Due South v DABC

2008 UT 71
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Due South, Inc. dba Southern No. 20060971
X-posure,
Petitioner, Appellant,
and Cross-Appellee,
v.
Department of Alcoholic
Beverage Control, F I L E D
Respondent, Appellee,
and Cross-Appellant. October 10, 2008
---
Third District, Salt Lake
The Honorable J. Dennis Frederick
No. 050901080
Attorneys: M. David Eckersley, Michael N. Zundel, Glenn R.
Bronson, Salt Lake City, for appellant
Mark L. Shurtleff, Att’y Gen., Thom D. Roberts, Asst.
Att’y Gen., Salt Lake City, for appellee
---
PARRISH, Justice:
INTRODUCTION
¶1 Following two incidents in 2002, the Department of
Alcoholic Beverage Control (the “DABC”) found Due South, Inc.
(“Due South”) liable for three statutory violations of the
Alcoholic Beverage Control Act. Due South appeals. Challenging,
among other issues, the definition of “intoxication” as applied
to Utah Code section 32A-12-216 (2001) by the DABC Commission
(the “Commission”) and later by the district court in a trial de
novo. The DABC cross-appeals, arguing that the district court
wrongly conducted a trial de novo rather than reviewing the
record created by the Commission and giving deference to the
Commission’s conclusion. We hold that the district court
correctly conducted a trial de novo. However, the district court
and the DABC misinterpreted Utah Code section 32A-12-216.

1 See State v. Anderson, 910 P.2d 1229, 1230 (Utah 1996)
(“In reviewing the trial court’s ruling, we recite the facts in
the light most favorable to the trial court’s findings.”).
No. 20060971 2
BACKGROUND
¶2 In August 2002, the DABC initiated an informal
administrative disciplinary proceeding against Due South, a
private club liquor licensee doing business in Murray, Utah.
The complaint was based on two incidents, which took place a few
weeks apart. The first incident began at Due South’s private
club, Southern X-posure (the “Club”), and ended in a fatal drunk
driving accident. The second incident was an undercover Serving
Intoxicated Persons (“SIP”) operation conducted by the State
Bureau of Investigation. We recite the facts of the two
incidents according to the district court’s findings of fact.1
I. THE KORTH AND HARRIS INCIDENT
¶3 The first incident occurred on April 25, 2002. Brian
Korth and his friend, Johnny Harris, went to the Club around six
in the evening. They stayed for about three and a half hours,
playing pool, drinking beer, and consuming shots of liquor.
During this time, Korth became intoxicated to the point that he
was having trouble talking and forming sentences, as well as
standing and walking. Korth and Harris left the bar in Korth’s
car and were subsequently involved in a one-car rollover accident
in which Harris died. The Utah Highway Patrol (“UHP”) responded
to the accident and arrested Korth for driving while intoxicated.
Korth’s blood alcohol level was .22 at 11:20 p.m., approximately
one hour after the accident, which meant that he likely consumed
between eleven and fifteen drinks that evening.
II. THE SIP INVESTIGATION
¶4 The second incident occurred a few weeks later when the
State Bureau of Investigation conducted a SIP operation at the
Club. At the conclusion of the SIP operation, the agents
reported that they had observed five patrons who were allowed to
become intoxicated or who were served alcohol while intoxicated.
The agents’ notes included specific observations regarding the
physical signs of intoxication apparent in each of the patrons,
such as unsteadiness or a flushed face. They also included
conclusory observations regarding the likelihood that the patron
would endanger himself or others through a “lack of judgment” or
a possibility of stumbling and falling or bumping into another
patron, as well as the likelihood of the patron endangering
others if he were to drive.

3 No. 20060971
III. PROCEDURAL HISTORY
¶5 An informal administrative disciplinary proceeding was
commenced in August 2002 before the Commission. It was conducted
by a hearing officer appointed by the Commission. The hearing
officer listened to the evidence and wrote a detailed sixty-six-
page memorandum containing his findings of fact and conclusions
of law. The Commission adopted these findings in whole in its
final order.
¶6 As to the Korth and Harris incident, the final order
concluded that Due South violated the over-serving statutes, Utah
Code sections 32A-5-107(24)(h)(ii) and 32A-10-206(4)(b)(iii), by
serving Korth and Harris when they were “apparently or obviously
intoxicated” and section 32A-12-216 by permitting Korth and
Harris to become intoxicated on the premises of the Club. As to
the SIP incident, the Commission concluded that Due South
violated section 32A-12-216 by allowing or permitting five
patrons to become intoxicated. But the Commission found
insufficient evidence that Due South served the patrons after
they were intoxicated. Thus, the Commission did not find a
violation of sections 32A-5-107(24)(h)(ii) and 32A-10-
206(4)(b)(iii), the over-serving statutes, in connection with the
SIP operation.
¶7 Due South sought de novo judicial review in the
district court, questioning the legal standard applied by the
Commission and the sufficiency of the evidence presented. The
DABC did not appeal any part of the Commission’s order.
Following a bench trial, the district court adopted the proposed
findings of fact and conclusions of law submitted by the DABC and
affirmed the Commission’s findings and conclusions.
Additionally, the district court held Due South liable for
violating the over-serving statutes during the SIP operation by
serving alcohol to five club members after they were intoxicated.
This additional holding directly contradicted the Commission’s
conclusion that the DABC had not met its burden of proof for
showing a violation of the over-serving statutes--a conclusion
that the DABC had not appealed.
¶8 Due South appeals the district court’s decision,
presenting us with seven issues. Four of the issues require us
to interpret Utah Code section 32A-12-216 to determine the
following issues: (1) whether the prosecution may satisfy the
“may endanger” element of the public intoxication statute by
demonstrating a speculative possibility of harm or whether the
prosecution must demonstrate a reasonable likelihood of harm, (2)
whether Due South qualified as a “private place” within the

