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AB 1128: The “Serve a Minor” Felony Penalty Bill, or How to Lose a Winery in One Sale

by John Hinman 05.20.13


Welcome to your worst nightmare: You serve a customer at a winery tasting room (or at a party at a winery) who turns out to be younger than 21, and who later gets into an accident or commits a crime like assault where alcohol is a factor and you end up with a felony, which bars you from the wine industry for the foreseeable future. AB 1128 (currently on a fast track to pass through the California legislature) amends Business & Professions (“B&P”) Code Sec. 25658 and ups the potential penalty for sales to a minor (from a misdemeanor to a felony) when the minor causes an injury, death or damage to others.

Civil damages for selling or furnishing alcohol to a minor who gets into an accident or causes harm is already part of the law and the potential consequences of a current incident include license revocation for a licensee (Sections 25602 and 25602.1).

The hidden cost of this statute will be paid by business owners (restaurants, convenience stores and, yes, wineries) who (knowingly or otherwise) serve or sell wine to customers who present false ID or who appear to be over the age of 21. Once an individual has a felony on their record they are pretty much forever after barred from being an alcoholic beverage licensee, or an officer, director or shareholder of a corporate licensee.  Proving rehabilitation is possible, but typically not for at least a decade or more afterwards (if then). AB 1128 is more than license suspension or revocation; it’s a death penalty for individual and corporate alcoholic beverage licensees.

And yes, corporations can commit crimes (to quote Mitt Romney “corporations are people, my friend” and the AB 1128 statute applies to “every person”). See also Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).  The application of this penalty statute to corporate entities is easy to imagine (does anyone remember Arthur Anderson LLP or Enron Corporation?); especially in a situation where the damage caused by the minor is extraordinary (for example, a few months ago at a Temecula winery, there were reports of a drunken brawl involving a group of young people that resulted in numerous injuries – what if one of the young people had been under 21 and one of them was seriously hurt?).

What really happens today is that the under 21 crowd have really good false identification available and use those fake IDs to drink or buy alcohol at a tasting room or restaurant or to buy alcohol from a liquor store.  Then, when they get caught drunk driving or are involved in an accident or another crime, they show their real identification and ditch the fake ID (because using false identification is a crime also). It becomes their word against the word of the server, clerk, winery employee or winery owner serving wine as to whether or not B&P Code Section 25660 (reliance upon bona fide proof of ID) was satisfied.  Usually it isn’t satisfied because of a lack of proof, lack of availability of the fake ID or minor differences between the ID and the person presenting it (ID defense cases have been lost over eye and hair color, and minor weight or height differences).

We tried a case like this in 2005 involving a girl who was four months shy of 21 and using her sister’s ID at a well-known establishment in wine country.  It was a tragic case.  She crashed into a guardrail at 2:30 AM on a foggy night and died.  She had had two drinks (the last one at 10 pm); the accident was the result of speed and fog, not alcohol (which we had to prove).  We prevailed on behalf of the venue after a very contentious and extended trial but we had to face testimony from the older sister and her parents that the victim couldn’t have been using the false ID: it was a swearing contest against the venue owners and everyone in the establishment on the night in question.  If the AB 1128 felony penalty rule had been in place in that case, the matter would have escalated to the Superior Court and the owners could have faced jail time and could have permanently lost their business.  It is cases like this that make us shudder at the implications of AB 1128.

Now consider the retailer exception to AB 1128 that requires a retailer to KNOW that the minor is under the age of 21 in order to face a felony penalty.  This predicate defense, by the way, is NOT available to wineries, who are not retailers.

Has anyone out there ever given a glass of wine to a 20-year-old, married to someone older? Imagine an accident or an incident later in the day or evening.   If AB 1128 passes, conduct that occurs every day in wine country, but on one unlucky day is followed by an accident or an injury, could result in the potential loss of the winery or the business.

And consider further the young person over 21 dating and sharing a bottle of wine with an 18, 19 or 20-year-old; whether in a tasting room, at a restaurant or at home. That young person over 21 would also be liable for a felony in the event of an accident, crime or similar tragedy involving alcohol. The lives that would be ruined would be those caught up in tragic situations; without regard to intent or actual causation.  Suddenly we are exposing young people to jail and potentially marking them for life as felons for drinking with their friends anywhere (because this doesn’t just involve venues). These incidents are tragic enough and carry enough consequences without convicting everyone involved in the party of a felony for “furnishing alcohol”.

Is this going to stop those younger than 21 from drinking?  No way. This is a really bad bill that should be vigorously opposed by every thinking parent and by every licensee in the state.

Showing 15 comments

  1. W.W. Vira

    What these under-agers need to do is make their own beer and wine at home. It’s easy enough for any fairly bright 15 or 16 year old to do. Stop giving legislators excuses for creating enforcement jobs we cannot afford.

