Godfrey v. State, Department of Community & Economic Development

175 P.3d 1198, 2007 Alas. LEXIS 160, 2007 WL 4140118

• Court: Alaska Supreme Court
• Decided: November 23, 2007
• Docket: S-11894
• Status: Published

Opinions

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The State of Alaska, under authority of AS 43.70.075, administratively suspended Richard Godfrey’s authority to sell tobacco for sixty-five days and imposed civil fines because two of his employees had been convicted under AS 11.76.100(a)(1) of negligently selling cigarettes to minors. The question here is whether it was a denial of Godfrey’s due process rights to impose these civil penalties against Godfrey without permitting him to dispute in the administrative proceedings whether his employees had been negligent. 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.

II. FACTS AND PROCEEDINGS

On February 20, 2002, a woman under the age of nineteen working with the Juneau Police Department purchased a pack of cigarettes at Mendenhall Valley Tesoro, a gas station and convenience store owned by Richard Godfrey, d/b/a Mendenhall Valley Teso-ro.¹ The clerk who made the sale was Michael Ratzat. The sale was observed by a Juneau Police Department officer who cited Ratzat for violating AS 11.76.100(a), which makes it an offense to negligently sell cigarettes to minors.² As a consequence of the citation, Godfrey accepted Ratzat’s resignation. Ratzat pleaded guilty and was therefore convicted of violating AS 11.76.100(a)(1) and fined $200. When Ratzat was cited he stated that he did not check the identification of the buyer because he recognized her and thought he had carded her on a prior occasion.

A similar sale took place on July 28, 2002. The sales clerk was Julia Laurenzana. Lau-renzana looked at the purchaser’s identification, which accurately revealed him to be under age. Nonetheless Laurenzana sold him cigarettes. The Juneau Police Department officer who observed the sale issued her a citation for violating AS 11.76.100(a)(1). Laurenzana’s employment was terminated. She pleaded no contest to the citation and was therefore convicted of violating AS 11.76.100(a)(1) and fined $300.

The Alaska Department of Community and Economic Development gave Godfrey notice that it would suspend the tobacco endorsement to his business license for twenty days and impose a civil penalty of $300 because of Ratzat’s conviction, and would impose an additional suspension period of forty-five days and a civil penalty of an additional $500 because of Laurenzana’s conviction. This notice marked the initiation of proceedings under AS 43.70.075, which provides that if either the licensee or his employee “has been convicted of violating AS 11.76.100,” the endorsement will be suspended and civil penalties will be imposed.³ Godfrey requested an administrative hearing. Two hearings were conducted, one for each sale. If an employee of the licensee has been convicted of violating AS 11.76.100, AS 43.70.075(m)(l) limits the questions at the license suspension hearing to whether the employee was convicted of violating AS 11.76.100 “while acting within the scope of the ... employment.”⁴

Before the first suspension hearing God-frey moved to dismiss the suspension proceedings, claiming that AS 43.70.075(m) is unconstitutional because it denies employers a full and fair hearing as required by due process. Godfrey argued that “[t]hrough application of statutory collateral estoppel, respondent is never given a full and fair hearing on whether its clerk negligently sold tobacco to a person under the age of 19, [or] whether there was entrapment.”⁵ The hearing officer denied the motion on the ground an agency, as distinct from a court, lacks authority to rule that a statute is unconstitutional. At the outset of the first evidentiary hearing, the hearing officer ruled that he would make no finding inconsistent with the employee’s conviction for the offense but that Godfrey could make a record relating to his proposed defenses disputing that the conviction was factually or legally supportable. At the conclusion of each hearing, the hearing officer found that the employees were acting within the scope of their employment when they sold tobacco to minors and that they had been convicted of violations under AS II.76.100. The hearing officer therefore recommended a cumulative suspension period of sixty-five days and a civil fine totaling $800. The commissioner accepted these recommendations.