2 See Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985)
(“[W]e accord conclusions of law no particular deference, but
review them for correctness.”).
No. 20060971 4
meaning of the public intoxication statute, (3) whether section
32A-12-216 is unconstitutionally vague, and (4) whether the
district court erred in concluding that Due South’s patrons were
intoxicated. The remaining three issues Due South presents on
appeal are these: (1) whether the district court improperly
allowed the DABC to present evidence that Due South violated
sections 32A-5-107(24)(h)(ii) and 32A-10-206(4)(b)(iii) during
the SIP operation after the Commission expressly exonerated Due
South of these violations and the DABC did not appeal that
ruling, (2) whether the district court erred in holding that Due
South’s conduct constituted a “grave” violation of Utah’s over-
serving laws, and (3) whether Due South was denied due process
when the DABC failed to identify by name some of the patrons whom
Due South allegedly over-served.
¶9 The DABC cross-appeals two issues regarding the
standard of review applied by the district court: (1) whether
the district court applied the wrong standard of review by
conducting a trial de novo rather than deferring to the
Commission, and (2) whether the district court applied the wrong
method of review by conducting a trial de novo rather than
reviewing the record created during the proceedings before the
Commission.
¶10 We have jurisdiction over this appeal pursuant to Utah
Code section 78A-3-102(3)(j) (Supp. 2008).
ANALYSIS
¶11 Our review of this case is limited to an examination of
the district court’s legal conclusions, which we review for
correctness.2 Because the standard of review shapes the rest of
the discussion, we begin with the issues raised by the DABC’s
cross-appeal regarding the appropriate standard and method of
review to be applied by a district court when reviewing a
decision of the Commission. We then articulate the statutory
violations that are properly before us on review and address the
interpretation of Utah Code section 32A-12-216 (2001). Finally,
we resolve the remaining two issues raised by Due South.
I. THE DISTRICT COURT APPLIED THE PROPER STANDARD AND METHOD OF
REVIEW

3 Utah Code Ann. § 63-46b-15(1)(a) (2004) (“The district
courts have jurisdiction to review by trial de novo all final
agency actions resulting from informal adjudicative
proceedings . . . .”); id. § 63-46b-15(3)(a) (“The district
court, without a jury, shall determine all questions of fact and
law and any constitutional issue presented in the pleadings.”).
4 Id. § 32A-1-120(2)(a)-(b) (2001) (providing that “[t]he
findings of the commission on questions of fact [in a
disciplinary proceeding] are final and not subject to review” and
that “questions of fact include ultimate facts and findings of
the commission on reasonableness and discretion” (internal
quotation marks omitted)).
5 Id. § 32A-1-120(1) (Supp. 2008).
6 Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 20, 54
P.3d 1054.
5 No. 20060971
¶12 The DABC challenges both the standard of review and the
method of review applied by the district court. Regarding the
standard of review, the DABC argues that the district court
should not have conducted a de novo review in accordance with the
Utah Administrative Procedures Act (UAPA),3 but should have used
the more deferential standard of review articulated in section
32A-1-120 of the Alcoholic Beverage Control Act.4 Regarding the
method of review, the DABC argues that the district court should
have reviewed the record that was created during the Commission’s
informal adjudication. We disagree and hold that the district
court applied both the proper standard and method of review to
the Commission’s decision.
¶13 Although both parties present persuasive arguments
about which standard of review to apply when two applicable
statutes conflict, we are ultimately convinced by a recent
legislative amendment to Utah Code section 32A-1-120. The
amendment clarifies that judicial review of disciplinary
proceedings by the Commission shall occur “pursuant to the
judicial review provisions of [UAPA] Sections 63-46b-14 through
63-46b-18.”5
¶14 “The standard of review is a matter of procedural,
rather than substantive, law.”6 “‘[P]rocedural statutes enacted
subsequent to the initiation of a suit which do not enlarge,
eliminate, or destroy vested or contractual rights apply not only
to future actions, but also to accrued and pending actions as

