E-wine & ID

An interesting decision concerning Wine.com which you can access here (eVineyard Retail Sales-Massachusetts, Inc. vs. Alcoholic Bev. Control Comm’n, SJC-09948 March 18, 2008).

One of the vinous Internet giant’s wholly owned subsidiaries, eVineyard Retails Sales-Massachusetts, Inc. (eVineyard), got snagged for delivering — errrselling — wine to an underage person. The facts are simple. For whatever reason, the Massachusetts Attorney General’s Office ran a sting using an underage female (19 yrs. old) to order wine from Wine.com. To place her order, the underage woman opened an account with eVineyard, submitting her name, address, and a fictitious date of birth, which indicated that she was 22 years of age. Well, her 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 years of age or older. 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.

So, following 2 stings, eVineyard ultimately suffers a pair of modest alcohol-license suspensions, while FedEx escapes unscathed on one of those stings. Quite understandably, and in an homage to stare decisis, eVineyard appealed the ruling. It raised three arguments: mootness, statutory interpretation, and entrapment. They’re all interesting defenses.

Regarding mootness, eVineyard argued that the license suspension targeted a 2004 alcohol license, and, by 2007, that train had left the station. (The state issues alcohol licenses annually, meaning that the license is good for one year only.) eVineyard applied for a “new” license in 2007, and reasoned that any adverse action against the 2004 license was disconnected to the 2007 license. I like the argument because, where I practice, the State frequently reminds its license holders that they enjoy no vested right in the renewal of those licenses. In other words, you can’t claim a property right that extends beyond the year in which the license is issued. I say what’s good for the goose…. If you don’t get the benefit of an alcohol license in perpetuity, then you shouldn’t suffer the detriment of an expired alcohol license in perpetuity: 1 year means 1 year, and, here, Massachusetts targeted 2004 — not 2007.

Regarding the statutory argument, the Court held:

The plain language of the statute is unambiguous: it forbids both the sale and the delivery of alcohol to minors. 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.

Regarding the entrapment argument:

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. 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. (cits omitted.)

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

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, 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.

I’m guessing that it’s first-day training for FedEx’s in-house counsel to reread Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854), a relic contract case taught at most law schools. They’ll be reading this case, too.

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