Revised 01/08

MINOR DECOY PROGRAM Procedure Manual for Law Enforcement

CALIFORNIA

ALCOHOLIC BEVERAGE CONTROL

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FOREWORD

This procedure manual has been prepared by the California Alcoholic Beverage Control (ABC) for use by local law enforcement officers as an easy-to-use guide for Minor Decoy Operations. This is merely a guide and is not intended to supersede local law enforcement agency policies. This manual provides recommendations on how to implement a Minor Decoy Program, from identifying resources to evaluating the program’s success. It is ABC’s hope that local law enforcement agencies will find this manual useful in complementing their existing enforcement efforts.

California Alcoholic Beverage Control

Published under a grant from the State of California’s Office of Traffic Safety

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INTRODUCTION

The Minor Decoy Program uses individuals, who are under the age of 20, to attempt to purchase alcoholic beverages at ABC licensed premises. If an individual sells to the minor decoy, the seller is issued a criminal citation. In addition, the ABC may file administrative disciplinary action against the licensee. The Minor Decoy Program has proven to be an effective tool, which law enforcement agencies have used to reduce the availability of alcoholic beverages to minors. The jurisdictions where Minor Decoy Operations have been utilized have documented significant improvements in licensee compliance with the law, as the chart below indicates.

Statewide Minor Decoy Activity Compliance Report

Sample Years _______________________________________________________________________

Fiscal

Year

Total

Visits

Total

Violations

Violation

Ratio

Compliance

Ratio

93-94 915 269 29.40% 70.60%

94-95 2,993 765 25.56% 74.44%

95-96 5,915 1,332 22.52% 77.48%

96-97 3,101 630 20.32% 79.68%

98-99 6,822 1,396 20.46% 79.54%

99-00 5,452 1,036 19.00% 81.00%

00-01 4,355 836 19.20% 80.80%

01-02 4,225 941 22.27% 77.73%

02-03 4,262 860 20.18% 79.82%

03-04 4,301 886 20.60% 79.40%

04-05 6,267 1,130 18.06% 81.97%

05-06 8,427 1,338 15.88% 84.12%

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SECTION 25658 BUSINESS & PROFESSIONS CODE

25658. (a) Except as otherwise provided in subdivision (c), every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor. (b) Any person under the age of 21 years who purchases any alcoholic beverage, or any person under the age of 21 years who consumes any alcoholic beverage in any on-sale premises, is guilty of a misdemeanor. (c) Any person who violates subdivision (a) by purchasing any alcoholic beverage for, or furnishing, giving, or giving away any alcoholic beverage to, a person under the age of 21 years, and the person under the age of 21 years thereafter consumes the alcohol and thereby proximately causes great bodily injury or death to himself, herself, or any other person, is guilty of a misdemeanor. (d) Any on-sale licensee who knowingly permits a person under the age of 21 years to consume any alcoholic beverage in the on-sale premises, whether or not the licensee has knowledge that the person is under the age of 21 years, is guilty of a misdemeanor. (e) (1) Except as otherwise provided in paragraph (2) or (3), any person who violates this section shall be punished by a fine of two hundred fifty dollars ($250), no part of which shall be suspended, or the person shall be required to perform not less than 24 hours or more than 32 hours of community service during hours when the person is not employed and is not attending school, or a combination of a fine and community service as determined by the court. A second or subsequent violation of subdivision (b) shall be punished by a fine of not more than five hundred dollars ($500), or the person shall be required to perform not less than 36 hours or more than 48 hours of community service during hours when the person is not employed and is not attending school, or a combination of a fine and community service as determined by the court. It is the intent of the Legislature that the community service requirements prescribed in this section require service at an alcohol or drug treatment program or facility or at a county coroner's office, if available, in the area where the violation occurred or where the person resides. (2) Except as provided in paragraph (3), any person who violates subdivision (a) by furnishing an alcoholic beverage, or causing an alcoholic beverage to be furnished, to a minor shall be punished by a fine of one thousand dollars ($1,000), no part of which shall be suspended, and the person shall be required to perform not less than 24 hours of community service during hours when the person is not employed and is not attending school. (3) Any person who violates subdivision (c) shall be punished by imprisonment in a county jail for a minimum term of six months not to exceed one year, by a fine of one thousand dollars ($1,000), or by both imprisonment and fine. (f) Persons under the age of 21 years may be used by peace officers in the enforcement of this section to apprehend licensees, or employees or agents of

