Bartender fooled by false ID gets busted
By Cole Boehler
We came across an interesting court case recently.
Seems a conscientious licensee, who is rigorous about carding and who religiously sends his staff to server training classes including TIPS and RASS, was cited for serving a minor, his first such offense.
The licensee's bouncers and wait staff had carded the young lady on several occasions whereas she presented what appeared to be a valid ID. After becoming familiar with this customer and her offered proof of age, in one instance she was allowed service without once again being carded.
However, the licensee came to find out the young woman was using a fake ID, so he called police to report her. The police interviewed the young lady and she admitted she had obtained service using a false ID, and subsequently had been served without being carded. The authorities then cited her for Minor In Possession (MIP), though she could have faced more serious charges associated with fusing a fake ID to attempt fraud.
Then the police/prosecutors offered to dismiss her charges if she would testify against the bartender who served her without carding her once again, on the occasion in question. She took the deal and the bartender was cited for serving a minor.
Since the young lady admitted to using a fake, the bartender and licensee decided to fight the charge and wound up in a jury trial. The bartender was convicted.
The licensing folks at the Department of Revenue have begun administrative proceedings against the license. They are bound to record the infraction as a strike against the license. Violations, in effect, put a licensee on probation; further strikes and the licensee faces suspension or revocation, either of which could result in the loss of the license and business.
We thought the outcome strange, so asked Montana Tavern Association attorney Mark Staples for his view.
Staples first acknowledged he was "not in possession of all the facts of the case," so qualified his response along those lines. But he did point out to us that the applicable portion of the statute (16-3-301) says:
(4) It is unlawful for any licensee, a licensee's employee, or any other person to sell, deliver, give away or cause or permit to be sold, delivered or given away any alcoholic beverage to
(a) any person under 21 years of age...
(5) Any person under 21 years of age or any other person who knowingly misrepresents the person's qualifications for the purpose of obtaining an alcoholic beverage, is subject to the penalty provided in 45-5-624...
(7) For purposes of 45-5-623 and this title, the establishment of the following facts by a person making a sale of alcoholic beverages to a person under the legal age constitutes prima facie evidence of innocence and a defense to a prosecution for sale of alcoholic beverages to a person under the legal age:
(a) the purchaser falsely represented and supported with documentary evidence that an ordinary and prudent person would accept that the purchaser was of legal age to purchase alcoholic beverages...
The statute seems clear: if an underage purchaser presents an ID that is fake, and that would fool a reasonable person, the licensee or staff should not, cannot, be convicted. Why and how the bartender in this case was convicted, leads one to wonder.
Staples did caution that a business that accepts an obvious fake, or one a reasonable person should have spotted, is not off the hook.
What is murky is this issue: having carded the young lady in question on numerous occasions to ascertain as best they could that she was of legal age, at what point may the licensee or his staff conclude that they have performed their due diligence and no longer need to card the person repeatedly?
The licensee in question immediately filed an appeal to District Court where we suspect and hope the charges will be dismissed, where the bartender will retain his clean record and not have to pay fines, and where the licensee will gain relief from state administrative action that would record and file a violation against the license.
The licensee offered this suggestion: that the statute be strengthened to increase penalties for committing this fraud against a licensed business. He suggested part of the penalty could be a suspension of a person's right to purchase, possess or consume alcohol, to perhaps age 22 for a first violation, age 23 for a second, and so on.
"When someone is caught poaching, his hunting rights are suspended. Why not suspend someone's alcohol rights for using a fraudulent ID?" he asked.
The licensee told us he had proposed such an idea to several under aged folks, and he said they replied they'd not risk that penalty and so wouldn't consider using a bogus ID.
That sounds like something worth serious thought.
We also know that in Alaska, and perhaps in other jurisdictions, minors who use a fake ID are statutorily subject to a civil suit by the licensee for up to $1,000 in damages for the attempted fraud. Alaska licensees told us they vigorously, as a matter of social and business policy, pursue these civil cases, and that the deterrent effect is substantial, especially as the parents may share some liability in certain circumstances.
We've argued all along that licensees are often more the victim when it comes to youth who are attempting to obtain alcohol illegally, and are clearly the victim of a fraud when presented with a fake. No one likes to be fooled, and that certainly includes bar owners.
With exceptionally advanced reproduction equipment—scanners, graphics programs and printers—readily available to anyone, the problem of quality phony IDs is likely to grow rather than diminish, unless the consequences for such fraud are increased to an extent they become a real deterrent.
Who perpetrates these crimes, after all? Right, the one using the fake ID.
It's axiomatic: the one who does the crime should do the time. If society is serious about reducing underage drinking, one way to do that would be to substantially increase the penalties for fraudulent attempts to purchase alcohol.