BILL ANALYSIS Date of Hearing: June 28, 1994 AB 3805 ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION Curtis R. Tucker, Jr., Chairman AB 3805 (Richter) - As Amended: June 23, 1994 SUBJECT Use of minors as decoys for purpose of enforcing the Alcoholic Beverage šControl Act. DIGEST Existing law prohibits alcoholic beverage licensees from selling any šalcoholic beverage to a person under 21 years of age. Licensees who šviolate this provision are subject to disciplinary action (fines, šsuspension, or revocation) by the Department of Alcoholic Beverages (ABC) šand the actual seller is subject to criminal prosecution. This bill provides that persons under the age of 21 years may be used by špeace officers in the enforcement of the law to apprehend retailers or štheir employees who sell alcoholic beverages to minors. Any minor used as ša decoy must display the appearance of a person under the age of 21 years. šGuidelines for the use of minors as decoys are to be developed by the ABC šin accordance with the rulemaking requirements of the Administrative šProcedure Act. The bill further stipulates that decoy programs and ABC šdisciplinary action may continue in the interim period between the šenactment of this legislation and the final adoption of ABC regulatory šguidelines. FISCAL EFFECT Unknown ABC administrative costs. COMMENTS 1) Background Since the early 1980's, many local police and sheriff departments have successfully used minors as decoys to determine if licensees are complying with the laws prohibiting sales of alcoholic beverages to minors. Problems associated with the consumption of alcoholic beverages by juveniles are well documented. Many argue that because alcohol use is the common thread running through juvenile delinquency and crime, date rape, unwanted pregnancies, traffic accidents, and teen suicide, rigorous enforcement at the point of sale is imperative. 2) Supreme Court Decision The California Supreme Court recently affirmed in an unanimous decision the authority of the ABC and local law enforcement agencies to use minors AB 3805 as decoys for purpose of enforcing the law pertaining to the illegal sale š of alcoholic beverages to minors (Provigo Corporation v. Alcoholic Beverage Control Appeals Board). The court reversed a court of appeal decision which had held that it was improper to infer a "decoy exception" from the clear and unambiguous language of the constitutional prohibition on purchases by minors. The Supreme Court determined that in construing the constitution the courts should not be limited to a strict and literal interpretation of its words and instead may seek a practical, common sense construction consistent with the probable intent of the framers, who in this case vested in the ABC the broad discretion to revoke or suspend liquor licenses for good cause if continuing the license would be contrary to public welfare or morals. The court went on to state that the use of underage decoys to enforce laws against unlawful sales to minors clearly promotes rather than hinders the purpose and enforcement of the Act. Moreover, the court held that as a general rule, the use of decoys to expose illicit activity does not constitute entrapment, so long as no pressure or overbearing conduct is employed by the decoy. The seller may readily protect itself by requiring sales agents to routinely check identification and would appear to be no more burdensome than similar routine checks required when a prospective purchaser offers to pay in check or credit card. The court concluded that licensees have a ready means of protecting themselves from liability by simply asking any purchaser who could possible be underage to produce bona fide evidence of their age and identity. 3) Support Supporters note that decoy programs should operate under uniform guidelines and argue that such efforts would not unduly restrict the use of minor decoys by law enforcement agencies. They claim that police departments have used male decoys 6'4" tall with beards, thus placing retailers and their employees in unfair situations. As a result, several employees have lost their jobs and have been saddled with criminal records. Alcoholic beverage retailers additionally argue that the adoption of an ABC guideline rule would provide certainty, would give everyone, law enforcement agencies and licensees alike, input into the process and would allow for on-going flexibility through the rule amendment process. 