Krupp Oil Co., Inc. v. Yeargan

• Decision Date: 02 June 1995
• Citation: 665 So.2d 920
• Parties: KRUPP OIL COMPANY, INC. v. Mack YEARGAN, et al. 1931382.
• Court: Alabama Supreme Court

Page 920

665 So.2d 920

KRUPP OIL COMPANY, INC. v. Mack YEARGAN, et al.

1931382.

Supreme Court of Alabama.

June 2, 1995.

Rehearing Denied July 21, 1995.

Charles M. Coleman of Crownover, Coleman & Standridge, W. Ryan deGraffenried, Jr. and Michael C. Cornwell of Watson, Harrison & deGraffenried, Tuscaloosa, H. Dean Mooty, Jr., Montgomery, for appellant.

Robert E. Kirby, Jr. of Lucas, Alvis, Kirby & Wash, P.C., Birmingham, and Elizabeth R. Jones, Birmingham, for Larry West.

H. Lewis Gillis and Launice P. Sills of Thomas, Means & Gillis, P.C., Montgomery, for Alabama Alcoholic Beverage Control Board.

H. Dean Mooty, Jr., Montgomery, for amicus curiae Alabama Oilmen's Association/Alabama Association of Convenience Stores.

KENNEDY, Justice.

The plaintiff appeals from a summary judgment for the defendants, Mack Yeargan, as administrator of the Alcoholic Beverage Control Board ("ABC Board"), and Larry West, administrator of the estate of Teena West, in this declaratory judgment action challenging an ABC Board regulation.

Viewing the evidence in a light most favorable to the nonmoving parties, we find the following: Teena West was struck and killed by an automobile driven by Toni Cooley Stone. Stone was intoxicated at the time of the accident. Stone had been drinking alcohol and was intoxicated when, before the accident that killed Teena West, she entered the Sav-More Store to purchase more alcohol. The Sav-More Store is owned by the plaintiff, Krupp Oil Company ("Krupp").

Larry West sued Krupp in a wrongful death action in Tuscaloosa County, pursuant to § 6-5-71, Ala.Code 1975, claiming that Krupp was violating ABC Board Regulation 20-x-6-.15(2) when it sold alcohol to Stone, an intoxicated person.

Krupp then filed a declaratory judgment action in Montgomery County against Yeargan, as the ABC Board administrator, and Larry West, alleging that Regulation 20-x-6-.15(2) was unconstitutional. The declaratory judgment action was transferred to the Tuscaloosa Circuit Court, which already had the wrongful death action. The trial court entered a summary judgment in favor of Yeargan and West on the declaratory judgment action. The wrongful death action is pending the outcome of this declaratory judgment action.

Regulation 20-x-6-.15(2) provides:

"No off premise licensee, employee, or agent may sell any alcoholic beverage to any person if such person is acting in such a manner as to appear to be intoxicated."

Krupp argues that the adoption of this ABC Board regulation was an illegal attempt to usurp the legislative power of the State and that only the legislature can make illegal the conduct mentioned in the regulation. Second, Krupp argues that the adoption of the regulation violated the guarantees of procedural due process, because, it says, proper notice was not given to those who would be affected by the regulation. Third, Krupp argues that the regulation is, on its face, overbroad, vague, and ambiguous. Fourth, Krupp argues that the regulation unlawfully discriminates between licensees and state-owned stores operated by the ABC Board.

The first issue is whether the ABC Board's adoption of the regulation infringed upon the authority of the legislature. Krupp contends that § 6-5-71, known as the Dram Shop Act, creates a civil remedy against persons who, contrary to law, cause the intoxication of another by providing the other person with alcoholic beverages. Krupp argues that the legislative purpose behind the Dram Shop Act was to punish the owners of bars or taverns who serve alcohol for consumption on their premises to people who are already intoxicated. See McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320 (Ala.1991). Krupp contends that 20-x-6-.15(2) illegally extends potential liability to off-premises licensees, i.e., those who sell alcohol for consumption off their premises.

The doctrine of separation of powers does not prohibit the legislature from delegating power to execute and administer laws, so long as the delegation carries reasonably clear standards governing execution and administration. Folsom v. Wynn, 631 So.2d 890 (Ala.1993) (holding that the proration statute was not an unconstitutional delegation of authority, but that the Governor had acted unconstitutionally when he imposed five percent proration on the judiciary without considering whether the remaining appropriations were adequate for the judiciary to perform its constitutionally mandated duties).

