Attorney General: Honorable James Fleming, Department of Consumer Protection, 1999-013 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 5, 1999

Honorable James Fleming
Department of Consumer Protection
165 Capitol Avenue
Hartford, CT 06106

Dear Commissioner Fleming:

Your department has asked for an opinion of this office on several liquor control issues involving the inspection of permit premises. Your first inquiry concerns the extent to which liquor control agents may search for, and seize, sundry evidentiary items in the course of an investigation. Specifically, you inquire about illegal gambling tickets or records and illegal gambling devices, as well as permittee guest books, invoices and coil cleaning records. Your second inquiry asks whether the department is able to seize "buy" money which is used in undercover investigations by liquor control agents. Your third inquiry concerns the detention of minors, or intoxicated persons, in a casino setting.

This opinion discusses several specific hypothetical scenarios. However, each actual situation encountered by an agent in the field will likely be unique and advice which is appropriate in one fact setting may be inappropriate in another situation. Therefore, while we will attempt to address the scenarios raised in the attached memorandum, our advice will remain general and in the nature of guidelines only.1

As a preliminary matter, most of your questions concern the warrantless entry of a permit premises by liquor agents. Searches of this nature run squarely into Fourth Amendment concerns as it is well established that the Fourth Amendment's prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. See v. City of Seattle, 387 U.S. 541, 543, 87 S. Ct. 1737, 1739, 18 L.Ed.2d 943 (1967). An owner of a business has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable. See Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring). This expectation exists not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative inspections designed to enforce regulatory statutes. See Marshall v Barlow's, Inc., 436 U.S. 307, 312-313, 98 S. Ct. 1816, 1820-21, 56 L.Ed.2d 305 (1978).

An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home. See Donovan v. Dewey, 452 U.S. 594, 598-599, 101 S. Ct. 2534, 3537-38, 69 L.Ed.2d 262 (1981). This expectation of privacy is particularly attenuated in commercial property employed in "closely regulated" industries, such as the liquor industry. See Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L.Ed.2d 60 (1970). "Certain industries have such a history of government oversight that no reasonable expectation of privacy . . . could exist for a proprietor over the stock of such an enterprise. Liquor and firearms are industries of this type; where an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of government regulation." Marshall v. Barlow's, Inc., supra, 436 U.S. at 313. Because the owner or operator of commercial premises in a "closely regulated" industry, such as the liquor industry, has a greatly reduced expectation of privacy, the traditional Fourth Amendment standards of reasonableness for a government search also have lessened application. New York v. Burger 482 U.S. 698, 702, 107 S. Ct. 2636, 2640 (1987). Accordingly, the states may adopt such measures as they deem reasonably appropriate to regulate the manufacturing, transportation, sale or possession of liquor within their borders. See Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5, 273 A.2d 709, 713 (1970). With the adoption of the Liquor Control Act, Conn. Gen. Stat. 30-1, et seq., the Connecticut Legislature created such an inspection scheme.

I.

The first set of questions addresses the authority of a liquor control agent to investigate, and seize, illegal gambling records and gambling devices in the course of an investigation. The Department of Consumer Protection derives its liquor control authority from Conn. Gen. Stat.  30-6, which empowers the Department to enforce the provisions of the Liquor Control Act. The express language of  30-6 permits the Department to "generally do whatever is reasonably necessary for the carrying out of the intent of the chapter . . ." The Department may "revoke or suspend any permit upon cause found after hearing..." Conn. Gen. Stat.  30-55. According to Section 30-6-A24(a) of the Regulations of Connecticut State Agencies, "no gambling of any kind except where provided by the general statutes, and no slot machines or gambling devices . . . shall be permitted or suffered upon any permit premises."

