Comments on Delivery Minor Decoy Requirements

Comments received during the week of September 07 to September 13, 2020.

Comment #1

From Ms. Jennifer L. Simpson, M.S.L. Candidate, McGeorge School of Law

This comment is in support of the California Department of Alcoholic Beverage Control’s (ABC) proposed rulemaking certificate of compliance action related to the approved emergency action that allows minor decoys in alcohol delivery investigations. As student at McGeorge School of Law, and a California public citizen who has experience the delivery of alcohol to a minor in my home, I am backing the ABC in enforcing laws related to liquor sales as they have
been altered due to the Covid-19 pandemic situation.

A UPS driver delivered a large package to my home and released the package to a 16-year-old who opened the door. The package was several bottles of wine addressed to the previous homeowner, who apparently did not update their address with their wine club. The package stated on the label that it required signature by someone 21 years or older. The UPS driver did not check the minor’s identification. Since the package came with several other packages, we did notice that incorrect name on the box until after opening it and realizing we did not order wine.

ABC enacted emergency action to use minor decoys in their investigations of off-premises delivery of alcohol by ABC licensees so that enforcement actions could be taken to keep licensees in compliance during the current pandemic. The proposal to continue these investigatory actions is a wise proposal because it protects public health and holds licensees accountable to the laws they have agreed to when obtaining an ABC license. The basic idea of the license to sell alcohol is to protect the public, particularly those underage, from the detrimental effects of irresponsible use. Had the teenager who accepted the package been irresponsible, she could have noticed it was not addressed to anyone in the house, taken the wine and consumed it. That was my main concern when this happened, although not a concern for this particular teenager, but rather a concern for the public as a whole. It was inadvertently proven to me that obtaining alcohol as a minor through home delivery is increasing simple.

The Covid-19 Pandemic has effectively changed a vast number of laws across the country, thereby altering everyday activities, conveniences, businesses, and even public safety outside of the direct effects of the virus itself. This proposed rule change regarding the delivery of alcohol and the use of minor decoys addresses a critical loophole regarding access to alcohol for minors. During a time like this when all ages feel the anxieties related to this substantial life change, the risk of alcohol and drug abuse increases. According to the Centers for Disease Control and Prevention (CDC), “Greater availability and accessibility of alcohol is linked with excessive alcohol drinking.” See Alcohol and Substance Use, CDC (last visited Sept. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/stress-coping/alcohol-use.html. With kids being physically out of schools, their lives have change drastically. According to PR Newswire, the California Alcohol Policy Alliance believes that “alcohol consumption is increasing and ways to get alcohol are easing…the loosening of alcohol regulations which they call ‘an immediate threat to the health and well-being of communities’…indicates a serious failure in California by the Governor and the top state agencies…” See PR Newswire, California Alcohol Policy Alliance (CAPA) holds Governor Gavin Newsom accountable for COVID-19 response failure of making alcohol “essential”, PR Newswire (last visited Sept. 11, 2020), https://www.prnewswire.com/news-releases/california-alcohol-policy-alliance-capa-holds-governor-gavin-newsom-accountable-for-covid-19-response-failure-of-making-alcohol-essential-301098449.html.

California government has loosened liquor laws in response to weakened sales for alcohol related business. The uptick in food deliveries to homes and the corresponding allowance of alcoholic beverages by Governor Newsom presents an increase in opportunities for underage drinking. A quick Google search will reveal a multitude of news articles regarding access to alcohol by way of online orders and home deliveries. The ABC is doing Californians a favor by strategically investigating these deliveries to ensure that businesses are staying in compliance. When someone orders an alcoholic beverage, or even a manufacturer-sealed bottle of alcohol, and it is delivered to a home, who is responsible for checking that it is delivered to a person of legal drinking age? This is a clarification that the State needs to make for businesses and the public. Thankfully, ABC issued an Industry Advisory statement on this very topic: a reminder of licensee responsibilities when fulfilling orders to be delivered, and a statement that licensees are
ultimately responsible for not selling to underage consumers. See Delivery of Alcoholic Beverages, ABC (last visited Sept. 11, 2020), https://www.abc.ca.gov/delivery-of-alcoholic-beverages/. ABC has even pointed out that recent their enforcement actions actually support the fact that third-party deliverers are “routinely delivering alcoholic beverages to minors…and that many licensees, and the delivery services they use, are failing to adhere to a variety of other legal obligations.” ABC, supra. The ABC has made clear efforts to restate businesses’ obligations under recently adapted liquor laws. Businesses should not complain about the fairness of using minor decoys to ensure that they remain in compliance.

Businesses who have applied for and obtained a license to sell alcohol have assumed the associated responsibilities. California law prohibits the sale of alcoholic beverages to minors. Cal. Bus. & Prof. Code § 25658. Using minor decoys to identify violations of California law is not a new procedure. The Cal. Bus. & Prof. Code allows that in the investigation and enforcement of the law “persons under 21 years of age may be used by peace officers in the enforcement of this section to apprehend licensees, or employees or agents of licensees, or other persons who sell or furnish alcoholic beverages to minors.” Cal Bus & Prof Code § 25658(f). However, the new regularity of online orders and alcohol home deliveries makes liquor much more accessible to minors. Expanding the ability of the ABC to carry out its enforcement functions is critical to public health and safety.

I fully support the ABC’s adoption of proposed rule for the use of minor decoys in alcohol deliveries.

Ms. Jennifer L. Simpson
M.S.L. Candidate, McGeorge School of Law