Town & Country Lanes, Inc. v. Liquor Control Com'n

• Decision Date: 20 October 1989
• Docket Number: Docket No. 109173
• Citation: 179 Mich.App. 649,446 N.W.2d 335
• Parties: TOWN & COUNTRY LANES, INC., d/b/a Town & Country Lanes, Petitioner-Appellee, v. LIQUOR CONTROL COMMISSION, Respondent-Appellant. 179 Mich.App. 649, 446 N.W.2d 335
• Court: Court of Appeal of Michigan — District of US

Page 335

446 N.W.2d 335

TOWN & COUNTRY LANES, INC., d/b/a Town & Country Lanes Petitioner-Appellee, v. LIQUOR CONTROL COMMISSION, Respondent-Appellant.

Docket No. 109173.

179 Mich.App. 649, 446 N.W.2d 335

Court of Appeals of Michigan.

Submitted June 20, 1989.

Decided Aug. 21, 1989.

Released for Publication Oct. 20, 1989.

[179 MICHAPP 651] Kallas, Lower, Henk & Treado, P.C. by Constantine N. Kallas, Bloomfield Hills, for petitioner-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Arthur E. D'Hondt and Richard I. Rubin, Asst. Attys. Gen., for respondent-appellant.

Before WAHLS, P.J., and DOCTOROFF and BRENNAN, JJ.

WAHLS, Presiding Judge.

Respondent, Michigan Liquor Control Commission, appeals from a May 16, 1988, order of the Genesee Circuit Court vacating a November 17, 1987, order of the commission assessing $110 in fines and costs against petitioner, Town & Country Lanes, Inc., for having furnished alcoholic liquor to a minor, M.C.L. Sec. 436.22(3); M.S.A. Sec. 18.993(3), and having allowed a person under twenty-one years of age to consume or possess alcoholic liquor for consumption on petitioner's [179 MICHAPP 652] premises, 1980 AACS, R 436.1009(1). The commission, in its November 17, 1987, order, specifically adopted the findings of fact and conclusions of law set forth in a March 30, 1987, decision of a commissioner of the Michigan Liquor Control Commission. We reverse the May 16, 1988, order of the circuit court and reinstate the November 17, 1987, order of the commission.

The record reveals that petitioner operates a bowling alley in Flint and is authorized to serve alcoholic beverages to its customers under a Class C liquor license. The bowling alley, which has at least forty-three lanes, is situated next to a bar. The bar is separated from the bowling alley concourse by two doors and a partition whose upper half is glass. Customers may purchase alcoholic drinks either at the bar or from servers who take orders in the bowling alley. Customers are permitted to consume their drinks in the bar and in the bowling alley.

On Friday, November 21, 1986, the bowling alley was very busy. At about 10:30 p.m., there was one waitress on duty serving customers in the bowling alley concourse, a bartender working behind the bar, two employees at the main desk serving patrons of the bowling alley, and a roving security guard. At that time, Sheri Lynn Davis, born on October 16, 1967, was bowling with three friends who were each over twenty-one years old. Jennifer Hare, an investigator for the commission, observed, for approximately ten to fifteen minutes, each of the four bowlers in the Davis party drinking beer from separate glasses. Hare confronted the four bowlers and informed the manager of the establishment that Davis, a minor, was observed drinking beer on the premises. According to Hare, Davis said that one of her companions, Randy Tinsman, had purchased the pitcher of beer from [179 MICHAPP 653] which the party had been drinking. Tinsman acknowledged that he had purchased one of the two pitchers of beer which he and others in the party had drunk that evening, although he could not recall whether he had purchased it in the bar and brought it into the bowling alley or whether the waitress on duty had served the beer to the party in the bowling alley. The waitress testified that she had not served any alcoholic beverages to anyone in the group and that she was not aware that an underage person in the bowling alley was consuming alcohol.

In his March 30, 1987, decision, the commissioner concluded that petitioner had violated Sec. 22(3) of the Michigan Liquor Control Act, M.C.L. Sec. 436.1 et seq.; M.S.A. Sec. 18.971 et seq., and Rule 436.1009(1) of the commission. That statute and rule provide:

A retail licensee shall not directly, individually, or by a clerk, agent, or servant sell, furnish, or give alcoholic liquor to a minor except as otherwise provided in this act, nor directly or indirectly, individually or by a clerk, agent, or servant sell, furnish, or give alcoholic liquor to a person who is visibly intoxicated. [M.C.L. Sec. 436.22(3); M.S.A. Sec. 18.993(3).]

A licensee shall not allow a person who is under 21 years of age to consume alcoholic liquor or to possess alcoholic liquor for personal consumption on the licensed premises. [1980 AACS, R 436.1009(1).]