Liquor control agents are hired pursuant to Conn. Gen. Stat.  30-3 to assist the Department of Consumer Protection in enforcing the provisions of the Liquor Control Act. Specifically, agents are assigned to the inspection section of the Department, the function of which is to investigate the suitability of new permit applications, the continued suitability of applicants for renewal, and compliance by permittees and backers with the Liquor Control Act and Regulations. Regs. Conn. State Agencies  30-6-F2. Agents are authorized to inspect permit premises pursuant to Conn. Gen. Stat.  30-106 which provides, in pertinent part, as follows:

The Department of Consumer Protection, its agents, the sheriff of the county, and any deputy sheriff by him specially authorized, and any member of any organized police department in any town, city or borough, and any state policeman, may, at any time, enter upon the premises of any permittee to ascertain the manner in which such person conducts his business and to preserve order.

This statute does not specifically address whether an agent is authorized to seize evidentiary items, such as illegal gambling records or gambling devices, in the course of an inspection of a permit premises. However, our office has previously opined, and it is fairly well established, that liquor control agents are authorized to take reasonable quantities of suspected illegal liquor from a premises where such is evidence of a violation of the Liquor Control Act. 84 Conn. Op. Atty. Gen. 312 (1984); see also Solomon v. Liquor Control Commission, 4 Ohio St. 2d 31, 212 N.E.2d 595 (1965), cert. denied, 384 U.S. 928, 86 S. Ct. 1445, 116 L.Ed.2d 531 (1966); Lacorazza v. State Liquor Authority, 44 App. Div. 2d 555, 352 N.Y.S. 2d 671 (1974); State v. Russo, 4709 S.W.2d 164 (Springfield Mo. Ct. App. 1971). There is no question that the operation of an illegal gambling game or device on a permit premises is a violation of the Liquor Control Act Regs. Conn. State Agencies  30-6-A24(a). Furthermore, it is clear that the seizure of these gambling records or devices by the agents is necessary to establish affirmative proof of a violation of the Liquor Control Act for which administrative sanctions may be imposed. See Bory v. Berman, 4 Conn. Supp. 350, 351 (1936).

In Mills-Jennings of Ohio v. Liquor Control Commission, 475 N.E.2d 1321 (Ohio App. 1984), the Ohio Court of Appeals considered the precise question which is presently raised. Similar to Conn. Gen. Stat.  30-6, Ohio law confers a general power on its Liquor Commission to enforce its Liquor Control statutes and regulations, yet has no provision regarding the seizure of contraband. See Ohio Administrative Code  4301.10(A)(8). Recognizing the necessity to seize gambling devices for use as evidence to prove a violation of the Liquor Control statutes, the Ohio Court held that the Commission's authority for the seizure of gambling devices is properly implied from its express power to generally enforce the liquor laws of the state. Id., at 1324. Additionally, several other jurisdictions have recognized the legitimacy of confiscating gambling devices in the course of an investigation for liquor violations. See Pennsylvania Liquor Control Board v. Luxury Enterprises, Inc., 566 A.2d 1288 (Pa. Comwlth, December 8, 1989); Primages Intern. of Michigan v. Liquor Control Commission, 501 N.W.2d 268 (Mich. App., April 6, 1993); Ohio Department of Liquor Control v. Fraternal Order of Eagles, 677 N.E.2d 1254 (Ohio App. 10 Dist., June 27, 1996). We conclude that in the course of a premises inspection, liquor control agents are authorized to seize gambling records, tickets, and gambling devices or machines to furnish affirmative proof of the operation of an illegal gambling game on a permit premises in violation of the Liquor Control Act.

In light of this general opinion, several words of caution should be issued. First, Conn. Gen. Stat.  30-106 does not authorize the use of force. Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 8, cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L.Ed.2d 218 (1971). See also, 84 Conn. Op. Atty. Gen. 312 (1984). If a permittee is uncooperative during an attempted seizure of gambling evidence, he or she may be cited for transgressing Regs. Conn. State Agencies  30-6-A10, which makes non-cooperation a violation, but the agent unequivocally may not use force to further his investigation. In the case of an uncooperative permittee, and perhaps all cases where gambling violations are involved, liquor agents should call upon state and municipal police to assist in the performance of their functions. See, Conn. Gen. Stat.  30-6(a).

