Massachusetts Alcoholic Beverages Control Commission Investigation and Enforcement Division OPERATIONS MANUAL

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1 Massachusetts Alcoholic Beverages Control Commission Investigation and Enforcement Division OPERATIONS MANUAL CHAPTER: O-013 SUBJECT: Minors in Possession of Alcohol AMENDS/SUPERSEDES: All Previous DISTRIBUTION: All Investigators _ Discussion: This standard operating procedure sets forth the proper action to be taken by Investigators when they encounter minors in possession or attempting to purchase alcoholic beverages. Authority Chapter 138: Section 56. A deputy sheriff, chief of police, deputy chief of police, city marshal, deputy or assistant marshal, police officer including a state police officer, or constable, or, in the county of Dukes or Nantucket, the sheriff anywhere within his county, or any investigator of the commission, may without a warrant arrest any person whom he finds in the act of illegally manufacturing, selling or exposing or keeping for sale, storing, transporting, importing or exporting alcoholic beverages or alcohol, and seize the said beverages or alcohol and any vessels and implements of manufacture or sale in the possession of such person, and detain them until warrants can be procured against such person, and for the seizure of said beverages or alcohol, vessels and implements, under this chapter. Such officers shall enforce or cause to be enforced the penalties provided by law against every person who is guilty of a violation of this chapter of which they can obtain reasonable proof, and shall make all needful and appropriate investigations for the said purpose. Court Decision: Before making an arrest, police may approach and question a person for investigative purposes without implicating constitutional interests as long as the individual's ability to avoid the encounter remains viable. However, the investigatory stop may not be so intrusive in duration or manner as to violate constitutional provisions unless done on probable cause. What the police may not do is hamper an individual's freedom of movement to the extent that an investigative inquiry will be treated as an arrest. As such, a stop may not be so intrusive in duration or manner as to violate constitutional provisions unless done on probable cause. O-013: 1

2 Probable cause exists when, at the moment of arrest, the facts and circumstances within the knowledge of the police and reasonable inferences therefrom are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense Police officer had probable cause to arrest defendant for possessing alcohol while underage when he stopped defendant on his bicycle, where officer had report that group of teenagers were drinking alcohol and annoying neighbors, officer saw defendant standing with friends in front of collection of half-full beer bottles, defendant appeared to be and was underage. Moscat 731 N.E.2d 544 Police have some discretion in their administration and enforcement of the law. The defendant advances no authority to indicate that nondiscriminatory, nonarbitrary exercise of discretion by a police officer is unlawful if no standard guides the decision-making process Cambridge v Phillips 612 NE 2nd 638 Liquor licensee did not have duty to insure that no alcoholic beverage would find its way into hands of person below legal drinking age, so that licensee's sale of beer to adult patron who gave beer to 19-year-old female was not grounds for suspension of license. M.G.L.A. c. 30A, 14; c. 138, 34, 64. TIKI HUT LOUNGE, INC 398 Mass. 1001, 494 N.E.2d 1340 Applicable Statutes: Chapter 138: Section 34. Whoever makes a sale or delivery of any alcoholic beverage or alcohol to any person under 21 years of age, either for his own use or for the use of his parent or any other person, or whoever, being a patron of an establishment licensed under section 12 or 15, delivers or procures to be delivered in any public room or area of such establishment if licensed under section 12, 15, 19B, 19C or 19D or in any area of such establishment if licensed under said section 15, 19B, 19C or 19D any such beverages or alcohol to or for use by a person who he knows or has reason to believe is under 21 years of age or whoever furnishes any such beverage or alcohol for a person under 21 years of age shall be punished by a fine of not more than $2,000 or by imprisonment for not more than one year or both. For the purpose of this section the word furnish shall mean to knowingly or intentionally supply, give, or provide to or allow a person under 21 years of age except for the children and grandchildren of the person being charged to possess alcoholic beverages on premises or property owned or controlled by the person charged. Chapter 138: Section 34A Any person under twenty-one years of age who purchases or attempts to purchase alcoholic beverages or alcohol, or makes arrangements with any person to purchase or in any way procure such beverages, or who willfully misrepresents his age, or in any way alters, defaces or otherwise falsifies his identification offered as proof of age, with the intent of purchasing alcoholic beverages, either for his own use or for the use of any other person shall be punished by a fine of three hundred dollars and A conviction of a violation of this section shall be reported forthwith to the registrar of motor vehicles by the court. Upon receipt of such notice the registrar shall thereupon suspend for 180 days the defendant s license or right to operate a motor vehicle. O-013: 2