Godfrey appealed to the superior court, which affirmed. He now appeals to us.

III. DISCUSSION

A. Standard of Review

Whether there was a violation of Godfrey’s right to due process is a question of law to which we apply our independent judgment.⁶ Likewise, “[w]hether a statute violates the Alaska Constitution is a question of law, which we review de novo, adopting the rule of law that is most persuasive in light of precedent, policy, and reason.”⁷

B. Primary Arguments on Appeal

On appeal Godfrey’s main argument is that his due process rights were violated because AS 43.70.075 requires suspension of his tobacco endorsement upon his employees’ convictions of negligently selling cigarettes to minors, and gave Godfrey no opportunity to be heard on his contention the convictions were not factually or legally supportable. Contending that suspension would result in more than $14,000 in lost profits, in addition to the $800 civil fine, he argues that subjecting him to sanctions of this magnitude

solely because an employee was found guilty of a violation in a summary proceeding is offensive to the due process of law. The license holder is given no opportunity whatsoever to dispute whether any law was actually violated. The license holder’s interests are not represented at the summary criminal proceeding, let alone by someone with the same interests who is a party.

Godfrey concludes that “[i]t is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard.”⁸

The state argues in response that the $300 criminal fíne potentially assessable against employees for the offense of negligently selling tobacco to minors gives employees sufficient incentive to contest citations under AS 11.76.100. The state relies on Godfrey’s testimony that “$300 is a lot of money to these people sometimes.” Considering that the average hourly wage is $8.00-8.50, the state contends that $300 is almost one week’s gross pay for a clerk working thirty-five to forty hours a week. It therefore asserts that clerks have “a significant” incentive to contest the criminal charge “if they have a basis for doing so.” The state concludes that if clerks do not contest the charges it is more likely because they do not have a viable defense, not because they do not have the funds to hire counsel, as Godfrey asserts. Furthermore, the state notes that the statute requires a conviction to trigger a suspension. According to the state, “[Requiring a conviction means that the employee who [is convicted] ... has had a right to trial, a right to confront and question witnesses, a right to subpoena witnesses on his or her behalf, and [that] the state has had to prove the elements of AS 11.76.100 beyond a reasonable doubt.” This means, according to the state, it is not unfair to use employee convictions against licensees because any risk that employee convictions would be factually or legally improper is “purely hypothetical.”

The state also argues that AS 43.70.075 is constitutional because the government’s significant interest in protecting the health of its citizens by regulating tobacco products outweighs an individual’s private economic interest and the risk of erroneous deprivation of the private interest. Finally, the state asserts that Godfrey presented no evidence at the administrative hearings concerning the defenses he contended he should be able to raise, namely entrapment and absence of negligence. It follows, the state argues, that even if these defenses are legally available, this case can be affirmed for lack of evidence supporting the would-be defenses.

In essence, then, the main dispute is whether the statute and the procedure the department followed deprived Godfrey of due process of law because the statute will cause him a large financial loss without giving him a fair opportunity to dispute facts that he thinks are inherently relevant.

C. The Licensing Statute

The nature of a licensee’s exposure to a civil penalty under AS 43.70.075(d) is not obvious. The superior court appears to have characterized it as strict liability. Comparing AS 43.70.075 to our holding in Alesna v. LeGrue,⁹ the superior court determined that AS 43.70.075 imposes strict liability on employers for the sale of tobacco to minors by employees acting in the scope of employment. On appeal, as it did below, the state seems to characterize the statute as imposing vicarious liability, arguing that AS 43.70.075 imposes vicarious liability for mandatory penalties on the retailer based on its employee’s illegal acts. According to the state, imposing vicarious liability under this statute is consistent with how other jurisdictions have regulated licensees who sell or distribute dangerous products. Godfrey, observing that the statute does not impute the employee’s acts to the licensee or state that the licensee is strictly liable, characterizes it as unique because it deprives him of property based entirely on a third person’s criminal conviction.

