   In 1987 the Legislature considered making such an exception when it added a provision prohibiting the attempt to purchase alcoholic beverages by any person under the age of 21 years.  (Stats.1987, ch. 583, § 1, p. 1898.)   As suggested by the department, the bill when originally proposed contained a provision for immunity from prosecution under either section 25658 or 25658.5 for persons under the age of 21 while acting under the direction of a peace officer.   The immunity provision was opposed by the Retail Liquor Dealers Association and by the American Civil Liberties Union specifically because of objections to underage decoy programs.   In commenting on these objections, the Legislative Advocate for certain law enforcement associations wrote:  “The removal of the part of SB 764 that gave immunity to a person under the age of 21 years, working under the direction of a peace officer will eliminate a successful procedure now used by law enforcement to gather evidence against those retail liquor establishments who sell alcoholic beverages to under age persons.”   The immunity provision was deleted and the bill became law.  (§ 25658.5.)

The board has now interpreted the constitutional provision and, apparently, the statutory provisions as well, as containing an exception for minor decoys.   Petitioners contend such an exception cannot be inferred to vary the clear and unambiguous language of the provisions.

 Words used in a constitutional provision should be given the meaning they bear in ordinary use.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)  “The constitution is to be interpreted by the language in which it is written, and courts are no more at liberty to add provisions to what is therein declared in definite language than they are to disregard any of its express provisions.”  (People v. Campbell (1902) 138 Cal. 11, 15, 70 P. 918.)

 The constitutional provision under consideration here states that “[n]o person under the age of 21 shall purchase any alcoholic beverage.”  (Emphasis added.)   The word “no” when used as an adjective means “not any.”  (Webster's New Internat. Dict. (3d ed. 1965) p. 1532.)

The language of the Constitution is clear and unambiguous.   We read “no person” to mean exactly that.   Anyone under the age of 21 is forbidden to buy alcoholic beverages.   The Constitution makes no exceptions for underage purchasers who buy alcohol at the direction of a law enforcement agency.

 Nor has an exception been created by statute.4  When during its passage through the Legislature language is expressly deleted from a bill, that deletion indicates a clear intent by the Legislature not to adopt the provisions of the deletion.  (Ventura v. City of San Jose (1984) 151 Cal.App.3d 1076, 1080, 199 Cal.Rptr. 216.)   In this instance the Legislature expressly declined to immunize from prosecution underage youths buying alcoholic beverages as decoys for enforcement agencies.   Having been unsuccessful in its attempt to legislate statutory immunity from prosecution for underage decoy buyers, the department may not now simply “interpret” the Constitution to achieve that end.

 Respondents contend that even assuming, arguendo, that the minor decoy programs are unconstitutional, the department may still discipline licensees whose violation of section 25658, subdivision (a) consisted of selling to an underage decoy.   We cannot agree.   While we do not reach the issue of whether entrapment occurred in these cases, the use of an unconstitutional enforcement procedure is analogous to the police conduct which gives rise to an entrapment defense and the remedy in administrative disciplinary proceedings should be the same, i.e., defense to revocation or suspension of a license.  (Patty v. Board of Medical Examiners (1973) 9 Cal.3d 356, 367, 107 Cal.Rptr. 473, 508 P.2d 1121.)

In People v. Barraza (1979) 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947 the court adopted the objective test of entrapment which views “deterrence of impermissible law enforcement activity as the proper rationale for the entrapment defense.”  (Id. at p. 687, 153 Cal.Rptr. 459, 591 P.2d 947.)   Under the objective test, the courts look primarily at the conduct of the law enforcement agency with a view “to deter impermissible police conduct.”   (Id. at pp. 690, 691, fn. 5, 153 Cal.Rptr. 459, 591 P.2d 947.)

If the use of underage decoy buyers in enforcement of the licensing regulations of the department is to be deterred, it must be by requiring the department to abide by the constitutional restriction against the purchase of alcohol by minors.   If the constitutional restriction is to be changed, it is for the electorate, not for the department, to change it.

The decisions of the board are reversed.

FOOTNOTES

1.   Section 23090 provides:  “Any person affected by a final order of the [Alcoholic Beverage Control Appeals] board, including the [Department of Alcoholic Beverage Control], may, within the time limit specified in this section, apply to the Supreme Court or to the court of appeal for the appellate district in which the proceeding arose, for a writ of review of such final order.   The application for writ of review shall be made within 30 days after filing of the final order of the board.”All statutory references hereinafter will be to the Business and Professions Code unless otherwise indicated.

2.   Section 25658, subdivision (a) provides:  “Every person who sells, furnishes, gives or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor.”The licensee may violate section 25658 without knowledge that the person buying is under the age of 21.  “[T]he liability of a licensee for a sale to a minor is not absolute” only in the sense “that the Legislature has furnished a procedure whereby he may protect himself, namely ․ section 25660 [reliance on bona fide evidence of majority and identity.]”   (Kirby v. Alcoholic Bev. etc. App. Bd. (1968) 267 Cal.App.2d 895, 898, 73 Cal.Rptr. 352.)

3.   Health and Safety Code section 11367 provides:  “All duly authorized peace officers, while investigating violations of this division in performance of their official duties, and any person working under their immediate direction, supervision or instruction, are immune from prosecution under this division.”

4.   We express no opinion as to the constitutional validity of a statute which purported to permit the purchase of alcoholic beverages by underage buyers acting as law enforcement decoys.

POCHÉ, Acting Presiding Justice.

PERLEY and REARDON, JJ., concur.

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