State v. Wuerslin

State v. Wuerslin (2001-523); 174 Vt. 570; 816 A.2d 445

[Filed 30-Oct-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-523

                             OCTOBER TERM, 2002


  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 2, Bennington Circuit
  Hasso W. Wuerslin	               }
                                       }	DOCKET NO. 533-5-01Bncr

                                                Trial Judge:  David A. Howard

             In the above-entitled cause, the Clerk will enter:


       This is an appeal from a denial of a motion to dismiss a charge
  against defendant for furnishing alcohol to a minor, a violation of 7
  V.S.A. § 658.  Defendant entered into a conditional plea, preserving the
  issue that the charge should be dismissed because it arose out of an
  invalid sting operation conducted by the Vermont Department of Liquor
  Control.  We affirm.

       On the evening of April 12, 2001, Winhall Police Officer Elizabeth
  Graham, DLC Investigator Tom Curran and DLC employee C.K., who is under the
  age of twenty-one, went to the Equinox Hotel bar as part of a DLC
  compliance check.  C.K. sat down at the bar and ordered a beer.  Appellant
  was the bartender working that night.  In contravention of DLC General
  Regulation 13, requiring bartenders to demand positive identification from
  persons of questionable age before furnishing them with alcohol, defendant
  did not request identification from C.K. and proceeded to serve her the
  beer she ordered.  Officer Elizabeth Graham witnessed the sale.
  Investigator Curran issued a citation to bartender Wuerslin for Furnishing
  Alcohol to a Minor, in violation of 7 V.S.A. § 658.  Defendant moved to
  dismiss the charge on the grounds that the sting operation procedures
  should have been established by rule making or regulations promulgated
  pursuant to the Vermont Administrative Procedure Act (VAPA), 3 V.S.A. §§
  801-849.  The State argued that formal rule making is unnecessary because
  the DLC's authority to enforce laws prohibiting the sale of liquor to
  minors is inherent and self-executing.  The trial court held that while the
  Department of Liquor Control is charged with adopting regulations to
  implement its administrative authority to control the sale of liquor under
  7 V.S.A. § 104, its authority to enforce the liquor laws with respect to
  minors, found in subsection 1, is self-executing.  Therefore, the trial
  court concluded that the Department's sting operation was incidental to the
  Department's expressly authorized powers and there was no violation of the
  VAPA.
   
       Defendant raises two issues, but we do not reach the second because
  the first disposes of the appeal.  Defendant argues that the Department's
  use of sting operations to catch bartenders who serve alcohol to minors
  represents a rule of general applicability, and as such, should have been
  promulgated as a rule under the VAPA.  Defendant relies principally on our
  decision in Parker v. Gorczyk, __ Vt. __, 787 A.2d 494 (2001) (mem.), where
  we held that the Department of Corrections was required to promulgate, as a
  rule, its policy that prisoners convicted of violent felonies would be
  considered ineligible for furlough until the expiration of their minimum
  sentence.  Id. at 498-99.  

 

  The practice of the Department of Corrections rose to the level of a rule
  because the Commissioner of Corrections had rule making authority with
  respect to inmates under the statute and the policy was one of general
  applicability.  Defendant contends this case is like Parker because
  compliance checks by DLC are practices of general applicability, and the
  DLC is specifically directed by 7 V.S.A. § 104(5) to adopt regulations
  "necessary for the execution of its powers and duties and of the powers and
  duties of all persons under its supervision and control."

