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State v. Wuerslin10/30/2002
ENTRY ORDER
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,
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