The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 22-1201
of :
: November 9, 2023
ROB BONTA :
Attorney General :
:
SUSAN DUNCAN LEE :
Deputy Attorney General :
The HONORABLE BILL DODD, MEMBER OF THE STATE SENATE, has
requested an opinion on a question relating to the sale of California wine to customers in
another state.
QUESTION PRESENTED AND CONCLUSION
California wineries applying for a direct shipper license in another state are often
required—pursuant to the other state’s alcohol control statutory or regulatory scheme—to
provide a criminal record check in connection with that application. If a California
winery owner or manager obtains their own criminal record check from the California
Department of Justice, would furnishing that criminal record check—or a notification
reflecting that no such record exists—to another state’s alcohol control agency violate
California Penal Code sections 11125, 11142, or 11143?
If a California winery owner or manager furnishes their criminal record—or
notification no such record exists—to another state’s alcohol control agency, that would
constitute a violation of California Penal Code sections 11125, 11142, or 11143.
However, if the other state’s alcohol control agency obtains authorization from the
California Department of Justice to receive California state summary criminal
information, then the other state’s agency may request and receive the criminal
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background information directly from the California Department of Justice as specified in
Penal Code section 11105.
BACKGROUND
California is renowned as home to some of the best wine regions in the world.
Wine drinkers around the country purchase wine from California, and vintners stand
ready to provide. In some cases, however, another state’s statutory scheme governing
alcohol control does not coordinate easily with California’s criminal justice information
statutes, creating obstacles for California wineries that are trying to obtain a license to
sell wine to consumers in that state.
We have been asked for our opinion on whether California law governing
disclosure of criminal history information prevents California wineries from complying
with the laws of another state, with Missouri proffered as the primary example. 1
Ultimately, the focus of our analysis and conclusion is on interpreting the relevant
California statutes governing the distribution of California criminal record information.
In order to understand the issues, however, it is helpful to have a general understanding
of Missouri’s alcohol control scheme.
Missouri’s Three-Tier Alcohol Control System
Missouri’s Liquor Control Law establishes a system for regulating the
manufacture, distribution, and sale of alcoholic beverages in Missouri. 2 The so-called
“three-tier system” is designed to keep the three levels—manufacture, wholesale, and
retail—separate and distinct from each other. Under such a system, an alcohol
manufacturer may sell only to a wholesaler, a wholesaler may sell only to a retailer, and a
retailer may sell only to a consumer. The three-tier system requires separate licenses for
manufacturers, wholesalers, and retailers, and generally prohibits manufacturers and
wholesalers from having a financial interest in the retail sale of alcohol. The three-tier
system was designed to protect against the “tied-house” system, in which alcohol
manufacturers monopolized the industry from production to consumption, and which was
widely blamed for much of the social damage that led to Prohibition. 3 Missouri’s system
1
We received a comment letter from The Wine Institute citing Arizona and South
Carolina as other states where fingerprint and background check requirements have
raised issues for California wineries. (Tyler Rudd, Wine Institute, letter to Attorney
General’s Office, May 18, 2023.)
2
Mo. Rev. Stats., § 311.010 (“This law may be cited as the ‘Liquor Control Law’”); see
generally Mo. Rev. Stats., ch. 311.
3
Sarasota Wine Market, LLC v. Schmitt (8th Cir. 2021) 987 F.3d 1171, 1175-1176
(Sarasota Wine Market).
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is also intended to guard against anti-competitive and monopolistic practices, foster
stability in Missouri’s alcoholic beverage industry, and provide for the orderly collection
of state alcohol taxes. 4
Missouri’s Division of Alcohol and Tobacco Control (ATC) is a branch of
Missouri’s Department of Public Safety. The Division issues licenses upon application to
individuals and entities, thereby authorizing their participation in the manufacture,
distribution, or sale of alcoholic beverages. Historically, one of the qualifications for
obtaining such a license has been residence in Missouri. The individual licensee, or a
corporate licensee’s “managing partner,” must be a “qualified legal voter” and “taxpaying
citizen of the county, town, city, or village” in Missouri. 5 The Supreme Court of the
United States has held that similar three-tiered systems are “unquestionably legitimate.” 6
Likewise, residence requirements that are “essential elements of the three-tiered system”
have been upheld in the Eighth Circuit against challenges under the dormant Commerce
Clause and the Privileges and Immunities Clause. 7
Starting in 2007, the State of Missouri has allowed out-of-state wine
manufacturers to ship wine directly to Missouri residents of legal drinking age. 8 To
engage in such direct sales, an out-of-state winery must apply to the Missouri ATC for a
“Wine Direct Shipper License.” 9 Missouri requires out-of-state wine sellers to provide a
criminal record from their home state as evidence of “good moral character” in order to
qualify for a license to sell to customers in Missouri. Background checks are required for
4
Mo. Rev. Stats., § 311.015 (purposes of Liquor Control Law include “to promote
responsible consumption, combat illegal underage drinking, and achieve other important
state policy goals such as maintaining an orderly marketplace composed of state-
licensed alcohol producers, importers, distributors, and retailers.”); see https://atc.dps.mo.
gov/about/history.php (as of Nov. 8, 2023); see also Mo. Rev. Stats., § 311.105 (purposes
of Liquor Control Law).
5
Mo. Rev. Stats., § 311.060.
6
Granholm v. Heald (2005) 544 U.S. 460, 489 (Michigan and New York alcohol laws).
7
Sarasota Wine Market, supra, 987 F.3d 1171 (upholding Missouri residency and
physical presence requirements for retail liquor license under both dormant Commerce
Clause and Privileges and Immunities Clause).
8
See Mo. Rev. Stats., § 311.185 (requirements for out-of-state license to ship wine to
Missouri residents).
9
See id. at § 311.210 (license procedures).
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owners, managing officers, directors, and all persons controlling 10 percent or more of
the winery. 10
California law provides that a person may request a copy of their criminal record
(or a statement that no such record exists) by applying to the California Department of
Justice. 11 Penal Code section 11121 states:
It is the function and intent of this article[12] to afford persons concerning
whom a record is maintained in the files of the bureau an opportunity to
obtain a copy of the record compiled from such files, and to refute any
erroneous or inaccurate information contained therein.
To obtain any alcohol license in Missouri, a person must be “of good moral
character.” 13 In furtherance of this requirement, the Missouri ATC’s “Checklist of
Requirements for Wine Direct Shipper License” 14 specifies that an applicant must submit
“a criminal record check issued by the Missouri State Highway Patrol Criminal Records
Division (Missouri residents) or the applicable state records division of residency for
non-Missourians.” 15
In California, the “applicable state records division” is the California Department
of Justice (DOJ), which maintains criminal record information for the state. 16 A person
in California may apply to the DOJ for a copy of their own criminal record (or a notice
10
The application form containing this requirement may be found at https://atc.dps.mo.go
v/documents/Wine-Direct-Shipper-Application.pdf (as of Nov. 8, 2023).
11
For purposes of readability, we use the term “criminal record” as shorthand for “state
summary criminal information” as used in Penal Code section 11105; see Pen. Code,
§ 11140, subd. (a) (“Record” means the state summary criminal history information as
defined in subdivision (a) of Section 11105, or a copy thereof, maintained under a
person's name by the Department of Justice.) This opinion does not apply to a criminal
record of any other description.
12
Pen. Code, pt. 4, tit. 1, ch. 1, art. 5 (§§ 11120-11127), titled Examination of Records.
13
Mo. Rev. Stats., § 311.060.1.
14
The form is available at https://atc.dps.mo.gov/documents/forms/MO_829-A0141.pdf
(as of Nov. 8, 2023).
15
Italics added.
16
Pen. Code, § 11105, subd. (a)(1).
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that no such record exists) for the purpose of reviewing the record and refuting any
erroneous or inaccurate information in it. 17 Penal Code section 11124 states:
When an application is received by the department, the department shall
determine whether a record pertaining to the applicant is maintained. If
such record is maintained, the department shall furnish a copy of the record
to the applicant or to an individual designated by the applicant. If no such
record is maintained, the department shall so notify the applicant or an
individual designated by the applicant. Delivery of the copy of the record,
or notice of no record, may be by mail or other appropriate means agreed to
by the applicant and the department.
So far, so good. A person in California, including a winery owner or manager,
may obtain a copy of their criminal record from the DOJ. 18 But here an obstacle arises:
Although a person in California may obtain a copy of their criminal record for their own
personal purposes, they are not at liberty to share it with just anyone—and cannot use it
to complete the application for a license to sell wine to customers in Missouri—because
California law restricts the distribution of state summary criminal information.
Specifically, Penal Code sections 11125, 11142 and 11143 make it a misdemeanor
for a person to furnish a criminal record to anyone who is not authorized by law to
receive it.
Penal Code section 11142 states:
Any person authorized by law to receive a record or information obtained
from a record who knowingly furnishes the record or information to a
person who is not authorized by law to receive the record or information is
guilty of a misdemeanor.
Penal Code section 11143 states:
Any person, except those specifically referred to in Section 1070 of the
Evidence Code, who, knowing he is not authorized by law to receive a
record or information obtained from a record, knowingly buys, receives, or
possesses the record or information is guilty of a misdemeanor. 19
17
Pen. Code, § 11121.
18
California wineries must obtain two criminal background checks—one for a federal
permit from the Alcohol and Tobacco Tax and Trade Bureau, and one from the California
Alcoholic Beverage Control—to open and operate a winery in California.
19
Evidence Code section 1070 refers to professional reporters refusing to disclose their
news sources.
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Furthermore, it is a misdemeanor in California for a person (or agency) even to
ask another person to furnish their criminal record. Penal Code section 11125 states:
No person or agency shall require or request another person to furnish a
copy of a record or notification that a record exists or does not exist, as
provided in Section 11124. A violation of this section is a misdemeanor.
As these statutes demonstrate, distribution of criminal records is strictly limited in
California to “authorized” recipients. 20 These rules apply even if a person is furnishing
their own criminal record to an unauthorized person, or for an unauthorized purpose. 21
The question we need to resolve is whether there is any provision of California
law under which the Missouri ATC may be authorized to receive California criminal
records for purposes of licensing direct wine sales. For these purposes, an “authorized”
person means “any person or public agency authorized by a court, statute, or decisional
law to receive a record.” 22 There is no court order at issue here, and there is no
decisional law on point to resolve our question. We therefore examine the relevant
statutes to determine who may be “authorized” to receive a criminal background record,
and whether the Missouri ATC may be so authorized.
20
See also Pen. Code, § 11076 (“Criminal offender record information shall be
disseminated, whether directly or through any intermediary, only to such agencies as are,
or may subsequently be, authorized to access such records by statute.”)
21
See Loder v. Municipal Court (1976) 17 Cal.3d 859, 872-873; 105 Ops.Cal.Atty.Gen.
157, 159 (2022).
22
Pen. Code, § 11140, subd. (b). Section 11140 states in full:
As used in this article:
(a) “Record” means the state summary criminal history information as
defined in subdivision (a) of Section 11105, or a copy thereof, maintained
under a person's name by the Department of Justice.
(b) “A person authorized by law to receive a record” means any person or
public agency authorized by a court, statute, or decisional law to receive a
record.
“This article” refers to Penal Code part 4, title 1, chapter 1, article 6 (§§ 11140-11144),
titled Unlawful Furnishing of State Summary Criminal History Information.
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ANALYSIS
Our goal in interpreting statutes is to determine the Legislature’s intent so as to
give effect to the law’s purpose. 23 To do so, we “look first to the words of the statute
themselves, giving to the language its usual, ordinary import and according significance,
if possible, to every word, phrase and sentence in pursuance of the legislative purpose.” 24
We do not consider the words of statutes in isolation. Instead, “we construe the words in
question in context, keeping in mind the statutes’ nature and purposes.” 25 If the plain text
of a statute is ambiguous, or subject to more than one reasonable interpretation, “then we
may look to extrinsic aids, including the ostensible objects to be achieved and the
legislative history.” 26 The “historical circumstances of a law’s enactment may also assist
in ascertaining legislative intent, supplying context for otherwise ambiguous language.” 27
The focus of our attention here is Penal Code section 11105, a compendious
statute that lists some 38 categories of permissible recipients of criminal records.
Recipients are divided into two general categories: those that are authorized to receive
California criminal records as a matter of law, and those that may be permitted to receive
such records upon application to and approval by the DOJ. Subdivision (b) lists entities
that are entitled to receive California criminal records, including the various participants
in California’s criminal justice system—courts, peace officers, prosecutors, defense
counsel, probation and parole officers, and correctional institutions. 28 Subdivision (b)
also encompasses a number of other positions of public trust, including child support and
child welfare officers (both county and tribal), 29 investigators for guardianships and
23
See Skidgel v. California Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 14
(Skidgel).
24
Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386‒
1387.
25
Skidgel, supra, 12 Cal.5th at 14.
26
Ibid.
27
Kaanaana v. Barrett Bus. Servs., Inc. (2021) 11 Cal.5th 158, 169.
28
Pen. Code, § 11105, subds. (b)(1)‐(b)(8), (b)(14); see subd. (c)(2) (“peace officer of the
state other than those included in subdivision (b)”).
29
Id., subds. (b)(17)-(b)(20).
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conservatorships, 30 health officers,31 humane societies and officers, and state positions
whose duties include having access to federal income tax information. 32
In contrast to subdivision (b), which lists entities that are entitled to receive state
criminal information, subdivision (c) addresses entities that are permitted to apply to the
DOJ for authorization, including cities, counties, local districts, tribes, and the courts and
peace officers “of the United States, other states, or territories or possessions of the
United States.” 33 Among the permitted categories we find one—subdivision (c)(5)—that
seems to us capable of including a licensing agency of another state, such as the Missouri
ATC. Subdivision (c)(5) states, in full:
(c) The Attorney General may furnish state summary criminal history
information and, when specifically authorized by this subdivision, federal-
level criminal history information upon a showing of a compelling need to
any of the following, provided that when information is furnished to assist
an agency, officer, or official of state or local government, a public utility,
or any other entity in fulfilling employment, certification, or licensing
duties, Chapter 1321 of the Statutes of 1974 and Section 432.7 of the Labor
Code shall apply:
...
(5) Public officers, other than peace officers, of the United States, other
states, or possessions or territories of the United States, provided that
access to records similar to state summary criminal history information is
expressly authorized by a statute of the United States, other states, or
possessions or territories of the United States if the information is needed
for the performance of their official duties. 34
Reviewing this statute, we believe that it presents a path for another state’s alcohol
licensing bureau to request and obtain authorization from the DOJ to receive directly
from the DOJ the state summary criminal information of a California applicant. In
30
Id., subds. (b)(21)-(b)(23).
31
Id., subd. (b)(14); see id. at subd. (c)(3) (illegal dumping enforcement officer).
32
Id., subds. (b)(16), (b)(24); see Gov. Code, § 1044 (background checks of persons
having access to federal tax information).
33
Id., subds. (c)(7), (c)(8); see id., subd. (c)(4).
34
Italics added. See Stats. 1974, ch. 1321, amending Bus. & Prof. Code, § 491 (notices
to ex-licensee upon suspension of license); Lab. Code, § 432.7 (non-disclosure of records
of arrests not resulting in conviction).
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subdivision (c) proper, we find that the Attorney General may grant permission for
certain agencies to receive criminal information when the agency is “fulfilling
employment, certification, or licensing duties . . . .” In subsection (5) of subdivision (c),
we find a qualified authorization for “public officers, other than peace officers . . . of
other states . . .” 35 Missouri’s ATC, and specifically its licensing officers, appear to fall
within the category of “public officers, other than peace officers” of another state.
Subsection 5 authorizes such an officer to receive criminal records from California if two
conditions are fulfilled: first, that “access to records similar to state summary criminal
history information is expressly authorized by a statute” of the other state; and second,
that “the information is needed for the performance of their official duties.”
Turning to Missouri’s Liquor Control Law, it appears likely that both elements
could be satisfied. First, Missouri law expressly authorizes the Supervisor of the
Missouri ATC to access criminal records for the purpose of conducting background
checks. 36 Second, Missouri law invests the Supervisor of the Missouri ATC with plenary
power to issue or withhold licenses to sell alcohol in Missouri. 37 Thus, if the Supervisor
seeks a criminal background record from California for the purpose of evaluating a
license application in Missouri, it seems fair to say that the record “is needed for the
performance of [the Supervisor’s] official duties.” Since it appears possible for both
conditions to be satisfied, we conclude that California law provides at least one potential
legal route by which Missouri ATC might become authorized to receive criminal
background records. But unless that route is followed, providing a criminal record to
Missouri ATC for a license background check would be a misdemeanor. 38
35
Missouri’s authorization to obtain criminal records for purposes of criminal law
enforcement and investigations is not in question here. We are concerned here only with
the licensing function of the Missouri ATC.
36
Mo. Rev. Stats., § 43.543, states, in relevant part:
Any state agency listed in Section 621.045 . . . shall submit fingerprints to
the Missouri State Highway Patrol, Missouri criminal records repository,
for the person’s criminal history under Section 43.450.
See Mo. Rev. Stats., § 621.045 (listing “Supervisor of Liquor Control”); Mo. Rev. Stats.,
§ 43.450 (criminal record review, qualified entities).
Mo. Rev. Stats., §§ 311.120, 311.230, 311.610 (licensing power lies in Supervisor of
37
Missouri ATC).
38
Accordingly, we reject any suggestion that providing such information is permissible
without DOJ authorization. For example, it has been suggested that, as the Missouri
Highway Patrol is the repository for criminal records in Missouri, it could be authorized
to receive criminal background information for out-of-state applicants on behalf of the
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In reaching this legal conclusion, we emphasize that we do not prejudge the
outcome of any future application, by Missouri or any other state or entity, for
authorization under Penal Code section 11105(c)(5). 39 Every application is evaluated on
its own legal and factual merits by DOJ’s California Justice Information Services
Division, Bureau of Criminal Information and Analysis. Our authority is confined to
evaluating the purely legal aspects of the question before us. 40
For the reasons stated, we conclude that a license applicant may not supply their
own criminal background information to a licensing agency. If a California winery
owner or manager furnishes their criminal record—or notification no such record
exists—to another state’s alcohol control agency, that would constitute a violation of
California Penal Code sections 11125, 11142, or 11143. However, if the other state’s
alcohol control agency obtains authorization from California DOJ to receive California
state summary criminal information, then the other state’s agency may request and
Missouri ATC. However, we are informed that the Missouri ATC does not have a
procedure in place that would allow applicants residing outside Missouri who need a
background check to submit ink or electronic fingerprint images to the Missouri State
Highway Patrol. Alternatively, it has also been suggested that language in Penal Code
section 11124 (“department shall furnish a copy of the record to the applicant or to an
individual designated by the applicant”) permits a California resident to provide their
own record to anyone they wish. But the quoted language applies only to Article 5,
Examination of Records, the purpose of which is “to afford persons concerning whom a
record is maintained in the files of the bureau an opportunity to obtain a copy of the
record compiled from such files, and to refute any erroneous or inaccurate information
contained therein.”38 In that context, it makes sense to permit a person to designate a
lawyer, spouse, guardian, or other personal representative to receive and review the
record. But that personal purpose is manifestly not a general license to comply with the
illegal request of an employing, licensing, or other entity for a California resident’s
criminal records. To interpret it as such would grossly undermine the careful protections
that the California Legislature has constructed around the distribution of criminal records,
as demonstrated by Penal Code sections 11105, 11125, 11142, and 11143.
39
Missouri ATC informed us that it applied for and was denied authorization to receive
criminal records from California in December 2022. (Benjamin Kweskin, General
Counsel, Missouri ATC, May 19, 2023.) Our review of that application and the response
disclose that the application was made under a different subdivision of Penal Code
section 11105, and denied on that basis. Nothing in the first application and denial would
foreclose consideration of a new application on new facts or on a different legal basis.
40
See Gov. Code, § 12519 (Attorney General to give opinions on “questions of law”).
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receive the criminal background information directly from the California DOJ as
specified in Penal Code section 11105. 41
41
Even where another state’s agency has obtained DOJ authorization to receive
California state summary criminal information, Penal Code section 11105 only permits
the California DOJ, not individual applicants, to furnish such information.
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