California Constitution, article XX, section 22, prohibits the sale of alcoholic beverages to persons under 21 years of age. It’s a misdemeanor to sell to anyone under 21. Some would argue if you’re old enough to drive, vote and fight for your country, you should be able to have a beer. I leave that for another day.

The Department of Alcoholic Beverage Control (ABC) uses minors, usually police cadets, in decoy operations to bust sales to minors. The practice was upheld by the California Supreme Court in 1993.

GARFIELD BEACH CVS

In 2013, 18-year old Joseph Childers entered a CVS store in Garfield Beach, pulled a 24-ounce bottle of beer from the cooler, and took it to the checkout line. Childers supposedly looked under the age of 21. He handed the clerk his driver’s license, which included: “PROVISIONAL UNTIL AGE 18 IN 2012.”

Notwithstanding, the clerk looked at the license twice then commented to Childers, “I would not have guessed it, you must get asked a lot.” ABC’s decoy Childers did not say anything in response. That became the crux of this case.

MINORS AS DECOYS

ABC’s minor decoys must meet certain standards to qualify as buyers of alcohol under the decoy program. The decoy must be under 20, must “display the appearance” of someone under age, must produce his or her own identification or carry no ID, and must “answer truthfully any questions about his or her age.” Three strikes of selling to minors in three years and the license is revoked.

The question in ABC v. Garfield Beach CVS was whether decoy Childers was asked a question, which he had to answer truthfully or whether the clerk’s comment about looking young amounted to a statement.

ABC argued the clerk’s comment “I would not have guessed it, you must get asked a lot” was a statement that Childers could ignore. CVS argued it was clear the clerk believed the decoy was 21 and he had a duty to correct the clerk’s misunderstanding. I myself believe the decoy’s silence was deceptive and misleading.

LICENSE SUSPENDED FOR 15 DAYS

ABC issued a 15-day suspension of CVS’s license, the ABC Appeals Board reversed the suspension pointing out that under the law decoys may only be used “in a fashion that promotes fairness.” ABC appealed to the Third Appellate District Court of Appeal in Sacramento, where the three-judge panel ruled against CVS in favor of ABC.

PORTER’S CONTRARY TAKE

I don’t like this decision. It’s clear by the clerk’s comment that she believed the decoy was 21, yet the decoy conveniently ignored the clerk’s remarks about his age. That does not meet the “promoting fairness” requirement of the decoy program.

I’ve handled a few of these cases over the years and my experience is that when ABC uses decoys, they often do so in a manner to trick the seller.

For example, in one case during a busy happy hour, an adult ordered two beers saying his friend was in the bathroom. The friend, who was the underage decoy, returned and sat down where his beer was already on the bar. The busy bartender failed to follow up and ask the minor to produce his ID.

In other cases, decoys were dressed up to look older. Doesn’t seem fair. On the other hand, the decoy’s driver’s license left no doubt he was not 21.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, Calif., and Reno, Nev. Jim’s practive areas include real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation, and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com. Like us on Facebook.