7 Bd. of Equalization v. State Tax Comm’n ex rel. Benchmark
Inc., 864 P.2d 882, 884 (Utah 1993) (quoting Pilcher v. Dep’t of
Soc. Servs., 663 P.2d 450, 455 (Utah 1983)).
8 Kilpatrick v. Wiley, 2001 UT 107, ¶ 59, 37 P.3d 1130
(emphasis omitted) (quoting Dep’t of Soc. Servs. v. Higgs, 656
P.2d 998, 1000-01 (Utah 1982)).
9 Id. ¶ 57.
10 Id. ¶ 59.
11 864 P.2d at 884.
12 Id.
13 Id.
No. 20060971 6
well.’”7 Moreover, “when the purpose of an amendment is to
clarify the meaning of an earlier [statute], the amendment may be
applied retroactively in pending actions.”8
¶15 In Kilpatrick v. Wiley, the parties disagreed with the
trial court’s interpretation of the comparative fault statute and
the jury instructions given explaining the statute.9 On appeal,
we declined to reach the issue of whether the trial court had
erroneously interpreted the comparative fault statute because the
statute had been clarified by an amendment after trial, and we
concluded that the amended version of the statute would be
applicable on remand.10 Similarly, in Board of Equalization v.
Utah State Tax Commission ex rel. Benchmark, we applied the
standard of review articulated in a recent statutory amendment
despite the fact that the case commenced before the effective
date of the amendment.11 We reasoned that standards of review
are procedural laws, which do not “enlarge, eliminate, or
destroy” any vested or contractual rights of the parties.12
Accordingly, they are retroactively applicable.13
¶16 Were we to remand this case to the district court, the
standard of review articulated in the amendment to section 32A-1-
120 would apply on remand and the district court would be
obligated to review the Commission’s decision pursuant to the
judicial review provisions of UAPA. Because the standard of
review on remand would be the same standard that the district
court applied in the first instance, we need not address which
standard of review would have prevailed when the terms of the
Alcoholic Beverage Control Act and UAPA conflicted.

14 Utah Code Ann. § 63-46b-15(1)(a).
15 Id. § 63-46b-15(3)(a) (emphasis added).
7 No. 20060971
¶17 The plain language of UAPA addresses both the standard
and the method of review to be applied in reviewing an informal
agency decision. Section 63-46b-15(1)(a) provides that “[t]he
district courts have jurisdiction to review by trial de novo all
final agency actions resulting from informal adjudicative
proceedings . . . .”14 Subsection (3)(a) provides that “[t]he
district court, without a jury, shall determine all questions of
fact and law . . . presented in the pleadings.”15 Thus, in
conducting a trial de novo, the district court applied the proper
standard and method of review.
II. THE DISTRICT COURT LACKED JURISDICTION TO CONSIDER DUE
SOUTH’S LIABILITY FOR VIOLATING SECTIONS 32A-5-107(24)(h)(ii) AND
32A-10-206
¶18 The district court inappropriately held Due South
liable for violations of Utah Code sections 32A-5-107(24)(h)(ii)
and 32A-10-206 during the SIP operation because the Commission
acquitted Due South of violating these two statutes during the
SIP operation and the DABC did not appeal that ruling.
¶19 The Commission’s final order concluded that the DABC
failed to prove by a preponderance of the evidence that any of
the patrons observed during the SIP operation had been supplied
with alcoholic beverages after becoming intoxicated.
Accordingly, it found no violation of sections 32A-5-
107(24)(h)(ii) or 32A-10-206 during the SIP operation, but did
find Due South liable for violating section 32A-12-216. On
appeal, the district court took evidence as to whether Due South
violated sections 32A-5-107(24)(h)(ii) or 32A-10-206 during the
SIP operation and concluded that it had.
¶20 The district court lacked jurisdiction to consider
whether Due South violated sections 32A-5-107(24)(h)(ii) and 32A-
10-206 during the SIP operation because the DABC did not appeal
the Commission’s conclusion regarding these violations. In fact,
in the answer to Due South’s petition for judicial review, the
DABC expressly requested that the Commission’s order be affirmed.
Because the DABC did not appeal whether sections 32A-5-
107(24)(h)(ii) or 32A-10-206 were violated during the SIP
operation, the district court erred in taking evidence and
considering whether these statutes were violated.

16 Utah Code Ann. § 32A-12-104 (Supp. 2007) (“Any person who
violates this title is guilty of a class B misdemeanor, unless
otherwise provided in this title.”).
17 Id. § 32A-12-101 (2005).
18 Id. § 76-1-403(2) (2003).
No. 20060971 8
¶21 Moreover, we are troubled by the constitutional
implications of what occurred. Violations of the Alcoholic
Beverage Control Act carry criminal penalties.16 For this
reason, provisions of the Utah Criminal Code “relating to
principles of construction, jurisdiction, venue, limitations of
actions, multiple prosecutions, double jeopardy, burdens of
proof, definitions, principles of criminal responsibility,
punishments, and inchoate offenses apply to any criminal offense
defined in this title, except as otherwise provided.”17 Section
76-1-403(2) clarifies that in the context of criminal liability,
“[t]here is an acquittal if the prosecution resulted in a finding
of not guilty by the trier of facts or in a determination that
there was insufficient evidence to warrant conviction.”18 In his
final report, the hearing officer concluded that the DABC “failed
to show by a preponderance of the evidence that any [patron] was
supplied with alcoholic beverages after any of them became
intoxicated.” The Commission’s conclusion that Due South did not
violate sections 32A-5-107(24)(h)(ii) or 32A-10-206 during the
SIP operation amounts to an acquittal, and the district court
erred by placing Due South in jeopardy a second time for the
alleged violation of these statutes.
¶22 Because the district court lacked jurisdiction to
consider sections 32A-5-107(24)(h)(ii) or 32A-10-206 in
connection with the SIP operation, we do not address either of
these statutes in connection with any of the remaining issues
raised by Due South.
III. THE PROPER INTERPRETATION AND APPLICATION OF SECTION 32A-
12-216 REQUIRES CIRCUMSTANTIAL EVIDENCE OF ENDANGERMENT,
RECOGNIZES PRIVATE CLUBS AS PRIVATE PLACES, AND INCLUDES A MENS
REA REQUIREMENT
¶23 The parties disagree over the interpretation of Utah
Code section 32A-12-216 (2001). At the time of the incidents in
question, section 32A-12-216 provided as follows:

19 Utah Code Ann. § 76-9-701(1) (emphasis added).
9 No. 20060971
(1) The offense of intoxication shall be
defined and punished in accordance with
Section 76-9-701 of the Utah Criminal Code.
(2) A person may not permit any other person
to become intoxicated, as defined in Section
76-9-701, or any intoxicated person to
consume any alcoholic beverage in any
premises of which the person is the owner,
tenant or occupant . . . .
(3) A violation of Subsection (2) is an
infraction.
¶24 The referenced statute, Utah Code section 76-9-701
(1999) (the “public intoxication statute”) defined intoxication
as follows:
A person is guilty of intoxication if he is
under the influence of alcohol . . . to a
degree that the person may endanger himself
or another, in a public place or in a private
place where he unreasonably disturbs other
persons.19
¶25 Due South raises three questions regarding the
interpretation and application of section 32A-12-216. First,
whether the “may endanger” element of intoxication can be met by
showing a speculative possibility of harm or whether it requires
a reasonable likelihood of harm. Second, whether a private club
is a “private place” within the meaning of the statute. Third,
whether section 32A-12-216 is unconstitutionally vague because it
requires a server to predict when an individual will become
intoxicated.
A. The “May Endanger” Element of Public Intoxication Requires a
Reasonable Likelihood of Harm Based on the Circumstances
¶26 The district court concluded that the may endanger
element of the public intoxication standard could be satisfied by
showing a speculative possibility of harm without requiring any
circumstantial evidence of endangerment. We hold that the may
endanger element of the intoxication standard requires proof of a
reasonable likelihood of harm based on the circumstances; a
speculative possibility of harm is not sufficient. Our
interpretation is consistent with the legislative intent, as
indicated by the plain language of the statute. It is also

20 Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 15, 24
P.3d 958.
21 See Utah Code Ann. § 41-6a-502 (2005) (prohibiting
driving under the influence of alcohol with a blood alcohol
concentration of .08 or greater at the time of the test or at the
time of operation).
No. 20060971 10
consistent with our own case law as well as case law from other
states.
¶27 The argument that evidence of endangerment may be
satisfied by a speculative possibility of harm conflicts with our
principle of statutory interpretation that requires us to “avoid
interpretations that will render portions of a statute
superfluous or inoperative.”20 Requiring only a speculative
possibility of harm would effectively eviscerate the endangerment
requirement in the public intoxication statute for two reasons.
First, an officer could always conceive of some speculative
source of endangerment. This is apparent in the district court’s
findings of fact regarding the SIP operation. The court’s
endangerment finding for each patron contained some variant of
the stock conclusion that the patron posed a risk of endangerment
“from his unsteadiness, from falling, or from exercising
diminished judgment due to the alcohol” or that the patron could
“endanger himself or another if he were to drive a motor
vehicle.” This stock conclusion was applied to every patron
regardless of his particular circumstances. Moreover, it could
be applied to all persons exhibiting signs of intoxication
regardless of whether they actually posed a risk of endangerment.
Thus, accepting a speculative possibility of harm would
effectively eliminate the endangerment requirement from the
public intoxication standard.
¶28 Second, an endangerment test based upon the
speculative possibility of harm, rather than on the individual
circumstances actually presented, necessarily conflates public
intoxication with any blood alcohol content over the legal limit
for driving.21 This is so because any individual with a blood
alcohol level over the legal limit would necessarily endanger
others should he decide to get behind the wheel. This conflation
is evidenced by the hearing officer’s report in this case, in
which he concluded that a person may endanger himself or another
if there are indications that the person “obviously is, or
appears to be impaired to the degree that he or she cannot
operate a motor vehicle without regard to whether the person
intends to do so.” (Emphasis added.) Under this interpretation,
every person with a .08 blood alcohol level poses a speculative

