CONTENTS

Once he entered his check stand, he started working the customers, greeting them cheerfully, ringing up the groceries, bagging them, taking their money, and wishing them a pleasant day. He enjoyed working the check stand, and found it a welcome relief from his regular duties. But, as time went on, his concerns about his wife were added to by the condition of the produce, sitting out on the floor in the way of the customers, and without refrigeration. This was an unusually large rush for this time of the day. He wondered if the produce would be spoiled. Finally, the last customer was served, and he turned to go back to the lettuce.

"Just a minute," a male voice said.

He turned and found, at the exit end of his check stand, a young girl, maybe fifteen or sixteen, holding a receipt. Next to her was the man who stopped him. He was wearing a tie and jacket with a gold badge attached to the breast pocket. In his hand was a six pack of beer. Our produce manager could remember selling the beer, but didn't remember the girl. Yet her receipt proved that he was the one who sold it, during the rush that had just ended.

This man received a citation which resulted in a $50 fine. He also received a police record, which remains with him today. In addition, he received a warning from his boss, which was placed in his personnel record, followed him when he was later transferred to another store, and remained with him until he retired.

The question I want you to ask yourself is this: Was this man guilty of gross criminal negligence, or did he commit an innocent mistake easily explained by the circumstances of both his life and job and well with in what might be expected of any cashier? But...before you answer that question, consider the rest of this paper.

When I first became concerned about law enforcement using sting operations like the above, I used as an analogy something I had learned while working in manufacturing. I worked for a company that made computer parts. It was having extreme problems meeting the quality standards from the competition of the Western Pacific Rim, from countries such as Japan and Korea. This company thought it could resolve it's quality problems by putting an inspector at the end of the assembly line who's sole task was to inspect every unit and pull out those with defects. When I went to work for this company, that inspector had grown to three inspectors, each with responsibility for a different portion of the product, a final tester who electronically tested the product, and a fourth inspector who gave the product a final once-over looking for anything that might have be missed. Still, the quality issues were not resolved. In desperation, the company turned to the writings of Walter K. Demming, the guru of quality control and the man responsible for giving Japan the ability to produce almost perfect quality. Demming taught, on the basis of his own research, that such a tactic could only be eighty-five percent effective in reducing defects, and that only under the best of circumstances. The company kept records, number of units pulled from the line compared to number of defective units found in shipping, and found that percentage to be true in its plant as well.

What does that have to do with refusing sales of either tobacco or alcohol to minors? The similarities are remarkable. The check-out stand can easily be compared to an assembly line. The cashier, trying to detect minors who are attempting to purchase, and examining them to establish their age, is like the inspector examining a product for defects. The main difference is that the cashier is doing far more than examining I.D.'s of those they suspect of being too young to make the purchase while the inspector on the assembly line is dedicated to the task of inspection. I reasoned that if the inspector could only be expected to be eighty-five percent effective in his or her task, it would be unreasonable to expect any better from the cashier. Actually, my assumption was that with the extra responsibilities of the cashier, eighty percent might be an unreasonable goal.

At that time this was only an assumption. Things have changed. We now have the research, and it verifies my assumption.

When the Food and Drug Administration initiated Sting Operations as it's means of enforcing its regulations against the sale of tobacco to minors, it also initiated Compliance Checks to gather statistical information. In one sense they are the same. A Sting Operation and a Compliance Check both use a minor who attempts to purchase tobacco in a retail outlet. If the cashier refuses the sale, both that cashier and the retail outlet are found "in compliance." If the cashier makes the sale, they are both found "in non-compliance." However, if the Compliance Check is also a Sting Operation, both the cashier and the retail outlet are punished for failure to comply with the law. In both cases, a tick mark is made in the appropriate column, in compliance, or in non-compliance. Then the results over a period of time are summarized and forwarded to the Secretary of Health and Human Services. The summary reads, in effect, "This agency found retail outlets to be x percent in compliance."

The results are that eighty percent is the norm across the country. This result is so standard that it has become the stated goal of the Synar Amendment (Section 1926) of the Public Health Service Act of 1992, which gives as one of its requirements:

A report from the State to the Secretary of Health and Human Services demonstrating progress toward the goal of no more than 20 percent of purchase attempts by youth resulting in obtaining tobacco products.

I have titled this page "You're Only Human..." after Billy Joel's classic, subtitled "Second Wind." A repeated refrain of that song reads:

Now, back to our produce manager and the question I asked you to consider. I believe that the above is sufficient to warrant the conclusion that this man was not guilty of gross negligence. I believe that any reasonable person should conclude that his "failure to comply" could easily be explained by the circumstance of his life as well as the circumstances of his job. In addition to that, I would like you to consider the comments of his fellow employees who described him as one of the most vigilant cashiers they ever knew, carding people that they would have automatically sold to, and refusing to sell just because one of them told him that this person was old enough, demanding that they make that sale instead.

Let us consider another question. Should this man have been punished for an innocent mistake, easily understandable? Law enforcement says that a violation of the law is a violation of the law. This man should consider himself lucky. He could have received a $2,500.00 fine AND ninety days in jail. Instead, he got off with just $50. While law enforcement is technically correct, we must ask if this is reasonable. Law enforcement has not established an attitude of willful neglect. Nor has law enforcement established a criminal intent to provide minors with alcohol on request in total disregard of the law. The only thing that law enforcement has established is that this man, like any other human, is capable of making mistakes. Does this warrant a citation, a fine, a criminal record and a permeate blot on his employment record?

Remember, a twenty percent failure to comply is the expected norm. Law enforcement hasn't even established that this one failure to comply on the part of our Produce Manager goes beyond that expected norm.