CONTENTS

 

 

REALISTIC ENFORCEMENT



If we are to scrap Compliance Checks used as Sting Operations as the major means of enforcing laws against the sale of alcohol and/or tobacco to minors, it is only fitting that we offer a suitable replacement. This replacement must make up for the inadequacies of the present method. It must provide a means for suitably enforcing the laws against the purchase of alcohol and/or tobacco by minors. It must provide a means for identifying and prosecuting those cashiers who, due to either wanton disregard of the law, or gross negligence, regularly and consistently do sell to minors. It must be constructed in such a manner as to protect both the innocent cashier who makes that unavoidable mistake and the retail outlet which employs such a cashier. It must also provide a means for identifying and closing down those retail outlets which encourage their cashiers to either ignore or willingly violate the law. And finally, it must keep the benefits of Compliance Checks, and enhance those benefits if possible. The following is my suggestion, which I believe will accomplish all of those purposes.

 

FIRST: Take Compliance Checks Out of the Hands of Law Enforcement

Law enforcement, by its very nature, is of the opinion that if the law is broken it must be cited, prosecuted and punished. To a certain extent, we want to continue to encourage that attitude among those who have chosen law enforcement as their career. Yet, because of this attitude, Compliance Checks have been used to clog our court systems with trivial cases of cashiers making innocent mistakes, while doing nothing to stop the deliberate sale of either tobacco or alcohol to those too young by law. The only way to stop this is to tell law enforcement to cease and desist all activities with compliance checks.

SECOND: Continue Compliance Checks as an Educational Tool

Many cashiers, due to the negligence of their employers, their own misunderstanding, or their lackadaisical attitude toward their job, are unaware of how old a minor can make him or herself look. Compliance Checks, with instant feedback, will help overcome that problem. If Compliance Checks are conducted by police auxiliary, civic organizations, social groups, church groups, and even employers, this goal can be accomplished. However, to protect the minors who engage in this public service, strict guidelines should be promulgated and minors should receive waivers, protecting them from enforcement should they be caught purchasing contraband while engaged in legitimate compliance checks. Finally, remember that these compliance checks will mean nothing if feed-back isn't instant. If the cashier receives a letter a few days or weeks later, the cashier will not remember the under aged agent. If the cashier is told that he or she passed or failed while the minor agent is still on site to look at, the cashier will benefit from the experience.

THIRD: Initiate a STING Against Minors Who Attempt to Purchase

You can do this by having under-cover badge carrying agents of law enforcement work behind the cash register in retail outlets. Give that agent a trainee's name tag. In a few short hours that badge carrying agent should become proficient enough to operate the cash register with minimal help. If he cards a customer and that customer provides ID showing him to be too young, or refuses to provide ID, the badge carrying agent can then arrest the customer and explain to said customer that he will "go down town" unless he can provide proof of age and stay there until he does. This will not only identify people with real criminal intent, it will also discourage those who are under age from attempting to violate the law, the real intent of compliance checks in the first place.

FOUR: Require Law Enforcement to Establish Criminal Intent or Negligence Before Arrest

What does it take to prove either Criminal Intent or Negligence? It takes surveillance. It takes enough surveillance to establish that the occasional "violations" of the law are frequent enough to show a disregard of the law or a lack of care. Law enforcement should be required to use surveillance to establish that a significant number of the cashier's under aged customers are successful in their attempts to purchase. Significance is defined as:
  1. being substantially below the levels of compliance that are norm for the community,
  2. consistently ignoring the information provided on legitimate ID's, or
  3. consistently accepting obviously illegitimate ID's.
Law enforcement can only do this by watching suspected illegal purchases going down and then carding the customer to prove that the purchase was illegal after that customer leaves the retail outlet. Again, as with the use of stings against under aged customers in the step above, if that customer refuses to present ID, or presents ID that proves the customer to be under aged, that customer should be arrested and prosecuted. (Let us remember that the customer knows how old he or she is and knows the age at which he or she becomes legal consumers of both alcohol and tobacco.)

Some may wonder how law enforcement can find out which cashiers or which retail outlets to investigate. The answer is simple. Use the information provided by a concerned public, in the same way law enforcement finds out what other crimes to investigate. If sufficient complaints come in about a particular cashier or a particular retail outlet, that cashier or outlet should be placed under surveillance. In addition, if compliance checks are conducted in the community, this can be another source. If the compliance checks find that a particular cashier or retail outlet has a rate of non-compliance significantly above the community standard, law enforcement has reason to investigate. To assist in this area, law enforcement can request that those conducting compliance checks report their results to law enforcement. These reports should also include the name of the cashier who was targeted by the compliance check. Then statistical analysis can be used to flag cashiers and/or retail outlets of concern.

FIVE: Close Down Those Retail Outlets That Encourage Cashiers to Make Illegal Sales

Technically, an employer is responsible for every illegal activity his employees do while those employees are on the clock or represent the employer. But this implied technical responsibility does not prove criminal intent on the employer or gross negligence. Every employer has had occasions where maverick employees misrepresented them. It is unfair to punish an employer which takes steps to prevent such and yet in spite of those steps finds itself with such a maverick employee.

If an employer is notified that an employee is guilty of a wanton disregard for the law, or gross criminal negligence and yet continues to retain that employee, this establishes nothing beyond the willingness of the employer to give any one a second chance. However, if that employee continues in his wanton disregard for the law, or his gross criminal negligence, and the employer continues to retain him, this is sufficient to establish collusion on the part of the employer. (I use collusion to mean a willingness to participate with the employee by either ignoring the illegal activities of the employee concerning sales of alcohol or tobacco to minors, or by actively encouraging employees to make such illegal sales.)

In addition, collusion on the part of an employer can be established by multiple employees guilty of wanton disregard of the law or criminal negligence. This number should be at least two, but more than twenty five percent of the employees in a small establishment such as a convenience store or a maw-and-paw grocery. In a super-market which is part of a major chain, the number can be reduced to more than ten percent.

If such collusion is established, punishment should be swift, severe, and long term. The loss of a liquor or tobacco license for a few short months is not sufficient. Punishment should be sufficient enough to severely hurt the owner of the retail establishment in the pocket book. However, if such collusion cannot be established, or if the owner of such a retail establishment is willing to work with law enforcement to identify and correct or weed out such maverick cashiers, that retail establishment should be kept out of the court system.

 

This plan will undo the most grave injustice of the current system. It will identify and prosecute the real criminal, those minors and under aged who willingly and knowingly violate the law by attempting to purchase or by actually purchasing alcohol and/or tobacco. It will retain Compliance Checks as an educational tool, enabling those cashiers who are willing to accept the responsibility they assume to better fulfill that responsibility. It will ensure that those who enter the legal system are not innocent, merely guilty of a momentary lapse of judgment or caught in difficult circumstances. And finally, it will identify cashiers and retail outlet owners who are actually guilty of a wanton disregard for the law or gross criminal negligence. It will provide a means of removing those cashiers from behind the tills. It will close down the retail outlets which willing employ such and encourage them. Yes, it will cost more than using Compliance Checks as Sting Operations. It will cost more than the former practice of lying in wait outside of retail outlets for a minor to exit with alcohol and then arresting the cashier. However, true and effective justice is not cheap.