dissenting.
I dissent.
The trial judge’s findings included the following:
“The plan was, as was testified to by the minor juvenile, that a person would be selected and would go into these stores who would at least in some manner give the appearance of being of legal age and for the purpose of inducing or at least making available the opportunity for the business to sell to the minor in violation of the city ordinance and also in violation of the state statutes ...
Under his testimony, he was instructed to portray himself in making these purchases as a person over eighteen years of age. And the Court must say from observing Mr. Gregory, that he certainly presents himself in an excellent way and manner; he’s very self-possessed. He may not have the formal education that normal people of his age has, [sic], but he’s certainly above average in intelligence and certainly there is a serious question; the average person observing him as to whether or not he could be considered to be of legal age to buy beer. That's one of the tested issues here.
The City’s taken the position that his appearance does not allow for that. The other parties petitioners’ saying it does. This Court’s observation is that he could be taken either way.
... The petitioners recognize that the sales did occur and that the sales did occur to a person who was not of legal age, but aver that they should not be liable or suffer any punishment because of the alleged entrapment or the instituting and carrying out of this charade, if it may be called such, of presenting this minor in that situation hoping that he would convey to those he was dealing with that he was of legal age.”
In my view, this case squarely presents the issue of whether entrapment should be extended to civil proceedings to revoke beer and liquor licenses. The fact that the lawyers for the license holders at jeopardy here have not urged this Court to do so, does not eliminate the issue. Obviously they have adopted the strategy of agreeing with the trial court’s adjudication
... that mitigation is not only proper but is mandated because of the way and manner in which the city saw fit to do this. Nowhere in the law, with few minor exceptions — might call them major in some cases, but few exceptions — is any person allowed to violate the law in order to get someone to violate the law and to have impunity. That’s what happened here.
The licensees asserted the defense of entrapment in the trial court. That court held that defense to be unavailable in civil cases but mitigated the punishment imposed for the admitted unlawful sale of beer to mere reprimands. In rendering his opinion the trial judge made reference to an opinion issued by the Tennessee Attorney General, which stated that law enforcement officials utilizing a minor in an undercover operation of this nature and the mi*895nor decoy might be in violation of Tennessee criminal statutes. Opinion of Tennessee Attorney General, Criminal Liability of Law Enforcement Officials Employing Undercover Minor, Dec. 21, 1984. The Attorney General noted that law enforcement officials possess no general immunity from the criminal law, even though the Legislature could presumably grant such immunity as it has in undercover operations involving the purchase of narcotics paraphernalia. See T.C.A. § 53-11-410(c).
There is an apparent split of authority on whether the defense of entrapment should be available in a civil proceeding to revoke or suspend a liquor license. Compare Kearns v. Aragon, 65 N.M. 119, 333 P.2d 607 (1959) (unavailable) with Langdon v. Board of Liquor Control, 130 N.E.2d 430, 98 Ohio App. 535 (1954) (available). In Kearns, the liquor-licensee had his permit revoked for selling alcohol on Sunday to an undercover New Mexico State Trooper. In refusing to permit the licensee to argue that he was entrapped, the New Mexico Supreme Court noted that a hearing before the Chief of Liquor Control was an administrative, rather than criminal, proceeding, the purpose of which was not to punish the licensee, but rather to ensure the “decent and orderly conduct of a business affecting public health, morals, safety and welfare.” Kearns v. Aragon, 65 N.M. 119, 333 P.2d at 610 citing Flowers v. Benton County Beer Board, 202 Tenn. 56, 302 S.W.2d 335 (1957). The New Mexico court concluded that the police power so pervades the liquor business that “[liquor license] revocation proceedings are not governed by rules of law applicable to criminal prosecutions,” and, thus, “entrapment is not a defense in an administrative proceeding to revoke a liquor license.” Kearns v. Aragon, 333 P.2d at 610.
In deciding, however, whether the defense of entrapment ought to be available in a civil proceeding to suspend a beer license in Tennessee, I believe that the California Supreme Court’s opinion in Patty v. Board of Medical Examiners, 9 Cal.3d 342, 107 Cal.Rptr. 473, 508 P.2d 1121 (Cal. 1973), more accurately addresses the policy bases of the defense than the formalistic reasoning in Kearns. The issue in Patty was whether the defense of entrapment should be available in an administrative hearing before California’s Board of Medical Examiners. An investigator for the Board had hired undercover agents to attempt to secure prescriptions from the defendant for narcotics ostensibly to get “high.” In a well-reasoned opinion, the California court, per Justice Tobriner, reversed the Board’s decision to prohibit Dr. Patty from raising the defense of entrapment in the administrative proceeding. Noting that the purpose of the defense is “the preservation of the dignity of the legal process and of public confidence in it,” Id. 107 Cal.Rptr. at 474, 508 P.2d at 1122, the court concluded that “[t]he public’s concern with the fair administration of justice attaches equally to administrative as to judicial proceedings.” Id. 107 Cal.Rptr. at 476, 508 P.2d at 1126.
I agree with the Patty court’s conclusion. In short, I concur in Justice Tobri-ner’s statement that “ ‘[s]ound public policy’ and ‘good morals’ [citation omitted] are incompatible with entrapment of an innocent person into the commission of a crime in order to revoke his professional [or beer] license as clearly as they are incompatible with entrapment to obtain a criminal conviction.” Patty v. Board of Medical Examiners, 107 Cal.Rptr. at 478, 508 P.2d at 1126.
I would hold that the defense of entrapment as enunciated in State v. Jones,1 is applicable in proceedings charging beer licensees with violations of this State’s li*896quor laws. If the licensees were entrapped, the issue of punishment is moot because entrapment is a complete defense. See, State v. Jones, supra.
In State v. Jones, this Court held that a criminal defendant bears the burden of establishing a prima facie case of entrapment, whereupon the State must prove beyond a reasonable doubt that the defendant had a predisposition to commit the offense. State v. Jones, 598 S.W.2d at 220, citing United States v. Jones, 575 F.2d 81 (6th Cir.1978). It would be inappropriate in a civil case to require governmental entities to carry that heavy burden of proof. The licensee should be required to make out a prima facie case of entrapment by a preponderance of the evidence, whereupon the governmental entity would have the burden of going forward with a showing that the licensee was predisposed to violate the law, also by a preponderance of the evidence, to support a judgment of suspension or revocation.
It follows that I would remand to the trial court for a decision on the issue of entrapment which could be done on the present record, supplemented as appropriate.
. [EJntrapment occurs when law enforcement officials, acting either directly or through an agent, induce or persuade an otherwise unwilling person to commit an unlawful act; however, where a person is predisposed to commit an offense, the fact that the law enforcement officials or their agents merely afford'an opportunity does not constitute entrapment.
We qualify this, however, by the admonition that "outrageous police behavior in light of surrounding circumstances,” the “over-involvement” of the police or the intensity of their activities, could reach such a level that due process is so offended that predisposition is not relevant. State v. Jones, 598 S.W.2d at 220.