It is not necessary in this case to distinguish precisely between the possible theories of civil liability for violations based on a conviction of the licensee’s employee. The initial question is whether the state has the power to impose such a penalty without giving the license holder an opportunity to dispute the criminal fault of the employee who has been convicted of negligently selling tobacco to a minor. The statute, AS 43.70.075, does not specify a theory of liability. It simply provides that licensing action is to be taken if the licensee’s employee was acting within the scope of employment and was convicted under AS 11.76.100. Alaska Statute 43.70.075(m) permits the licensee to dispute whether the employee was acting within the scope of employment and whether there was a conviction; nothing in section .075 implicitly or explicitly makes the issue of the employee’s negligence material in the licensing proceeding; only the employee’s conviction and employment status are relevant. The text of subsection .075(m)(l) makes it immaterial whether the conviction was “by plea or judicial finding.”¹⁰ Alaska Statute 43.70.075 simply requires proof of conviction, and does not require, or provide for, a de novo trial or retrial regarding the employee’s negligence. It is true that there must be a finding of negligence for a conviction under AS 11.76.100(a)(1) based on a judicial finding. But a conviction under AS 11.76.100(a)(1) can alternatively be based on a guilty plea or a plea of nolo contendere. Alaska Statute 43.70.075(m)(l) authorizes licensing penalties even if the conviction is based on a plea, and not on a judicial finding.

Thus, the question here is essentially whether due process requires that the license holder be allowed in the licensing proceeding to challenge the employee’s criminal fault.

D. Godfrey’s Due Process Was Not Violated by the Statute.

A tobacco endorsement is a valuable property interest. Like liquor licenses and other types of business enterprise licenses, it is protected by the due process clause of the Alaska and United States Constitutions.¹¹ Due process of law thus entitles the holder of an endorsement permitting the sale of tobacco products to a meaningful hearing before the endorsement may be removed or suspended.¹² “Considerations of fundamental fairness” guide our determination of what constitutes a meaningful hearing.¹³

To determine what due process requires in particular disputes we have adopted the sliding scale set out by the United States Supreme Court in Mathews v. Eldridge.14 We will consider:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.[¹⁵]

The sale of tobacco products is heavily regulated because tobacco has hazardous impacts on public health.¹⁶ These impacts are especially great when tobacco products are sold to minors. In cases involving heavily regulated activities and commerce in hazardous substances, we have consistently recognized that administrative sanctions may be imposed without a finding of intentional or even negligent misconduct.¹⁷ The sale of tobacco products readily falls within this category of commerce.

The criminal provision pertinent here, AS 11.76.100(a)(1), undeniably punishes only sellers who are negligent.¹⁸ Yet the absence of negligence hardly transforms the act of selling tobacco to a child into lawful conduct which cannot be regulated. To the contrary, because the criminal code always bars unin-carcerated minors from knowingly possessing tobacco,¹⁹ any sale to a minor, even a non-negligent sale, abets an unlawful act, regardless of whether the seller could be convicted of an offense punishable under the criminal code. And because even non-negligent underage sales cause public harm and abet unlawful conduct, the state will always have a strong and legitimate administrative interest in holding individuals licensed to sell tobacco products strictly accountable for underage sales, regardless of whether the criminal code classifies a particular sale as a punishable offense.

