Liquor Licensees & Underage Drinkers: A Never-ending Cat & Mouse Game

Massachusetts Liquor Licensees face a constant cat & mouse game with underage patrons who are now able to purchase near perfect fake IDs online. Massachusetts and Federal authorities have been aware of this for years, but Liquor Licensees almost exclusively bear the burden of the consequences for selling alcohol to ‘underage’ patrons, while those underage patrons (ADULTS, 18 to <21) typically escape with little more than the loss of the fake ID and their $5.00 beverage. Changes to the system are desperately needed and the time is now — a time when small business liquor licensees are being decimated by COVID.

Additionally, Liquor Licensees should utilize a powerful weapon in the legal toolbox (read below) to recover the financial losses suffered as a result of the voluntary criminal conduct of adults aged 18 to <21. This article discusses these issues and provides some common-sense solutions and a way for Liquor Licensees to fight back and recover their losses, one-by-one.

“Can you think of another set of circumstances where a small business owner is at risk of losing their entire investment and livelihood due to the voluntary criminal conduct of an ADULT patron or customer? Liquor Licensees face that possibility every day.”

The Deck is Stacked Against Massachusetts Liquor Licensees

In a recent article on the rise of FAKE IDs from China, US Custom and Border Patrol’s (“CBP”) chief concern was the quality and effectiveness of Fake IDs coming into the U.S. from countries like China – upwards of 55,000+ a year! The article reports that CBP’s “one concern” was that the bar codes on some of the fake IDs actually work. Unfortunately this is not new news — Liqour Licensees and Massachusetts authorities have known this fact for years and fake IDs have been increasing in quality and effectiveness where the ‘fake’ data is encoded into the magnetic strips that pass even the most expensive ID Bar Code scanners.

Bar Code Scanners – some of which cost Liquor Licensees upwards of $1,000 – are one of the key tools used to detect fake IDs and prevent admittance of underage patrons to the establishment. Visual inspection is another key tool – but any liquor licensees (and parents) would admit that trying to guess the true age of someone aged 18 to <21 who is dressed for a night out is a ‘crap shoot’? And the older you get, the harder it becomes. Bars, restaurants, hotels, nightclubs and taverns and the workers checking IDs face an uphill battle.

The difficulty in identifying a fake ID and an underage patron becomes even more apparent when you consider that many young people obtain their government-issued ID when they get their driver’s license at age 16 or 17.  Imagine the physical changes a person undergoes from age 16 to 21 — hair changes in color or length, weight changes, changes in facial features, changes in identity that may impact physical appearance. In addition, an 18 to <21 year old can easily fool ID checkers with a REAL ID given the resemblance with his/her over 21 sibling.

In this environment, especially where Fake IDs pass bar code scanners and even CBP personnel acknowledge how ‘good’ these Fake IDs are now, how can bars, restaurants, hotels, nightclubs and taverns reasonably be expected to prevent admittance to underage patrons with 100% accuracy? Of course, they can’t.

Despite how obvious this fast is, bars, restaurants, hotels, nightclubs and taverns are held ‘strictly liable’ when underage drinkers gain entry. However, although MGL ch. 138, sec. 34B provides that a Liquor Licensee is presumed not to have committed a violation if the underage patron gains access with a valid Massachusetts ID, US or foreign Passport or US government Military ID, this provides little benefit to Liquor Licensees in the numerous ‘college towns’ where students present IDs from all over the country.

Underage Drinkers Use Fake IDs with Impunity While Liquor Licensees Pay the Price

Underage users of Fake IDs also do so with near total impunity. Although using a Fake or ‘False’ ID (identity theft, impersonating another) may be a criminal act under multiple statutes, the same statute referenced above (MGL ch. 138 sec. 38B) provides clear, albeit minor, penalties for use of a Fake ID to procure alcohol. It provides:

“Any person in a licensed premises shall, upon request of an agent of the commission or the local licensing authorities, state his name, age, and address. Whoever, upon such request, refuses to state his name, age or address, or states a false name, age, or address, including a name or address which is not his name or address in ordinary use, shall be guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars.

Any person who transfers, alters or defaces any such card or license, or who makes, uses, carries, sells or distributes a false identification card or license, or uses the identification card or motor vehicle license of another, or furnishes false information in obtaining such card or license, shall be guilty of a misdemeanor and shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than three months.

Any person who is discovered by a police officer or special police officer in the act of violating the provisions of this section may be arrested without a warrant by such police officer or special police officer and held in custody, in jail or otherwise, until a complaint is made against him for such offense, which complaint shall be made as soon as practicable and in any case within twenty-four hours, Sundays and legal holidays excepted.”