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licensees, or other persons who sell or furnish alcoholic beverages to minors. Notwithstanding subdivision (b), any person under the age of 21 years who purchases or attempts to purchase any alcoholic beverage while under the direction of a peace officer is immune from prosecution for that purchase or attempt to purchase an alcoholic beverage. Guidelines with respect to the use of persons under the age of 21 years as decoys shall be adopted and published by the department in accordance with the rulemaking portion of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). Law enforcement-initiated minor decoy programs in operation prior to the effective date of regulatory guidelines adopted by the department shall be authorized as long as the minor decoy displays to the seller of alcoholic beverages the appearance of a person under the age of 21 years. This subdivision shall not be construed to prevent the department from taking disciplinary action against a licensee who sells alcoholic beverages to a minor decoy prior to the department's final adoption of regulatory guidelines. After the completion of every minor decoy program performed under this subdivision, the law enforcement agency using the decoy shall notify licensees within 72 hours of the results of the program. When the use of a minor decoy results in the issuance of a citation, the notification required shall be given to licensees and the department within 72 hours of the issuance of the citation. A law enforcement agency may comply with this requirement by leaving a written notice at the licensed premises addressed to the licensee, or by mailing a notice addressed to the licensee. (g) The penalties imposed by this section do not preclude prosecution or the imposition of penalties under any other provision of law, including, but not limited to, Section 272 of the Penal Code and Section 13202.5 of the Vehicle Code.

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TITLE 4, CALIFORNIA CODE OF REGULATIONS SECTION 141 (RULE 141) 141. MINOR DECOY REQUIREMENTS.

a) A law enforcement agency may only use a person under the age of 21 years to attempt to purchase alcoholic beverages to apprehend licensees, or employees or agents of licensees who sell alcoholic beverages to minors (persons under the age of 21) and to reduce sales of alcoholic beverages to minors in a fashion that promotes fairness.

b) The following minimum standards shall apply to actions filed pursuant to Business and Professions Code Section 25658 in which it is alleged that a minor decoy has purchased an alcoholic beverage:

(1) At the time of the operation, the decoy shall be less than 20 years of age;

(2) The decoy shall display the appearance which could generally be expected of a person under 21 years of age, under the actual circumstances presented to the seller of alcoholic beverages at the time of the alleged offense;

(3) A decoy shall either carry his or her own identification showing the decoy's correct date of birth or shall carry no identification; a decoy who carries identification shall present it upon request to any seller of alcoholic beverages;

(4) A decoy shall answer truthfully any questions about his or her age;

(5) Following any completed sale, but not later than the time a citation, if any, is issued, the peace officer directing the decoy shall make a reasonable attempt to enter the licensed premises and have the minor decoy who purchased alcoholic beverages make a face to face identification of the alleged seller of the alcoholic beverages.

Failure to comply with this rule shall be a defense to any action brought pursuant to Business and Professions Code Section 25658.1

1 For administrative prosecution strict adherence to Rule 141 is required. Rule 141 does not apply to criminal prosecutions (People v. Figueroa (1999) 68 Cal. App. 4th 1409).

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SELECTION OF DECOY The following standards are recommended when selecting a minor decoy for Minor Decoy Operations. Both physical and non-physical (demeanor) characteristics should be considered when selecting a decoy. It is recommended that you work closely with your local ABC office in selection of decoys.

1. Age of Decoy: The decoy must be under the age of twenty (20) on the date of the operation.

2. Appearance of Decoy: The decoy shall display the appearance

which could generally be expected of a person under twenty-one (21) years of age.