The commission or any commissioner is authorized to suspend or revoke a license for the violation of these provisions or to impose a penalty for such a violation under Sec. 20(1) of the Michigan Liquor Control Act. That statute provides, in pertinent part:

The commission, and any commissioner or duly [179 MICHAPP 654] authorized agent of the commission designated by the chairperson of the commission, upon due notice and proper hearing, may suspend or revoke any license upon a violation of this act or any of the rules promulgated by the commission under this act. The commission, and any commissioner or duly authorized agent of the commission designated by the chairperson of the commission, may assess a penalty of not more than $300.00 for each violation of this act or rules promulgated under this act, or not more than $1,000.00 for each violation of section 22(3), in addition to or in lieu of revocation or suspension of the license. [M.C.L. Sec. 436.20(1); M.S.A. Sec. 18.991(1) ]

In the present case, petitioner was assessed $150 for each of its two violations and "$10 for witness fees involved in connection with the hearing." However, the commission, characterizing petitioner's record as "exemplary" because it had been licensed since 1962 and had never before incurred a violation under the Michigan Liquor Control Act or any rule promulgated pursuant to it, waived $200 of the penalty imposed in this case.

The circuit court reversed the order of the commission declaring petitioner in violation of Sec. 22(3) and Rule 9(1), holding that a violation of the statute could not occur "where the sale of alcohol was not made directly to the minor child or a disclosed agent of the minor," and that a violation of the rule could not occur "where the licensee had no knowledge that one of its patrons was allowing a minor to consume alcohol" on the licensee's property. Moreover, the circuit court held that Rule 9(1) is unconstitutionally vague "because it does not provide the licensee with notice of what actions are prescribed [sic], and because it confers on the commission unstructured, unlimited and arbitrary discretion to determine whether an offense has been committed."

[179 MICHAPP 655] Our review of the commission's decision, as was the circuit court's review, is limited in scope. On appeal, it must be determined, in essence, whether the commission's decision is authorized by law and is supported by competent, material and substantial evidence. See M.C.L. Sec. 24.306; M.S.A. Sec. 3.560(206); Const.1963, art. 6, Sec. 28; Kelly v. Liquor Control Comm., 131 Mich.App. 600, 345 N.W.2d 697 (1983); Kassab v. Acho, 150 Mich.App. 104, 109, 388 N.W.2d 263 (1986), lv. den. 426 Mich. 862, 393 N.W.2d 874 (1986); Odette v. Liquor Control Comm., 171 Mich.App. 137, 141, 429 N.W.2d 814 (1988).

On appeal, the commission argues that the circuit court erred as a matter of law in reversing the determination that petitioner violated Sec. 22(3) of the Michigan Liquor Control Act, contending that the circuit court's conclusion that a licensee cannot violate that statute unless it knowingly and directly sells alcohol to a minor is supported neither by the plain language of the statute nor by the applicable case law. We agree.

The language of Sec. 22(3) itself prohibits the furnishing of alcoholic liquor to minors. Long ago, the Supreme Court, in a criminal prosecution for furnishing alcoholic liquor to a minor, broadly construed the term "furnish" to include the indirect transfer of liquor to a minor as long as the liquor belonged to the party charged and was under its control. In People v. Neumann, 85 Mich. 98, 102-103, 48 N.W. 290 (1891), the Supreme Court stated:

If the liquor, belonging to the person and under his control, is by his consent or connivance, permitted to be taken and drank [sic] by the minor, whether it is passed to him direct [sic] or through the hands of another is immaterial; the liquor in either case is furnished to such minor, within the meaning of our statute....

It must be presumed that he had control over [179 MICHAPP 656] his own place of business. If Lozo had taken the bottle of beer out of doors, or away from the premises of respondent, and there treated the minor, the case would have been different; or had respondent forbidden the giving of the beer to Brown in his saloon, or said to Brown, "You can be furnished with no beer upon my premises," and did all that a prudent man could to prevent the drinking of the beer by the minor, and sold it to Lozo with no intent that it should thereby be furnished or given to the minor, he would not have been guilty of any violation of the law, although Brown might have drank [sic] it after Lozo purchased it. [Emphasis in original.]

See also People v. Lumley, 189 Mich. 613, 155 N.W. 486 (1915); Bambino v. Dunn, 166 Mich.App. 723, 727-729, 420 N.W.2d 866 (1988), lv. den., 431 Mich. 903 (1988). If the term "furnish" is broadly construed for purposes of criminal liability, we see no reason not to similarly construe it for purposes of a noncriminal penalty or fine. The commissioner in this case clearly found that there were four glasses on the table at which the party of four bowlers was seated and that nineteen-year-old Sheri Lynn Davis was drinking beer from one of those glasses. Petitioner supplied both the beer and the glasses. Accordingly, petitioner "furnished" alcohol to Davis. ¹

[179 MICHAPP 657] Moreover, while such furnishing of alcohol by petitioner to Davis may not have been accomplished with the knowledge of her age, such knowledge was not necessary to subject peti...