eVINEYARD RETAIL SALES-MASSACHUSETTS, INC. vs. ALCOHOLIC BEVERAGES CONTROL COMMISSION.

CORDY, J. Wine.com, Inc. (wine.com), is a corporation in the business of selling wine directly to consumers throughout the country. The plaintiff, eVineyard Retail Sales-Massachusetts, Inc. (eVineyard), is a wholly owned subsidiary of wine.com, through which it sells wine to customers in Massachusetts. [Note 1] eVineyard is licensed by G. L. c. 138, § 15, to sell at retail alcoholic beverages that are "not to be drunk on the premises" to citizens and residents of the Commonwealth.

As part of an Attorney General "sting" operation, an underage decoy -- a nineteen year old cooperating individual (CI) -- ordered wine from wine.com over the Internet. To place her order, the CI opened an account with eVineyard, submitting her name, address, and a fictitious date of birth, which indicated that she was twenty-two years of age. She agreed to the Web site's terms of service, which state that wine will not be sold or delivered to persons under the age of twenty-one years. [Note 2]

The CI's wine order was processed by eVineyard, and delivered to her by Federal Express, with whom eVineyard contracts for the delivery of all of its orders. In the contract, Federal Express agreed to deliver wine orders to customers in compliance with certain age verification requirements. eVineyard paid Federal Express an extra two dollars per delivery for its carriers to check identification and verify that each recipient is twenty-one

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years of age or older. [Note 3] eVineyard places labels on its packages informing the carrier that the packages contain alcohol and that a driver should not deliver the package to anyone under twenty-one years of age or visibly intoxicated, and that, if reasonable doubt about age exists, the driver should verify age and record the recipient's driver's license number or other identification. Federal Express also requires that certain labels be used on packages containing alcohol. Federal Express delivered the wine, in this case, to the underage CI without asking for identification or proof of age.

As a result of this and a second sting operation, eVineyard was administratively charged with two counts of violating G. L. c. 138, § 34, which prohibits the sale or delivery of alcohol to minors. The Alcoholic Beverages Control Commission (commission) held a hearing to assess whether eVineyard violated G. L. c. 138, § 34. The commission found that it had, and ordered a ten-day suspension of its license, five days for each violation. Only the first violation is before us. [Note 4] Federal Express, which is separately licensed by the commission to "transport and deliver . . . alcoholic beverages" in the Commonwealth pursuant to G. L. c. 138, § 22, admitted responsibility for delivering to a minor, in connection with this same sale. Accordingly, Federal Express was found to have violated G. L. c. 138,

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§ 34, and the commission ordered a three-day suspension of its license to deliver alcohol.

eVineyard filed a petition for review of the commission's decision in the Superior Court, pursuant to G. L. c. 30A, § 14, challenging the finding of a violation, and, in the alternative, contending that it was entrapped into violating the law. A Superior Court judge allowed eVineyard's motion for judgment on the pleadings, concluding that the "single wrong that violated the spirit of G. L. c. 138, § 34," was the delivery of wine by Federal Express. We transferred the commission's appeal to this court on our own motion. We reverse.

Scope of review. "The scope of review of the commission's decision, both in the Superior Court and in [the appellate courts], is defined by G. L. c. 30A, § 14." Howard Johnson Co. v. Alcoholic Beverages Control Comm'n, 24 Mass. App. Ct. 487, 490 (1987), quoting Burlington v. Labor Relations Comm'n, 390 Mass. 157, 161 (1983). A decision may be set aside if "the substantial rights of any party may have been prejudiced" because it is based on an error of law or on an unlawful procedure, is arbitrary or capricious, is unwarranted by the facts found by the agency, is unconstitutional, is in excess of statutory authority or jurisdiction, or is not supported by substantial evidence. G. L. c. 30A, § 14 (7). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6).