Males:

• No facial hair • Avoid individuals who are large in stature • Dress appropriate for age • Do not wear hats or sunglasses • Avoid decoys who are balding, have a receding hairline, or have really

short hair

• Hair should not obscure facial features • Tattoos and/or body piercing should not be visible • No clothing with college or alcohol verbiage/logos • No or minimal jewelry

Females:

• No or minimal makeup • Dress appropriately for age • Avoid provocative clothing • Do not wear hats or sunglasses • No or minimal jewelry • Avoid individuals who are large in stature • Hair should not obscure facial features • Tattoos and/or body piercing should not be visible • No clothing with college or alcohol verbiage/logos

3. Witnesses: The decoy must be willing and able to testify at criminal proceedings and administrative hearings (Section 25666 B&P). Formal attire at hearings, such as an explorer or cadet uniform, may make the minor appear to be older and therefore should be avoided.

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If possible, decoy should wear the same clothes worn during the operation.

4. Criminal History: To assist in a successful criminal and

administrative prosecution, the decoy should be screened to ensure they have never purchased or illegally possessed alcoholic beverages and/or used, possessed, or purchased false identification.

SELECTION OF PREMISES It is recommended that the selection of premises to be visited during an operation be based upon the following general criteria.

• City/County or local area wide operation • Complaint • Areas with a disproportionate amount of alcohol related problems • A location should not be singled out or the subject of multiple decoy

operations in a short period of time unless the circumstances are warranted.

DECOY OPERATION

1. Decoy Safety:

Take every precaution to keep the decoys personal information confidential. Any photographs showing the identification or drivers license should have the address obscured. The decoy’s contact information on police reports should be the reporting agency address. If circumstances warrant, the officer should enter the premises before the decoy. Every attempt should be made to keep the decoy under continuous observations when practical. Following a sale, the seller will often ask to see the minor’s Identification. If this is done, the minor’s address should be obscured (such as covering it with your finger).

2. Pre-Operation Considerations:

Prior to conducting any operation it is recommended that you check with your local city or county district attorney to determine whether they have any specific requirements.

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3. Briefing:

Prior to the operation, decoy and officers participating in the operation should be instructed on the requirements of Rule 141. In addition, safety procedures should be reviewed.

4. Personnel/Equipment:

Determine the personnel, equipment and materials required. Depending on operational objectives, a typical minor decoy operation normally runs between four to eight hours. In addition to the minor decoy, it is recommended that at least three officers are utilized, with one assigned to decoy safety. ABC resources are available to assist in joint task force operations.

Recommended Equipment:

Undercover vehicle Wireless voice transmitter Recording device Buy money Camera Evidence bags/labels

5. Decoy Identification:

If the decoy carries identification it shall be his/her true identification. It is recommended that if the decoy carries identification it should be state issued. A decoy who carries identification shall present it upon request to any seller of alcoholic beverages. The officer should verify, prior to the operation, the decoy is only carrying his or her valid identification and the buy money.

6. Decoy Conduct:

A decoy shall answer truthfully any questions about his or her age. The decoy should keep conservation to a minimum. If the decoy is asked any age related questions, the decoy must answer the question verbally rather than merely handing over his or her identification. The decoy only has to be truthful about his or her age, (e.g., the decoy need not be truthful about whether he/she is a decoy).

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7. Decoy Purchase:

a. Off-Sale: Instruct the decoy to enter the premises and select a nationally recognized brand of alcoholic beverage and take it to the counter. Obscure brands of alcohol should be avoided, whenever possible.

b. On-Sale: If the operation is being conducted in an on-sale premises (i.e.

bar or restaurant), the decoy should sit in an area of high visibility and away from the company of any undercover officers and, if possible, away from other customers. The decoy should not enter with or interact with any law enforcement personnel or other adult patrons. The decoy should place his or her order. It is recommended the decoy order a bottle of nationally recognized beer. If the decoy orders any other alcoholic beverage the decoy should observe the pouring of the product, if possible. If ordering a mixed drink, the decoy should request it by the spirits used rather than fancy names or brand names (e.g., vodka and OJ vs. screwdriver; or bourbon and coke vs. Jack and coke).

The decoy must not consume the alcoholic beverage.