A second word of caution involves the positive and accurate identification of a gambling device. Although some liquor agents have completed Statewide Organized Crime Task Investigative Force (SOCTIF) training which presumably trains them to recognize an illegal gambling device, it is important for the agents to recognize that their primary training and experience is directed to identifying liquor violations. Any situation which calls for a judgment call (as is suggested in scenario #1) should be left to the police or SOCTIF staff. Again, the police are better staffed and equipped to deal with possible gambling violations at a permit premises.

A third word of caution involves the disposition of the gambling devices, once they have been legally seized by liquor agents in the course of an investigation. There is express authority in the General Statutes for the disposition by sale of confiscated liquor. See Conn. Gen. Stat.  30-78. However, there is no such authority in regard to seized gambling devices. At least one jurisdiction with a similar statutory scheme has held that the Liquor Control Commission has no authority to destroy gambling devices which had been legally seized. Mills-Jennings of Ohio v. Liquor Control Commission, 475 N.E.2d 1321 (Ohio App. 1984). Consequently, in the event gambling evidence is seized, the Department of Consumer Protection should coordinate with the police in the investigation and prosecution of the gambling offense, as well as with the disposition of the evidence. See Conn. Gen. Stat. 30-6(a).

Your second set of "seizure" questions addresses the seizure of various permittee records such as guest books, invoices, daily records, and coil cleaning records. Conn. Gen. Stat. 30-106 specifically authorizes liquor agents to "ascertain" the manner in which a permittee conducts his business. The proper and orderly maintenance of the above records is mandated by the General Statutes and the Regulations of Connecticut State Agencies. See Conn. Gen. Stat.  30-23a; Regs. Conn. State Agencies  30-6-A23; 30-6-A27; 30-6-B32. Failure to maintain these records in the manner defined in the applicable statutes and regulations is affirmative evidence of a violation of the Liquor Control Act. Furthermore, the pertinent Regulations specifically establish that all of the above records shall be kept on the permit premises or arrangements shall be made to produce such records on the permit premises within a reasonable time. See Id. In order to prove these violations at a subsequent administrative hearing, it is clear that these records must be seized as evidence for presentation at that hearing.

We are of the opinion, therefore, that liquor agents are authorized to seize guest books, invoices, daily records, and coil cleaning records, where such is evidence of a violation of the Liquor Control Act. It should again be cautioned, however, that in seizing the records, agents are not authorized to utilize force. Hing Wang Wong v. Liquor Control Commission. 160 Conn. 1, 8, cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L.Ed.2d 218 (1971). Should a permittee refuse an agent's request to produce the aforementioned records, other than citing the permittee for a refusal to cooperate pursuant to Regs. Conn. State Agencies  30-6-A10, no further action is authorized by the liquor agent.

In your memorandum, you also reference the seizure of false driver's licenses and other identifications used by involved minors to prove a permittee's violation of the Liquor Control Act. For the reasons detailed above, it is our opinion that the seizure of these items, without force, is also appropriate to provide affirmative proof of a permittee's violation of a provision of the Liquor Control Act.

Several of your questions regarding the seizure of evidentiary items address the scope of the search for these items. Specifically, you ask whether the agent has the authority to search a "back bar"2 area, or a cigar box, for evidence of illegal gambling or other liquor control violations. The nature of the permitted search is tested according to the less stringent requirements for a government search of a closely regulated business. See New York v. Burger, supra at 702. In Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L.Ed.2d 60 (1970), the Supreme Court ruled on the legality of a forcible, warrantless entry into a locked liquor storeroom by federal agents without the consent of the owner. Although the Court ruled that Congress did not authorize forcible, warrantless entries, the Court specifically noted that the general rule "[T]hat administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure" was not applicable to the instant case because historically, intoxicating liquors are a special case and Congress has broad powers to design liquor laws as it deems necessary. Id., 90 S.Ct. 774 at 777.

