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09/16/94 EX PARTE STATE ALABAMA ALCOHOLIC BEVERAGE

September 16, 1994

EX PARTE THE STATE OF ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, ET AL. (RE: JEAN S. BARTLETT AND FRANK E. BARTLETT D/B/A PACKAGE PALACE
v.
ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, ET AL.)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS. (Mobile Circuit Court, CV-89-4134, Court of Civil Appeals, 2900536). Ferrill D. McRae, Trial Judge.

Released for Publication May 27, 1995. As Corrected.

Maddox, Houston, Steagall, Kennedy, Ingram, and Cook, JJ., concur. Hornsby, C.j., and Shores, J., Dissent.

The opinion of the court was delivered by: Maddox

MADDOX, JUSTICE.

The sole issue presented in this petition for certiorari review is whether the Alabama Alcoholic Beverage Control Board ("ABC Board") could hold a disciplinary hearing involving one of its licensees and fine the licensee $500, as authorized by law, in view of the fact that a criminal charge against its employee involved the same act of alleged misconduct. Stated differently, the issue is whether the civil proceeding before the ABC Board was precluded by the doctrine of res judicata because there had been a final adjudication of the criminal charge against the licensee's employee that arose out of the same operative facts.

The incident that gave rise to the legal issue presented here happened over five years ago, and the facts are set out in our opinion in Ex parte Alabama Alcoholic Beverage Control Board, [Ms. 1910325, Feb. 19, 1993) 654 So. 2d 1139 (Ala. 1993). For a better understanding of the specific issue we decide in this case, we restate the facts as they were stated there:

"On April 6, 1989, at approximately 7:35 p.m., two ABC Board agents and an 18-year-old minor arrived at Jean and Frank Bartlett's place of business, the 'Package Palace,' to conduct what the agents referred to as a 'minor operative.' One of the agents stayed outside with a video camera, while the other agent went inside to observe the transaction. The minor entered the store and requested a 200-milliliter bottle of Jack Daniel's whiskey, which an employee of Bartlett's business, Robert Douglas Howard, retrieved from the shelf. The agent who was inside the store testified that Howard checked the minor's valid driver's license before proceeding. The minor then handed Howard a $10 bill to pay for the $5.80 bottle of whiskey. Howard handed the minor his change, and the minor exited the store with the whiskey.

"Subsequently, both agents and the minor entered the store and identified themselves to Howard as participants in the ABC Board undercover operation. The agents informed Howard that he had committed a violation of law and requested to see, and then reviewed, his driver's license. One of the agents then asked to see the $10 bills in the register. Howard cooperated. The agent testified that included in the bills Howard handed him was a $10 bill the serial number of which he had previously recorded. Howard was arrested and was charged with selling alcoholic beverages to a minor. The Bartletts were not on the premises when the sale or arrest occurred.

"The Bartletts received a letter dated September 6, 1989, in which they were charged by the ABC Board with violating § 28-3A-25(a)(3), Ala. Code 1975, as a result of their employee's April 6, 1989, sale of alcoholic beverages to the minor. After an administrative hearing, the Board adJudged them guilty of violating § 28-3A-25(a)(3) and imposed a fine of $500.

"The Bartletts filed a complaint for judicial review with the Circuit Court of Mobile County. The court affirmed. The Bartletts appealed to this Court on February 20, 1991. This Court transferred the case to the Court of Civil Appeals, which stated the dispositive issue as 'whether the agents of the ABC Board had the authority to aid and abet a minor child under the age of 19 years to commit a criminal offense, or whether the agents had the authority to use a minor child to commit a criminal offense, without first complying with § 13A-3-22, Code 1975.' Bartlett v. Alabama Alcoholic Beverage Control Board, [Ms. 2900536, Sept. 27, 1991] 594 So. 2d 131 (Ala.Cr.App. 1991).

"The Court of Civil Appeals (with Judge Russell Dissenting) stated that 'while it is unlawful for a licensee to sell alcoholic beverages to any minor, it is also unlawful for any minor to purchase alcoholic beverages within this state. § 28-3A-25(a)(19), Code 1975.' ___ So.2d at ___. The court stated that 'using a minor child, without prior judicial approval, to commit an illegal act is not a reasonable exercise of the ABC Board's agent's powers, duties or functions,' and held, therefore, that 'the use of the minor child in this case does not fit within any of the exceptions in § 13A-3-22, Code 1975.' ___ So.2d at ___. The Court of Civil Appeals reversed the judgment and remanded the case. This Court denied the Board's petition for the writ of certiorari on February 14, 1992 (Maddox, J., Dissenting).

"However, because of the public policy considerations involved in using minors as decoys in enforcing the laws regulating the sale and purchase of intoxicating liquors in this State, this Court on April 4, 1992, issued the writ ex mero motu in order to review the judgment of the Court of Civil Appeals and to set some general guidelines as to when and under what circumstances minors may be used in undercover operations."

___ So.2d at ___.

After this Court in Ex parte Alabama Alcoholic Beverage Control Board reversed the judgment of the Court of Civil Appeals, and remanded the case to that court, that court addressed what it considered to be the two remaining issues in the case: "(1) whether the doctrine of res judicata applied because the charges against the clerk/employee who actually sold the alcohol were dismissed; and (2) whether the actions by the Alabama Alcoholic Beverage Control Board (Board) constituted entrapment." The Court of Civil Appeals said, regarding the entrapment issue, "In Concurring in the result, Justice Almon answered the entrapment issue, and we agree with his analysis; therefore, we find the ...


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