Opinion
Sept. 23, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1153
No appearance for plaintiff-appellee.
Lee N. Sternal, Asst. City Atty., Pueblo, for defendants-appellants.
BERMAN, Judge.
The Liquor and Beer Licensing Board of the City of Pueblo, and the individual members thereof, appeal from a judgment of the trial court declaring null and void the Board's suspension of the 3.2% Beer license of Daniel J. Romero, d/b/a Pinocchio's. We affirm in part and reverse in part.
After notice and hearing, the Board found: That on April 20, 1974, after presenting an altered Colorado Temporary Operator's Permit, a female under the age of 18 years was sold beer by plaintiff's employees; that said identification was not one of those specifically approved by Regulation 16 of the State Licensing Authority; and that said identification was 'visibly altered' in a manner 'readily apparent to any person.' Further, the Board found: That on April 29, 1974, a minor was arrested after being observed drinking beer on the licensee's premises; that said minor had gained entrance without having been asked her age nor having shown any identification whatsoever; and that the incidents occurring on April 20 and April 29 were violations of s 12--46--115(1), C.R.S.1973.
Romero, in his petition for review in the trial court, contended that his reliance on the fraudulent proof of age exhibited by the minor on April 20 precluded suspension under s 12--46--115(1), C.R.S.1973, that the evidence as to the incident on April 29 showed the beer was purchased for the minor by another party and, that being the case, there was no violation by Romero under s 12--46--115(1), that the Board suspended his license without making a finding as to which violation it predicated the suspension upon, and that these actions by the Board were an abuse of discretion.
The trial court substantially agreed with Romero's contentions and also concluded that the Board exceeded its authority by finding that the Colorado Temporary Operator's Permit was 'visibly altered' in a manner 'readily apparent to any person.' Furthermore, the trial court held that the State Licensing Authority, by limiting the type of identification deemed adequate to only those listed in Regulation 16, exceeded the scope of authority given under s 12--46--115(8), C.R.S.1973.
The relevant statute provides:
'No person shall sell . . . or permit the sale . . . of any fermented malt beverage . . . to or for any person under the age of eighteen . . .. If a person who, in fact, is not eighteen years of age, exhibits a fraudulent proof of age, any action relying on such fraudulent proof of age shall not constitute grounds for the revocation or suspension of any license issued under the provision of this article.' Section 12--46--115(1), C.R.S.1973. (emphasis added)
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'The state licensing authority is hereby authorized to issue regulations approving specified types of identification. It shall be a defense to any action brought against a licensed dealer for alleged sale to a minor if the minor presented identification approved by the department for the purpose of proving his age.' Section 12--46--115(8), C.R.S.1973. (emphasis added)
Regulation 16 of the Rules and Regulations for the Colorado 3.2 Beer Act, adopted by the State Licensing Authority pursuant to the above statute, provides:
'Licensees may refuse to sell fermented malt beverages to any person unable to produce adequate identification of age. The kind and type of identification deemed adequate under this article Shall be limited to the following:
1. Colorado Operator's License;
2. Colorado Provisional Operator's License;
3. Colorado Chauffeur's License;
4. Identification Card issued in accordance with C.R.S.1963, 13--26--1 (now s 42--2--401, C.R.S.1973);
5. An operator's, chauffeur's or similar type driver's license containing a picture issued by another state;
6. Identification card containing a picture by another state for the purpose of proof of age;
7. Military identification cards;
8. Valid passport;
9. Alien registration card.' (emphasis added)
The Board contends, and we agree, that since the identification relied on by Romero on April 20 was not one of those approved by the State Licensing Authority in Regulation 16, Romero was not protected by that clause of s 12--46--115(1), C.R.S.1973, which precludes suspension.
