Judge overturns sanctions against Vancouver bar
He rules liquor control agents’ sting at Top Shelf unlawful
Friday, December 16, 2011
A Clark County judge’s decision on a popular downtown Vancouver bar raises questions on how liquor control board agents conduct undercover stings.
Superior Court Judge Robert Lewis has ruled that liquor control board agents conducted an unlawful sting when they employed an 18-year-old to enter the Top Shelf bar, order a beer and see if bartenders asked for his identification. A Top Shelf bartender served to the teen. The business was sanctioned.
The judge’s decision, which overturns the bar’s sanctions, followed a May hearing in which he heard arguments from attorneys for Top Shelf and the Washington State Liquor Control Board.
Lewis, in a decision handed down in late October, ruled Top Shelf shouldn’t be held liable because the liquor board was not acting in any power of law and because the minor was asked to break the law by entering a bar.
“Unless the Legislature has expressly exempted an activity from a criminal statute’s reach, the board and its officers and employees may not violate the law,” Lewis wrote in his decision.
Lewis went on to write that state statute does allow certain occasions for minors to perform compliance checks — but it must be dictated by stringent rules. The judge found the board is operating without guidelines in place.
“The board’s authority to authorize warrantless compliance checks by its officers has been expressly limited by the Legislature,” Lewis wrote.
The liquor board has appealed the decision to the Court of Appeals. A decision is pending.
Bill Baumgartner, attorney for Top Shelf, said he heard the state’s Attorney General’s Office has held off litigating other liquor board cases statewide to see how the appellate court rules. A spokesman for the attorney general’s office couldn’t confirm or deny this information; he referred questions to the liquor control board.
A spokeswoman for the liquor control board did not produce a response by press time.
Top Shelf’s case arose in December 2008 and has been appealed several times within the liquor agency, finally landing in Superior Court. In a separate court matter related to the case, bartenders at Top Shelf and other Vancouver bars — Dublin Down Irish Pub and Gold Rush Restaurant & Lounge (now called Boomer’s Sports Bar & Grill) — were cited for furnishing alcohol to a minor; however, their cases were dismissed because a different judge found the sting that led to the violations was unlawful, according to court documents.
Baumgartner argued the undercover teen was “deceptively mature-looking” and that the sting was intended to trick bartenders.
An assistant attorney general representing the board, Brian Considine, said the practice of enlisting underage aides to perform stings is very common and is similar to other types of law enforcement stings, such as undercover drug deals. The practice “comes from the general authority the liquor control board has to enforce liquor laws,” he contended at the hearing.