Alaska Statute 43.70.075(d) strives to enforce the state’s strong interest in preventing all underage sales by holding licensees liable for any such sale, whether negligent or not. The clear text of subsection .075(d) unequivocally requires the department to suspend an endorsement based on proof of an employee’s conviction under AS 11.76.100; it does not require proof of the employee’s actual guilt:

If a person who holds an endorsement issued under this section, or an agent or an employee of a person who holds an endorsement issued under this section acting within the scope of the agency or employment, has been convicted of violating AS 11.76.100 ... the department shall suspend the endorsement for [the applicable period specified in paragraphs. 075(d)(1)-(4) ].[²⁰]

The plain language of this provision reflects the legislature’s intent to hinge suspension on proof of the employee’s conviction for an underage sale, not on proof of the employee’s guilt. Subsection .075(m) confirms this intent by explicitly limiting the issues at an administrative suspension hearing to questions concerning the seller’s employment status and the fact of the seller’s conviction. In relevant part, subsection .075(m) provides:

A hearing under this subsection is limited to the following questions: (1) was the person holding the business license endorsement, or an agent or employee of the person while acting within the scope of the agency or employment of the person, convicted by plea or judicial finding of violat-ingAS 11.76.100.... [²¹]

Furthermore, because subsection ,075(m)(l) expressly contemplates a conviction “by plea or judicial finding,” it seems clear the legislature understood that convictions might result from pleas, without trial findings of negligence. When read together, then, subsections .075(d) and (m) erase any doubt as to the legislature’s intent to hold licensees civilly liable for selling tobacco products to minors upon proof of their employees’ convictions, without making their liability depend on proof of their employees’ negligence.

Godfrey argues that this liability imposed by the statute is precisely what makes it unconstitutional on its face. Citing Javed v. Department of Public Safety, Division of Motor Vehicles,²² he argues that the statute grants him no opportunity to contest issues of “central importance” to the licensing decision because the statute dictates the licensing result.

At first glance, it might appear that what we said in Javed about revocation applies here. But in light of the inherent danger posed by commercial tobacco sales, the legislature’s clear intent to regulate tobacco sales and to provide firm mechanisms for curtailing tobacco use by minors, and the entirely commercial nature of the licensee’s interest, Javed is not analogous. In this case, the legislature sought to restrict young people’s access to tobacco and, as one mechanism for doing so, provided for holding a licensee who is without personal fault administratively liable for the employee’s illegal conduct. Regardless of whether the employee is negligent in making the improper sale, the underlying purpose of the statute is to protect minors by restricting their access to tobacco. Thus, unlike the hypothetical situation contemplated in Javed, there would be nothing irrational about suspending a tobacco endorsement if the underlying prohibited conduct — a sale to a minor — has occurred. Javed is therefore not analogous, because the “central element” of the licensing action is whether a minor purchased tobacco through Godfrey’s tobacco license, not whether the employee was indeed negligent.

Moreover, Javed did not involve strict or vicarious liability theories, and there was no opportunity for any adjudication whether Javed had actually been driving.²³ Here, each employee had a full opportunity to require the state to prove both that the sale took place and that the clerk acted negligently. As the state points out, the penalty amount gave the employees ample incentive to defend themselves. This opportunity and incentive to defend oneself, and one’s employee, against conviction was therefore enough to ensure that proeedurally this issue was not foreclosed.

An employee’s conviction for negligently selling tobacco to a minor, whether by plea or judicial finding, provides a reliable basis both for finding that the license holder has given a minor unlawful access to tobacco and for imposing administrative sanctions on that ground. Therefore, the legislature’s reliance on the fact of conviction as presumptive proof of sanctionable conduct has a rational basis and is neither arbitrary nor capricious. As the state points out, other courts have viewed analogous legislative provisions as imposing vicarious liability and have upheld their validity regardless of the state’s ability to establish fault.²⁴

Applying the sliding scale of Mathews25 to Godfrey’s due process argument convinces us that the administrative hearing did not deprive him of due process. As we noted above, Godfrey has a valuable property interest in his tobacco endorsement. But there was no risk of erroneous deprivation under AS 43.70.075 and the state has a substantial interest in regulating the sale of tobacco to minors. Likewise, the statute requires a conviction before any suspension for an employee’s sale can be imposed.²⁶ Section .075 allowed Godfrey to dispute whether either employee had been convicted under AS 11.76.100 and whether either employee was acting within the scope of his or her employment.²⁷ Furthermore, the state has a substantial interest in protecting the health of its citizens, especially minors, through the regulation of tobacco products. The sale of tobacco is a heavily regulated activity, and the statute was designed to protect the health of minors by ensuring they do not have access to tobacco. Applying the Mathews factors, we conclude that Godfrey was not denied due process: the state’s interest and the low risk of erroneous deprivation outweigh his economic interest in an unsuspended tobacco endorsement.

