Provigo Corp. v. Alcoholic Beverage Control Appeals Bd.

• Decision Date: 07 April 1994
• Docket Number: No. S031492,S031492
• Citation: 7 Cal.4th 561,869 P.2d 1163,28 Cal.Rptr.2d 638
• Parties: , 869 P.2d 1163 PROVIGO CORPORATION, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent. LUCKY STORES, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Respondent.
• Court: California Supreme Court

Page 638

28 Cal.Rptr.2d 638

7 Cal.4th 561, 869 P.2d 1163

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

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

No. S031492.

Supreme Court of California In Bank.

April 7, 1994.

Donahue, Gallagher, Thomas & Woods, Donahue, Gallagher, Woods & Wood, Renee D. Wasserman, A. Clifford Allen, Oakland, Hinman & Carmichael, John A. Hinman and Lynne A. Carmichael, San Francisco, for petitioners.

Davis, Cowell & Bowe, Steven L. Stemerman, Andrew J. Kahn, San Francisco, Kahn, Soares & Conway, Dale A. Stern, George H. Soares and Robert S. Hedrick, Sacramento, as amici curiae on behalf of petitioners.

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., Henry G. Ullerich and Floyd D. Shimomura, Asst. Attys. Gen., Martin H. Milas, Thomas Scheerer, Linda A. Cabatic and Susan P. Underwood, Deputy Attys. Gen., for respondent.

James K. Hahn, City Atty., Debbie Lew and Candice I. Horikawa, Deputy City Attys., Robert A. Roth, Los Angeles, Mayer & Associates, Martin J. Mayer, Long Beach, and Robert Jagiello, Lake Arrowhead, as amici curiae on behalf of respondent.

LUCAS, Chief Justice.

The California Constitution, article XX, section 22, contains provisions proscribing both the sale to, and purchase by, minors of alcoholic beverages. Thus section 22 in pertinent part provides that "The sale ... of any alcoholic beverage to any person under the age of 21 years is hereby prohibited, and no person shall sell ... any alcoholic beverage to any person under the age of 21 years, and no person under the age of 21 years shall purchase any alcoholic beverage." In these consolidated review proceedings, law enforcement officers used underage persons as decoys in the enforcement of the foregoing constitutional provision against selling alcoholic beverages to minors. (See ibid.; see also Bus. & Prof.Code, § 25658, subd. (a) [further statutory references are to this code unless otherwise indicated].). We must decide whether the constitutional provision forbidding purchases of alcoholic beverages by minors affords a defense to a charge of unlawful sales in situations involving underage decoys. As will appear, we have concluded that article XX, section 22 furnishes no defense to unlawful sales to underage decoys.

I. FACTS

The minors who purchased the alcoholic beverages in both cases presently before us were working in decoy programs for their respective police departments. They passed through the checkout counters of petitioners' grocery stores and purchased alcoholic beverages. (One decoy purchased a pack of "wine coolers," and the other bought a six-pack of beer.) It is undisputed that neither minor purchased alcoholic beverages for the purpose of consumption by himself or others.

In both cases, accusations were filed with the Department of Alcoholic Beverage Control (the Department) charging petitioners with selling alcohol to minors in violation of section 25658, subdivision (a). This provision states, "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." (Ibid., see also Cal. Const., art. XX, § 22.) Although a violation of section 25658 can occur despite the seller's lack of knowledge that the purchaser is under the age of 21, the seller's liability is not absolute because "the Legislature has furnished a procedure whereby he may protect himself, namely, ... section 25660 [allowing the seller to rely 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].)

In protesting suspension of their respective licenses for the stores in question, petitioners argued that the use of underage decoys to purchase alcoholic beverages was illegal and unconstitutional and required dismissal of the charges against them. Petitioners also argued they had been entrapped into making the unlawful sales, and that their due process rights were violated by the officers' failure to follow the Department's guidelines for conducting a decoy program (including use of decoys having the appearance and demeanor of persons well under 21 years of age).

After suspension of their licenses by the Department, petitioners appealed to the Alcoholic Beverage Control Appeals Board (the Board). The Board concluded the constitutional provision that "no person under the age of 21 years shall purchase any alcoholic beverage" (Cal. Const., art. XX, § 22) was inapplicable to persons in decoy programs supervised by the Department or other law enforcement agencies.

II. COURT OF APPEAL DECISION

The Court of Appeal granted review (see § 23090), and held that the use of underage decoys was unlawful and afforded petitioners a defense to license suspension. The court concluded that it would be improper to infer a "decoy exception" from the clear and unambiguous language of the constitutional prohibition on purchases by minors. The court relied on the so-called "plain meaning" rule to the effect that unambiguous words in a constitutional provision should be given the meaning they bear in ordinary use, without resort to rules of construction or extrinsic evidence of intent. (E.g., Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299; see also Cal. Const., art. I, § 26 [constitutional provisions are "mandatory and prohibitory" unless otherwise expressly declared].) As the Court of Appeal stated, "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." Because, under the plain meaning of the Constitution, no minor may lawfully purchase intoxicating beverages, the use of a minor decoy to make such a purchase was likewise illegal.

The Court of Appeal noted that, unlike the California Uniform Controlled Substances Act (Health & Saf. Code, div. 10, § 11000 et seq.), the constitutional and statutory prohibitions against buying alcoholic beverages contain no express exception for persons working in a law enforcement capacity. (See id., § 11367 ["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."].)

The Court of Appeal further observed that in 1987 the Legislature declined to adopt an exception for underage decoys 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.) The bill when originally proposed granted 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. Such immunity was opposed by the Retail Liquor Dealers Association and by the American Civil Liberties Union.

The Court of Appeal rejected the Department's further contention that petitioners could be punished for their unlawful sales despite the officers' improper use of decoys. The court opined that, "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. [Citation.]"

III. DISCUSSION

Initially, we observe that the Constitution vests the Department with broad discretion to revoke or suspend liquor licenses "for good cause" if continuing the license would be "contrary to public welfare or morals." (Cal. Const., art. XX, § 22.) In the absence of a clear abuse of discretion, the courts will uphold the Department's decision to suspend a license for violation of the liquor laws. (E.g., Martin v. Alcoholic Bev. etc. Appeals Bd. (1959) 52 Cal.2d 238, 248-249, 340 P.2d 1.)

Did the Department abuse its broad discretion in the cases now before us? We first determine whether the use of underage decoys afforded petitioners an excuse or defense to a charge of unlawful sales to minors. The Court of Appeal, relying on the "plain meaning" rule of construction, so concluded. But as we pointed out in Lungren v. Deukmejian, supra, 45 Cal.3d at page 735, 248 Cal.Rptr. 115, 755 P.2d 299, "the 'plain meaning' rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose.... [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.].... These rules apply as well to the interpretation of constitutional provisions. [Citation.]"

Additionally, we have observed that constitutional provisions "must receive a liberal, practical common-sense construction which will meet changed conditions and the growing needs of the people. [Citations.] A constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words. [Citation.] The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers. [Citations.]" (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)

In sum, in construing California Constitution article XX, section 22, we are not limited to a strict, literal interpretation of its words but we may seek a practical, commonsense construction consistent with the probable intent of the framers. Applying the...