Retailers in bind on tobacco after Alaska SC ruling

Legal News Line Dec. 11, 2007, 10:00am

Justice Warren W. Matthews

JUNEAU -- Alaskan health bureaucrats have hailed a recent Supreme Court ruling that holds store owners legally liable if their employees - even unknowingly - sell tobacco to minors. A recent release by the Alaska Department of Health and Social Services (DHSS) praised the court's Nov. 23 ruling for its support of the department's mission. The opinion "clarifies responsibilities for stakeholders in our mutual efforts to keep minors tobacco-free," stated Behavioral Health Director Melissa Stone. In a 3-2 decision in Mendenhall Valley Tesoro v. Alaska Department of Community and Economic Development (docket# 6203), the majority rejected the store owner's claim that suspending his tobacco licence violated his due process rights. The state alleged an employee sold cigarettes to a Juneau Police Department employee under age 19 in 2002. Store owner Richard Godfrey contended that his emploee was not negligent because he believed he had checked the woman's ID previously. He also argued that the employee had been entrapped into selling the cigarettes, making hat sale the result of governmnet misconduct. The majority disagreed. "Because even a conviction 'by plea' satisfies the licensing statute and because Godfrey could challenge in the administrative proceedings whether the employees had in fact been convicted or had acted within the scope of their employment, we conclude that Godfrey's due process rights were not violated," wrote Justice Robert L. Eastaugh. But the dissenting justices noted that the governing statute in the case does not allow the licensee to present arguments denying that the clerk was negligent. "[N]egligence on the part of a clerk is, in my view, an issue of central importance in licensee sanction proceedings and a licensee is entitled to a meaningful hearing on this issue," wrote Justice Warren W. Matthews. He was joined in dissent by Chief Justice Dana Fabe. Perhaps in recognition, the DHSS noted that the statute had been altered during the proceedings to "address retailers' concerns and reward conscientious employers' education efforts while retaining the same basic penalty structure."

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