New York Liquor Authority Enforcement Changes Regarding
Sting Operations for Sales to Minors
The Liquor Authority has been issuing public notices of its enforcement operations at retailers, concerts, and other entertainment venues where teens are present. Retail licensees should know that the Authority has made some changes in its practices regarding the investigation of sales of alcoholic beverages to underage persons. Licensees should be aware of certain amendments to the Alcoholic Beverage Control Law regarding the sale of alcoholic beverages to minors that provide licensees with an opportunity to reduce penalties imposed by the Authority. (Think of it like driving school for traffic tickets)
Investigative Practices
One of the methods employed by the Authority and other law enforcement agencies to investigate allegations of sales of alcoholic beverages to minors is the use of underage agents. These individuals are often high school and college students who intend to pursue a career in criminal justice. The agent, under supervision of law enforcement agencies, attempt to purchase alcoholic beverages in licensed premises. Previously, the Authority instructed its underage agents that, if questioned about their age when attempting to make a purchase they were to provide their true age. This policy has recently been changed. The Authority now advises its underage agents that they may misrepresent their age, if asked, by the person selling the alcoholic beverages.
Some questions have been raised about this change. Licensees should be aware that it is entirely proper and appropriate for what are, in effect, undercover law enforcement agents, not to disclose their true age or that they are associated with law enforcement.
More importantly, licensees should understand that merely asking a patron or customer their age is not an adequate measure to prevent a sale of an alcoholic beverage to a minor. An underage sale is a “strict liability” offense, meaning that the licensee is responsible regardless of intent. A licensee who relies solely on assurances made by the purchaser that he/she is old enough to buy alcoholic beverages bears the risk that the purchaser is not being truthful, and that it will violate the law by making the sale. If there is any doubt, the licensee should refuse the sale.
To lessen the risk that purchaser is underage, licensees should request valid documentary proof of age from customers. The identification offered should be examined, if possible, by electronic scanning devices to determine if the person offering the identification is the person shown in the document. If the licensee does not have electronic scanning devices, it should train all of its employees about detecting fake IDs at least once or twice per year to keep up with the latest data and “tricks” being used by minors.
Penalty Reduction
Licensees now have two ways to obtain reduction of a penalty imposed by the Authority for selling alcoholic beverages to a minor. Both methods involve licensee taking advantage of the Alcoholic Training Awareness Program (“ATAP”) which the Authority oversees. These can be free or low-cost depending on the provider. These reductions are only available to licensees who have prior violations of the Alcoholic Beverage Control Law during the five years preceding the state.
- If the person who sold the alcoholic beverage had a valid certificate of completion (or a renewal of a certificate of completion) of an ATAP course at the time of the sale, the penalty is limited to a claim against the licensee’s surety bond ($1,000). It is the licensee’s responsibility to bring this to the attention of the Authority’s prosecutor.
- If the person who sold the alcoholic beverage did not complete an ATAP course before the sale, the licensee can still obtain 25% reduction of the penalty. This reduction is available to a licensee who provides proof that all of its employees directly involved in the sale or service of alcoholic beverage have successfully completed an ATAP course. The proof must be submitted within 90 days of the penalty being imposed.
The Authority’s website includes information regarding ATAP, including a list of organizations that have been certified by the Authority to provide the courses. This training can lower penalties (fines) in some cases. The SLA encourages all servers, owners, and managers to be certified.
Owning and operating restaurant, bar or night club has become an increasingly nuanced profession. Regulations, licensure and legal risks are always evolving, and working with an attorney who is up to date on the latest strategies is essential; for advising you of both risks and opportunities. If you or another business owner you know are in need of legal assistance, please call or email our office today to schedule your appointment!
About Tracy Jong
Tracy Jong has been an attorney for more than 20 years, representing restaurants, bars, and craft beverage manufacturers in a wide array of legal matters. She is also a licensed patent attorney.
Her book Everything You Need To Know About Obtaining and Maintaining a New York Retail Liquor License: The Definitive Guide to Navigating the State Liquor Authority will be available next month on Amazon.com as a softcover and Kindle e-book.
Her legal column is available in The Equipped Brewer, a publication giving business advice, trends, and vendor reviews to help craft breweries, cideries, distilleries and wineries build brands and succeed financially.
She also maintains a website and blog with practical information on legal and business issues affecting the industry. Follow her, sign up for her free firm app or monthly newsletter.
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