Subsequently, in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) the Court ruled on the legality of a warrantless, although not forcible search, for firearms in a locked storeroom of a pawnshop. Citing Colonnade, the Court noted that firearms, like liquor, present special cases where close government scrutiny is undeniably of central importance. The Court further noted that for a search to be reasonable under the Fourth Amendment, it is not always necessary for the agent to have a warrant where the search is specifically authorized by statute as part of an inspection scheme. Id., at 1597. The Court held that under the rule of Colonnade, the search was reasonable because it was authorized by statute as part of an inspection scheme and because it was not done forcibly. Id.

It is well established that a liquor agent is entitled to enter a permit premises and ascertain the manner in which a permittee conducts his business. Conn. Gen. Stat.  30-106. Accordingly, once an agent has entered a permit premises, the agent need not ignore evidence of liquor violations. The agent also has the authority to conduct an inspection of the premises, for purposes of enforcing the provisions of the Liquor Control Act. Of course, the inspection should be directed to uncovering specific violations of the Liquor Control Act or Regulations on the permit premises, such as illegal gambling. See, Conn. Gen. Stat. 30-6-A24(a). For a definition as to what constitutes a permit premises, see Atty. Gen. Letter to Mr. Charles W. Kasmer (April 28, 1980) (copy attached). An agent may not, however, use force to enter locked areas, absent either consent or a warrant.

II.

Your second inquiry asks whether the Department of Consumer Protection is able to seize "buy" money used in undercover investigations by liquor control agents for re-use in future investigations. Many of the proscriptions of the Liquor Control Act call for criminal penalties, see Conn. Gen. Stat.  30-113, such as the prohibition against the sale of liquor to minors. Conn. Gen. Stat.  30-86. Accordingly, as the result of an undercover investigation, there will likely be a necessity to call upon the police to assist in the enforcement of the Act. See Conn. Gen. Stat.  30-6(a). In such a situation, the "buy" money used in the undercover investigation would be evidence of a criminal violation and would therefore be under control of the police. Our office does not have jurisdiction over criminal matters. See In re Appeal of Bailey, 158 Conn. 439, 442 (1969). However, it is evident that in the above scenario, the decision as to the disposition of the "buy" money should be deferred to the police handling the criminal violation.

In the event the Department investigation does not discover a criminal violation which would turn jurisdiction over to the police, our opinion is that liquor agents do have the authority to seize the "buy" money for specific use as evidence at a subsequent hearing, but do not have the authority to seize the "buy" money simply to replenish Department funds. The statute authorizing the retention of evidence seized by liquor agents applies to liquor only. See Conn. Gen. Stat. 30-78. The authority of liquor agents extends to the seizure of illegal gambling records and devices, as well as various permittee records. These items are seized to provide affirmative evidence of violations of the Liquor Control Act. Similarly, if necessary, the "buy" money used in an undercover investigation may be seized by liquor agents to provide evidentiary proof of a violation of the Liquor Control Act3. However, in the event the "buy" money is not to be seized as evidence for a subsequent administrative hearing, there is no authority for the Department to seize and permanently keep these funds.

III.

Your third inquiry addresses the detention of minors or intoxicated persons in a casino setting. Specifically, you ask whether an agent can request a minor, or intoxicated person, to accompany the agent to the Department office in the casino, which is downstairs away from the gaming floor.

As previously noted, liquor control agents are primarily responsible for inspecting permit premises and reporting their observations to the Department of Consumer Protection for administrative action. See Conn. Gen. Stat.  30-55; Regs. Conn. State Agencies  30-6-F2. Agents are not classified as "peace officers" with powers to arrest without a warrant under Conn. Gen. Stat.  54-1f.4 Furthermore, liquor agents are not authorized with detention powers under the Liquor Control Act or any other statute. Accordingly, they have no official authority to detain a suspected minor, or an intoxicated individual.

