ABC agents recently have stepped up their enforcement operations against licensees near large populations of young adults, particularly those near colleges and universities. They appear to look for sales to minors with fake IDs, and situations where customers over the age of 21 purchase alcohol and then share it with (furnish it to) minors. Plain-clothed ABC agents have appeared repeatedly at numerous licensees, particularly on Friday nights.
California Business and Professions Code Section 25660 provides a complete defense to licensees charged with selling alcohol to minors, so long as they: (1) demand to see a government-issued ID;
(2) are shown such an ID; and (3) reasonably rely on the ID as bona fide evidence of age.
California courts have rejected a “strict liability” standard for licensees accused of selling alcohol to minors. They recognize that the purpose of Section 25660 is “to relieve vendors of alcoholic beverages from having in all events to determine at their peril the age of the purchaser.” (See Dept. of Alcoholic Beverage Control v. Dept. of Alcoholic Beverage Control (Masani), 118 Cal. App. 4th 1429, 1440, 1445 (2004).) A “licensee should not be penalized for accepting a credible fake that has been reasonably examined for authenticity and compared with the person depicted. A brilliant forgery should not ipso facto lead to licensee sanctions.” (Id.)
But overzealous ABC agents recently have raised their expectations about what constitutes a “reasonable” inspection of an ID, especially for licensees near large populations of young adults (like those found at colleges and universities). Some ABC agents have instructed licensees that check-out clerks routinely must ask customers to remove IDs from wallets so clerks can feel the ID and physically inspect the ID’s texture , lamination and any suspicious marks or creases. Failure to do so, they assert, is a criminal act justifying a misdemeanor charge against the clerk and progressive discipline against the store license (three sales in 36 months results in automatic license revocation).
Agents are issuing this instruction (and issuing citations and arrest warrants) even though there is no written rule or regulation requiring clerks to remove IDs from wallets, nor is it required by the ABC’s own training programs. As most licensees know, removing IDs from wallets is not, and never has been, common practice in California.
Why Has The ABC Not Publicized These New, More Stringent Rules For Inspecting IDs?
A good question! The ABC’s ad hoc instructions to certain licensees about new, higher standards for ID inspections probably amount to improper rule making, in violation of the Administrative Procedures Act. That very question is currently being litigated in a pending appellate proceeding against the ABC. Stay tuned!
Protect Yourself – Consider Refreshing Training For Check-Out Clerks
We recommend that licensees, particularly those near colleges, universities and other places with high populations of young adults (like military bases or large entertainment venues) consider refreshing their training for check-out clerks.
As always, please consult us, or your own personal counsel, for advice about specific situations.