Age Verification and Affirmative Defense As every liquor permit holder in Ohio may be aware, underage sales of alcohol citations are the most common cases I observe before the Ohio Liquor Control Commission. Section 4301.69(A) of the Ohio Revised Code is where the prohibition is found in Ohio law. It is a strict liability offense, meaning, if the permit holder, an employee or agent sells alcohol to a person under 21, when proven, a violation of the law has occurred.
A charge under 4301.69(A) is subject to affirmative defenses under R.C. 4301.639, “Good Faith Acceptance of False Identification,” and R.C. 4301.611, “Transaction Scan as Affirmative Defense.” To establish an affirmative defense under R.C. 4301.639, the person selling the alcoholic beverage must establish that proper identification was presented at the time of sale, the identification was checked at the point-of-sale and that the seller had reason to believe that the person buying was then of legal age.
Acceptable forms of identification include:
- a driver’s or commercial driver’s license;
- an Ohio identification card;
- a military identification card issued by the United States Department of Defense;
- a U.S. or foreign passport; and
- an identification card issued by another state that is an equivalent to an Ohio identification card.
To establish an affirmative defense using a transactional scan device, the following must occur: 1) a transactional scan of the driver’s or commercial driver’s license or identification card that the card holder presented indicated that the license or card was valid; and 2) the alcoholic beverage was sold to the card holder in reasonable reliance upon the identification presented and the completed transaction scan.
In reviewing the application of this affirmative defense, it is recommended that: 1) transaction scan devices must be able to read a commercial driver’s license or identification card and display the age of the holder; 2) the transaction scan device should be used for the purchase of all alcoholic beverages, beer, wine and spirituous liquor; and 3) the transaction scan device should be at each operating register where all alcoholic beverages, beer, wine and spirituous liquor is sold.
It is always emphasized that whether or not you use an automatic reader/scanner device, it is critical that you and your employees compare the photo presented with the person seeking to make a purchase and refuse such a sale when the person and the photo do not appear to match. In interpreting R.C. 4301.639, the courts have held that identification must be checked at every point-of-sale.
Perhaps this is the most misunderstood element comprising the affirmative defense. The law requires, for example, if an individual was to purchase four alcoholic beverages, even when such sales occur in one night, the seller must check and recheck that purchaser’s identification during all four points-of-sale. When a permit holder only checks the identification holders conducting business on very busy nights, but the state of Ohio has a substantial interest in keeping alcohol out of the hands of persons under the age of 21. As such, the law requires that identification be checked at the time of purchase, i.e., when the alcoholic beverage is physically delivered to the prospective customer, each time a purchase is made. There are protections against underage sales of alcohol.
Law enforcement agencies are conducting compliance checks and sending underage informants into permit premises to enforce R.C. 4301.69. Generally, the underage informant will show their actual driver’s license if identification is requested by the seller. This is why it is so important to verify the date of birth on the identification. Therefore, it is imperative to properly instruct all employees to not only check identification, but also check to make certain the identification tendered confirms the purchaser’s age to be more than 21 years.
For more information, please contact: Dave Raber Partner at Lumpe, Raber, Evans 37 West Broad Street, Suite 1140 Columbus, Ohio 43215-4132 Office: 614.221.5212 Fax: 614.221.6944 firstname.lastname@example.org