dissenting. This decision, in my estimation, is the most far-reaching judicial fiat I have seen in all of my thirty-three years’ experience in the law. I dissent because I believe that the Arkansas General Assembly did not intend to create civil liability for vendors of alcoholic beverages with the passage of Act 695 of 1989, codified as Ark. Code Ann. § 3-3-218(a) and (b) (Repl. 1996). The majority holds that through section 3-3-218 the General Assembly has established “a duty of reasonable care owed by licensed vendors of alcohol to their patrons.” I disagree. Section 3-3-218 provides nothing more than the grounds for administrative sanctions to be imposed upon vendors by the Alcoholic Beverage Control Board for the failure to operate their businesses in the public interest, in a manner that does not endanger the public health, safety, or welfare. This pales in comparison to the statute relied upon in Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997), that made it a felony to sell alcoholic beverages to minors.
Until the decision in Shannon, this court had consistendy declined to recognize tort liability for vendors who sell alcoholic beverages to persons who then later cause injuries to themselves or others. When this court finally did recognize such liability in Shannon, it was on the basis of the strong public-policy reasons set forth by the General Assembly in prohibiting the sale of alcoholic beverages to minors. See Ark. Code Ann. § 3-3-202(b) (Repl. 1996). Although this court discussed the various regulatory statutes, it relied primarily on the fact that the public policy against selling liquor to minors was so strong that the legislature had declared the proscribed acts to be a felony. On that basis, this court recognized a narrow exception to its long line of cases that had rejected any type of “dramshop” liability. The exception was reserved for situations where vendors knowingly sell alcoholic beverages to minors, based upon the recognition of the General Assembly that minors, as a particular class of persons, deserve added protection from the dangers of consuming alcoholic beverages. This court took great pains to particularize this public policy:
The legislature determined that the prohibition of the selling or furnishing alcohol to minors for monetary gain was of such importance that [section 3-3-202] was amended in 1993 by Act 875 establishing the violation as a Class D felony. In the emergency clause for Act 875, the legislature made the determination that existing statutes criminalizing the sale of alcohol to minors were too lenient and thus heightened the penalty from a misdemeanor to a felony. Specifically, the legislature found, “supplying alcoholic beverages to underage persons is strictly contrary to the public policy and is detrimental to the young people of this State, and that the penalties for this conduct should be increased to deter and to punish these violations of Arkansas law and policy.” 1993 Ark. Acts 875.
In enacting the foregoing statutes, it is clear that the legislature determined it is the public policy of the State of Arkansas to protect minors as a special class of citizens from the adverse consequences of alcohol consumption. The statutes establish an affirmative duty for alcoholic beverage license holders to safeguard against minors purchasing alcohol. These statutes serve to regulate the liquor industry and to promote the safety of our citizenry as a whole. We conclude that the statutes establishing affirmative obligations upon license holders authorized to sell alcohol and the statute classifying the criminal act of selling or furnishing alcohol to minors for monetary gain a felony create a duty for licensees to exercise a high standard of care for the protection of minors. A breach of this duty can lead to a suit for negligence.
Id. at 159-60, 947 S.W.2d at 357 (emphasis added). I joined the majority in Shannon because I, too, believed that there are strong public-policy reasons for preventing the sale of alcoholic beverages to minors. I cannot, however, join the majority here because I believe that it is unsound to base tort liability for vendors on nothing more than regulatory statutes that constitute “grounds for administrative sanctions.” Section 3-3-218(b).
Correspondingly, the majority’s conclusion is not further supported by its reliance on Ark. Code Ann. § 3-3-209 (Repl. 1996). Section 3-3-209 makes it a misdemeanor, not a felony, to “sell, give away, or dispose of intoxicating liquor to a habitual drunkard or an intoxicated person[.]” This court has consistently rejected the theory that section 3-3-209, then codified as Ark. Stat. Ann. § 48-901, was intended to change the common-law rule of nonliability. See Milligan v. County Line Liquor, Inc., 289 Ark. 129, 709 S.W.2d 409 (1986); Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965). Those particular holdings were not disturbed by the decision in Shannon, 329 Ark. 143, 947 S.W.2d 349.
Moreover, with the holding in this case, we are but one small step away from extending such liability to social hosts. The majority holds:
We emphasize the point that this high duty of care fixed by the General Assembly is on licensed vendors of alcohol, and we view the liability as confined to this group by Act 695. Though we said in Carr v. Turner, supra, that we could not see how liability could be confined to vendors as opposed to social hosts, this was before the enactment of Act 695 establishing the duty of care for licensed vendors. Now it is clear under Shannon v. Wilson, supra, as well as our decision today that the liability does not extend to social hosts.