  2. Scott McIntosh

    You can’t make stuff up. Just when you think you heard everything. NTSB recommendation of lowering DUI from .08 to .05 is just as bad. Some low body mass persons may blow .05 with only one RESPONSIBLE full wine glass. I believe our Federal government is out of control. Now California is in the race to the bottom.

  3. Ricardo D Ullrich

    I oppose the bill.

  4. Jon

    Ludicrous legislation! Still more UNENFORCEABLE laws…..
    While it’s a really bad idea for them to do so……it’s a FACT that kids in MIDDLE SCHOOL are drinking. Punishing ANYONE…& EVERYONE….(friends, entities, siblings etc….) is NOT going to stop it… Such legislation will simply work still more hardship upon bars, restaurants, wineries, parents, older siblings etc…

    RAISE YOUR KIDS the RIGHT WAY….and just hope and pray that the admonitions “TAKE”……while KNOWING full well that peer pressure is formidable “foe”!

  5. Rick Bolen

    Who is sponsoring this bill? This is very bad for the wine, beer and spirits business.

  6. Mark Brown

    This is way over the top. As a server at a winery, this scares me, particularly that it penalizes someone even if they are following the law but presented with a passable fake ID.

  7. Noah James

    This forces a militant and strict protocol onto an otherwise relaxed, fun, and enjoyable atmosphere at most wineries. The “easy” defense is for the policy to be: card everyone, period, in front of a video camera, and pass every ID under a camera or through a scanner. No he said/she said, no “couldn’t've been”s. Defense is available to those who put in the extra effort and time and equipment (those who can afford to spend all the money on effort, time, and equipment, and those willing to compromise their atmosphere).

    But that doesn’t make the legislation right. It seems that more and more bills are submitted that focus on problems that cost a disproportionate amount compared to the actual percentage of chance that the problem will occur.

    In my opinion, between 18 and 21, it’s the drinker’s fault. They are ADULTS, they KNOW BETTER, they DECIDE to break the law and obtain and drink alcohol. The person/people/business/organization/corporation/etc they fooled?: No fault.

    In the case of ACTUAL minors, people under 18, I find it highly unlikely that they could fool their way in, and might agree to some fault found with a proprietor there, on a case by case basis, but NOT felony level.

    I oppose bill AB 1128.

  8. Gordon Hill

    So we are going to make another 50% of Americans criminals?
    Think IRS and big government….

  9. Jason

    John, it would be helpful if you could provide ways for the public to lobby against this bill. Blog comments with LOTS OF CAPS and exclamation points don’t impact legislation!

  10. John Hinman

    The name supporters of the bill are the California Police Narcotics Association. The sponsor is an Assemblyman from Bakersfield whose friend got injured following a fraternity party.

  11. John Hinman

    The best way to lobby is to engage the winery trade associations; Family Winemakers, Wine Institute, Sonoma Vintners, Napa Valley Vintners, Monterey Vintners, Rhone Rangers, ZAP, etc. They need to be heard from and they haven’t been, at least according to the last information on the legislative website. The next best way is to write or email your Assemblyperson – copy the blog post if you want. This is a truly pernicious piece of proposed legislation.

  12. Terroirist: A Daily Wine Blog » Daily Wine News: Juice Box Wine

    [...] On BeverageLaw.com, John Hinman explains how a California proposal could shut down a small winery after one sale to an underage drinker.  [...]

  13. Gerald Peterson

    As a winery owner, I believe the solution I want is to set up an easy automated scan of the ID for anyone looking under age. This becomes an electronic part of the sales transaction record in my software. This should provide proof that we checked the ID and a picture in the case that they cause trouble using a different ID. Pictures can be altered so maybe it will not stand up in court ?? Maybe there is some way to add security to the scan making it stronger evidence ??

  14. Jason

    I wrote to my Assemblyman last week about this and just received this response:

    “In the text of the bill, there is an exception to the felony charge. Employees of an alcohol licensee are exempt from the felony charge unless the employee knew the minor and sold them alcohol knowing that they were under 21 years of age.

    This bill seeks to change current law stating that selling, purchasing on behalf of, or giving alcohol to a minor is punishable by a misdemeanor charge. The bill changes that to a felony charge but excludes the above.”

  15. John Hinman

    Jason,

    Write your Assemblyman back and tell him that is not the way the bill is phrased. The actual sentence reads “This bill would provide for an exception from felony prosecution for a retail employee of a licensee, unless the retail employee knew the person to whom the alcoholic beverage was sold was under 21 years of age.” A “retail employee” (the subject of the sentence) is the employee of a retailer. A winery is not a retailer. Besides, how do you establish knowledge that a person is under the age of 21? Looking at an ID? People misread ID’s all the time. This doesn’t help. Rather it makes it worse by requiring knowledge from only one class of person (employees of retailers) thus implicitly not requiring knowledge from any other class of person (like individuals at a party, people serving at winery dinners, etc.). This bill also just passed out of the Assembly so the threat is real.

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