It might be argued that fundamental fairness would preclude the department from treating an employee’s conviction as conclusive evidence of prohibited conduct, sale to a minor. That argument would have no plausible factual foundation here because Godfrey never put it in genuine dispute, although we assume for discussion’s sake that in a given case due process might entitle a licensee to an opportunity to establish that no underage sale actually occurred. Nonetheless, here the licensee did not dispute in the licensing proceedings that underage sales had occurred, and instead sought to defend on a theory that there was no negligence. As noted above, because selling tobacco to a child causes harm and results in unlawful conduct regardless of whether the act of selling involves negligence, proffered evidence of non-negligence could not dispel the presumption of administratively sanctionable conduct established by the fact of a conviction under AS 11.76.100.

In summary, when an industry engages in commercial activity that routinely exposes the public to significant harm, the legislature has a legitimate interest in holding the industry’s licensed participants accountable for all conduct in exercising the license, not just for the licensee’s personal negligence or fault. Here AS 43.70.075 serves the legitimate social purpose of holding licensed participants accountable: “In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.”²⁸

E. Godfrey’s Right to Due Process Was Not Violated.

Godfrey argues that a meaningful hearing would have allowed him to present defenses regarding his employees’ conduct. Regarding Ratzat’s conviction, Godfrey previously argued he would have asserted these defenses: Ratzat was not negligent because he believed he had previously checked the identification of the person buying tobacco and it was valid; Ratzat was not acting within the scope of his employment because it was against company policy to sell tobacco to minors; Ratzat was entrapped in making the sale to a minor; and Ratzat’s sale was the result of government misconduct. Godfrey also sought to raise entrapment and scope of employment defenses as to Laurenzana’s prosecution. The hearing officer ruled that Godfrey was allowed to raise these defenses, but stated that he could make no ruling that would invalidate a criminal conviction.

The hearing officer did not err in describing the limitations the statute imposed on the agency’s ability to consider the defenses God-frey wanted to assert. Godfrey’s proffered evidence merely would have raised disputes as to whether the clerks were negligent in making the sales or whether their conduct should have been criminally excused. Because no dispute about negligence or criminal fault was relevant under AS 43.70.075 after the employees were convicted, the hearing officer’s refusal to consider any such evidence did not violate Godfrey’s right to due process.

Godfrey also argues that the hearing failed to comply with AS 43.70.075 because the department was required to implement hearing procedures. Godfrey points to AS 43.70.075(m), which states that a hearing officer “shall ... conduct the hearing in the manner provided by the regulations of the department,” and argues that the department was required to adopt procedures for the administrative hearing. But the text of that subsection does not require the department to adopt procedures; it only requires the hearing officer to follow procedures if the department has adopted them. And Godfrey points to no prejudicial procedural errors attributable to the absence of regulations, apart from his inability to raise his proffered defenses to the licensing sanctions.

Moreover, even if the department had promulgated procedural regulations, they would not have permitted Godfrey to raise the defenses he wanted to raise. Any procedural regulations would have conformed to the hearing limitations expressed or implied in AS 43.70.075. Per that statute, Godfrey’s rejected defenses were not relevant, and the department could not have adopted regulations that would have made them relevant.

Finally, Godfrey contends that the hearings violated his right to due process because he could not intelligently prepare a defense or decide to proceed without knowing the rules that would apply at the hearings. But AS 43.70.075 gave Godfrey notice of the issues to be determined at the hearings. If he was surprised by anything the hearing officer said in explanation or elaboration when the hearings began, he should have asked for a continuance. He did not. There is no indication Godfrey’s right to due process was violated by the way the hearings were conducted.