Prior to 1973, it was no defense that a 3.2 beer licensee sold beer in reliance upon fraudulent proof of age. Hershorn v. People, 108 Colo. 43, 113 P.2d 680; People v. Wilson, 106 Colo. 437, 106 P.2d 352. When the legislature in 1973 added the clause in subsection (1) upon which Romero relies, it also added subsection (8). Each clause of a ststute is presumed to have a purpose. Colorado State Civil Service Employees Ass'n v. Love, 167 Colo. 436, 448 P.2d 624. In construing the above-quoted section of the statute, the section must be read as a whole and effect given to every clause. Union Pacific Railroad Co. v. Public Utilities Commission, 170 Colo. 514, 463 P.2d 294; Ferris v. Chambers, 51 Colo. 368, 117 P. 994.
Applying these principles, subsection (1) is to be construed with subsection (8) to give effect to both. Thus, the defense in subsection (1) is available 'to any action brought against a licensed dealer for alleged sale to a minor' Only if the identification presented has been 'approved by the department.' Any other construction would render subsection (8) useless and without purpose. Furthermore, subsection (8) refers to 'any action . . . for alleged sale to a minor,' (emphasis added) and the Board's proceedings clearly constituted an action for alleged sale to a minor. Since the identification presented by the minor on April 20 was not of a type approved by the department, the Board was not precluded from suspending Romero's license.
Nor do we agree with the trial court's holding that the State Licensing Authority could not limit approved identification only to those types listed in Regulation 16. Our construction of the statute makes the limitation implicit even if the Regulation had not done so expressly.
The legislature may delegate the power to determine applicable facts and situations to which the law applies. People v. Willson, Colo., 528 P.2d 1315. '(T)he necessities of modern legislation dealing with complex . . . social problems have led to judicial approval of broad standards for administrative action, Especially in requlatory enactments under the police power.' Swisher v. Brown 157 Colo. 378, 402 P.2d 621. (emphasis added) Thus, the legislature may delegate to the Department of Revenue (acting as the State Licensing Authority), the authority to define what types of identification will effectuate the enforcement of the 3.2 Beer Act. The approved types of identification in Regulation 16, having the common thread of a picture as well as the date of birth of the person identified, are within the scope and objects of the delegation, and we find the Regulation reasonable and therefore valid. Dixon v. Zick, 179 Colo. 278, 500 P.2d 130.
Since we have held that Romero could not avail himself of the defense in s 12--46--115(1), C.R.S.1973, the propriety of the Board's finding concerning the 'readily apparent' nature of the alteration need not be considered.
As to the incident on April 29, the issue presented by the trial court rulings is whether the licensee may be held liable under s 12--46--115(1), C.R.S.1973, when, as the undisputed evidence here showed, one party purchases a fermented malt beverage from the licensee and gives it to a minor.
Where the facts are undisputed, the legal effect of those facts is a question of law, and this court is not bound by the trial court's interpretation, but may make an independent judgment. Weed v. Monfort Feed Lots, Inc., 156 Colo. 577, 402 P.2d 177; Columbia Savings and Loan Ass'n v. Carpenter, 33 Colo.App. 360, 521 P.2d 1299.
The Board urges that the licensee is liable under these circumstances. We disagree. Although the rule is that a licensee may be held liable for a violation even though he has no knowledge of the activities constituting the violation, this is true only when the unlawful act is performed by, or with the knowledge of, his agent or employees. Hershorn v. People, supra; Clown's Den, Inc. v. Canjar, 33 Colo.App. 212, 518 P.2d 957.
Here, there was no evidence presented to indicate that the party who gave the beer to the minor did so with the knowledge, implicit or otherwise, or Romero or any of his employees. Although Romero conceded his policy was to allow persons under the age of 18 years to enter his premises, the statutes do not forbid this. Therefore, we hold, as a matter of law, that Romero was not guilty of any violation of s 12--46--115(1) as to the incident on April 29.
Contrary to the ruling of the trial court, the findings of the Board clearly indicate that plaintiff's suspension was premised on a finding that a violation had occurred on both April 20 and April 29. However, since Romero, under the facts adduced before the Board, could not be guilty of a violation as to the incident on April 29, the cause must be remanded to the trial court with directions to remand the cause to the Board for a new determination as to the duration of the suspension.
Judgment affirmed in part, reversed in part, and cause remanded for further action consistent with the views expressed herein.
COYTE and ENOCH, JJ., concur.