                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                    February 9, 2007
                          FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court

    A. M cREYNOLD S,

              Plaintiff-Appellant,

    v.                                                 No. 06-4077
                                               (D.C. No. 2:05-CV-122-DAK)
    KENNETH F. W YNN, Director, Utah                     (D. Utah)
    Department of Alcoholic Beverage
    Control; LARRY V. LUNT, Chairman;
    TED D. LEW IS, Vice Chairman;
    NICHOLAS E. HALES; FRANK W .
    BU DD; M ARY ANN M ANTES,
    M embers, Utah Alcoholic Beverage
    Control Commission; KEVIN
    H A N SEN,

              Defendants-Appellees.



                           OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiff M cReynolds brought suit under 42 U.S.C. § 1983 alleging that he

was deprived of a liberty interest without due process of law when he was not

allowed to purchase liquor from a state-run liquor store. Plaintiff had provided

proof of his legal age (twenty-one) for the purchase, but was refused service

because a companion lacked proof that he also was not a minor. The district

court granted judgment on the pleadings for defendant Hansen, the store clerk, on

several alternative grounds: (1) there is no state-created liberty interest in the

purchase of liquor on which to premise a due process claim; (2) even if such an

interest exists, its isolated and temporary deprivation here (the momentary

inability to purchase liquor from a particular store) was too minimal to warrant

constitutional redress; and (3) even if a cognizable deprivation occurred, the

relevant legal principles were not clearly established and, therefore, defendant

Hansen was entitled to qualified immunity in any event. Plaintiff then

commenced this appeal. 1 On de novo review, Fernandez v. M ora-San M iguel

Elec. Co-op., Inc., 462 F.3d 1244, 1250 (10th Cir. 2006), we affirm for the

reasons explained below.

1
       Plaintiff’s appeal was premature in light of the claims pending against the
rest of the defendants. See Fed. R. Civ. P. 54(b). In the meantime, however, the
district court entered judgment for defendants on all remaining claims, thereby
ripening plaintiff’s appeal. W e note that, given plaintiff’s failure to appeal from
the later entry of final judgment, this appeal may be limited to the judgment
granted for defendant Hansen. See Nolan v. U.S. Dep’t of Justice, 973 F.2d 843,
846 (10th Cir. 1992) (explaining Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th
Cir. 1988)). In any event, our disposition of the appeal involving the Hansen
judgment is conclusive as to the entire case.

                                          -2-
      In Utah, “21 . . . is the legal age for purchasing alcoholic beverages or

products.” Utah Code Ann. § 53-3-806(3) (citing id. § 32A-12-203); see also id.

§ 32A-2-103(a). An adult may purchase liquor at a state store unless he is

“actually, apparently, or obviously intoxicated”; a “known habitual drunkard”; or

a “known interdicted person.” Id. § 32A-2-103(5)(b)-(d). Plaintiff contends that

through assuming control over the sale of alcohol and specifying by statute w ho is

legally entitled to purchase it, the State has created a constitutionally cognizable

interest, sufficient to trigger due process protection, in favor of any member of

the public w ho meets the statutory qualifications. He claims he was summarily

deprived of this interest, in a manner actionable under § 1983, when defendant

Hansen refused to sell him liquor on the ground that his companion lacked proof

of age. The district court rejected this claim, agreeing with defendant that the

issue was not whether plaintiff had a protected interest in the purchase of liquor

(allegedly denied without adequate process when his companion did not produce

proof of age), but whether plaintiff had a protected interest in the purchase of

liquor while in the company of a person without proof of age. The district court

held that such an interest did not exist.

      In framing the due process issue, the district court looked to regulations

and policies, referred to in the pleadings, relating to the presence of minors in

liquor stores. By regulation, “[n]o person under the age of 21 years may enter a

state liquor store unless accompanied by a parent, legal guardian, or spouse that is

                                            -3-
21 years of age or older.” Utah Admin. Code R81-2-7. This prohibition is now

included in the statutory scheme. See Utah Code Ann. § 32A-2-103(8)(a) (added

by 2005 Utah Laws, ch. 152, § 2, effective M ay 2, 2005). The state alcoholic

beverage control manual further provides that all persons who enter a liquor store

without a parent, guardian or spouse must have adult identification, and

specifically directs store clerks to confirm that all persons have identification

when a member of a group attempts to purchase alcohol. Aplt. A pp. at 51. A

clerk may refuse to sell liquor to anyone whom he has reason to believe may be

attempting to purchase alcohol illegally for a minor. U tah Admin. Code R81-2-6.

The link between the group-identification rule and the State’s effort to prevent

minors from obtaining alcohol through adults is obvious, and has now been made

explicit in the statutory scheme: if a patron or his companion lacks identification,

the store clerk “shall refuse to sell liquor . . . to the person who accompanied the

suspected minor into the state store,” and “shall require [them] . . . to immediately

leave the premises.” Utah Code Ann. § 32A-2-103(8)(b)-(d) (added by 2005

amendment).

      Due process claims entail a two-step inquiry: “(1) did the [plaintiff] possess

a protected interest such that due process protections were applicable; and if so,

then (2) was the [plaintiff] afforded an appropriate level of process.” Veile v.

M artinson, 258 F.3d 1180, 1184-85 (10th Cir. 2001) (quotation omitted). The

regulations and policies (now codified) relating to persons accompanying a liquor

                                          -4-
purchaser undercut plaintiff’s due process claim at one or the other of these steps,

depending on whether the provisions are viewed as conditions precedent to the

existence of a right to purchase liquor or as grounds for denying such a right. If

any right of an adult to purchase liquor is inchoate unless and until the additional

requirements cited above are met, plaintiff’s failure to satisfy the requirements

defeats his claim at the first step in a direct and obvious way, because it negates

the requisite protected interest ab initio. 2

       On the other hand, if a state’s assumption of control over the sale of liquor

creates a constitutionally cognizable right of access in members of the public who

meet the basic legal qualifications for purchase (anyone at least twenty-one years

old who is sober, not habitually intoxicated, and not interdicted), plaintiff’s claim

would still fail at the second step of the due process inquiry, so long as grounds

for denying that right were enforced through constitutionally permissible process.

The governing constitutional standard is flexible, requiring only such procedural



2
       This is the thrust of defendant’s position, adopted by the district court, that
plaintiff’s due process claim fails because he did not have a protected interest in
purchasing alcohol when accompanied by a person without proof of age. Plaintiff
objects to this characterization of the interest, arguing that the fact-specific level
of description used by defendant to qualify the interest unduly restricts its scope
for purposes of due process analysis. That is, plaintiff argues that defendant’s
formulation constricts the underlying interest by, in the terms used above, treating
grounds for denying a protected interest (w hich must be proved in constitutionally
adequate process) as conditions precedent to the existence of the interest (which
negate the right to process from the outset). W e need not resolve this
level-of-description conundrum, because plaintiff’s claim fails in any event, as
explained in the next paragraph above.

                                            -5-
protections as the particular situation demands. Gilbert v. Homar, 520 U.S. 924,

930 (1997) (following M orrissey v. Brewer, 408 U.S. 471, 481 (1972)). This

situational analysis focuses on the nature of the plaintiff’s interest, the practical

efficacy of existing procedures to protect that interest and the benefit additional

procedures would afford, and the interests of the State. Id. at 931-32 (following

M athews v. Eldridge, 424 U .S. 319, 335 (1976)). Applying these factors, we

conclude that plaintiff received sufficient process to undercut any due process

claim here.

      In assessing plaintiff’s interest, “account must be taken of ‘the length’ and

‘finality of the deprivation.’” Id. (quoting Logan v. Zimmerman Brush Co.,

455 U.S. 422, 434 (1982)). As the district court emphasized, the deprivation at

issue here was quite minor in these respects. Plaintiff was merely refused liquor

at one store on one occasion, for a reason that would not extend beyond the

unique–and avoidable–combination of circumstances this one occasion presented

(entry with a companion lacking proof of age). The minimal nature of plaintiff’s

deprivation strongly suggests that a correspondingly minimal level of process was

due. Indeed, the district court may have been correct in rejecting plaintiff’s claim

out of hand on the basis that the deprivation was constitutionally de minimus.

Cf., e.g., Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981) (affirming

dismissal of due process claim because single incident in which parental visitation




                                           -6-
had been cut short was “so insubstantial in duration and effect” that it did not

“rise to a constitutional level”).

      Bolstering that conclusion is the substantial countervailing weight of the

State’s interest in prompt, practical, and effective procedures for implementing its

franchise over the distribution of liquor. The controlling statutory scheme

explicitly invokes the State’s significant interest in minimizing the social risks

attendant upon the consumption of alcohol, especially where minors are involved.

See Utah Code Ann. § 32A-1-104(4). W e properly “accord[] the states great

leeway in adopting summary procedures to protect public health and safety.”

M ackey v. M ontrym, 443 U.S. 1, 17 (1979); see, e.g., Camuglia v. City of

Albuquerque, 448 F.3d 1214, 1220 (10th Cir. 2006).

      The familiar procedure of “carding” liquor store patrons is an effective

means both to protect the public interest and to afford patrons (and their

companions) a fair and reasonable opportunity to demonstrate that an intended

liquor purchase is consistent with the law . If a patron or his companion is

momentarily unable to comply, the appropriate corrective is for that person to

retrieve his documentation showing the requisite age and/or legal relationship

(which, if not already possessed, is easy to obtain), not additional procedural

measures of a more complicated, time consuming, and less objective nature.

Given the practical realities of the situation, this traditional, convenient, and




                                          -7-
effective procedure, accommodates all interests involved in a manner that cannot

be deemed constitutionally deficient.

      Finally, we note that we have deliberately not included in our analysis the

alleged stigma plaintiff insists resulted from defendant Hansen’s refusal to serve

him. Contrary to plaintiff’s hyperbole, he was not accused of a crime; he was

merely refused service because he entered a liquor store with a companion who,

lacking proof of age, gave Hansen a reason to believe an illegal purchase could

be in the offing. If denying service for lack of required identification were

tantamount to criminal accusation, the proper enforcement of liquor laws w ould

generate a mountain of defamation cases against conscientious liquor store clerks

around the country.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    W ade Brorby
                                                    Circuit Judge




                                         -8-
