Page:Shannon v. Wilson.pdf/20

162   Although the majority opinion does not mention it, the law, as found in Ark. Code Ann. § 3-3-202(a)(1j (Repl. 1996), continues to make it a crime "to give or otherwise furnish any alcoholic beverage to any person under twenty-one " In addition, Ark. Code Ann. § 3-3-201 (Repl. 1996) makes a misdemeanor "The sale, giving away, or other disposition of intoxicating liquor to a minor. " whether it is done knowingly or not. See State v. Jarvis, 244 Ark. 753, 427 S.W.2d 531 (1968).

The majority opinion apparently attempts to limit its effect to sale of alcoholic beverages to minors, but the principle or "public policy" upon which the opinion is based, to the extent it comes from these criminal statutes, cannot be limited to those facts. The policy involves not only sale but giving or furnishing. It involves not only selling, giving, and furnishing alcoholic beverages to minors but giving, selling, and furnishing alcoholic beverages to persons who may not be minors but who are not yet twenty-one years of age. It flies in the face of a basic tenet of the Carr decision. As we said in that case, "we do not see how the impact of the statute could be confined to those who sell liquor, legally or illegally." In that respect, nothing has changed.

Clearly, the public policy expressed by the General Assembly in the regulation of the retail liquor industry and in the criminalization of the sale of liquor to persons under twenty-one has not been extended by that body to impose civil liability. If the decision to do so were one this Court should make, we should have made it in 1965. Our decision then in the Carr case was not an ovine submission to a majority of other state courts. It was, rather, a principled conclusion that basing a departure from the common law on the legislation then extant would be unwise and that the public policy aspect of such a departure required legislative action. None of that has changed.

If we were mistaken in 1965, we surely would have corrected our mistake in one of the several decisions in which the issue has been raised since that time—most recently in Mann v. Orell, 322 Ark. 701, 912 S.W.2d 1 (1995). Rather, we have continuously stated that the issue is one for the General Assembly. In Yancey v. The Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d