Who should be final authority in alcohol compliance cases?
In the aftermath of a Nevis woman's acquittal for selling alcohol to a minor last summer, the Hubbard County Attorney said he would renew his request to have the county board hear administrative actions against liquor establishments.
Don Dearstyne presented the proposal to the Hubbard County board in February.
He got a cool reception.
The board, acting as a licensing authority, could take action against a liquor establishment in a civil proceeding, he suggested at the time. It could conduct an administrative hearing and suspend liquor licenses as penalties for noncompliance with the laws.
Last week a Hubbard County District Court jury acquitted Cammy Johnson, a former employee of the Nevis Municipal Liquor Store, of selling to a minor. Johnson, the city's liquor commissioner, testified she didn't see the obvious red banner that is on all "under 21" licenses. Bar manager Lisa Kamrowski testified to the same recollection.
The establishment was visited as part of a large compliance sting operation conducted in June 2011. Several employees throughout the county were cited along with Johnson. All but Johnson were assessed a $500 fine and received a stay of adjudication. She fought her citation.
"It's a tough situation," Dearstyne said in an interview Tuesday.
"Administratively is the way the majority of the counties in the state do it. I think the general public looks at it as going after an $8 per hour person, if this is the proper way to do it? Shouldn't it be the establishment because these are generally low-paid positions that change frequently," he said of prosecuting employees, not establishments.
"You want us to act as a court and hear this?" commissioner Cal Johannsen had asked in February. He and fellow commissioners didn't seem inclined to take on the role of judge and jury in alcohol cases. But there was some basic agreement that having an extra tool in the law enforcement arsenal might deter establishments from underage sales if it meant losing their licenses for a few days as punishment.
Johnson's attorney, Joe Majors, used an "entrapment" defense, contending law enforcement was setting up establishments to fail.
Dearstyne disagreed. He doubts the jury that acquitted Johnson agreed with the theory.
"My intention is to... especially after this jury verdict not buying the entrapment argument, gives fodder to the fact we should be doing it administratively," he said.
"It's a wiser use of resources and the establishment has more at stake here to ensure (compliance,)" Dearstyne said.
"Ultimately everyone agrees we shouldn't be selling to minors."
The underage sale is what's called a "strict liability" offense. That means if a server admits to selling alcohol to a minor on that particular date, as Johnson did, she technically was guilty. Case closed.
"The overriding governmental interest is compliance checks," assistant Hubbard County Attorney Jonathan Frieden told the jury in his closing argument. "Law enforcement did not want people to fail. They wanted people to pass."
But the six-member jury didn't see things Frieden's way.
Sloppy paperwork and record keeping convinced the six jurors they must find Johnson not guilty of the sale, the jury foreman said in an interview after the trial.
"We felt like the paperwork that they had submitted on the day, the lawyer (Majors) brought up that the paperwork wasn't signed. So we felt some of the documentation wasn't sufficiently filled out," juror Stephen Jewett said.
A photocopy of the decoy's license was misplaced, a deputy testified, so the copy of the license presented to the jury was taken months after the sting. The decoy also neglected to sign an affidavit attesting to the fact that her statement purchasing the alcohol and the paperwork she submitted was correct.
"They couldn't find the original copy of the photo. So then the question came down to was it there or not?" Jewett said, referring to the red band on the license. "We had two witnesses, the gal who was being prosecuted plus the manager of the bar said basically she didn't see it."
Majors "was putting that out," Jewett said. "Did they switch IDs or what?"
"But she testified to all the elements, that she sold to an underage minor," Dearstyne said of Johnson's case. "What it comes down to is jury nullification, which we know happens."
Questions on the license
Another liquor seller came forward after the trial to cry foul, claiming she was presented with a questionable ID by the same decoy.
"I told them there was no way there was any brown thing around the license, no "under 21" around the license or nothing," said Heather Leitch, who was cited that same June night when she sold to the same decoy at Itasca Junction. "And basically I was called a liar.
"I said, 'It's funny that all of us that were charged did not see the under 21.' It was a red flag as soon as you see it. You can't miss it. I thought, 'There's something up,'" Leitch said.
Kamrowski put it this way at trial: "It was an over 21 driver's license. She just wasn't 21."
Leitch said she and the other defendants, who had the same public defender, discussed their cases and none noticed the dark red band across the license designating the carrier as "under 21."
"I feel that, to me, this is like entrapment," Leitch said. "They lied and I'm really upset. And I said to my husband, 'I got fined $500 and basically what I said to them, the officer in the store, the sheriff's department and the county attorney, 'I did not see the under 21.'"
Dearstyne said the clerks were mistaken, that the decoy, who happened to be his 20-year-old daughter, did not have an adult license. She was one month shy of her 21st birthday when the compliance check occurred.
Jewett acknowledged the identification issue at trial may have made clerks "wondering was I hooked or not. Was I treated fairly or not?"
Leitch and the others' guilty pleas were not accepted by Judge Paul Rasmussen. Instead, if they are law abiding, the charge will be wiped off their records.
"None of the people that sold got convicted of anything," Dearstyne reiterated.
The compliance checks will continue, and are even mandatory annually, Dearstyne said, under Minnesota liquor laws.
Dearstyne said he's spent the last couple months collecting statutes from other jurisdictions allowing county boards to act as administrative hearing officers and will take those back to the county board.
Having a civil arena for liquor complaints makes more sense than trying the cases in a criminal court, he said. The standard of proof is a bit lower than beyond a reasonable doubt. And the criminal prosecutions don't deal with the chronic offenders.
"As far as compliance checks, I don't have a problem with that," Jewett said, speaking for himself and not the jury panel as a whole.
"If we have people out there who are not abiding the law by providing minors with alcohol that they shouldn't be getting and those kids later get into a car accident and injure or kill somebody, whatever, we have a problem."