March 23, 2006
Re: Beer board authority to suspend or revoke beer permit when officer's actions are in question
Your MTAS Consultant asked me to respond to your letter of March 20, in which you inform that a question has arisen regarding the ability of the beer board to suspend or revoke a beer permit when the investigating officer may have acted in violation of the law. You explain that an undercover, twenty year old officer attempted to purchase beer. The cashier asked for photo identification which the officer did not have on his person. The cashier either asked for his date of birth, or the officer provided a date of birth which was a false date. The date of birth provided would make the officer of legal age to purchase beer, and the cashier sold him beer after he provided the date. The cashier was later charged with selling beer to an underage person and plead guilty to the charge.
The beer permit holder has questioned the police officer's actions, alleging that he acted in violation of T.C.A. '39-15-413 by providing a false date of birth. The permit holder is challenging the ability of the beer board to take action against him based on the officer' s conduct.
The statute delineating the powers of beer boards to revoke or suspend permits, upon which the City's ordinances are based, provides at T.C.A. '57-5-301(b) that no permit shall be revoked on grounds of sale to an underage person over the age of 18, if the underage purchaser produces a false identification in order to make the purchase. The law does not contain any language to indicate that an undercover officer's false statement regarding his date of birth made at the time of a sale cannot be the basis for suspension, fine or revocation. The General Assembly rather ensured that permit holders not be held accountable for failure to verify the legality of purportedly state issued identification.
It is important to note that in a situation in which a false identification is used by an underage buyer to purchase beer, a beer board may still suspend or fine a permit holder. In Sigler v. Metropolitan Beer Permit Board , 62 S.W.3d 732 (Tenn. App. 2001), the permit holder challenged the authority of a beer board to suspend his permit for selling beer to an underage buyer. The facts involve a buyer who was over the age of 18, but under 21 years of age, who used his older brother's identification to purchase the beer. The Court of Appeals upheld the chancellor's opinion that the beer board had the power to suspend a permit or fine the permit holder under such circumstances, relying on the clear statutory language found in T.C.A. '57-5- 301(b).
There is an unreported case in which the Court of Appeals held that T.C.A. '39-15-413 is not applicable to beer board actions. In Jackson v. Franklin County Beer Board , 1993 WL 46524 (Tenn. App., M.S.), the county beer board actually hired a private investigator to conduct a sting operation to determine if permit holders were selling beer to underage persons. A minor was used in the investigation, and the plaintiff permit holder's business sold beer to the minor. In addition to ruling that the beer board had the power to hire a private investigator to conduct the investigation, the Court ruled that the limitations placed on the use of minors in such operations were not applicable to the investigation by the beer board:
This code section [T.C.A. '39-15-413] protects law enforcement officers who use minors in "sting"operations. The section simply provides that it is not a violation of Tennessee Code Annotated Section 39-15-404 or Section 39-15-410 to use a minor to purchase beer so long as the written approval of the minor's parents and the juvenile courtis obtained. Even if there were a violation of Section 39-15-413, it does not preclude the use of the evidence in a revocation or suspension hearing before the beer board.Jackson, at p. 3. (emphasis added).
The above language indicates that the Court of Appeals does not view T.C.A. '39-15-413 as being binding upon a beer board, and the Court further does not apply the law to limit evidence which will be heard in revocation or suspension hearings.
That being the case, in my opinion the Beer Board may proceed with action against the subject permit holder, without limitation. Although an exception to their power to revoke permits has been created in instances in which false identification is used by underage purchasers, there is no language in the code to indicate that the power of the board is limited in any other scenario in which beer is sold to underage persons.
In my opinion, if the officer violated T.C.A. '39-15-413 during the sting operation, his actions have no bearing on the power of the beer board to take action against this permit holder.
I hope this information is helpful. Please let me know if you need further information or assistance.
Melissa A. Ashburn