"Our review of the commission's decisions under the Liquor Control Act, G. L. c. 138, is undertaken within the context of the commission's considerable statutory powers." BAA Mass., Inc. v. Alcoholic Beverages Control Comm'n, 49 Mass. App. Ct. 839, 842 (2000). General Laws c. 10, § 71, confers on the commission "general supervision of the conduct of the business of . . . selling alcoholic beverages." The commission also has "comprehensive powers of supervision over licensees, including the power to revoke, modify, or suspend licenses." Howard Johnson Co. v. Alcoholic Beverages Control Comm'n, supra at 491, citing G. L. c. 138, § 23.

The reviewing court may not substitute its judgment on questions of fact for that of the agency. Olde Towne Liquor Store, Inc. v. Alcoholic Beverages Control Comm'n, 372 Mass. 152,

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154 (1977). When questions of law are at issue, we exercise de novo review, giving "substantial deference to a reasonable interpretation of a statute by the administrative agency charged with its administration [and] enforcement." Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006).

Mootness. eVineyard first argues that the suspension imposed on it is unenforceable because the license it was holding at the time of the violation, March of 2004, expired, and it subsequently obtained a new license. [Note 5] Consequently, it contends, the commission's decision is moot. We disagree.

General Laws c. 138, § 15, authorizes the issuance of licenses for the sale of alcohol, at retail, for consumption off the premises. [Note 6] Such a license is renewed annually. Id.

The suspension of a license does not merely impact the actual license held by the licensee; it impacts the licensee's right to hold a license. See Wang v. Board of Registration in Med., 405 Mass. 15, 19 (1989) (revocation of registration revoked right to reestablish status as licensed physician in Massachusetts by completing renewal process). Whether through a new or renewed certificate issued by the licensing authority, a licensee obtains the privilege of selling alcoholic beverages. G. L. c. 138, §§ 15, 16A. See Jubinville v. Jubinville, 313 Mass. 103, 106 (1943) ("A liquor license once granted does not run with the business. It is a nontransferable personal privilege, revocable at pleasure, and conveying no vested interest to the licensee"). That privilege may be suspended at any time by the commission "upon satisfactory proof that [a licensee] has violated or permitted a violation

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of any condition thereof, or any law of the commonwealth." G. L. c. 138, § 64. See G. L. c. 138, § 23.

eVineyard's position would allow a licensee facing suspension to evade the sanction by allowing its former license to expire and then obtaining a new one. This is plainly not what the Legislature intended with regard to G. L. c. 138, § 64. Cf. Perry v. Medical Practice Bd., 169 Vt. 399, 404 (1999), and cases cited ("It is well settled that a licensee may not evade disciplinary action merely by resigning or allowing a license to expire. . . . Otherwise, the licensee could apply for admission in another jurisdiction, or subsequently reapply in the same jurisdiction, and maintain that he or she has never been disciplined for professional misconduct." [Emphasis in original]). [Note 7] The commission may proceed to suspend a licensee's current license based on an offense committed by it under its prior license.

Statutory violation. General Laws c. 138, § 34, makes it unlawful for anyone to make "a sale or delivery of any alcoholic beverage or alcohol to any person under 21 years of age" (emphasis added). [Note 8] The statute evidences the Legislature's strong policy against the sale of alcoholic beverages to minors. See Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 10-12 (1983); Howard Johnson Co. v. Alcoholic Beverages Control Comm'n, 24 Mass. App. Ct. 487, 492-493 (1987). This policy is consistently recognized in other provisions of G. L. c. 138, including § 34A (prohibiting purchase of alcohol by persons

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under age of twenty-one years and misrepresentation of age), § 34B (requiring identification cards), and § 34C (prohibiting transportation of alcohol by minor). The purpose of these provisions is to protect the welfare of minors from the danger of alcohol. See Fran's Lunch, Inc. v. Alcoholic Beverages Control Comm'n, 45 Mass. App. Ct. 663, 664 (1998).