22 Tex. Penal Code Ann. § 49.02 (2007) (“A person commits an
offense [of public intoxication] if the person appears in a
public place while intoxicated to the degree that the person may
endanger the person or another.”).
23 Simpson v. State, 886 S.W.2d 449, 455 (Tex. App. 1994).
24 Id.
25 Balli v. State, 530 S.W.2d 123, 125 (Tex. Crim. App.
1975), overruled on other grounds by Chudleigh v. State, 540
S.W.2d 314 (Tex. Crim. App. 1976).
26 See Bentley v. State, 535 S.W.2d 651, 653 (Tex. Crim.
App. 1976).
27 Simpson, 886 S.W.2d at 455.
11 No. 20060971
possibility of harm and satisfies the public intoxication
standard. But this is not what the legislature intended. Had
the legislature intended for the public intoxication standard and
the DUI standard to be equivalent, it would have defined
“intoxication” in section 32A-12-216 by referring to the DUI
statute, not to the public intoxication statute. By referring to
the public intoxication statute rather than the DUI statute, the
legislature evinced an intent to require both intoxication and
endangerment for a violation of section 32A-12-216. Thus, in
order for the endangerment requirement to have any meaning, there
must be a reasonable likelihood of endangerment based on the
particular circumstances, rather than a speculative possibility
of endangerment.
¶29 Requiring a circumstantial analysis of endangerment is
consistent with the approach taken by states with similar
statutes. For example, the Texas public intoxication statute
employs the same may endanger requirement as Utah’s public
intoxication statute.22 In applying the endangerment
requirement, the Texas Court of Appeals stated that “physical
manifestations of alcoholic consumption,” such as slurred speech,
blood shot eyes, and a smell of alcohol on the breath are “not
sufficient to constitute public intoxication.”23 “Rather, the
State must demonstrate proof of potential danger either to the
appellant himself or to others.”24 The proof of potential danger
requirement has been met in cases where the individual was
walking down the middle of a street,25 buying tire chains and
indicating an intent to drive,26 arguing in the middle of the
street and resisting arrest,27 and sleeping in a car in front of
a lounge, presenting the likelihood that the individual would

28 Dickey v. State, 552 S.W.2d 467, 468 (Tex. Crim. App.
1977).
29 Commander v. State, 748 S.W.2d 270, 272 (Tex. App. 1988).
30 2002 UT 97, ¶¶ 37-38, 57 P.3d 1052.
31 Id. ¶¶ 2-4, 39.
32 Id. ¶ 40 (alteration in original).
33 Id.
No. 20060971 12
wake up and drive home.28 But it was not met where the
individual was in a private driveway leaning on the back of a
vehicle.29
¶30 Requiring circumstantial evidence of danger is also
consistent with our past case law. In State v. Trane, we
evaluated whether officers had probable cause to arrest Trane for
public intoxication without a warrant.30 In that case, two
officers responded to a disturbance complaint and found Trane
outside a convenience store in the middle of the night. They
immediately noticed that he had slurred speech, that he appeared
unsteady, and that he smelled of alcohol.31 We rejected Trane’s
argument that there was no evidence of endangerment under the
public intoxication statute because when the officers approached
Trane, he “puffed his chest out [and] took a defensive posture
similar to a boxer.”32 This aggressive behavior made the
officers “fear[] for their safety.”33 Thus, in determining
whether there was probable cause to believe that Trane was
violating the public intoxication statute, we looked for actual
evidence of endangerment based on the circumstances.
¶31 In summary, we hold that in order to satisfy the may
endanger element of the public intoxication statute, an officer
must be able to articulate objective facts indicating a
reasonable likelihood of endangerment based on the particular
circumstances. Because this was not the standard applied by the
district court, we remand this case for application of the proper
standard.
B. Due South Is a “Private Place” Within the Meaning of the
Public Intoxication Statute

34 In 2002, section 32A-12-216 read as follows:
(1) The offense of intoxication shall be
defined and punished in accordance with
Section 76-9-701 of the Utah Criminal Code.
(2) A person may not permit any other person
to become intoxicated, as defined in Section
76-9-701, or any intoxicated person to
consume any alcoholic beverage in any
premises of which the person is the owner,
tenant or occupant . . . .
(3) A violation of Subsection (2) is an
infraction.
35 In 2002, Utah Code section 76-9-701 read, “A person is
guilty of intoxication if he is under the influence of alcohol
. . . to a degree that the person may endanger himself or
another, in a public place or in a private place where he
unreasonably disturbs other persons.”
36 Utah Code Ann. § 76-9-701(1) (1999).
37 Id.
13 No. 20060971
¶32 Due South and the DABC disagree over whether section
32A-12-21634 incorporated the entire public intoxication
definition from section 76-9-701, including the public
place/private place distinction and, if it did, whether Due South
is a private place within the meaning of the statute. We hold
that section 32A-12-216 did incorporate the public place/private
place distinction and that Due South is a private place.
¶33 The DABC argues that section 32A-12-216 only
incorporates the “level of intoxication in the public
intoxication statute, not the public intoxication statute
[itself].” This argument fails on closer analysis because the
public intoxication statute establishes two different levels of
intoxication, depending on whether the individual is in a private
or public place.35 Under the public intoxication statute, an
individual is “guilty of intoxication” in a public place if he is
“under the influence of alcohol . . . to a degree that [he] may
endanger himself or another.”36 And he is “guilty of
intoxication” in a private place if he is “under the influence of
alcohol . . . to a degree that [he] . . . unreasonably disturbs
other persons.”37 Our principles of statutory construction
direct us to “assume that the legislature used each term in the