4) Opposition Local governments, police departments, and community groups, armed with - continued - AB 3805 Page 2 AB 3805 a favorable supreme court decision, believe they should be able to continue to operate decoy programs unburdened by statutory or regulatory guidelines concerning methods of operation. 5) Current ABC Guidelines The ABC developed voluntary guidelines to advise local agencies the general criterion it would use to determine if a decoy program was fair and whether the ABC would exercise its prosecutorial discretion in administratively disciplining licensees. The ABC Appeals Board has ruled that these guidelines are neither law nor enforceable rule. As noted, the ABC takes into account in the exercise of its prosecutorial discretion whether or not the guidelines were adhered to by the law enforcement agency conducting the decoy operation. Briefly, the guidelines recommend law enforcement agencies notify all licensees of a prospective decoy program either via mail or using the local press; the decoy should be 18 or 19 years of age and have the general appearance, mannerisms and dress of a person well under 21 years of age; suggest that an investigator from the ABC view the decoy prior to the operation and that a photograph be taken; avoid calling on any location during rush hour; and, have the decoy under the constant surveillance of an officer. 6) Other Legislation AB 463 (Tucker), pending consideration in the Senate Governmental Organization Committee, would likewise direct the ABC to develop rules for the use of minors as decoys. Date of Hearing: June 28, 1994 SUPPORT Ridge Winery Spuntino Kunde Estate Winery Dry Creek Vineyard Marin Operating, Inc. Handley Cellars Arrowood Vineyards and Winery Stars Of The Vine Renaissance Vineyard & Winery, Inc. Longs Drug Stores California, Inc. Spiedini CIAO Ristorante Cha Cha Cha Guaymas Restaurant ZD Wines Stuart Anderson's Restaurants Pozole Restaurant Buena Vista Carneros Winery George Wiley AB 3805 445-3451 Page 3 ago AB 3805 Sam's Anchor Cafe Leeward Winery Scolari's Warehouse Markets Quik Stop Markets, Inc. Calera Wine Company Ralphs Grocery Company Family Winemakers of California Miller Brewing Company Spottswoode Vineyard & Winery Talley Vineyards Hop Kiln Winery at Griffin Vineyard Hinman & Carmichael, Attorneys at Law Northern California Grocers Association St. Supery Vineyards and Winery California Restaurant Association Hennessy's Wines & Spirits McDowell Valley Vineyards J. Fritz Winery Stump's Markets Kendall-Jackson Winery Simi Winery California Retailers Association Safeway Inc. Top Valu Markets Raleys Mazzocco Vineyards Creston Vineyards The Vons Companies, Inc. California Beverage Merchants Association Sierra Vista Winery American Stores Company Southland Corporation Landmark Vineyards Murphy-Goode Estate Winery Newlan Vineyards & Winery California Grocers Association David Bruce Winery MacArthur Park Restaurant Harry's Bar and American Grill Prego Ristorante Ristorante Chianti Tutto Mare Clos Pegase Chateau Montelena Matanzas Creek Winery Wente Bros. Turnbull Wine Cellars Westward Ho Markets Quik Stop Markets, Inc. Hughes Markets AB 3805 AB 3805 California Small Brewers Association Mendocino Brewing Company Beaucanon Winery Hodge Food Services, Inc. Stag's Leap Wine Cellars Bonfare Markets Spoons Restaurants Wild Horse Winery & Vineyards deLormier Winery Clos du Bois Wines Mayacamas Vineyards OPPOSITION Department of Alcoholic Beverage Control Peace Officers Research Association of California League of California Cities California Association of State Investigators Independent Cities Association West Los Angeles Alcohol Policy Coalition Los Angeles County Alcohol Policy Coalition Community Coalition for Substance Abuse Prevention and Treatment California Union of Safety Employees Coalition for Alcohol Responsibility and Enforcement Community Challenge Department of Bridge Focus Pacifica Police Department National Council on Alcoholism and Drug Dependence of East San Gabriel & Pomona Valleys Fullerton Police Department City of Stockton Berkeley City Council City of Sacramento City of Seal Beach City of Laguna Beach City of Vista City of Buena Park City of Santa Maria City of Novato City of Placentia City of Costa Mesa City of Morgan Hill City of El Cajon City of El Segundo City of Modesto City of Poway City of Bell Gardens City of Huron City of Manhattan Beach City of Irvine City of San Jose City of National City Police Department AB 3805 AB 3805 City of Los Angeles City of Santa Barbara City of Rosemead AB 3805