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Affirmative Defense

Affirmative Defense

Affirmative Defense Depends On Several factors

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

Reprinted from Ohio Tavern News September 21, 2004 issue.

Permit holders know that the sale of alcoholic beverages to underaged people is both a crime and a liquor violation. Many permit holders believe that they have a complete defense to the charges if the underaged person is asked for and shows a false identification. This is true provided a number of conditions are met.

The law prohibiting sales to under-aged people imposes strict liability upon the person making the sale and the permit holder. Strict liability means that the mere fact of the sale renders the seller and the permit holder guilty. Many laws require that the person charged, to be found guilty, must have acted recklessly or knowingly, as those terms are defined by the law.

There is no such requirement for sale to underaged people. The state of Ohio does not have to prove knowing or reckless conduct for either the individual making the sale to be found guilty in criminal court or the permit holder to be found guilty before the Liquor Commission. Again, proof of the sale itself is all that is needed.

The burden of proof in a sale to underaged person charge rests with the state both in criminal court and before the Liquor Commission. In criminal court, the charge must be proven beyond a reason-able doubt. The burden of proof for a liquor violation before the Liquor Commission is preponderance of the evidence, which is considerably lower than beyond a reasonable doubt. Preponderance of evidence means that it is more likely than not that the offense occurred.

The law, however, does provide the seller and the permit holder a complete defense to a sales to underage person charge. The defense is available both in criminal court and before the Liquor Commission. The defense is called an affirmative defense, which means that the person asserting it bears the burden to establish the defense. The burden is by preponderance of the evidence.

For the defense to be successful, a number of factors must be present. First, the buyer of the alcoholic beverages must have presented, at the time of the sale, a valid Ohio driver's license or a state of Ohio identification card issued by the Ohio Bureau of Motor Vehicles showing that the buyer was at least 21 years old. Expired driver's licenses, college IDs, military IDs and other forms of ID are insufficient to utilize the defense.

Further, the ID must be shown at the time the sale is made. Many times, permit holders and their employees come to know their customers because they have provided ID in the past showing that they were over 21. After a number of checks, they no longer ask for ID.

The law, however, requires that ID be shown for the particular sale charged for there to be a defense. Being provided ID in the past can be significant mitigation of penalty both in criminal court and before the Liquor Commission, but it likely will not result in a not guilty finding.

Further, many on-premises permit holders have IDs checked at the door, with customers receiving some sort of hand stamp or bracelet to indicate their age. Bartenders and wait staff then rely upon the check at the door without asking for further ID. This also is insufficient to establish a defense. Identification must be viewed by the person making the sale at' the time of the sale. Otherwise, the defense will fail.

Next; in order to establish a defense, the seller checking the ID must make a bona fide effort to ascertain the true age of the buyer and compare the description on the ID with the appearance of the buyer. The seller should compare the photograph on the ID with the buyer's appearance. Height, weight, hair and eye color also should be checked.

Certainly, the seller does not have to guarantee the ID is that of the Buyer, but a bona fide effort must be made `o do so. This means that simply glancing at the ID for birthdate is not enough. The seller must make a reasonable effort to compare at least some of the identifying features of the buyer with the ID.

The seller also must check to be sure the ID has not been altered in any way. If the driver' license has scratch marks or any other suspicious look, then it should not be accepted.

Finally, a complete defense requires that the seller show that he had reason to believe that the buyer was at least 21 years old. If the ID shows the buyer to be 30 years old when it is obvious from his appearance the buyer is considerably younger, then no sale should be made. The defense cannot be utilized if it is obvious that the buyer is not the age listed on the ID, even if many of the other physical characteristics match. There must be legitimate reason to believe the buyer is of age.

Sale to underaged people is a serious charge, both criminally and before the Liquor Commission. Permit holders and their employees must ask for ID whenever there is any question as to the buyer's true age. There is no room for guesswork.

Further, when ID is provided, it is incumbent upon the seller to make a reasonable effort to ensure that the ID is that of the buyer and the buyer is of age.

Without satisfying all of the law's requirements concerning a defense to the charge, the seller and permit holder will have no defense.



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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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