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KINNEY v. STATE11/29/1996
in a dry community?
Under AS 4.11.010(a), no person may "manufacture, sell, offer for sale, possess for sale or barter, traffic in, or barter an alcoholic beverage" unless they have the proper license or permit. Under AS 4.16.200(a)-(b), a person who violates this licensing law is guilty of a class A misdemeanor unless the violation occurs in a local-option community, in which case the crime is a class C felony.
In AS 4.16.200(c), the legislature has provided a limited exception to the licensing
requirement: a person charged with unlicensed trafficking in liquor may defend by proving that "no profit was involved in the solicitation or receipt of order for the delivery of alcoholic beverage". There are two instances in which this "no personal profit" defense does not apply: when the defendant is charged with selling or offering to sell alcoholic beverages to a minor, and when the defendant is charged with liquor trafficking in a local-option community.
Kinney asserts that the legislature had no valid reason for restricting the "no personal profit" defense in this fashion. He argues that, because there is no rational basis for restricting the scope of the defense, the due process clause of the constitution requires that the defense be available to anyone accused of unlicensed sale of liquor, even if the offense occurred in a local-option community.
We disagree. The two limitations on the "no personal profit" defense appear to be based on the same rationale: lack of profit is no defense to unlicensed sale of liquor when it would be illegal for anyone to sell liquor under the same circumstances. Thus, the defense is not available to someone who sells liquor to a minor, nor is it available to someone who sells liquor in a community that has voted to ban liquor sales. In these situations, unlicensed sale of liquor is not just a violation of statutes that regulate alcohol sales and restrict the number of alcohol sellers; rather, the unlicensed sale violates society's determination that no one should sell alcohol under such circumstances. Because there is a rational basis for the legislature's decision to restrict the scope of the "no personal profit" defense, Kinney's due process attack fails. Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974); Harrison v. State, 687 P.2d 332, 343-44 (Alaska App. 1984).
Conclusion
The judgment of the superior court is AFFIRMED.
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