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12-15-97
To: Municipal and County Clerks, Local Liquor Licensing Authorities,
and Enforcement Agencies
From: Workgroup on Model Guidelines for Liquor Compliance Checks
Below are model guidelines for compliance checks of liquor licensed
establishments regarding violation of sale-to-minor provisions. These
guidelines are the result of a cooperative effort of a workgroup comprised
of representatives of local law enforcement, the liquor industry, municipal
and county governments, and the legal profession, which met from August
through December. Chaired by the Colorado Liquor Enforcement Division,
the workgroup convened following the defeat of legislation introduced during
the 1997 session which attempted to restrict the use of compliance checks
as an enforcement tool. The workgroup was charged with the task of
developing model guidelines which could be used by any government organization
and which would preclude the need for future introduction of similar legislation.
This has now been accomplished.
Workgroup members endeavored to create a fair, effective, and workable
set of guidelines that can be used by municipalities and counties regardless
of their size. In doing so, the workgroup recognized the sometimes
irreconcilable differences between governments and law enforcement agencies,
who must respond to varying community standards and expectations, and the
liquor industry's desire for consistency and equity in how they are treated
from one community to another in response to law violations.
It should be noted that there was essentially unanimous agreement by
workgroup participants regarding the value of server training for managers
and employees of liquor-licensed establishments. As a result, within
the section entitled Suggested Penalties, a recommendation is made to consider
voluntary server training as a mitigating factor when considering a sanction
for the licensee for a first-time offense in certain situations.
Further, due to the strong support for such training, organizations which
provide server training within the state will make that information available
to the Colorado Municipal Clerks association, the Colorado Municipal League
and Colorado County Clerks Association including dates and locations of
various training programs, for distribution to their memberships.
Finally, adoption and use of these guidelines is not meant to preclude
or discourage the use of other enforcement methodologies, such as "cops
in shops," server training, or surveillance, which also promote and encourage
industry compliance with the laws prohibiting alcohol sales to minors.
GUIDELINES FOR USE OF COMPLIANCE
CHECKS
REGARDING ALCOHOL SALES
TO UNDERAGE PATRONS
Purpose: Compliance checks regarding alcohol sales to underage persons
are an established, common, and widely used method for law enforcement
agencies to respond to community concerns regarding sale of alcohol to
minors. They are conducted to determine levels of compliance with
state law and tend to result in an increase in voluntary compliance.
In order to address both the varying standards in communities and the desire
for consistent application of enforcement, these guidelines offer a range
of penalties that can be used by law enforcement agencies and liquor licensing
authorities.
Guidelines:
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A compliance check, sometimes referred to as a sting, is a proactive enforcement
approach to the problem of liquor sale-to-minor violations. A person
under the age of 21 years (minor, underage purchaser) is enlisted to attempt
to purchase alcohol beverages from a liquor licensee. A compliance
check provides an investigative avenue for the detection and deterrence
of liquor sales to underage persons. Such checks may be used:
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When a complaint has been lodged that a licensee is selling to persons
under age 21 years.
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On a random basis, to ascertain levels of compliance among licensees and
to deter sales to minors, generally.
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The underage purchaser:
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Should be within the range of 18 and 20 years of age, with age-appropriate
appearance and no age enhancements.
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May have no criminal history or pending criminal charges, with the exception
of non-alcohol related traffic offenses or petty offenses.
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Should have a photograph taken as (s)he appears on the date of the operation.
The photo is to be held as evidence.
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Must be willing and available to testify.
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Should be advised of and agree to all procedures prior to attempt to purchase.
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Should be asked if (s)he has purchased or been served alcohol in the target
establishment in the past.
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May be compensated, but not based on number of successful purchases.
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Identification
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The underage purchaser may :
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Carry and use his/her own, valid identification.
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Carry no identification, and respond, if asked, with a reasonable excuse
such as "I lost it," or "I forgot it."
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It is the responsibility of the Law Enforcement entity involved to assure
that the underage purchaser has no other identification on his/her person
prior to the operation.
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Similarly, any money in the possession of the purchaser should be provided
by the agency.
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General Procedures for the Underage Purchaser
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If identification is used, the underage purchaser should present valid
ID upon request to the seller.
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If identification is used, the underage purchaser should state his or her
actual age if asked.
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If refused purchase, the underage purchaser will make no further attempt
to convince the server or seller into providing alcohol.
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If the licensee attempts to detain the purchaser, (s)he will not resist,
but will remain on premises until the law enforcement agent responds.
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No person under the age of twenty-one years is to be allowed to consume
alcohol under any circumstances.
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The underage purchaser is to contact the law enforcement agent immediately
upon purchase of alcohol .