3 Chapter 138: Section 34B Any person in a licensed premise shall, upon request of an agent of the commission or the local licensing authorities, state his name, age, and address. Whoever, upon such request, refuses to state his name, age or address, or states a false name, age, or address, including a name or address which is not his name or address in ordinary use, shall be guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars. Any person who transfers, alters or defaces any such card or license, or who makes, uses, carries, sells or distributes a false identification card or license, or uses the identification card or motor vehicle license of another, shall be guilty of a misdemeanor and shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than three months. Chapter 138: Section 34C Whoever, being under twenty-one years of age and not accompanied by a parent or legal guardian, knowingly possesses, transports or carries on his person, any alcohol or alcoholic beverages, shall be punished by a fine of not more than fifty dollars for the first offense and not more than one hundred and fifty dollars for a second or subsequent offense; Chapter 138: Section 41. The delivery of alcoholic beverages in or from a building, booth, stand or other place, except a private dwelling house shall be prima facie evidence that such delivery is a sale. PROCEDURES A. Upon observing an individual(s) that the Investigator has reasonable suspicion is in violation or is about to be in violation of any of the above statutes, the Investigator should conduct a threshold inquiry of that individual pursuant to MGL Chapter B and 56. a. Investigative Detentions (Threshold Inquiries) must be reasonable and may be conducted based on REASONABLE SUSPICION, which is a lesser standard than probable cause. b. REASONABLE SUSPICION must be based on SPECIFIC and ARTICULABLE facts to believe that the suspect has, is, or is about to commit a crime. c. The Investigator should conduct such inquiry pursuant to O-003, O-16 and O-17. B. Upon determination that an individual(s) is in violation or is about to be in violation of any of the above statutes the Investigator shall document all appropriate information pursuant to the Investigation Field Report. (Exhibit A) C. The subject alcoholic beverages (for 15 licensees) should be tagged as evidence and handled pursuant to O-018. D. The Investigator should make a good faith effort to contact the parents or guardians of the underage individual(s). If the individual(s) is a juvenile the Investigator should follow the procedures in O- 009). O-013: 3

4 E. When an investigator encounters an underage person who, in the judgment of the investigator, is intoxicated the investigator should take whichever of the following actions is, in the judgment of the investigator, the most appropriate to ensure the safety and welfare of the public, the individual, or both. 1. Release the person to some other person assuming responsibility for the intoxicated person; or 2. Contact the local police department who may assist the person, if he consents, to his home, an approved alcohol treatment program, or some other appropriate location; or pursuant to MGL Chapter 111B 8, only a police officer may place the individual into protective custody at a police station until he is no longer incapacitated or for a period of not longer than twelve hours, whichever is shorter. F. The Investigator should then make a determination as to one of the following appropriate courses of action and inform all individuals involved as to that action: a. File a violation report (or provide a verbal warning) regarding the licensed premises that sold or delivered the alcoholic beverages to the underage individual. (Exhibit B) b. File a criminal complaint (or provide a verbal warning) regarding the adult who sold or delivered the alcoholic beverages to the underage individual(s) pursuant to O-006. c. File a Registry of Motor Vehicles form #21193 (or provide a verbal warning) regarding the use of false or altered identification pursuant to MGL Chapter 90 22(e). A. Investigators shall complete the applicable administrative forms in order to keep compete records of the enforcement operation. In addition, each Investigator shall immediately contact and inform the Chief Investigator and file a complete incident report for any incident where an individual becomes aggressive or hostile. O-013: 4

5 Appendix A Date Time City Licensee Vehicle Involved Reg # # in Vehicle AB Involved Cost of AB $ Disposition: Parent Notification / Criminal Complaint / Arrest / ABCC Hearing / RMV Notice Adult / Minor M / F DOB / / Age License. State SSN / Lic# Home Address City State Home Phone# ( ) Parent Contacted Fake ID Used School Year School Phone# ( ) Observations; [Statements Parent Statements Position in Vehicle Exchange of $ Contact w/ab] O-013: 5

6 Exhibit B Investigative Report To: From: Chief Investigator Frederick G. Mahony Investigator Jamie T. Binienda Subject: The Sakhat Brothers, Inc. DBA: El Basha 256 Park Ave. Worcester, Ma (AA Restaurant) Violation: 1) 204 CMR 2.05 (2) Permitting an illegality on the licensed premises, To Wit: Ch.138, Sec.34c- Possession of an alcoholic beverage by a person under 21 years of age (2 counts) Date and Time of Violation: Friday September 16, 2005 at approximately 12:00am On Friday September 16, 2005 at approximately 12:00 am Investigators Kenny and Binienda investigated the business operation of The Sakhat Brothers, Inc.DBA: El Basha. The Investigators entered the premise and observed two (2) youthful looking patrons in possession of alcoholic beverages. The Investigators identified themselves and asked to see their identification and the following information was recorded: Stephanie A. Gablaski 391 May St. Worcester, MA DOB: 4/29/86 (19) SS# Gablaski was observed in possession of a Vodka and Cranberry. Gablaski stated that nobody at the establishment asked to see an Id from her. Kimberli A Nichols 65 R Jones Rd. Apt. 3 Spencer, MA DOB: 4/9/86 (19) SS# Nichols was observed in possession of a Mudslide (Kahlua, Vodka, Baileys). Nichols stated that nobody at the establishment asked to see an Id from her. The Investigators spoke with the manager on duty, Ellie Sakhat as well as the bartender who served the minors Phillip Saade both stated that they did not check the two minors identifications. We informed them that a report would be filed with the Chief Investigator for further action. Submitted for review: Frederick G. Mahony, Chief Investigator Jamie T. Binienda, Investigator O-013: 6