Published Decisions: Fran's Lunch, Inc. v. Alcoholic Beverages Control Comission
Fran's Lunch, Inc. v. Alcoholic Beverages Control Com'n
45 Mass.App.Ct. 663, 700 N.E.2d 843
Mass.App.Ct.,1998.
Oct 22, 1998 (Approx. 4 pages)
45 Mass.App.Ct. 663, 700 N.E.2d 843
Appeals Court of Massachusetts,
Essex.
FRAN'S LUNCH, INC.
v.
ALCOHOLIC BEVERAGES CONTROL COMMISSION.
No. 97-P-0703.
Argued Sept. 14, 1998.
Decided Oct. 22, 1998.
Commercial establishment sought judicial review of Alcoholic Beverages Control Commission's suspension of its liquor license based on its employee's sale of liquor to a minor without requiring the minor to produce proof of his age. The Superior Court, Essex County, Regina L. Quinlan, J., ruled that Commission had not violated the law by using a minor in its "sting" operation, and establishment appealed. The Appeals Court, Porada, J., held that: (1) in permitting minor to purchase liquor in a sting operation, neither Commission nor police violated statute prohibiting minor from purchasing liquor for use of another, and (2) even if use of minor in sting operation violated statute, that would not preclude Commission from relying on the evidence in suspending establishment's liquor license.
Affirmed.
West Headnotes
[1] KeyCite Notes
361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k180 Intention of Legislature
361k181 In General
361k181(1) k. In General. Most Cited Cases
361 Statutes KeyCite Notes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k180 Intention of Legislature
361k184 k. Policy and Purpose of Act. Most Cited Cases
361 Statutes KeyCite Notes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k187 Meaning of Language
361k188 k. In General. Most Cited Cases
361 Statutes KeyCite Notes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k204 Statute as a Whole, and Intrinsic Aids to Construction
361k206 k. Giving Effect to Entire Statute. Most Cited Cases
Statute generally must be interpreted according to intent of the legislature ascertained from all its words construed by ordinary and approved usage of language, considered in connection with cause of its enactment, mischief or imperfection to be remedied and main object to be accomplished, to the end that purpose of its framers may be effectuated.
[2] KeyCite Notes
223 Intoxicating Liquors
223VI Offenses
223k157 Sales or Gifts to Prohibited Persons
223k159 To Minors
223k159(1) k. In General. Most Cited Cases
Purpose of statute prohibiting purchase of alcohol by minors for their consumption or the consumption of others is to protect the welfare of children from the danger of alcohol. M.G.L.A. c. 138, § 34A.
[3] KeyCite Notes
223 Intoxicating Liquors
223VI Offenses
223k157 Sales or Gifts to Prohibited Persons
223k159 To Minors
223k159(1) k. In General. Most Cited Cases
In permitting minor to purchase liquor in "sting" operation at commercial establishment, neither Alcoholic Beverages Control Commission nor police violated statute prohibiting minor from purchasing liquor for use of any other person; purchase of alcohol by minor was made for use in ferreting out violators of intoxicating liquor laws, and so promoted rather than hindered purposes of statute, and legislature could not have intended that Commission or police be included in definition of "person." M.G.L.A. c. 138, § 34A.
[4] KeyCite Notes
361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k233 k. Construction as Including or Binding Government. Most Cited Cases
Use of word "person" in statute will not ordinarily be construed to include the state or political subdivisions thereof. M.G.L.A. c. 4, § 7.
[5] KeyCite Notes
223 Intoxicating Liquors
223IV Licenses and Taxes
223IV(B) Revocation or Forfeiture of Rights
223k108 Proceedings
223k108.5 k. Evidence. Most Cited Cases
Even assuming that Alcoholic Beverages Control Commission violated statute by permitting minors to purchase liquor in "sting" operation, such act did not preclude Commission from relying on the evidence to suspend commercial establishment's liquor license; sting operation was conducted in accordance with published guidelines designed to insure that such operations were conducted fairly. M.G.L.A. c. 138, § 34A.
[6] KeyCite Notes
110 Criminal Law
110II Defenses in General
110k36.5 Official Action, Inaction, Representation, Misconduct, or Bad Faith
110k36.6 k. In General. Most Cited Cases
Absent entrapment or other abuses violative of fundamental fairness, government involvement in criminal activity for purpose of investigating possible violations of law is permissible, even if technical violations of law occur.
**844 *663 Patricia S. Johnstone, Gloucester, for plaintiff.
Kathryn B. Palmer, Assistant Attorney General, for the defendant.
Before PORADA, GILLERMAN and BECK, JJ.
PORADA, Justice.