The term "detention" has been used synonymously with the term "seizure". The law on this subject has been articulated by the United States Supreme Court as follows:

What has evolved from our cases is a determination that an initially consensual encounter between a police officer and a citizen can be transferred into a seizure or detention within the meaning of the Fourth Amendment, "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."

United States v. Mendenhall, 446 U.S. 544 at 554, 100 S. Ct. 1870 at 1877, 644 L.Ed 2d 497 (1980).

In one such seizure case, INS v. Delgado, 466 U.S. 210, 104 S. Ct. 1758, 80 L.Ed. 2d 247 (1984), the court found no detention where Immigration and Naturalization Service agents walked through a factory asking certain persons questions related to their citizenship. The court noted as follows:

Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questions resulted in a detention under the 4th Amendment. But if the person refuses to answer and the police take additional steps . . . to obtain an answer, then the 4th Amendment imposes some minimal level of objective justification to validate the detention or seizure. United States v. Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877, see Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879, 20 L.Ed. 889 (1968).

INS v. Delgado, 104 S. Ct. 1758 at 1763.

It is well established that a liquor agent is authorized to ask a suspected minor found on a permit premises to show positive proof of identification. See 84 Conn. Op. Atty. Gen. 312 (1984) (copy attached). The same authority to question a suspected intoxicated person would apply, provided the liquor agent was attempting to establish a violation of the Liquor Control Act, such as Conn. Gen. Stat.  30-86, which prohibits a permittee from selling alcoholic liquor to any intoxicated person. Following this initial questioning and investigation, it is our opinion that the liquor agent has no authority to detain the suspected minor or intoxicated person. This would likely include, as you suggest, asking that individual to the Department office which is downstairs away from the gaming floor.

The test to determine whether a particular encounter is voluntary or constitutes a seizure or detention is an objective test, taking into account all of the circumstances surrounding the particular incident from the perspective of a reasonable person. Michigan v. Chestnut, 486 U.S. 567, 573, 108 S. Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). It is, therefore, impossible to articulate a bright line rule for what constitutes an unlawful detention. However, it is certainly likely that an individual who is initially questioned on the casino floor, and then asked by an agent to proceed with the agent to the Department office, downstairs away from the gaming floor, could reasonably believe that he or she was not free to leave, and this situation could constitute an unlawful detention. See U.S. v. Glover, 957 F.2d 1004 (2d. Cir. 1992) (when defendant was requested to leave the public area of the airplane terminal and to return to the airport security office for further questioning, without being told that he was free to leave, action constituted unlawful seizure); Florida v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319, 1326, 75 L.Ed.2d (1983) (plurality opinion) (once officers identified themselves as narcotics agents, told defendant he was suspected of transporting narcotics, and asked him to accompany them to the police room, without indicating in any way that he was free to depart, defendant was effectively seized); U.S. v. Soto, 988, F.2d 1548, 1558 (10th Cir. 1993) (initial stop converted to arrest when officer asked defendant to follow from side of highway to service station).

Accordingly, it is our opinion that following an initial investigation an agent should not request suspected minors or intoxicated persons to accompany the agent to other parts of the building unless the agent first clearly explains that the person is not under arrest and is free to leave at any time. The necessity for removal of minors or intoxicated persons in other circumstances can and should be addressed by police and the premises owner.

I hope that this opinion is responsive to your questions.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Matthew B. Beizer
Assistant Attorney General

MBB/meg


1 This opinion has also been reviewed and approved by the Office of the Chief State's Attorney.

2 A "back bar" is a cabinet or shelves, behind or under a bar, where liquor and utensils are commonly stored.

3 It is likely that affirmative proof of a violation of the Liquor Control Act would be accomplished simply by seizing the product of the illegal "buy," which is the liquor. See, Conn. Gen. Stat. 30-78.

4 This opinion will not consider citizens' arrest powers because we are only concerned with the liquor agent's authority as a public official.


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