Thus, even if someone IS underage in a bar, restaurant, tavern, nightclub and an ABCC agent asks for their true name, age, date of birth etc, he or she can simply refuse to identify themselves as underage and face nothing more than a misdemeanor fine of UP TO $500 – which means it could be as little as not fine or maybe $50.00. If the underage person is ignorant of that law and is caught with a Fake ID he or she faces little more than a misdemeanor fine of UP TO $200.00 OR imprisonment for UP TO 3 months. I’m willing to bet that no one has served even 1 day in jail for using a Fake ID to enter a bar, restaurant or nightclub in the last 5 years.

Despite the fact that most of those caught with fake IDs are ADULTS (aged 18 to just shy of 21), prosecutions of those who use Fake IDs to gain entry to a bar, restaurant, tavern, nightclub etc are not the norm. As a result, the Liquor Licensee almost exclusively suffers the consequences of the criminal acts of another ADULT. And those consequences can be severe. If caught with underage patrons consuming alcohol in the licensed premises, the Liquor Licensee is violated (by the city or ABCC) and faces serious fines, suspension (or forfeit of 50% of profits in lieu of suspension) or revocation of the license and the loss of his or her investment and livelihood.

Authorities will say that those whose licenses are revoked have received multiple violations involving multiple underage patrons, but when you consider how easy it is for ADULTS aged 18 to <21 to obtain high quality Fake IDs with ‘backup’, and how hard it is to distinguish an 18 year old from a 21 year old — it is not uncommon at all for Liquor Licensees to have multiple violations.

In fact, the ABCC and Local Licensing Authorities (aka “LLAs”) can easily ‘target’ an establishment (for lawful or unlawful reasons, with or without pretense), increase ‘enforcement actions’ and ‘inspections’ and ‘create’ multiple violations at virtually any time — because on any given night the chances are fairly good that an underage ADULT patron has gained entry through the use of a high quality Fake ID or older sibling’s ID and bit of age-increasing attire, facial or make-up.

Liquor Licensees Suffer From Grotesque Unfairness

Liquor Licensees suffer from a grotesque unfairness due to the whole system and the way the rules are enforced, prosecuted, and adjudicated.  Liquor Licensees – mostly small business owners who have invested a king’s ransom to acquire the business and liquor license – typically do everything they can to detect the increasingly more sophisticated Fake IDs and keep underage drinkers out of their establishment. That investment and the livelihood of the licensee and his/her family is on the line and at risk of being taken from him/her.

Meanwhile, the ADULT (aged 18 to <21) typically escapes with barely more than the loss of the $5.00 rum and coke that was half-drunk when it was confiscated, despite the fact that it is this ADULT:

1. who used the FAKE ID or ID of another person to fool the Liquor Licensee into granting him or her entry,
2. who is in the BEST position to avoid committing a crime through his/her own underage drinking. and
3. who committed at least THREE crimes in the process by (a) obtaining the FAKE ID, (b) using the FAKE ID to acquire alcohol and (c) being under 21 and in possession of alcohol.

Can you think of another set of circumstances where a small business owner risks the loss of their investment and livelihood due to the criminal conduct and voluntary decisions of an ADULT patron or customer?

A Better Way Forward? Solutions?

Unfortunately, this issue is not new, but it has definitely gone on for too long. Despite various ‘task forces’ charged with examining the system, little has actually changed since this Daily Free Press article from 2008! It is long overdue for the Massachusetts Legislature, Massachusetts Alcoholic Beverage Control Commission (ABCC) and Local Licensing Authorities in Massachusetts to take action to correct this wholly inequitable asymmetry of consequences.

It is also a perfect time to do so while most bars, restaurants, hotels, nightclubs and taverns are closed due to COVID and government authorities are not focused on enforcement, inspections or adjudication. When these small businesses return – and we NEED them to return and thrive – the last thing they need hanging over their heads is the threat of big fines, suspensions or revocation as a result of underage ADULTS who gain entry with a high-quality Fake ID that passes a bar-code scanner.

It is not enough to suggest or point to an ‘increase in fake ID prosecutions’ because those efforts are often fleeting and temporary. As soon as resources come under pressure, the focus turns to other things. And the trend towards not prosecuting so-called ‘minor’ offenses is likely to exacerbate this. The rebuttable “presumption” for reliance on a Massachusetts ID, Passport or Military ID is not sufficient.