The plaintiff sought judicial review in the Superior Court of the suspension of its liquor license by the Alcoholic Beverages Control Commission (commission). The commission suspended the plaintiff's license based on evidence garnered in a "sting" operation in which the plaintiff's employee sold liquor to a minor, acting as an agent for the commission and the Gloucester police department, without requiring the minor to produce proof of his age in violation of G.L. c. 138, § 34. The plaintiff claims that the decision must be set aside because, in collecting this evidence, the commission violated G.L. c. 138, § 34A, which prohibits a minor from purchasing liquor **845 either for his own use or for the use of any other person. Relying on Cremins v. Clancy, 415 Mass. 289, 295, 612 N.E.2d 1183 (1993), a Superior Court judge *664 ruled that the commission had not violated the law because properly construed, G.L. c. 138, § 34A, prohibits the purchase of alcohol by minors for their consumption or the consumption of others, and here the alcohol was not purchased for consumption but for use as evidence to enforce the law. We affirm but on different grounds.
At issue in Cremins v. Clancy, 415 Mass. at 295, 612 N.E.2d 1183, was the civil liability of a minor to an innocent third party for injuries resulting when the minor, in his capacity as a social host, allowed another minor to consume alcohol and become intoxicated, the consequences of which was injury to the third person. In rejecting the plaintiff's claim in that case, that he was entitled to an instruction which made a violation of the law prohibiting the furnishing of alcohol by a minor to others negligence per se, the Supreme Judicial Court made reference to G.L. c. 138, § 34A, which the court said "makes it a criminal offense for anyone under the age of twenty-one to procure an alcoholic beverage, for his own or for another minor's consumption." Ibid. However, we believe this reference to § 34A in the Cremins case was intended by the Supreme Judicial Court merely to identify the criminal statute on which the plaintiff based his request for an instruction and was not intended to define or limit the parameters of those circumstances giving rise to a violation under this statute. Cf. Planned Parenthood League of Mass., Inc. v. Attorney Gen., 424 Mass. 586, 594 n. 8, 677 N.E.2d 101 (1997).
[1] [2] "As a general rule, 'a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.' " Yeretsky v. Attleboro, 424 Mass. 315, 319, 676 N.E.2d 1118 (1997) (citations omitted). Here, it would appear that the purpose of the statute to protect the welfare of children from the danger of alcohol, see Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 133-134, 661 N.E.2d 627 (1996), and the plain language of the statute which prohibits the purchase for the minor's "use or use of any other person" gives rise to an interpretation calling for a blanket prohibition on the purchase of alcohol by a minor for himself or any other person for any purpose regardless of whether the alcohol was intended for consumption or otherwise.
[3] [4] Notwithstanding our rejection of the Superior Court judge's *665 limited construction of this statute, we conclude there was no violation of the statute in the circumstances of this case. Section 34A proscribes the purchase of alcohol by a minor for the use of any other person. It is a generally accepted rule of statutory construction that the word "person" when used in a statute will not ordinarily be construed to include the State or political subdivisions thereof. G.L. c. 4, § 7, cl. twenty-third. Perez v. Boston Hous. Authy., 368 Mass. 333, 339, 331 N.E.2d 801 (1975). Here, the purchase of alcohol was made by the minor for the use by the police and the commission to ferret out violators of the intoxicating liquor laws. It would strain credulity to believe that the Legislature intended the commission or the municipal police force to be included in the definition of a "person" where their actions were designed to promote rather than hinder the purpose of the law.
[5] [6] In any event, assuming that the commission violated the statute by permitting minors to purchase liquor in a sting operation, this act would not preclude the commission from relying on the evidence. It is generally recognized that absent entrapment or other abuses violative of fundamental fairness, government involvement in criminal activity for the purpose of investigating possible violations of law is permissible even if technical violations of law occur. See Commonwealth v. Harvard, 356 Mass. 452, 459, 253 N.E.2d 346 (1969); Commonwealth v. Shuman, 391 Mass. 345, 350, 462 N.E.2d 80 (1984). See also United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In this case, where the commission's **846 sting operation was conducted in accordance with published guidelines designed to insure that such operations were conducted fairly, the commission could properly rely on this evidence. Cf. Kelly v. Civil Serv. Commn., 427 Mass. 75, 79, 691 N.E.2d 557 (1998) (evidence obtained as a result of an alleged unlawful stop and arrest was admissible in an administrative proceeding to determine if the plaintiff's termination from employment was proper). As such, the decision to suspend the plaintiff's liquor license was based on substantial evidence.
Judgment affirmed.
Mass.App.Ct.,1998.
Fran's Lunch, Inc. v. Alcoholic Beverages Control Com'n
45 Mass.App.Ct. 663, 700 N.E.2d 843
END OF DOCUMENT
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