Legally Speaking by Marc Myers is a feature of the Ohio Tavern News.

Reprinted from Ohio Tavern News September 17, 2002 issue.

All permit holders know that the sale of alcoholic beverages to an underage person is unlawful and can subject the person making the sale to criminal prosecution and the permit holder to a liquor citation.

Many individuals and permit holders, however, believe they have a defense when those charges result from a “sting” operation where the underage person has been specifically requited and sent into the premises by law enforcement to attempt a purchase. Employees and permit holders should be aware of when this defense, known as “entrapment,” is available and the legal requirements to establish it.

More and more frequently, law enforcement agencies are conducting sting operations to test whether permit holders are requiring proof of age prior to sale of alcoholic beverages. This is especially true in central Ohio. Typically, the law enforcement agency will select an underage person who may look of age but is not. The underage person is not given false identification, but is instructed to present his or her valid drivers license if identification is requested by permit holder or employee prior to the sale. Unfortunately, many times a sale occurs without any identification requested or even after the underage person presents a driver’s license showing him or her to be underage.

In the vast majority of sting cases, criminal charges first are pursued against the person making the sale and, if there is a conviction, a liquor citation is issued to the permit holder requiring a hearing before the Liquor Commission. The permit holder often is cited for the criminal conviction rather than the underlying sale because the conviction, by itself, constitutes a liquor violation.

Also, because of the criminal conviction, it is unnecessary for local law enforcement to produce the underage person at the Liquor Commission hearing. Oftentimes, law enforcement does not want to disclose the identity of the underage “confidential informant” because it may want to use the same person in the future sting operations. However, the permit holder also may be cited at the time of the alleged violation before any criminal case has been resolved.

Permit holders and employees sometimes believe that sting operations are improper set-ups and they have been unlawfully entrapped. In almost all cases, this is not true.

Entrapment is a legal doctrine known as an affirmative defense. It must be proven by a preponderance of evidence and it generally is only available in criminal cases. Courts have held that the entrapment defense is available only to one who has been induced or lured by the law enforcement officer for the purpose of prosecution and into the commission of a crime which he otherwise had no intention of committing. Courts also have held that where a law enforcement officer merely provides an opportunity for another to commit a crime, the defense of entrapment is not established.

In a case decided by the Franklin County Court of Appeals in Columbus, a permit holder alleged that a Liquor Commission order revoking its permit as a result of an employee’s criminal conviction in a sting operation was unlawful because the employee was entrapped. The facts of the case simply were that a local police department had sent an underage person into the permit premises to purchase alcoholic beverages.

The court also noted that it assumed, without deciding for purposes of the case, that entrapment could not even be used as a defense by the permit holder in a Liquor Commission hearing. Again, entrapment is a defense generally only applicable to criminal prosecution and hearings before the Liquor Commission are not criminal prosecutions, but administrative proceedings.

The decision of the Franklin County Court of Appeals is significant because, as a result of a law change in 1999, all appeals of Liquor Commission orders must be made through the Franklin County court system. Permit holders may no longer appeal to their home county court system. Therefore, the Franklin County Court of Appeals’ decision will apply to all permit holders, regardless of where they are located in Ohio.

What does the court of appeals decision tell permit holders and employees? First, any attempt to raise the defense of entrapment should be made in the criminal case against the person making the sale. Permit holders should not wait until the Liquor Commission case to argue entrapment, because it is not clear that entrapment is available as a defense in the administrative hearing.

Further, the mere act of local law enforcement sending in an underage person to purchase alcoholic beverages is not enough to prove entrapment. The courts will view that as law enforcement merely providing an opportunity to make an illegal sale. Something more is needed. Perhaps if law enforcement provides the underage person with some form of false identification and the person shows the identification after it is requested, the defense may be established. However, each case will be decided on its own facts, remembering that the defense bears the burden to prove entrapment.

Permit holders and employees often feel they have been improperly set up by sting operations and they should not be found guilty in such situations. That, however, it not true. Permit holders should know when the defense of entrapment can be raised and what does and does not constitute entrapment. Of course, the best policy to avoid these issues altogether is to ask for identification at all times when in doubt and review the identification carefully to determine the purchaser’s age.

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

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