Despite its declaration to the contrary, by relying on section 3-3-209 in addition to Act 695, the majority has left wide open the possibility that tort liability may also be extended to social hosts in the future. As previously indicated, the behavior prohibited by section 3-3-209 applies to any person who sells, gives away, or otherwise disposes of alcoholic beverages to intoxicated persons. That prohibition does not, however, establish the legislature’s intention to impose tort liability upon all offenders, including social hosts. This court said as much in Carr, 238 Ark. 889, 385 S.W.2d 656, discussing the predecessor to section 3-3-209:
In all the decisions [from other jurisdictions] the liability to the injured person fell solely upon one engaged in the sale of alcoholic beverages. [Ark. Stat. Ann. § 48-901] is not so narrow. It applies to any person who sells or gives away intoxicating liquor to a minor or to an inebriate. By its terms it is equally applicable to a liquor dealer and to a host who serves cocktails in his own home. Perhaps the legislature did not mean for the law to be so sweeping in its scope, but we must give effect to the statute as we find it.
Even if the prohibition against the sale of liquor to an intoxicated person had the comprehensive implications that the appellant attributes to it, we do not see how the impact of the statute could be confined to those who sell liquor, legally or illegally. The same reasoning would be applicable in the case of a person entertaining his friends in his home. He would be compelled to maintain supervision over all his guests and to refuse to serve drinks to those nearing the point of intoxication. Such a principle of liability would be more far-reaching than any decision that we have discovered. We think it clear that the lawmakers, in enacting the statutes now on the books, have not undertaken to extend the offender’s responsibility to the extreme degree now urged by the appellant. It may be that a Dramshop Act is to be desired, but such a measure should be the result of legislative action rather than of judicial interpretation.
Id. at 892, 385 S.W.2d at 658 (emphasis added). In light of the plain language of section 3-3-209, it is not apparent how the majority can attempt to limit its holding to licensed vendors. There will be no logical basis to make an exception for social hosts. Necessarily, this would include the person who serves alcoholic beverages in his home to friends at social gatherings and the employer who provides alcoholic beverages at office parties.
Additionally, I take issue with the fact that the majority has offered no standard for measuring a vendor’s civil liability. Rather, the holding only reflects that “the sale of alcohol by a licensed vendor to an intoxicated person is some evidence of negligence.” The majority offers no guidance as to who qualifies as an “intoxicated person.” Without such guidance, the standard is entirely subjective and will thus be difficult to apply. What may appear to one person to be signs of intoxication may not seem so to another person. We all recognize the “falling down drunk,” but how will we detect that marginal individual? Visible signs of intoxication include not only persons who sway or cannot otherwise stand up, but also persons who have red, watery eyes. Of course, red, watery eyes may be the result of other causes, not just intoxication. Clearly, the question of who is intoxicated becomes illusive. Furthermore, police officers, who have received extensive training in the detection of intoxicated persons, often cannot agree whether someone is intoxicated. Without specific standards, guidelines, and training procedures established by our legislature, it is beyond me how we can expect waitresses and bartenders, not to mention social hosts, to measure a person’s intoxication level with any amount of certainty.
In contrast, the standard set forth in Shannon creating a cause of action against a vendor who “knowingly sells alcohol to a minor,” was taken from the language of section 3-3-202(b)(1). The standard is objective in that it requires a vendor to request proper identification from purchasers before selling alcoholic beverages to them. This standard would not require vendors to receive any specialized training in the recognition of signs of intoxication. Additionally, the trier-of-fact is not left to speculate whether the vendor’s actions were sufficient under the circumstances; rather, the only issue to decide is whether the vendor obtained proper age identification prior to the sale.
In sum, I do not interpret sections 3-3-218 and 3-3-209 as creating tort liability upon vendors who sell alcoholic beverages to intoxicated persons. I shudder to think of the detrimental effect that this holding will have on the lifestyles of Arkansans — restaurants, hotels, private clubs, country clubs, VFW Halls, and Elks Clubs, to name but a few establishments, will be significandy affected by this decision. If and when a “dramshop” act is to be desired, I have no doubt that the General Assembly will make its intention clear, such that this court will not have to resort to stretching licensing and administrative provisions to judicially create such liability. Because such an act has not been created by the legislature, I respectfully dissent.
Arnold, C.J., and Thornton, J., join in this dissent.