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General Procedures for Law Enforcement
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Law enforcement personnel should be in a position to visually monitor or
control the underage purchaser during the operation.
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Whenever the alcohol beverage purchased is in a closed container and the
law enforcement officer can read the label which identifies the contents,
collection of evidence is not necessary. Any other alcohol beverage
should be retrieved and retained as evidence.
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The minor operative must be the one who attempts to make a purchase.
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Law enforcement personnel will advise underage purchasers that they should
make note of the appearance of the person who serves or sell to them, including
whether they were asked for ID.
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Notification of the Licensee or the Person who Served/Sold to the Underage
Person
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The person who sold to/served the underage person should be notified on
the same day (either immediately or at the end of the operation to avoid
jeopardizing a continued operation). If administrative action is
to be taken, the licensee should be notified within 14 days that a Show
Cause Order may be forthcoming.
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When a summons is issued, it should be served within three days.
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Licensees who fail to sell to underage operatives should be notified of
same, preferably in writing within 14 days.
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Suggested Penalties
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The seller/server should be issued a criminal summons.
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Licensee may receive administrative sanctions through the licensing authority.
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First Offense - Written warning to 15 day suspension. Accepting a
fine in lieu of up to 14 days of actual suspension is at the discretion
of the licensing authority, as is holding a portion of the suspension time
in abeyance for a period of time. As an inducement for licensees
to provide training for servers, because server training has proven to
be an aid in the reduction of violations, it is recommended that, where
there are no aggravating circumstances, a licensee who has provided training
to its staff members be issued only a warning on first violation.
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Second Offense (within one year) - 5 to 30 day suspension. If no
fine was paid or suspension served at the time of the first offense, it
would be within the discretion of the licensing authority to accept a fine
in lieu of actual days of suspension and/or to hold a portion of the suspension
time in abeyance for a period of time.
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Third Offense (within one year) - 20 - 45 day suspension
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Fourth Offense (within two years) - 45 day suspension - revocation
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Mitigation/Aggravation to be considered regarding severity of penalty imposed
may include:
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Action taken by the licensee to prevent violations, i.e. training of servers.
See Section "First Offense" section above
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Licensee's past history of success or failure with compliance checks.
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Corrective action taken by the licensee.
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Prior violations/prior corrective action and its effectiveness.
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Willfulness or deliberateness of the violation.
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Likelihood of recurrence of the violation.
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Factors which might make the situation unique, such as:
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Prior notification letter to the licensee that a compliance check would
be forthcoming.
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The dress or appearance of the underage operative, i.e. the operative was
wearing a high school letter jacket.
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Licensee or manager is the violator or has directed an employee or other
individual to violate the law.
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Violation Re-checks
Though random compliance checks are conducted at varying intervals,
it is recommended that licensed establishments who do not sell to minors
not be subjected to rechecks at unreasonably short intervals.
Examples of Penalty Variations:
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Last spring, the town of Ambivalence was rocked when three fatal traffic
accidents occurred involving high school students who had consumed alcohol.
All three accidents occurred following prom or graduation activities.
The source of the alcohol was not determined. To avoid similar
problems this year, the town advised its liquor licensees by mail and newspaper
releases, that it would be conducting underage compliance checks.
During its compliance checks, four of the town's thirteen licensees were
caught selling to minors.
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Liquor Store "A" has no prior history of violation and has sent all of
its employees to training. The clerk who sold was hired within the
previous month and has since been terminated from her employment.
Penalty for Store "A" : The local licensing authority
would normally have given this licensee only a warning, if not for the
special circumstances (the warning letter) and the community concern about
past problems. The licensee receives a three day suspension with
the option of paying a fine in lieu of serving the suspension.
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Liquor Store "B" had a sale-to-minor violation (not a compliance check)
14 months previously and paid a fine in lieu of actual days of suspension.
This store does not train its employees. The clerk who sold is a
long-term employee who still works at the store.
Penalty for Store "B" : Due to the licensee's past history, lack
of staff training and pre-sting notification letter, the local authority
imposes a 15 day suspension. If the licensee agrees to train all
of its current and future employees, the local authority has agreed to
hold 8 days of the 15 day suspension in abeyance. The licensee agrees
to the training and serves a 7 day suspension.
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Restaurant "C" has no prior history of violation and its staff has not
been trained. During the compliance check conducted on prom night,
the underage operatives went into the restaurant dressed in tuxedo and
prom dress. Their waitress, the licensee's wife, noted their appearance
and commented, "I probably shouldn't serve you, but heck, prom's only once
a year."
Penalty for Restaurant "C" : The local licensing authority, due
to the willful nature of the violation, imposes a 15 day license suspension
and does not consider holding any time in abeyance or allowing the licensee
exercise its option to pay a fine.
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