Eliminate ‘Strict Liability’ and Establish a Conditional Presumption for All Government Issued IDs

Liquor Licensees should not be subject to ‘strict liability’ and punishment if they employ standardized preventative measures that could easily be established and mandated by the ABCC. These measures could include (a) visual ID inspection and ‘back-up’ (credit card, school ID) inspection and (b) ABCC-Approved ID Bar Code Scanning devices.

These Bar Code Scanning devices could verify in real time (or via via monthly/weekly updates) through an encrypted connection that the data on the magnetic strip is legitimate without providing licensees with unfettered access to citizens’ government records. To protect people’s privacy, the data ‘pings’ are either deleted after 2 weeks or are never recorded and stored.

If a licensee is checking IDs, using a bar code scanner and the person resembles the photograph on the ID – then there should be a presumption that the Liquor Licensee acted reasonably whether the ID is from Massachusetts, Alaska or Denmark. Not only do colleges attract young adults from all over the world, but there is greater movement of people today (pre-COVID at least) than just 10 or 20 years ago.

The current rebuttable ‘presumption’ only for Massachusetts IDs, Passports and Military IDs is arbitrary and outdated.

Establish Stricter Penalties for Adult Users of Fake IDs

We are told by authorities that Liquor Licensees are subject to so much regulation, regular enforcement actions and every violation discovered is pursued, in order to protect the health and safety of the public. Yet it is the epitome of hypocrisy if those same authorities do not prosecute each and every ADULT who makes the voluntary criminal decision to use a fake ID to gain entry to a liquor licensed establishment and/or procure alcohol.

A lack of resources need not be the excuse not to prosecute because the ABCC’s resources currently allocated to adjudicating Liquor LIcensees’ violations for underage patrons could easily be re-tasked and re-tooled by statute to adjudicate the ‘Fake ID’ and ‘refusal to ID’ crimes under MGL ch. 138 sec. 34B. It simply takes the will, the pressure from small business owners and the right timing to change the system – that time is now.

If authorities do not want to burden young people with a criminal record, then create tiered penalties where a 1st offense consists of a more significant fine or equivalent community service hours but 2nd, 3rd or beyond offenses are charged as misdemeanors with substantially increased fines and the risk of three or more months in jail (depending on the tier). For the system to serve as a deterrent and actually result in fewer underage patrons at liquor licensed establishments, then the penalties must be severe enough and authorities must charge and prosecute the offenses.

Until the ADULT (18 to <21) users of Fake IDs are deterred from buying and using Fake IDs to procure alcohol, it will never stop or abate because it is a battle Liquor Licensees lack the tools and resources to prevent.

** Bittersweet Retribution for Liquor Licensees **

Most liquor licensees and Fake ID users do not realize that licensees and business owners have the ability to recover the fines, penalties, legal fees, lost business from suspension or revocation and related financial damages caused by the Fake ID user — litigation!

Although not a common legal tactic, the legal theory is simple and sound — the ADULT (18 to <21) who gained entry or purchased alcohol using a Fake ID did so knowingly with the intent to misrepresent his/her age and deceive the Liquor Licensee into granting entry and furnishing the patron with alcohol. In short, that conduct constitutes a FRAUD on the Liquor Licensee. And if, as a result of that FRAUD, the Liquor Licensees suffered legal fees, fines, lost business from the suspension or lost business from revocation, then the Fake ID user can be held liable for those financial losses.

Although those aged 18 to <21 may have few assets to satisfy a judgment on the date of the violation, judgments in Massachusetts earn 12% interest per year until paid in full. The Liquor Licensee and Small Business Owner can collect the underlying judgment plus the accrued interest years later when the Fake ID user is employed and has assets.

This option is available to you whether you have a ‘Section 12’ License for bars, restaurants, hotels, clubs, taverns, war veterans’ clubs, continuing care retirement communities, and general-on-premises or a ‘Section 15’ License for off-premise consumption like package stores, liquor stores, grocery stores and convenience stores or a Pub Brewery License.

The Jacobs Law LLC can help!

If you are a Massachusetts Liquor Licensee and have received a violation from the ABCC or local licensing authority, please contact the Liquor License Lawyers at The Jacobs Law LLC at 1-800-652-4783 or email ContactUs@TheJacobsLaw.com. Our liquor license lawyers are experienced and can defend you against the Local Licensing Authority or the ABCC, and — perhaps more importantly — pursue recovery of your losses from the underage patrons caught using Fake IDs to gain entry to your licensed premises.

Your Attorneys For: Liquor License Violations and License-related Disciplinary Hearings