Delivery Minor Decoy Requirements Industry Advisory

This Industry Advisory supplements the Department’s Industry Advisory on Delivery of Alcoholic Beverages that was issued on April 30, 2020, and discusses new enforcement rules the Department is employing to curb deliveries to minors.

As discussed in the prior Industry Advisory, the delivery of alcoholic beverages by licensees has substantially increased due to the widespread closure of businesses for on-premises activity during the COVID-19 pandemic. With the increase in volume of deliveries, the Department has received numerous complaints of deliveries of alcoholic beverages to minors. In response, the Department has conducted investigations to determine if alcohol deliveries were being done in compliance with existing law and the temporary notices of regulatory relief issued by the Department in response to the crisis. As discussed in the prior Industry Advisory, the incidence of delivery of alcoholic beverages to minors was alarmingly high. The Department issued the prior Industry Advisory to alert ABC licensees, third-party delivery services, and the public to this problem to educate and to curb the illegal behavior. In the weeks since, the Department has continued to monitor alcohol deliveries and has seen little to no change in violation rates.

In addition to the prior Industry Advisory referenced above, on May 20, 2020, the Department acted to establish emergency regulations that would authorize the use of minor decoys by law enforcement (including the Department) to investigate potential violations of law involving the furnishing of alcoholic beverages to minors when delivered away from a licensed premises. The emergency regulation provides direction on how such minor decoy operations must be conducted. It further provides that a licensee found to have furnished alcoholic beverages to a minor decoy shall have a defense to an administrative disciplinary action if the minor decoy operation was not conducted in accordance with the requirements of the regulation. All documents related to this emergency regulatory package may be found on the Department’s approved regulations page.

On June 3, 2020, the Office of Administrative Law approved the Department’s emergency regulation package and submitted it to the Secretary of State. The regulation (Rule 141.1) is effective immediately and will remain in place as an emergency regulation until January 30, 2021. Before that date, the Department intends to pursue permanent adoption of the regulation through the certificate of compliance process, which will include a full opportunity for public review and comment.

As discussed in the prior Industry Advisory, ABC licensees are responsible for the delivery of alcoholic beverages away from their licensed premises, whether that delivery is undertaken by their own employees or using a third-party delivery service. ABC licensees should be aware of the new regulation and that the Department (and other law enforcement agencies) may conduct minor decoy operations to test compliance with the law. If a licensee furnishes alcoholic beverages to a minor (including a minor decoy), the Department may pursue administrative disciplinary action against their license for such a violation in the same manner as they may be disciplined if a sale or furnishing of alcohol to a minor occurred on the licensed premises. License discipline may involve a suspension or revocation of the license.

If an ABC licensee uses a third-party delivery service, that third-party delivery service is acting as an agent of the ABC licensee and under the authority of the licensee’s license privileges.  As indicated above, the ABC licensee is ultimately responsible for the actions of the third-party delivery service if alcohol is delivered (i.e., furnished) to a minor, including to a minor decoy. One significant factor for licensees to note is that administrative disciplinary action for a violation may be taken by the Department even if the licensee attempts to confirm the age of the purchaser at the time of sale, either online or over the telephone. Similar to the existing regulation for minor decoy operations conducted on the licensed premises, the new emergency regulation also requires that minor decoys answer truthfully a question about their age and to present their true identification if requested by the delivery person at the point of delivery.

The Department urges ABC licensees who deliver alcoholic beverages to consumers away from their licensed premises, whether themselves or through a third-party delivery service acting on their behalf, to review their internal policies and to ensure that any third-party delivery service they engage is acting consistent with the licensee’s policies and procedures, and otherwise complies with all applicable laws.