Defense for Selling Alcohol to Minors

Pursuant to § 106.03 of the Texas Alcoholic Beverage Code (ABC), a person commits the offense of Sale to Minors if they, with criminal negligence, sell an alcoholic beverage to a minor. A minor is defined in the ABC as anyone under the age of 21. It is not an offense if the person sold the alcoholic beverage to the minor and the minor falsely represented himself to be 21 years old or older by using an apparent valid proof of identification (ID) that contained a physical description and photograph that resembled the minor’s appearance, stated that the minor was 21 or older, and was issued by a government agency. Proper ID may include a driver’s license, ID card issues by the Department of Public Safety, passport, or military ID card. However, it is an offense if the person swipes the ID and the available electronic data from the card shows that the ID is invalid.

Generally, “criminal negligence” occurs when a person should have been aware of the risk surrounding their conduct, for example selling alcohol to a potential minor, but they failed to perceive the risk. A common practice for bars or similar establishments that allow those 18 and older to enter is to mark the minor’s hands with an “X” or stamp so that the bartenders and servers know not to sell them alcohol. However, this does not protect a bartender or server that did not check a minors ID from being charged with Sale to a Minor if they sell alcohol to a minor that happened to gain entry into the establishment without the mark on their hand. The courts have held that the employees can still be found criminally negligent because they should have known minors would attempt to gain entry into the business and attempt to purchase alcohol. Remember: if you are the person at the point of sale of the alcohol, it is your responsibility to check to ensure that the purchaser is of legal age regardless if the “X” system, or some similar practice, is in place. Ford v. State, 14 S.W.3d 382 (Tex. App. – Houston [14th Dist.] 2000, no pet.)

Texas Alcoholic Beverage Commission (TABC) Sting Operation

The TABC actively conducts sting operations in order to catch individuals committing the offense of Sale to Minors. The sting is used in order to identify businesses approved to sell alcohol for on-premise consumption, such as a bar, and businesses approved to sell alcohol for off-premises consumption, such as a gas station, that sell alcohol to minors. The sting operations follows the same procedure throughout the state. Minors are either approached by the TABC or volunteer for the operation and go “undercover” into establishments to see if the salesperson or server will sell them an alcoholic beverage. The minors are usually 16-18 years old, and the TABC usually prefers those that appear youthful.

During the operation, the minor dresses appropriately for their age and attempts to buy alcohol from the establishment. The minor is instructed not to lie about his age or provide false identification about his age. If the salesperson asks questions about the minor’s age or ability to purchase alcohol, the minor is truthful and does not lie. Essentially, the salesperson is being tested to see if they check for proper identification and follow the law. The minor may carry a recording device to capture an illegal sale if one occurs, and he or she is always accompanied by a TABC agent that is posted in the business in order to capture the transaction and protect the minor. The TABC has found that in recent years approximately 20% of establishments would sell alcoholic drinks to minors.

Buying for or Otherwise Providing Alcohol to Minors

Not only can you be charged with selling alcohol directly to a minor, but you can also be charged with Purchase of Alcohol for a Minor; Furnishing Alcohol to a Minor. Located in § 106.06 of the ABC, a person commits this offense if he or she purchases or gives an alcoholic beverage to a minor or with criminal negligence makes available an alcoholic beverage to a minor. However, it is not an offense to purchase for or give an alcoholic beverage to a minor if the person is: (1) the minor’s adult parent, guardian, spouse, or an adult who has been given custody of the minor by a court, and is visibly present when the minor possessed or consumed the beverage; or (2) a person lawfully providing an alcoholic beverage in certain specific statutory circumstances, such as in a college culinary course.

Penalties – Jail and Fine

Sale to Minors is a Class A misdemeanor that can result up to one year in jail and/or up to a $4000 fine .

Purchase of Alcohol for a Minor; Furnishing Alcohol to a Minor is also a Class A misdemeanor. If the offender committed the offense at a gathering where abuse of alcohol was taking place, such as binge drinking or forcing individuals to drink, and the offender was placed on community supervision by the judge for the offense, he or she will be required to perform community service and attend an alcohol awareness program. The community service must be related to education about or prevention of alcohol misuse if such a program is available in the community where the court is located. The driver’s license or permit of the offender will also be suspended for 180 days.

Impact on a Retailer

Not only can selling or providing alcohol to a minor lead to serious consequences for the individual person, it can also affect the alcohol retail license or permit for a business. § 106.13 of the ABC states that the TABC may cancel or suspend an alcohol retail license, permit, or private club permit for up to 90 days if it is found that the licensee or permittee with criminal negligence sold or delivered an alcoholic beverage to a minor. A second offense can result in up to a six month suspension or cancelation, and a third offense within 36 consecutive months can lead up to a year suspension or cancelation. However, the TABC may lessen the severity of the punishment if the permit or license holder establishes that an employee violated the law without the permit or license holder’s knowledge.

Fortunately, the TABC has a form of relief for alcohol permit/license holders referred to as “safe harbor.” If an employee sells or serves an alcoholic beverage to a minor, the license or permit holder will not be responsible for the employees actions if (1) the employer requires its employees to attend a TABC approved seller training program; (2) the employee has actually attended such a training program; and (3) the employer has not directly or indirectly encouraged the employee to violate the law by selling to minors. If all employees are seller/server certified, the license or permit holder might be protected from a fine, suspension or cancellation. Please see the safe harbor page on the TABC website to learn how to qualify your business as a safe harbor.