8. Post-Sale Procedure:

a. Off-Sale: If the decoy purchases alcohol, the decoy should immediately exit the premises with the alcoholic beverage. The officer should verify the purchase was an alcoholic beverage and re-enter the premises with the decoy.

b. On-Sale: If the decoy purchases alcohol, the decoy should wait at the

table or bar for officers to approach. Officers should seize the alcoholic beverage and obtain a sample as evidence if required by your department procedures. A photograph of the alcohol will suffice for ABC administrative proceedings.

9. Face-to-Face Identification:

Rule 141 requires:

Following any completed sale, but not later than the time a citation, if any is issued, the peace officer directing the decoy shall make a reasonable attempt to enter the licensed premises and have the minor decoy who purchased alcoholic beverages to make face-to-face identification of the alleged seller of the alcoholic beverages.

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The officer should ask the minor, in the presence of the clerk, “Who sold you the alcoholic beverage?” The minor decoy should answer the question while clearly identifying the seller. It is recommended that the seller be asked; “Do you understand you are being identified as the furnisher/seller of alcohol to this person?” The face to face should be conducted under circumstances where the seller/furnisher should be aware that they are being identified. A sample minor decoy report is attached as an example of how a face to

face identification should be stated in the report.

10. Photograph:

It is recommended that a color photograph be taken of the decoy holding the alcoholic beverage and identification (if used). If possible, this photograph should be taken with the decoy standing next to the seller/furnisher. If this is not possible, a separate photograph of the seller/furnisher should be taken.

• The photograph should clearly show the brand of alcoholic beverage purchased or obtained (if possible).

• If the decoy is holding his/her identification, precaution should be taken to obscure his/her address.

11. Evidence:

The following items may have evidentiary value to the case but are not required for a successful administrative prosecution.

• Surveillance video from licensed establishment • Transaction receipt

All evidence must be maintained until both the criminal and administrative cases are adjudicated.

12. Citation:

After the face to face identification has occurred, the seller/furnisher should be issued a citation for violation of Section 25658(a) of the Business and Professions Code, sale of alcoholic beverages to a minor.

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13. Return of Alcoholic Beverage:

The ABC does not require that the alcoholic beverage be maintained in evidence. The unopened alcoholic beverage and the change from the transaction may be returned to the business in exchange for the buy money. You should check with your local prosecutor to determine if they have any different or additional requirements.

14. Notification:

Within 72 hours following the completion of the Minor Decoy operation, the conducting agency should notify all licensees whose premises were visited of the results of the operation (Section 25658(f) of the Business and Professions Code). A sample of ABC’s notification letter is attached.

15. Report:

To ensure timely administrative action by ABC, the following information should be provided in the police report:

• Compliance with Rule 141. • Was age or identification requested by the seller/furnisher? • What type of alcoholic beverage was furnished to or purchased by the

decoy?

• A detailed description of the face to face identification. • Any spontaneous statements made by the seller/furnisher. • Any unusual circumstances (e.g. low lighting, patron activity). • Color photograph (three copies) of the decoy holding the alcoholic

beverage and identification (if used).

It is recommended that a list of the premises visited during the operation be maintained. That list should include the number of on and off-sale locations visited and the number of locations that sold alcoholic beverages to the decoy. A sample of the ABC-338 is attached for reference*. * Required for Minor Decoy Grant.

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Frequently Asked Questions

Question 1: Is it legal to use an underage decoy during minor decoy

operations? Answer: Yes. In 1994, the California Supreme Court ruled that the use of

underage decoys to enforce laws against unlawful sales to minors was legal.

(Provigo Corp. v. Alcoholic Beverage Control Appeals Board (1994) 7 Cal. App. 4

th 561)

Question 2: Does Rule 141 apply to criminal proceedings? Answer: No. Rule 141 applies only to ABC administrative proceedings.

Failure to comply with Rule 141 is not a defense in criminal prosecution. (People v. Figueroa (1999) 68 Cal. App. 4

th 1409)

Question 3: Does the evidence need to be available for the Administrative Hearing?

