Can I See Some Id? Age Verification Requirements for the Online Liquor Store
| Citation | Vol. 4 No. 2 |
| Publication year | 1999 |
Corporate & Commercial
Cite as: Boris Reznikov,
©2007 Boris Reznikov
Abstract
Teenagers are starting to use the Internet to circumvent the ordinarily stringent restrictions on the sale of alcohol to underage individuals. Since states have always punished vendors for furnishing alcohol to minors, companies that choose to sell alcohol online must recognize that they could be criminally and civilly liable if they do not take reasonable precautions to ensure that minors do not obtain their product. This Article examines the steps online alcohol vendors might take in order to protect themselves from liability so that they can continue to run their ventures in a profitable manner.
Table of Contents
Introduction
Introduction
[1] State governments, in charge of alcohol regulation since the end of Prohibition, are facing a new challenge in today's technological age with the increase in online alcohol sales. A recent study reveals that more than 500,000 teenagers have bought alcohol online.2 In addition, the study indicates that over three million teenagers know a peer who has purchased alcohol through a Web site.3 It quickly becomes evident while browsing the Internet that purchasing alcohol online is not complicated. Established companies such as Safeway, Albertson's, Costco, and Beverages & More! have Web sites that allow consumers to order beer, wine, and distilled alcohol to be delivered right to their doorstep.4 There are also many smaller online businesses that provide American consumers, and potentially minors, with alcohol on demand.5
[2] While some online liquor stores ("OLSs") pay an extra fee for a shipping company to obtain an adult signature at the delivery site, others do not. Some Web sites even mock state laws by advertising that they will ship orders in "discreet" packages.6 Compounding the problem is the fact that some states have recently passed laws to expand the sale of alcohol online, yet they lack the resources to regulate such online ventures.7 Since 2002, only a few states have conducted online compliance checks on OLSs.8 Each of these inspections revealed that minors were successfully obtaining alcohol online.9
[3] The ease with which minors are ordering alcohol online has developed into a serious problem. States have always been concerned with the negative consequences associated with underage drinking. Young adults are three times more likely to be involved in an alcohol-related vehicular accident as compared with other drivers, and twice as likely to be involved in accidents resulting in a fatality.10 Further, the economic cost of these accidents in the United States has been estimated at nineteen billion dollars annually.11 For these and other reasons, every jurisdiction in the United States has enacted laws to prevent minors from buying or drinking alcohol.12
[4] In 2004, three OLSs that allowed minors to order and receive alcohol from their Web sites, without "meaningful" age checks, were fined $5,000 by the Alcoholic Beverages Control Commission of Massachusetts ("ABCC").13 The ABCC also ordered these OLSs to install a mechanism on their Web sites that would automatically reject orders placed from buyers in Massachusetts.14 Luckily for these OLSs the possibility of civil actions was averted because no injuries to minors or third parties resulted from the sales. Nevertheless, it is likely that states, who have heavily regulated alcohol sales in the past, will want to ensure that they are protecting their citizens by controlling online alcohol sales as well. The question that arises is how far must these OLSs go to verify a customer's age and protect themselves from criminal and civil liability?
[5] This Article first examines the issue by looking at the criminal and civil liability for underage alcohol sales in traditional brick and mortar businesses. The Article then demonstrates how current laws, regulations, and judicial decisions apply to OLSs in order to determine the necessary steps that need to be taken to shield online vendors from liability for potentially providing alcohol to minors. In discussing the matter, this Article highlights the jurisdictional issues concerning online businesses and the different online age verification systems available to OLSs.
Criminal Liability for Brick and Mortar Liquor Stores
[6] The enactment of the 21st Amendment in 1933 ended Prohibition and gave states the authority to regulate alcohol sales.15 Consequently, states have developed different alcohol control systems over time.16 Every jurisdiction prohibits the furnishing of alcohol to minors, although several states make exceptions for various reasons such as medical treatment, religious services, and situations where the minor's parents provide the alcohol.17 It follows from this that minors are prohibited from buying alcohol, except in Delaware, Indiana, New York, and Vermont, where purchases by a minor only constitute a crime if fraudulent identification ("ID") or false statements are used.18
[7] Penalties also vary by state. In Washington, furnishing alcohol to a minor is a gross misdemeanor.19 It is punishable by a fine of up to $5,000 and the possibility of incarceration for one year.20 In Alabama, the crime is a misdemeanor that entails a fine of $100 to $1,000 and the possibility of up to six months of prison for the first offense.21 Subsequent offenses are penalized by guaranteed jail time of up to twelve months.22 New Mexico views this offense as a fourth degree felony and sentences violators to eighteen months in prison for the first offense, as well as assessing fines of up to $5,000.23 Most states also reserve the right to suspend or revoke the vendor's license to sell alcohol in the event of an offense.24
[8] The defenses available to brick and mortar liquor providers, similarly, differ by state. Jurisdictions have developed two primary models for interpreting their criminal statutes regarding furnishing alcohol to minors: (1) strict liability, and (2) allowing for a good faith defense. Strict liability states hold vendors accountable under all circumstances.25 Good faith jurisdictions, on the other hand, excuse the alcohol provider if there was a mistake of age, with states varying on the degree of due diligence they require of the vendor.26 An example of a good faith state is Washington, which allows liquor stores to protect themselves from any liability by having a purchaser present valid ID
Civil Liability for Brick and Mortar Liquor Stores
[9] At common law, there was no cause of action against vendors arising out of the sale or furnishing of alcohol to minors.28 A supplier of alcohol, thus, was not liable for the injury or death of one's customer or a third party that the customer might injure.29 The courts based this on the theory that individuals were responsible for their own actions, and that drinking the alcohol, not furnishing it, was the proximate cause of injuries.30
[10] Today, however, most states dismiss the common law rule of nonliability and allow injured parties to recover against suppliers.31 To do this, the majority of states have passed dram shop acts.32 One of the purposes of these statutes is to deter the sale of alcohol to underage individuals by imposing civil liability on vendors in certain situations where intoxicated minors injure themselves or third parties.33 States without dram shop acts have allowed plaintiffs to recover under the common law negligence cause of action.34 Some jurisdictions have even permitted actions based on negligence per se when an alcohol beverage control statute is violated.35 Liability under the negligence per se doctrine is easier to prove because the plaintiff's need to establish a duty owed and breached by a vendor is eliminated.36
[11] Unlike the defenses for criminal liability, most states agree that if a vendor makes a good faith effort to verify the age of a customer, then it should not be held civilly liable for the injuries that the minor causes.37 This immunity for due diligence in age verification is either provided by the dram shop act, the alcohol beverage control statute, or is instead created by the court itself.38 Nonetheless, courts have held that vendors are not acting diligently when they fail to require valid ID or by merely asking patrons if they are over the age of twenty-one.39
Jurisdictional Issues Concerning the Online Liquor...
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