Court Rejects Use of Minors as Decoys in Illegal Liquor Sales

Law enforcement agencies can no longer use underage youths as undercover decoys to catch dealers who sell liquor illegally to minors, a state Court of Appeal ruled Thursday.

The ruling invalidated a widespread practice in California that in recent years has seen hundreds of cases brought against liquor dealers based on illegal sales to police cadets and other underage decoys, attorneys said.

The use of decoys has grown as public concern has mounted over underage drinking. A federal report issued in June, 1991, estimated that about 8 million teen-agers, or more than a third of the nation’s teen-age student population, drink alcohol weekly.

In striking down the use of underage decoys, the appeal panel said the state Constitution bars the sale of alcoholic beverages to anyone under 21 and provides no exception for minors acting at the direction of police.

The court noted further that the Legislature in 1987 deleted from a pending bill language that would have granted immunity from prosecution to underage youths buying liquor as decoys for enforcement agencies.

Kenton P. Byers, chief counsel for the state Department of Alcoholic Beverage Control, said an appeal to the California Supreme Court will be considered. Unless the high court intervenes, the appellate ruling will be binding statewide.

Byers said that decoys have been used regularly by police departments for the past eight years and are involved in the majority of cases against dealers accused of selling to minors.

“This is the most efficient and cost-effective means of enforcing the law,” he said. “We just don’t have the manpower to do it all by ourselves. . . . A lot of industry people are going to be happy with this ruling and a lot of police departments and civic groups unhappy. This is a big deal.”

Renee D. Wasserman of Oakland, an attorney for two grocery companies challenging the decoy programs, welcomed the ruling, but stressed that the merchants strongly favored other, lawful methods of curbing underage drinking.

“We are absolutely in favor of abiding by the law,” Wasserman said. “But there have been thousands of businesses in this state that have been subjected to these decoy programs we believe were unconstitutional. Hopefully, they will not be subjected to them anymore.”

The case before the appeals court arose when ABC authorities sought to suspend the liquor licenses of two Bay Area grocery stores. The charges were filed after underage decoys with beer and wine coolers passed without challenge through check-out counters.

The ABC appeals board upheld the suspensions, concluding that the law’s provisions against sales to minors did not apply to police decoys.

Reversing the board’s decision, the appeal court said Thursday there was no room for exceptions. “If the constitutional restriction is to be changed, it is for the electorate, not for the department, to change it,” Appellate Justice Marc Poche said in an opinion joined by Appellate Justices James F. Perley and Timothy A. Reardon.