IV. CONCLUSION

For these reasons, the opinion of the superior court is AFFIRMED.

MATTHEWS, Justice, with whom FABE, Justice, joins, dissenting.

1 . Godfrey's brief states that Mendenhall Valley Tesoro is a limited liability company and that he has managing authority. But he designated the "d/b/a” caption for the appeal, connoting a sole proprietorship. We will assume that Mendenhall Valley Tesoro is a sole proprietorship.

2 .AS 11.76.100 provides in relevant part:

(a) A person commits the offense of selling or giving tobacco to a minor if the person

(1) negligently sells a cigarette, a cigar, tobacco, or a product containing tobacco to a person under 19 years of age;

(2) is 19 years of age or older and negligently exchanges or gives a cigarette, a cigar, tobacco, or a product containing tobacco to a person under 19 years of age....

[[Image here]]

(f) A person who violates (a) of this section is guilty of a violation and upon conviction is punishable by a fine of not less than $300.

(Emphasis added.)

AS 11.76.100(f) provides that the negligent sale of tobacco products to a minor is a "violation.” A "violation” is defined as

a noncriminal offense punishable only by a fine, but not by imprisonment or other penalty; conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime; a person charged with a violation is not entitled

(A) to a trial by jury; or

(B) to have a public defender or other counsel appointed at public expense to represent the person....

AS 11.81.900(b)(63). Violations "characteristically involve conduct inappropriate to an orderly society but ... do not denote criminality in their commission.” AS 11.81.250(a)(6).

3 . AS 43.70.075(d) provides in pertinent part:

If a person who holds an endorsement issued under this section, or an agent or an employee of a person who holds an endorsement issued under this section acting within the scope of the agency or employment, has been convicted of violating AS 11.76.100, ... the department shall suspend the endorsement for a period of

(1) 20 days and impose a civil penalty of $300 if the person has not been previously convicted of violating AS 11.76.100, ... and is not otherwise subject to the sanctions described in (2)-(4) of this subsection;

(2) 45 days and impose a civil penalty of $500 if, within the 24 months before the date of the department's notice under (m) of this section, the person, or an agent or employee of the person while acting within the scope of the agency or employment of the person, was convicted once of violating AS 11.76.100 ....

4 . AS 43.70.075(m) provides:

The department may initiate suspension of a business license endorsement or the right to obtain a business license endorsement under this section by sending the person subject to the suspension a notice by certified mail, return receipt requested, or by delivering the notice to the person. The notice must contain information that informs the person of the grounds for suspension, the length of any suspension sought, and the person's right to administrative review. A suspension begins 30 days after receipt of notice described in this subsection unless the person delivers a timely written request for a hearing to the department in the manner provided by regulations of the department. If a hearing is requested under this subsection, a hearing officer of the office of administrative hearings (AS 44.64.010) shall determine the issues by using the preponderance of the evidence test and shall, to the extent they do not conflict with regulations adopted under AS 44.64.060, conduct the hearing in the manner provided by regulations of the department. A hearing under this subsection is limited to the following questions:

(1) was the person holding the business license endorsement, or an agent or employee of the person while acting within the scope of the agency or employment of the person, convicted by plea or judicial finding of violating AS 11.76.100 .... (Emphasis added.)

5 . (Footnote omitted.) Godfrey listed the defense issues he would contest if they were not precluded by AS 43.70.075(m), including whether there was negligence on the part of the clerk and whether there was entrapment. As to the clerk Ratzat, Godfrey put the question as follows: "was Mr. Ratzat negligent in the sale, if the person buying had presented an I.D. previously that showed she was more than 19 years of age, such that it was reasonable to believe she was still more than 19 years of age.”