Answer: Yes. The evidence should be available at both the criminal and

administrative proceedings Question 4: Does it matter if the face-to-face identification takes place inside

the premises or outside the premises? Answer: No. The Court of Appeal has ruled that the face-to-face

identifications are not required to take place inside the premises. (Department of Alcoholic Beverage Control v. Alcoholic Beverage

Control Appeals Board (7-Eleven Inc.) (2003) 190 Cal. App. 4th

1687)

Questions 5: Does failure to comply with the face-to-face requirement of Rule 141 provide a defense to a sale of alcoholic beverages to a minor decoy?

Answer: Yes. However, extenuating circumstances that preclude such

action may alleviate the need to conduct the face-to-face

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identification. Such circumstances should be detailed in the police report.

Question 6: Can officers interact with decoys during the purchase of the

alcoholic beverages? Answer: No. The involvement of an officer, during the purchase phase of

the operation, may make the decoy operation unfair.

Question 7: Can the minor purchase items, in addition to the beer, during the transaction?

Answer: It is not recommended unless circumstances require it. The

purchase of other items may lead the licensee to claim confusion or distraction.

Question 8: Are there restrictions on what time of day a Minor Decoy

Operation may be conducted? Answer: No. However, if there is unusually high patron activity for the

location or time of day, it may be found that the operation was unfair.

Question 9: May multiple decoys be used during Minor Decoy Operations? Answer: It is not recommended. However, if multiple decoys are used it is

recommended that only one of the decoys conduct the transaction and they should not interact with each other during the transaction as this may lead to claims of confusion or distraction. If both decoys conduct transactions, the report should reflect all relevant information as to each decoy.

Question 10: If the clerk asks the decoy for his/her age, does the decoy have to

be truthful?

Answer: Yes.

Question 11: Will the decoy be required to appear at the ABC administrative

hearing?

Answer: Yes. Business & Professions Code 25666 requires the ABC to produce the minor at the administrative hearing. Failure to comply will generally result in dismissal of the disciplinary action.

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Question 12: Does the officer have to be inside the premise during the time of the transaction?

Answer: It is not required. However, it is often helpful to have an officer

testify as to his/her observations of the transaction. Also, consideration should be given to decoy safety.

Question 13: Does the decoy have to pay for the alcohol for there to be a

violation? Answer: No. Although no “sale” may have occurred, it remains a

“furnishing” violation. Question 14: What happens if multiple employees are involved in the

transaction? Answer: Citations may be issued to all employees involved in the

transaction. For administrative purposes, multiple employee involvement offers no defense.

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SAMPLE OF AN OFF-SALE REPORT ATTACHMENTS:

1. Evidence Report (ABC-320). 2. Digital photograph of John DOE (minor decoy) and Steve SMITH (clerk). 3. Copy of California Drivers License issued to John DOE.

CIRCUMSTANCES / INVESTIGATION:

On July 9, 2007, Investigator Brown and I (Investigator Jones) conducted a minor decoy operation in the City of Sacramento. We were dressed in plain clothes and working in an undercover capacity. Prior to the operation, minor decoy John DOE (18 years old) was briefed on Rule 141 of the California Code of Regulations. DOE had an appearance commonly expected of a person his age. DOE was instructed to answer all age related questions truthfully and to show his drivers license if asked for identification. Printed on DOE’s drivers license in a bold red stripe was the following statement: “Age 21 in 2010”. DOE was provided with a ten dollar bill which was to be used if a sale of alcoholic beverages occurred. At approximately 2100 hours, DOE entered ABC Liquor Store located at 333 Liquor Ave in Sacramento. I (Investigator Jones) followed DOE inside the store and stood approximately 10’ from the register counter. DOE walked to the refrigerated coolers and selected a 40 oz bottle of Bud Light beer. He then walked to the register counter and placed the beer onto the counter. The clerk, later identified as Steve SMITH, was standing behind the counter. SMITH registered the beer and did not ask for DOE’s age or identification. DOE handed SMITH the ten dollar bill as payment for the beer. SMITH handed DOE his change ($7.38) and placed the beer into a bag. DOE removed the beer from the counter and exited the store. I contacted DOE and confirmed that a sale had taken place. Investigator Brown and I entered the store with DOE. I contacted SMITH and identified myself as a Department Investigator. I asked DOE to identify the person who sold him the alcoholic beverage. DOE pointed at SMITH and stated, “He sold me the beer”. At this time, SMITH and DOE were standing approximately 3 feet apart and were facing each other. I informed SMITH that he sold an alcoholic beverage to an 18 year old minor decoy and asked him if he understood he was being identified as the seller. SMITH responded, “Yes”. I took a digital photograph of DOE holding the beer while standing next to SMITH.

