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Legal View: What to Worry About

By August 10, 2012Connecticut, Legal Matters

By Jerry Farrell, Jr.

Each year, agents of the Department of Consumer Protection’s Liquor Control Division do several hundred “compliance checks” across the state, where they visit establishments that have a liquor license to see if the establishment is complying with the state liquor laws.

It’s no secret that a good many of these checks are done during the warmer months of the year. High school and college students are out of school for the summer and thought to be more likely to find their way into bars and package stores, even if they don’t meet the age requirements. Likewise, those of legal age may be less careful about how much liquor they are drinking, and consuming alcohol past the point of intoxication.

Most of the compliance checks are indeed focused on those two issues – sales of alcohol to those who are under-age, and sales of alcohol to those who are intoxicated. I will leave the issue of sales to those who are intoxicated for another column and concentrate here on sales to under-age persons.

The scenario is sketched out in each press release Liquor Control issues after a group of compliance checks are completed. It’s the same each time. Liquor Control agents team up with under-age volunteers to visit package stores and bars and restaurants. While the agent is within distance, the under-age volunteer attempts to purchase alcohol – in a package store by going to the cash register and seeing if he or she can buy a six-pack or bottle of wine, in the bar or restaurant setting by placing an order with the wait person or bartender.

Each press release put out by Liquor Control contains just about the same exact language, noting that the under-age volunteer will not attempt to trick the sales clerk, waitress, or bartender, and will indeed produce their real driver’s license, if so asked.

The results of a compliance check certainly can have a bearing on the business being tested. If things go wrong, and a sale to an under-age person happens, the business may end up paying thousands of dollars in fines and being closed a certain number of days. So it’s not surprising then that I get a lot of questions from those who are on those front lines of alcohol sales asking my advice on how not to end up in that pickle, whether as a result of a compliance check specifically or another situation where a sale to an under-age person comes to light.

The best piece of advice I can offer on this topic is to understand that no customer of your establishment has an absolute right to buy alcohol. You are not obligated to make a sale you don’t feel comfortable about, in regard to the purchaser’s age or possible level of alcoholic intake at time of sale.

There are lots of forms of discrimination that will get you into trouble – discriminating based on color of skin, sexual orientation or gender. Putting all those things aside, if you turn away a customer simply because you aren’t satisfied that they are of legal age to purchase alcohol, ninety-nine times out of a hundred you are going to have done the right thing.

While there are methods of trying to verify age, none of them are absolute, none of them are an absolute air-tight defense to the charge of selling alcohol to an under-age person –none of them, save for not making the sale at all. There’s no question that asking for identification is a great place to start.

  • Make asking for identification a regular practice – let it be known in your neighborhood that you frequently ask for identification and turn down sales to those who can’t produce it. The word will get out to under-age kids to not bother trying to make a purchase at your store, and your customers who are parents will appreciate seeing your diligence, and perhaps feel some loyalty to your store, knowing you are doing your part for the community.
  • Don’t just ask for identification – familiarize yourself with what you are looking for; many wholesalers give out booklets that will show you some of the key features of each state’s driver’s license, so you will be in a better position to spot a “fake ID.”
  • Make sure that you read the date on the license correctly. There are more than enough people I have seen who have made a sale to an under-age person, not because they intended to, but because they didn’t carefully read the date of birth on the license.
  • Make sure you have on your premises copies of the “age statement form”, which you potentially can have someone whose age is in question sign. You should make sure you have copies of the form – because Liquor Control will indeed look to see that there are available copies of the form on your premises. But don’t be lulled into some kind of false security by thinking “all I have to do is get the kid to sign the form and I am off the hook.” My experience is that it doesn’t work that way.

There are certainly those who come before the Liquor Control Commission under the false impression that use of an age statement form is a complete defense against charges of sale of alcohol to an under-age person. But usually the facts of the case will show that the establishment in question was not reasonable in its reliance on the age statement form – some additional fact about what the customer said, what the people accompanying the customer said, or some behavior that occurred – that should have put the business on notice that they could not reasonably rely on the age statement form in going ahead and making the sale of alcohol to the person whose age was in question. They call this, in the world of lawyers, looking at the “totality of the circumstances.”

I am certainly endorsing use of each and every one of these methods to help prevent under-age sales. The more diligent and carefully methodical you and your staff are in verifying age, the lesser the chance of making that unintended sale to an under-age person. Still, know that even going the whole nine yards and having the person sign an age statement form isn’t necessarily going to keep you in the clear.

It’s your license and livelihood that are on the line. There are too many false ID’s out there. There are too many young people who dress and act much older than their age. If you don’t feel comfortable about the purchaser’s age, don’t make the sale. Unless your business caters to an exclusively young clientele, taking all these precautions, while also taking no chances, goes a long way to make sure you don’t have an appointment with the Liquor Control Commission anytime soon.

Jerry Farrell, Jr. served as Chairman of the Connecticut Liquor Control Commission from 2006 to 2011. Today, he is an attorney in private practice, focusing on liquor licensing law. He can be reached at jerry@ctliquorlaw.com. This column is not intended to be legal advice; consult an attorney for answers to your specific questions and situation.

 

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