The enactment of the Alcoholic Beverage Control Act was an exercise of the "police power of the state of Alabama for the protection of the public welfare, health, peace and morals of the people of the state." § 28-3-2. Section 28-3-2 further provides that the privilege to sell alcoholic beverages and to otherwise control their sale and distribution is within the control of the ABC Board.

When a court is construing a statute intended to protect the public welfare, "great latitude should be allowed to the legislature in determining the character of such laws, and how, when, and by whom, in their practical administration, they should be applied." Ex parte Lauderdale County, 565 So.2d 623, 627 (Ala.1990).

Krupp compares this case with Timmons v. City of Montgomery, 641 So.2d 1263 (Ala.Cr.App.1993), wherein the Court of Criminal Appeals held that the Vehicle Window Tinting Statute was unconstitutionally vague. In Timmons, the court first determined that the statute enacted by the legislature was unconstitutionally vague on its face. The statute prohibited window tinting to the extent that occupants in the vehicle could not be "easily recognized" by someone looking in the vehicle from the outside. The court held that the statute did not define exactly what conduct was prohibited, because the standard "easily recognized" was too subjective.

The Timmons court noted that a prior attorney general's advisory opinion had also found the statute to be void on the basis of vagueness. After the attorney general's opinion was released, but before the Court of Criminal Appeals issued its decision, the Department of Public Safety attempted to amend the statute. The Department of Public Safety adopted a rule that further defined "window tinting." The rule specifically set out percentages to which light could be transmitted through or reflected from a window and, thus, defined the criminal offense of window tinting. The court held that the rule was an improper attempt to circumvent the legislative process. "Only the legislature can make law and only the legislature has the authority to define what is law." 641 So.2d at 1266.

The Dram Shop Act, § 6-5-71, provides in pertinent part:

"(a) Every wife, child, parent or other person who shall be injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving, or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages."

(Emphasis added.)

In § 28-3-43, the legislature gave the ABC Board the authority to "control the manufacture, possession, sale, consumption, importation, use and delivery of ... alcohol." Section 28-3-49 gives the ABC Board the authority to "promulgate rules and regulations not inconsistent with this chapter for carrying out the provisions of this chapter."

Notably, former § 28-3-260 made it unlawful for any licensee, (on-premises or off-premises) to sell, furnish, or give alcoholic beverages to a visibly intoxicated person. In 1980, the legislature repealed § 28-3-260 when it adopted the Alcoholic Beverage Licensing Code, Act No. 80-529, Ala.Acts 1980. The new code contained no references to sales of alcohol to visibly intoxicated persons.

In 1982, the ABC Board promulgated Regulation 20-x-6-.02, which prohibits an on-premises licensee from dispensing alcohol to visibly intoxicated persons. It is clear that Regulation 20-x-6-.02 is limited in its application to on-premises licensees of the ABC Board.

In 1984, this Court issued Buchanan v. Merger Enterprises, Inc., 463 So.2d 121 (Ala.1984), discussing Regulation 20-x-6-.02. The defendant nightclub in Buchanan continued to sell alcohol to a visibly intoxicated man. The man subsequently left the nightclub in his automobile and ran over the plaintiff. The incident occurred in 1981. In 1980, the legislature had repealed § 28-3-260 which had prohibited dispensing alcohol to intoxicated persons. The ABC Board promulgated Regulation 20-x-6-.02 in 1982. The defendant argued that because the plaintiff's death had occurred after the repeal of § 28-3-260 and before the promulgation of Regulation 20-x-6-.02, there was no cause of action. The Court held that there was a common law action for negligently dispensing alcohol.

The Buchanan Court surmised that it was not the legislature's intention in repealing § 28-3-260 to legalize the sale of alcohol to visibly intoxicated persons. The Court noted that in the same legislative session, the legislature had enacted new drunk driving laws with increased penalties. The Court found that, given the legislature's concern for drunken driving, it was not likely that the legislature intended to allow bars to serve alcohol to visibly intoxicated persons. If the legislature had intended to do away with the cause of action created in the Dram Shop Act, "the legislature would have repealed the statute itself, not just its teeth." Buchanan, 463 So.2d at 124.

In Evans v. Sunshine-Jr. Stores, Inc., 587 So.2d 312 (Ala.1991), the deceased was killed after being struck by a drunk driver. The driver had purchased a 12-pack of beer from the defendant store-owner approximately 45 minutes before the accident. The deceased's representative sued under the Dram Shop Act, claiming, among other things, that the store owner was liable under a common...