It is well settled that a "statute is to be construed as written, in keeping with its plain meaning." Stop & Shop Supermarket Co. v. Urstadt Biddle Props., Inc., 433 Mass. 285, 289 (2001), and cases cited. The plain language of the statute is unambiguous: it forbids both the sale and the delivery of alcohol to minors. [Note 9] The commission's interpretation of the statute as allowing it to proceed separately against both the licensed seller of alcohol, eVineyard, and the licensed deliverer, Federal Express, accords with the statute's language and with its legislative intent.

There is no question in this case that both a sale and a delivery of alcohol was made to a person under the age of twenty-one years in violation of G. L. c. 138, § 34. Nor is there any question that eVineyard was responsible for both: the order was taken by eVineyard, payment was received and accepted by eVineyard, and delivery was effectuated by eVineyard through its delivery contract with Federal Express. [Note 10] eVineyard cannot evade responsibility for making sales to minors, which it has an affirmative duty not to do, by delegating the task of delivery to a third party. Cf. Miller Brewing Co. v. Alcoholic Beverages Control Comm'n, 56 Mass. App. Ct. 801, 809-810 (2002) (beer supplier's license properly suspended because supplier had affirmative duty to sell only to licensed purchasers). [Note 11]

Entrapment. The defense of entrapment rests on the notion

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that a defendant should not be punished for violations that arise out of law enforcement efforts to instigate criminal behavior and lure "otherwise innocent" persons to commit crimes. See Sorrells v. United States, 287 U.S. 435, 448-449 (1932). The law of entrapment focuses on whether the government induced the crime, and if so, whether the defendant was predisposed to commit it. Commonwealth v. Shuman, 391 Mass. 345, 351 (1984). eVineyard contends that the sting operation at issue resulted in its first offense, and that there was no evidence that it had a predisposition to sell to minors. It also argues that the CI wrongfully misrepresented her age on the eVineyard Web site, in violation of the commission's investigative guidelines that prohibit decoys from lying about their age. [Note 12] We reject these arguments.

To raise an entrapment defense properly, eVineyard must produce evidence of government inducement. Solicitation by a government agent alone is insufficient to show inducement. Commonwealth v. Shuman, supra. eVineyard has shown nothing more than solicitation. Arthurs v. Board of Registration in Med., 383 Mass. 299, 317-318 (1981) (no entrapment where undercover State police detective went to doctor nine times falsely asserting that he could not sleep, and doctor prescribed, in all but one visit, controlled substances that were prohibited other than for legitimate medical purposes).

Moreover, even if we were to reach the issue of predisposition,

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we agree with the commission that in the absence of a scienter requirement in the statutes, the "question is not whether eVineyard was predisposed to sell alcohol to persons whom it knew to be underage, but whether eVineyard's [Internet] practices evidenced a willingness to sell alcohol in a manner that could allow minors to make purchases by the simple expedience of misrepresenting their age." [Note 13]

Finally, the operation was conducted by the Attorney General's office in compliance with its own guidelines for sting operations concerning Internet alcohol sales to minors. These guidelines allow decoys to misrepresent their age when ordering alcohol via the Internet, [Note 14] but prevent them from transmitting by facsimile or otherwise providing false identification documents to an Internet retailer. The commission's on-premises guidelines are inapplicable to remote, Internet-based, sting operations, particularly when conducted by the Attorney General's office. Cf. BAA Mass., Inc. v. Alcoholic Beverages Control Comm'n, 49 Mass. App. Ct. 839, 846 (2000) (telephone orders).

Because the sting operation was conducted in accordance with applicable guidelines and free of entrapment, the commission properly relied on the evidence obtained from it in suspending eVineyard's license. Fran's Lunch, Inc. v. Alcoholic Beverages Control Comm'n, supra at 665. The judgment entered in the Superior Court is reversed in part, and the decision of the commission suspending eVineyard's license for five days is affirmed.

So ordered.