6 . Dominish v. State, Commercial Fisheries Entry Comm’n, 907 P.2d 487, 492 (Alaska 1995).

7 . Sands ex rel. Sands v. Green, 156 P.3d 1130, 1132 (Alaska 2007); State, Dep't of Revenue, Child Support Enforcement Div., ex rel. Husa v. Schofield, 993 P.2d 405, 407 (Alaska 1999).

8 . Here Godfrey quotes Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).

9 . Alesna v. LeGrue, 614 P.2d 1387, 1391 (Alaska 1980).

10 . AS 43.70.075(m) provides in pertinent part that "[a] hearing ... is limited to the following questions: (1) was ... an ... employee ... convicted by plea or judicial finding of violating AS 11.76.100.” (Emphasis added.)

11 . See, e.g., Hilbers v. Municipality of Anchorage, 611 P.2d 31, 36 (Alaska 1980) (business license protected by due process); Herscher v. State, Dep't of Commerce, 568 P.2d 996, 1002 (Alaska 1977) (hunting guide license); Frontier Saloon, Inc. v. Alcoholic Beverage Control Bd., 524 P.2d 657, 659-60 (Alaska 1974) (liquor license).

12 . See Rollins v. State, Dep’t of Revenue, Alcoholic Beverage Control Bd., 991 P.2d 202, 211 (Alaska 1999).

13 . Javed v. Dep’t of Pub. Safety, Div. of Motor Vehicles, 921 P.2d 620, 622 (Alaska 1996).

14 . Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (cited in State, Dep’t of Health & Soc. Servs. v. Valley Hosp. Assn, 116 P.3d 580, 583 (Alaska 2005)).

15 . Id. at 335, 96 S.Ct. 893.

16 . Int’l Tobacco Partners, Ltd. v. Beebe, 420 F.Supp.2d 989, 1003 (W.D.Ark.2006) (recognizing tobacco industry is heavily regulated); see also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 570-71, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001), stating that "[f]rom a policy perspective, it is understandable for the States to attempt to prevent minors from using tobacco products before they reach an age where they are capable of weighing for themselves the risks and potential benefits of tobacco use, and other adult activities.” The Supreme Court has also stated that "tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).

17 . See State v. Hazelwood, 946 P.2d 875, 880-84 (Alaska 1997); Alesna v. LeGrue, 614 P.2d 1387, 1390 (Alaska 1980).

18 . AS 11.76.100(a) ("A person commits the offense of selling or giving tobacco to a minor if the person (1) negligently sells a cigarette, a cigar, tobacco, or a product containing tobacco to a person under 19 years of age....”).

19 . AS 11.76.105 provides:

(a) A person under 19 years of age may not knowingly possess a cigarette, a cigar, tobacco, or a product containing tobacco in this state. This subsection does not apply to a person who is a prisoner at an adult correctional facility, (b) Possession of tobacco by a minor is a violation.

20 . AS 43.70.075(d) (emphasis added).

21 . AS 43.70.075(m).

22 . Javed v. Dep’t of Pub. Safety, Div. of Motor Vehicles, 921 P.2d 620, 622-23 (Alaska 1996) (considering what issues are of "central importance" to be determined prior to a driver’s license revocation).

23 . 921 P.2d at 623-24.

24 . See, e.g., Randall's Int'l, Inc. v. Hearing Bd. of Iowa Beer & Liquor Control Dep't, 429 N.W.2d 163, 165 (Iowa 1988); Hoge v. Liquor Control Comm'n, 18 Ohio App.2d 255, 248 N.E.2d 627, 632-33 (1969).

25 . 424 U.S. at 334-35, 96 S.Ct. 893.

26 . See AS 43.70.075(d).

27 . See AS 43.70.075(m)(l).

28 . United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 88 L.Ed. 48 (1943); see also State v. Hazelwood, 946 P.2d 875, 880 (Alaska 1997).