Legally Speaking by Marc Myers is a feature of the Ohio Tavern News.
Reprinted from Ohio Tavern News January 20, 2004 issue.
Once again in 2003, the most common citation issued to permit holders requiring them to appear before the Liquor Control Commission was for sales to underage people.
While most permit holders understand that identification should be required if there is any doubt as to the purchaser’s age, it is important to review some basic rules about requesting and verifying identification.
Always ask for identification if there is any doubt as to the purchase’s age. This obvious rule is the most violated by permit holders and their employees. “He/she looked old enough” or “I was very busy and just forgot to check” are not defenses to an underage sales charge.
Never sell unless the identification provided is a valid Ohio driver’s license or a stat of Ohio identification card issued by the Bureau of Motor Vehicles. College IDs, military IDs and all forms of ID will not afford the permit holder a defense.
The law provides a complete defense to a permit holder charged with an underage sale provided the seller requires proper ID and takes some additional steps. Simply glancing at a drier’s licensee is not enough to utilize the complete defense. The seller must make a “bona fide” effort to ascertain the purchaser’s age by checking at the time of the purchase that the description on the driver’s license “compared with the appearance of the buyer” and that the license has not be altered in any way. In other words, the seller must make a reasonable attempt to verify that the person presenting the driver’s license is the person described and pictured on the license. Look at the height, hair color and photo on the license. If they don’t match all with the purchaser or there is any doubt, don’t sell. If the license has scratch marks or any other suspicious look, don’t sell.
Many on-premises permit holders have IDs checked at the door and patrons receive a hand stamp or bracelet indicating they are of age. The patron then shows the hand stamp or bracelet to the bar person when making a purchase. Courts have held that this process does not give the permit holder a complete defense because the law requires the ID must be check at the time of purchase by the seller.
Oftentimes in underage cases, the permit holder is cited to appear before the Liquor Control Commission and the employee making the sale is charged criminally in local court. It is common for that employee to appear by himself in local court and plead “no contest” simply to end the matter, which results in the employee’s conviction. Permit holders should be aware that the conviction is, by itself, separate violation and precludes the permit holder from contesting the case at the Liquor Control Commission. Therefore, it is important that all defenses by raised by the seller in local court.
Finally, it is crucial that permit holders impress upon employees the seriousness of selling to underage people. Not only is the criminal penalty a minimum fine of $500, but the permit holder is strictly liable at the Liquor Control Commission for the employee’s actions. All too often a permit holder suffers significant penalties and possible loss of the permit because of an irresponsible or careless employee. Following the rules all the time will save permit holders much anxiety and expense.
Marc Myers is official legal counsel for the Ohio Licensed Beverages Association. Questions or comments should be address to Myers at Blaugrund, Herbert & Martin Inc., 5455 Rings Road, Suite 500, Dublin, Ohio, 43017, (614) 764 0681