Wednesday, January 18, 2017
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C.A. Affirms Suspension of Drugstore’s Liquor License
Panel Says Coy Decoy’s Lack of Response to Comment on His Age Did Not Violate ‘Fairness’ Rule
By KENNETH OFGANG, Staff Writer
An underage decoy used to catch liquor licensees in the act of serving underage patrons did not violate state regulations by not responding to an ambiguous comment about the decoy’s age, the Third District Court of Appeal ruled yesterday.
The panel sided with the Department of Alcoholic Beverage Control, saying the Alcoholic Beverage Control Appeals Board erred in finding the department in violation of a regulation requiring that decoys operate in “a fashion that promote fairness” and specifically that a decoy respond truthfully to questions about his or her age. Justice Andrea Hoch said the appeals board was mistaken in finding that the rule is ambiguous and that the department’s actions in the case were manifestly unfair to the licensee.
The court reinstated the department’s decision to suspend the license of a CVS store in Truckee for 15 days after the store sold a bottle of beer to an 18-year-old working for the department. The decoy testified at an administrative hearing that he took the beer to the counter, presented his driver’s license, and was allowed to buy the beverage after the clerk commented “I would never have guessed it, you must get asked a lot,” or words to that effect.
He further testified that he was unsure what the clerk meant by the statement, and that he did not respond to it.
The state Constitution prohibits sale of alcohol to persons under the age of 21, and a statute makes such sale a misdemeanor.
ALJ’s Finding
An administrative law judge found that CVS sold alcohol to the underage decoy and recommended that the suspension be upheld. The ALJ rejected the claim that the decoy violated California Code of Regulations, title 4, §141, saying the fairness requirement does not compel a decoy to respond to a statement, as opposed to a question, about the decoy’s age.
The appeals board, however, said the decoy’s lack of response to the store clerk’s comment violated the rule, and that the department’s, and the ALJ’s, interpretation of the rule as only requiring decoys to respond to direct questions was unreasonable.
Hoch, writing for the Court of Appeal, disagreed with the board. She said the rule is unambiguous and that the department’s interpretation is correct.
By specifying that a decoy respond to “questions” about his or her age, the justice said, the rule makes clear that a decoy need not respond to “statements” of any kind, nor to questions about any subject other than the decoy’s age. The distinction between a question, which seeks to elicit a response, and a statement is well established in law, Hoch said.
‘Fairness’ Unambiguous
The requirement of “fairness,” she went on to say, is unambiguous because the remainder of the rule is quite specific as to what requirements a decoy operation must meet—the decoy must be less than 20 years of age and appear to be under 21, must carry valid identification and present it on request, must truthfully answer any questions about his or her age, and must be able to make a face-to-face identification of the person who sold the alcoholic beverages.
Previous decisions of the appeals board, Hoch noted, are inconsistent, sometimes finding that a decoy should have responded to a statement by the clerk indicating or implying that the clerk believed the decoy to be over the age of 21, but upholding a suspension in a case where the decoy did not respond to the clerk’s comment “oh, you are so young” before selling the decoy alcohol. The board held in that case that the decoy was not obligated to respond because the statement did not suggest that the clerk had miscalculated the decoy’s age.
That last decision was correctly reasoned, Hoch said, calling the other decisions unpersuasive.
The Los Angeles firm of Solomon, Saltsman & Jamieson represented CVS on appeal, while Linda A. Mathes, Sarah M. Smith, and John D. Ziegler represented the appeals board and Deputy Attorneys General Peter D. Halloran and Lauren Sible represented the department.
The case is Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board (Garfield Beach CVS, LLC) 17 S.O.S. 214.
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