38 Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 259
(Utah 1998).
39 LKL Assocs., Inc. v. Farley, 2004 UT 51, ¶ 7, 94 P.3d
279.
40 Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1045 (Utah
1991).
41 Utah Code Ann. § 32A-1-104(4)(a) (2005); see also Boulder
Mountain Lodge, Inc. v. Town of Boulder, 1999 UT 67, ¶ 19, 983
P.2d 570.
42 Utah Code Ann. §§ 32A-4-101 to -406.
No. 20060971 14
statute advisedly”38 and to “interpret[] statutes to give meaning
to all parts, and avoid[] rendering portions of the statute
superfluous.”39 The DABC’s interpretation runs contrary to these
principles because it would require that we ignore half of the
public intoxication statute. The public intoxication statute
does not articulate a universal level of intoxication that is
independent of the public place/private place distinction.
Accordingly, we reject the DABC’s argument and interpret section
32A-12-216 to incorporate the public place/private place
distinction.
¶34 Whether Due South, as a private club, is a private
place within the meaning of the statute presents a more difficult
issue that is not resolved by the plain language of the statute.
When “there is doubt or uncertainty as to the meaning or
application of the provisions of an act, it is appropriate to
analyze the act in its entirety, in light of its objective, and
to harmonize its provisions in accordance with its intent and
purpose.”40
¶35 One policy objective of the Alcoholic Beverage Control
Act is to regulate the sale of alcoholic beverages in a manner
that will “reasonably satisfy the public demand and protect the
public interest, including the rights of citizens who do not wish
to be involved with alcoholic products.”41 This objective
requires a balancing of two opposing interests--the public demand
for alcohol and the public interest in avoiding alcohol or its
adverse consequences.
¶36 Interpreting a private club as a private place within
the meaning of the public intoxication statute best satisfies
both of these objectives. First, in the alcohol regulatory
scheme, there are “Public Liquor Licenses”42 and “Private Club

43 Id. §§ 32A-5-101 to -107.
44 Id. §§ 32A-4-101 to -106; id. §§ 32A-4-301 to -307.
45 Id. §§ 32A-4-201 to -206.
46 Id. §§ 32A-4-401 to -406.
47 Id. § 32A-5-107(7).
48 Id. § 32A-5-107(8).
49 Id. § 32A-5-107(18).
50 905 P.2d 1189, 1200 (Utah 1995) (holding that the Elks
Lodges could not continue discriminating against women based on
the First Amendment right of association because as liquor
licensees, they were acting in the public, not the private
sphere).
15 No. 20060971
Liquor Licenses.”43 Public Liquor Licences apply to places that
the general public is likely to visit, such as restaurants,44
airport lounges,45 and banquets held at hotels, resorts, sports
centers, or convention centers.46 The Private Club Liquor
Licences apply to places that are not open to the general public.
In order to enter a private club, an individual must be a member,
have purchased a “visitor card,” or be a guest of either a member
of the club or a holder of a visitor card.47 Furthermore, minors
are not allowed into private clubs when alcohol is being
served,48 and any public advertising for a private club must
clearly specify that the club is a “private club for members.”49
These restrictions on private clubs ensure that the general
public will not be inadvertently exposed to the higher level of
alcohol consumption that is allowed to occur in a private place
under the public intoxication statute. Moreover, providing
public venues where individuals can meet and share alcoholic
drinks satisfies the public demand for alcohol, while still
protecting the public interest. Since private clubs do not allow
entrance without a membership, unwary citizens will not
accidentally find themselves exposed to alcohol consumption.
¶37 In arguing that Due South is not a private place under
the public intoxication statute, the DABC relies heavily on Elks
Lodges #719 & #2021 v. Department of Alcoholic Beverage Control,
in which we held that private liquor clubs were within the public
sphere.50 Elks Lodges is inapposite because the interests at
stake and the analysis employed were demonstrably different than
they are here. In Elks Lodges, the plaintiff argued that, as
private clubs, the Elks Lodges could discriminate against women

51 Id. at 1193.
52 Id. at 1202.
53 Papachristou v. City of Jacksonville, 405 U.S. 156, 162
(1972).
54 Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d 916,
920 (Utah 1993); Logan v. Utah Power & Light Co., 796 P.2d 697,
700 (Utah 1990) (“When interpreting statutes, a central premise
is that every effort should be made to interpret them as being
consistent with the dictates of the constitution.”).
No. 20060971 16
based on their constitutional right to freedom of association.51
In contrast, no constitutional rights are involved in this case.
The only issue regarding the private club status of Due South is
whether Due South qualifies as a private place under the public
intoxication statute. Unlike Elks Lodges, this issue does not
require us to balance the rights of private individuals against
the right of the State to regulate activities that take place in
the public sphere. Instead, the analysis in this case is an
issue of statutory interpretation to determine Due South’s
obligation within the Alcoholic Beverage Control Act. Thus, the
Elks Lodges analysis is not applicable and does not undermine our
conclusion that Due South is a private place within the meaning
of the public intoxication statute.
¶38 We note, however, that on remand the public
place/private place distinction may have little practical effect
because the instant that a patron leaves the premises of a
private club, he is no longer in a private place. At that point,
the public place standard for intoxication applies.
C. Section 32A-12-216 Is Not Unconstitutionally Vague
¶39 Due South also argues that Utah Code section 32A-12-216
is unconstitutionally vague. A statute is unconstitutionally
vague if “the terms of the law are so ambiguous that persons of
ordinary intelligence are unable to determine whether their acts
conform to the law,”52 or if the ambiguity in the law “encourages
arbitrary and erratic arrests and convictions.”53 We will
construe a statute as constitutional wherever possible, resolving
any reasonable doubt in favor of constitutionality.54
¶40 Due South argues that section 32A-12-216 encourages
“arbitrary and erratic arrests and convictions” because the
standard applied by the DABC for determining intoxication (based
on a speculative possibility of harm to demonstrate endangerment)