       We disagree with defendant on two grounds.  First, an agency is not
  required to enact regulations to carry out what its authorizing statute
  specifically directs it to do.  See In re: Morgan, 742 A.2d 101, 107 (N.H.
  1999) (absence of promulgated administrative rules governing inspections of
  pharmacies did not invalidate accountability audit of pharmacist; neither
  audit form, which instructed inspectors to perform specific tasks during
  course of audit, nor internal procedural manual applicable only to agency
  employees, is subject to statutory requirements for promulgation of agency
  rules); Greer v. N.J. Bureau of Securities, 677 A.2d 763, 767 (N.J. Super.
  Ct. App. Div. 1994) ("[Formal rule making] is not necessary when the agency
  prescribes a legal standard or directive that is clearly and obviously
  inferable from the enabling act."); Nevada v. GNLV Corp, 834 P.2d 411, 413
  (Nev. 1992) ("[A]n administrative agency is not required to promulgate a
  regulation where regulatory action is taken to enforce or implement the
  necessary requirements of an existing statute.").  The DLC has express
  authority to enforce the liquor laws  with respect to minors by
  investigating violations and forwarding them for prosecution.  7 V.S.A. §
  104(1).  DLC employees may exercise law enforcement authority in Vermont. 
  20 V.S.A. § 2358(c)(1) (specifically including DLC employees exercising law
  enforcement powers within the definition of "law enforcement officer"). DLC
  investigators are in fact subject to criminal liability for dereliction in
  their law enforcement duties.  7 V.S.A. § 659 (making it a crime for
  "inspectors of the liquor control board" to refuse or neglect to
  investigate violations of Vermont's liquor control laws; officers subject
  to a 500 dollar fine or up to ninety days imprisonment, or both, for
  willful neglect to perform duties). Neither legislation nor administrative
  rule is required to detail every enforcement scheme that might be
  undertaken.  Dow Chemical Company v. U.S., 476 U.S. 227, 233 (1986) ("When
  Congress invests an agency with enforcement and investigatory authority, it
  is not necessary to identify explicitly each and every technique that may
  be used in the course of executing the statutory mission.").  Because the
  DLC is expressly authorized to enforce Vermont's liquor control laws, no
  interpretive rule is necessary to outline specific guidelines that the DLC
  must follow in looking for violations.  As long as DLC acts within its
  authorized realm of enforcement, it is not required to give advance notice
  of its techniques to the bartenders or liquor establishments affected.

       Second, the DLC's use of the sting operation, which is an
  investigative technique, is not a rule of general applicability.  It may be
  a practice that the DLC uses quite frequently in the enforcement of the
  liquor laws, but frequency of use does not make a practice a rule.  In
  Parker, the question was whether the Commissioner's practice making a
  certain class of prisoners ineligible for furlough rose to the level of a
  rule.  We did not, as defendant suggests, hold that there was no difference
  between a rule and a practice, but that the two concepts were not mutually
  exclusive.  Parker v. Gorczyk, __ Vt. at __, 787 A.2d  at 498.  It is
  possible for a practice of an agency to simply implement the express
  intention of its statute, and though a practice may exist, no rule making
  is required.  Here, we conclude that investigative techniques used by the
  DLC are a method of enforcement of the liquor laws, and enforcement is
  expressly authorized.
    
 
        
       Nor do we conclude  that  regulations regarding sting operations are
  necessary to carry out the DLC's authority to supervise the persons under
  its control.  Defendant speculates that without such a rule, bartenders
  could be targeted or entrapped by liquor control inspectors into serving
  minors despite their best efforts.  Defendant argues that without detailed
  regulations including clear objective guidelines, there are no checks upon
  the DLC and individual inspectors may be tempted to abuse their discretion
  by targeting particular establishments for improper motives. He analogizes
  DLC sting operations to DUI roadblocks, arguing that carefully
  circumscribed, objective guidelines are needed to prevent abuse.  See State
  v. Record, 150 Vt. 84, 88, 548 A.2d 422, 425 (1988).  Legal concerns about
  random vehicle stops, however, arise because such stops must be reconciled
  with constitutional rights to be free from unreasonable search and seizure
  protected by the Fourth Amendment to the U.S. Constitution and Article
  Eleven of the Vermont Constitution.  Id. at 85, 548 A.2d  at 423.  The
  undercover sting operations being conducted by the DLC do not involve a
  "search or seizure" of the bartenders or their property; the investigations
  require the bartenders merely to perform their job, i.e., check
  identification and serve alcohol.  Moreover, assuming for argument that
  there was a Fourth Amendment right at stake, rule making under VAPA would
  not be the remedy. In Record, we did not require police to engage in formal
  rule making to legitimate the establishment of roadblocks.  We held that to
  protect the public's constitutional rights to be free from unreasonable
  search and seizure, roadblocks are permissible only when police follow a
  detailed set of standards ensuring stops are not unduly intrusive and
  drivers are not singled out arbitrarily.  Id. at 90, 548 A.2d  at 426. 
  Having DLC inspectors among the customers at a bar is not disruptive to the
  routine of a bartender.  Because DLC monitoring does not involve the
  detention or search of bartenders, no written guidelines are necessary to
  legitimate the DLC's undercover operations to enforce prohibitions on
  furnishing alcohol to minors. 

       Because we find that the DLC was not obliged to promulgate
  administrative regulations under the VAPA detailing how it would enforce
  the furnishing statute, we do not reach the question of whether, if formal
  rule making were required, the agency's failure to promulgate formal rules 
  would require the dismissal of the charge against appellant. 

       Affirmed. 


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice