Underage Buyers Are In Season, Know The Law

By Peter A. Berdon, Esq.

As the swallows must return to Mission San Juan Capistrano each spring, so too will college students return to their parents, nests for a chance to recover from a year of arduous study. They may reconnect with old friends, perhaps and the inevitable gatherings and days at the beach will call for refreshment.

But... without the help of the campus "connection," these young scholars may resort to attempting their own purchases of alcohol, even though they might be just shy of legal drinking age. Spring and summer...there's no better time to think about how to protect your business from the hazards of underage buyers.

First, a discussion of the basics. Connecticut General Statutes 30-86(b) prohibits any permittee from selling or delivering alcohol to a minor. This is what is often called a "strict liability offense," meaning that the law is not concerned with the seller's intent - if a sale or delivery to a minor occurred, then a violation occurred. It is just like running a red light. Easy, right?

So, how does one defend the violation of such a black-and-white rule?

The Liquor Control Act provides three defenses to an illegal sale violation. Though seemingly simple on paper, these defenses can be tricky to use. They require consistent application of procedures by reliable, well-trained staff. Employees must be educated on the use and purposes of these defenses, and they must be firm in the face of minors who may attempt to purchase alcohol. Effective use of these defenses requires the storage of documents and data that can be quickly retrieved long after the sale, since referrals from local police departments to DCP may take weeks or months before the permittee is notified of a violation.

Transaction Screening Devices: These are "electronic identification checkers" that can verify the authenticity of an ID. When properly used by vigilant staff, these devices act as a strong deterrent against those who would use fake IDs. Screening devices are only a tool to be used by, not a substitute for, competent staff. To be an effective defense, a permittee must have reasonably relied on the ID presented. In other words, the defense isn't available if the ID in question is an obvious fake.

The device must be able to capture and store critical information (name, date of birth, expiration date) and link to the ID's presenter in a way that is conveniently retrievable for later use. Also, advances in technology may make a particular device obsolete. The expense and vulnerabilities of these devices often make them a poor candidate for smaller establishments.

Age Statement Forms: Low tech, but a rock solid defense, C.G.S. § 30-86a allows permittees to require a questionable customer to provide a written statement of age. (The statute provides specific language for the form.) Again, the permittee must be reasonable in the acceptance of the ID (no obvious fakes). Like screening devices, age statement forms are difficult to link to the customer. The forms should be filed by date and time of sale and, ideally, have a photo of the presenter, which customers may find annoying or offensive, but is permitted under C.G.S. § 30-86b.

The Fake State ID Exception: C.G.S. § 30-86(b)(3) provides an exception for a permittee's good-faith reliance on an altered or fraudulently obtained state-issued Connecticut ID card. Curiously, this exception does not apply to drivers' licenses. Since state ID cards are relatively uncommon, it is unlikely that a permittee might ever use this defense. This situation is nearly impossible to document without a screening device or an age statement form. Still, any records must be retrievable and must link presenter, ID and sale.

Not making the sale: You can't underestimate the worth of an ounce of prevention. In a close call, staff should simply not make the sale. Continuous training in age verification techniques (especially when temporary employees are hired for the summer), and a company culture of "no sales to minors" will give your servers the confidence they need to make the right decisions. For larger retailers, use of mystery shoppers may help ensure that employees adhere to "house policies."

Permittees are on the front lines in the fight against underage drinking. Preventing sales to minors is not hard in theory, but any sense of ease is misplaced. Only vigilance, knowledge of the law, strict adherence to procedures and thorough training of staff can help prevent inadvertent sales to minors, keeping everyone safe and your business running.

The foregoing is intended as general information only and not as legal advice. Contact an attorney to get advice about your particular circumstances.

Peter A. Berdon: Attorney Berdon, a partner with Berdon, Young & Margolis, PC, has represented wholesalers, manufacturers, package stores, restaurants and bars before the State of Connecticut DCP and the Federal TTB as well as in litigation matters in court since being admitted to practice in 1991. He can be reached at peter.berdon@bymlaw.com.