55 Utah Code Ann. § 32A-12-104 (Supp. 2007) (“Any person who
violates [the Alcoholic Beverage Control Act] is guilty of a
class B misdemeanor, unless otherwise provided in this title.”).
56 Id. § 32A-12-101 (2005).
57 Id. § 76-2-101(1) (Supp. 2007).
17 No. 20060971
contains too much interpretive discretion. This argument is
resolved by our earlier discussion, which rejects a speculative
possibility of harm as the endangerment standard. The standard
we announce, requiring circumstantial evidence of a reasonable
likelihood that the individual “may endanger himself or another,”
cabins the DABC’s interpretive discretion and does not encourage
arbitrary and erratic arrests.
¶41 Second, Due South argues that the statute is ambiguous
because it requires a server to predict when a person will become
intoxicated and to avoid that result by refusing service before
intoxication occurs. Due South reasons that persons of ordinary
intelligence cannot determine whether their acts conform to the
law under this standard because “no one, not even the scientists,
can predict at what point a specific person will ‘become
intoxicated’” since everyone’s body processes alcohol
differently. The DABC, on the other hand, argues that because
the general public can recognize the signs of intoxication, the
statute is not unconstitutionally vague. Rather, it simply
imposes liability on anyone that permits another to become
intoxicated.
¶42 We hold that this statute is not unconstitutionally
vague because it is not a strict liability statute, which means
that servers are liable only if they intentionally, knowingly, or
recklessly permit another to become intoxicated to a degree that
they may endanger themselves or another. We interpret section
32A-12-216 to include a mens rea requirement because it carries
criminal penalties.55 Accordingly, the “principles of
construction, . . . burdens of proof, definitions, principles of
criminal responsibility, punishments, and inchoate offenses [from
title 76 of the Criminal Code] apply.”56 Central to the concept
of criminal liability is the principle that “[a] person is not
guilty of an offense unless the person’s conduct is prohibited by
law” and “the person acts intentionally, knowingly, recklessly,
with criminal negligence, or with a mental state otherwise
specified in the statute defining the offense,” unless the
offense is a strict liability offense.57 Furthermore, “[e]very
offense not involving strict liability shall require a culpable

58 Id. § 76-2-102 (2003).
59 Id.
60 Id.
61 846 P.2d 1313 (Utah Ct. App. 1993).
62 Id. at 1315 (emphasis removed) (quoting Utah Code Ann.
§ 32A-12-203 (1991)).
63 Id. at 1319.
No. 20060971 18
mental state.”58 An offense is only interpreted as a strict
liability offense if “the statute defining the offense clearly
indicates a legislative purpose to impose criminal responsibility
for commission of the conduct prohibited by the statute without
requiring proof of any culpable mental state.”59
¶43 Section 32A-12-216 does not clearly indicate a
legislative intent to impose criminal responsibility without
proof of a culpable mental state. In the absence of an
articulated mental state, it is appropriate to defer to the
default mens rea requirements supplied by section 76-2-102.
“[W]hen the definition of the offense does not specify a culpable
mental state . . . intent, knowledge or recklessness shall
suffice to establish criminal responsibility.”60
¶44 The court of appeals has taken this same approach in
two cases construing analogous violations of the Alcoholic
Beverage Control Act. First, in State v. Souza, the court of
appeals interpreted the statute that prohibited furnishing or
supplying alcohol to minors.61 The statutory language at the
time provided, “A person may not sell, offer to sell, or
otherwise furnish or supply any alcoholic beverage or product to
any person under the age of 21 years.”62 The court of appeals
interpreted “furnish or supply” to mean that the defendant
“(1) has some measure of control over the alcohol in question;
(2) knows that whatever act he or she undertakes contributes to
making alcohol available to minors; and (3) intends or is
reckless to the fact that minors will accept or consume that
alcohol.”63 The court reasoned that “requiring that accused
persons must know that they were making alcohol . . . available
to a minor with the intent or reasonably inferred expectation
that the minor will accept it,” struck a balance between the

64 Id. at 1320.
65 933 P.2d 400, 401 (Utah Ct. App. 1997); see also Utah
Code Ann. § 32A-12-203(2) (Supp. 1996) (“[A] person who knowingly
sells, offers to sell, or otherwise furnishes or supplies any
alcoholic beverage or product to any person under the age of 21
years is guilty of a class A misdemeanor.”).
66 Valdez, 933 P.2d at 402.
19 No. 20060971
protective purpose of the statute while “preventing inadvertent
culpability.”64
¶45 More explicitly, in State v. Valdez, the court of
appeals interpreted subsection (2) of the same statute, which
elevates the penalty for individuals who knowingly furnish or
supply alcohol to a minor.65 Part of the court’s analysis
compared subsection (2) to subsection (1), explaining that
because subsection (1) “does not specifically state the requisite
mens rea for the offense, the mens rea is supplied by Utah Code
Ann. § 76-2-102 (1995).”66
¶46 In summary, section 32A-12-216 does not impose
liability on servers who fail to accurately predict whether the
next drink will cause a patron to become intoxicated. Instead,
it imposes liability on a server who intentionally, knowingly, or
recklessly permits a patron to become intoxicated to the point
that the patron may endanger himself or another. Applying a mens
rea requirement and requiring evidence that endangerment is
reasonably likely to occur ensures that persons of ordinary
intelligence can conform their actions to the requirements of the
law by exercising reasonable judgment. As interpreted, section
32A-12-216 is not unconstitutionally vague.
IV. THE TRIAL COURT ERRED IN FINDING THAT DUE SOUTH’S CONDUCT
CONSTITUTED A “GRAVE” VIOLATION OF UTAH’S OVER-SERVING LAWS
¶47 Due South argues that even if this court finds that the
Club did in fact allow individuals to become intoxicated on the
premises, the violations were improperly classified as grave
under the Utah Administrative Code. In light of the new
standards we articulate today, it is not clear whether Due South
actually violated section 32A-12-216. We nevertheless address
this issue in order to provide direction to the trial court on
remand.
¶48 The DABC has established a schedule setting forth a
range of penalties that can be imposed by the Commission for