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SMITH was issued citation #68876 for violating Section 25658(a) of the Business and Professions Code; selling an alcoholic beverage to a minor. SMITH was then released on his written promise to appear. The beer and change were given back to SMITH in exchange for the ten dollar bill that was removed from the register. We concluded our investigation and left the scene at approximately 2130 hours.

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SAMPLE OF AN ON-SALE REPORT

ATTACHMENTS:

1. Evidence Report (ABC-320). 2. Digital photograph of John DOE (minor decoy) and Sally SMITH (bartender). 3. Copy of California Drivers License issued to John DOE.

CIRCUMSTANCES/INVESTIGATIONS:

On July 9, 2007, Investigator Brown and I (Investigator Jones) conducted a minor decoy operation in the City of Sacramento. We were dressed in plain clothes and working in an undercover capacity. Prior to the operation, minor decoy John DOE (18 years old) was briefed on Rule 141 of the California Code of Regulations. DOE had an appearance commonly expected of a person his age. DOE was instructed to answer all age related questions truthfully and to show his drivers license if asked for identification. Printed on DOE’s drivers license in a bold red stripe was the following statement: “Age 21 in 2010”. DOE was provided with a five dollar bill which was to be used if a sale of alcoholic beverage occurred. At approximately 1850 hours, I entered the ABC Lounge located at 333 Liquor Drive in Sacramento. I sat at the bar and ordered a beer. A few minutes later DOE walked into the premises and seated himself at the bar. DOE ordered a Bud Light beer from the bartender. The bartender, later identified as Sally SMITH, retrieved a 12 oz. bottle of Bud Light from the cooler, opened it, and placed it on the counter. DOE handed SMITH the five dollar bill as payment for the beer and was given change ($1.50) in return. At no time did SMITH ask for DOE’s age or identification. I contacted DOE and confirmed that he had purchased the beer. I then took the beer and change from DOE. Moments later, I contacted SMITH and identified myself as a Department Investigator. I asked DOE to identify the person who sold him the alcoholic beverage. DOE pointed at SMITH and stated, “She sold me the beer”. At this time, DOE was standing approximately 3 feet away from SMITH and they were facing each other. I informed SMITH that she sold an alcoholic beverage to an 18 year old minor decoy and asked her if she understood she was being identified as the seller. SMITH responded, “Yes”. I took a digital photo of SMITH standing next to DOE who was holding the 12 oz bottle of Bud Light beer. The five dollar bill was recovered from the cash register, and the beer and change were returned to SMITH.

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SMITH was issued citation #68876 for violating Section 25658(a) of the Business and Professions Code; selling an alcoholic beverage to a minor. SMITH was released on her written promise to appear. We concluded our investigation and left the scene at approximately 1920 hours.

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SAMPLE UNSUCCESSFUL LETTER

Date: Jane DOE 333 Liquor Drive Sacramento, CA 95834 Re: License #41-123456 Dear Licensee,

On ________, the __________ conducted a minor decoy operation at various licensed establishments in your city. A decoy, under the age of 21, was sent into your establishment in an attempt to purchase an alcoholic beverage. Your establishment was unsuccessful in preventing this activity. The result of this action will lead to a criminal complaint filed against __________ with the District Attorney’s Office. In addition, the Department of Alcoholic Beverage Control may take administrative action against the licensee. Sincerely, Chief of Police

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SAMPLE SUCCESSFUL LETTER

Date: Jane DOE 333 Liquor Drive Sacramento, CA 95834 Re: License #41-123456 Dear Licensee,

On ________, the __________ conducted a minor decoy operation at various licensed establishments in your city. A decoy, under the age of 21, was sent into your establishment in an attempt to purchase an alcoholic beverage. Your establishment was successful in preventing this activity. Thank you for a job well done. Sincerely, Chief of Police

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