67 Utah Admin. Code r. 81-1-6 (2002).
68 Id. r. 81-1-6(4)(d).
69 Id. r. 81-1-6(4)(c).
No. 20060971 20
violating laws related to alcoholic beverages.67 This schedule
divides violations into four classifications: minor, moderate,
serious, and grave. Grave violations are described as follows:
Violations of this category pose or
potentially pose, a grave risk to public
safety, health and welfare, or may involve
fraud, deceit, willful concealment or
misrepresentation of the facts, exclusion of
competitors’ products, unlawful tied house
trade practices, commercial bribery,
interfering or refusing to cooperate with
authorized officials in the discharge of
their duties, unlawful importations, or
industry supplying liquor to persons other
than the department and military
installations.68
¶49 Each of the offenses listed as grave share common
elements--they involve a deliberate, intentional violation of
liquor regulations, and they are closely tied to other willful
violations of law where the perpetrators know that their acts are
wrongful or damaging. “Serious” violations, on the other hand,
are described as those that “directly or indirectly affect or
potentially affect the public safety, health and welfare, and
involve minors.”69 Serious violations do not require the same
deliberate or intentional violation of the law required for grave
violations.
¶50 The facts in this case do not appear to indicate a
grave violation absent evidence that the servers knowingly or
willfully permitted patrons to become intoxicated to the point
that they presented a reasonable likelihood of endangering
themselves or others. Although allowing people to become
intoxicated at a club surely has an effect or a potential effect
on public safety and would certainly qualify for the serious
classification, absent evidence of a willful violation of the
law, this offense does not seem to rise to the level of the grave
classification.

70 United States v. Reardon, 787 F.2d 512, 517 (10th Cir.
1986); see also DiBlasio v. Keane, 932 F.2d 1038, 1041-42 (2d
Cir. 1991) (holding that the government must provide the identity
of an informant where the informant’s testimony was essential to
the defendant’s argument that he was entrapped).
71 Roviaro v. United States, 353 U.S. 53, 60 n.8 (1957).
72 DiBlasio, 932 F.2d at 1041 (quoting Roviaro, 353 U.S. at
60-61).
21 No. 20060971
V. THE DISTRICT COURT PROPERLY RULED THAT DUE SOUTH WAS NOT
DENIED DUE PROCESS WHEN THE DABC FAILED TO IDENTIFY SOME OF THE
PATRONS THAT WERE ALLEGEDLY OVER-SERVED
¶51 Due South claims that the DABC needed to identify each
person allegedly over-served so that Due South could have a
reasonable opportunity to challenge the allegations. To support
this argument, Due South relies on the principle that “[a]
defendant may obtain the identity and whereabouts of an informer
if his testimony might be relevant to the defendant’s case and
justice would be best served by disclosure.”70 This principle,
and the cases cited by Due South are inapposite. The DABC did
not claim the government informant privilege. In fact, the DABC
asserts that it does not know the identity of the individuals,
and there is no allegation that the DABC is withholding the
information in bad faith. Moreover, we doubt that the informant
privilege would apply in this case since the “purpose of the
privilege is to maintain the Government’s channels of
communication by shielding the identity of an informer from those
who would have cause to resent his conduct.”71 The patrons in
this case, however, were not government informers--they were
individuals observed at Due South’s private club. Furthermore,
the ability to obtain the identity and whereabouts of an informer
is limited to cases “‘[w]here the disclosure of an informant’s
identity, or the contents of his communication, is relevant and
helpful to the defense of an accused, or is essential to a fair
determination of a cause.’”72 Due South has not explained why
disclosure of the patrons’ identities is essential to a fair
determination of this case. Accordingly, we reject Due South’s
argument that its due process rights were violated by the DABC’s
failure to identify some of the patrons that were allegedly over-
served.
CONCLUSION
¶52 We remand this case to the district court to consider
Due South’s liability for violating Utah Code section 32A-12-216

No. 20060971 22
in light of these interpretations. In determining whether an
individual is intoxicated under section 32A-12-216, we hold that
the phrase “may endanger” as used in section 76-9-701 requires
circumstantial evidence of a reasonable likelihood of harm. We
also hold that section 32A-12-216 incorporates the public
place/private place distinction in the public intoxication
statute and that a private club is a private place within the
meaning of the statute. Finally, we hold that section 32A-12-216
is not unconstitutionally vague.
---
¶53 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur with Justice
Parrish’s opinion.