MINOR DECOY PROGRAM. This policy is intended to help ensure that decoy operations are conducted in compliance with the law and Rule 141.

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1 MINOR DECOY PROGRAM 1. PURPOSE This policy is intended to help ensure that decoy operations are conducted in compliance with the law and Rule PHILOSOPHY Minor Decoy Programs have evolved since their inception in the 1970 s. On April 7, 1994, the California Supreme Court issued a unanimous decision upholding the use of underage decoys by law enforcement officials. Rule 141, of Title 4 of the California Code of Regulations became effective in Rule 141 was adopted to promote fairness during Minor Decoy Programs. Administrative Law Judges, the ABC Appeals Board, the California Court of Appeals, and the California Supreme Court have issued decisions which have altered the standards to which law enforcement agencies must adhere in order to ensure compliance with Rule 141. The Department will remain vigilant in addressing issues, raised by the courts, to ensure law enforcement agencies remain in full compliance with Rule GOALS AND OBJECTIVES The goals of the Minor Decoy Program are to reduce the number of licensees who sell alcoholic beverages to minors and reduce the availability of alcoholic beverages to minors. Program objectives include training Department personnel and local law enforcement agencies, selecting qualified decoys (pursuant to Rule 141), and utilizing this program to conduct effective and efficient investigations. The appearance and mannerisms of all decoys shall be that of a person under the age of 21 years. i 4. POLICY Department investigators and law enforcement officers who choose to utilize the Minor Decoy Program must comply with California Code of Regulations, Title 4, Division 1, Section 141 (Rule 141). While failure to adhere to Rule 141 does not constitute a defense in a criminal hearing [People v. Figueroa (1999) 68 Cal.App.4th. 1409], the Department will not file administrative accusations without clear compliance with all requirements of Rule 141. Rule 141 reads as follows: P March 28, 2005

2 CALIFORNIA CODE OF REGULATIONS Title 4, Division 1 Section 141 Minor Decoy Requirements (a) A law enforcement agency may only use a person under the age of 21 years to attempt to purchase alcoholic beverages to apprehend licensees, or employees or agents of licensees who sell alcoholic beverages to minors (persons under the age of 21) and to reduce sales of alcoholic beverages in a fashion that promotes fairness. (b) The following minimum standards shall apply to actions filed pursuant to Business and Professions Code Section in which it is alleged that a minor decoy has purchased an alcoholic beverage: (1) At the time of the operation, the decoy shall be less than 20 years of age; (2) The decoy shall display the appearance which could generally be expected of a person under 2I years of age, under the actual circumstances presented to the seller of alcoholic beverages at the time of the alleged offense; (3) A decoy shall either carry his or her own identification showing the decoy's correct date of birth or shall carry no identification; a decoy who carries identification shall present it upon request to any seller of alcoholic beverages; (4) A decoy shall answer truthfully any questions about his or her age; (5) Following any completed sale, but not later than the time a citation, if any, is issued, the peace officer directing the decoy shall make a reasonable attempt to enter the licensed premises and have the minor decoy who purchased alcoholic beverages to make a face to face identification of the alleged seller of the alcoholic beverages. (c) Failure to comply with this rule shall be a defense to any action brought pursuant to Business and Professions Code Section Department investigators and law enforcement officers shall also comply with Business and Professions Code Section 25658(f), which states in part: CALIFORNIA BUSINESS & PROFESSIONS CODE Section 25658(f) After the completion of every minor decoy program performed under this subdivision, the law enforcement agency using the decoy shall notify licensees within 72 hours of the results of the program. When the use of a minor decoy results in the issuance of a citation, the notification required shall be given within 72 hours of the issuance of the citation. A law enforcement agency may comply with this requirement by leaving a written notice at the licensed premises addressed to the licensee, or by mailing a notice addressed to the licensee. March 28, 2005 P 314.2

3 5. PROCEDURE A. Selection of Premises Premises may be visited by a decoy, in response to a complaint(s), Form ABC- 61 Assignment. Decoys may be utilized in response to requests from law enforcement agencies. City wide or area wide decoy operations are permitted with approval from a District Supervisor or District Administrator. Decoys may be utilized in areas with a disproportionate amount of alcohol related problems, based upon information from local municipalities and/or citizen complaints. No more than two (2) visits without a purchase by using a minor decoy should be made (and on different dates) before closing out a complaint unless good cause warrants additional visits. If a sale is made after first visit, assignment should be closed out, unless good cause warrants additional visits. B. Reports 1. The following should be attached to each decoy report: Color photographs of the decoy, taken prior to the operation; Three color photographs of the decoy, with seller, if possible, holding the alcoholic beverage and identification, if used; make sure the brand of alcoholic beverage is readable; Copy of the citation; A quality copy, color whenever possible, of the decoy s California driver license or identification must be obtained prior to an operation; Color copy of face-to-face identification photograph, if taken; Completed Form ABC-304, Decoy Information Sheet (Illustration No. 1); Completed Form ABC-338, Decoy Operation Results Worksheet (Illustration No. 2); Receipt, if any; and Copy of Form ABC-339, Violation Letter, Section 25658(f) (Illustration No. 3) P March 28, 2005

4 2. Backtrack Reporting Refer to Procedure 105 for backtrack reporting requirements. i In The Southland Corp. & Jagtar Singh Samra v. Department of Alcoholic Beverage Control (AB-7320) (1999) the Appeals Board stated, "The Board has looked with disfavor on those operations using decoys who had "five o'clock shadow," especially when the decoy was also large and/or tall." The Board further stated, "We find the use of this decoy completely unacceptable and violates both the general fairness requirement of Rule 141(a) and the specific requirements Rule 141(b) (2)". In 7-Eleven Inc. & Clara Gonser & Gregory Gonser v. Department of Alcoholic Beverage Control (AB-7750) (2001), a female decoy, who appellants argued was wearing face powder and earrings and was an experienced decoy, purchased alcoholic beverages at the premises. The decoy acknowledged wearing face powder but did not remember whether she wore earrings. The Appeals Board stated, "Appellants pick out two or three items or features and argue that, because of them, the decoy looked over the age of 20. A decoy's apparent age, however, is based on a number of factors in combination." The Appeals Board quoted the ALJ in 7-Eleven and Apend Incorporated (7/31/01) AB-7666, who was presented with a similar argument. The ALJ stated, "It is not one or two elements in the makeup and impression of a minor that are usually controlling in assessing whether a person has the appearance which could generally be expected of a person under 21. In response to the decoy's experience, the Appeals Board referred to their statements in 7-Eleven and Assam (4/26/01) AB7631: "A decoy's experience is not, by itself, relevant to a determination of the decoy's apparent age; it is only the observable effect of that experience that can be considered by the trier of fact." March 28, 2005 P 314.4

5 Department of Alcoholic Beverage Control DECOY INFORMATION SHEET State of California ARNOLD SCHWARZENEGGER, Governor Read Instructions on reverse before completing. SECTION A AGENCY INFORMATION 1. REPORTING AGENCY NAME 2. DATE OF OPERATION 3. AGENCY CONTACT PERSON NAME 4. PHONE NUMBER 5. OFFICERS INVOLVED (For subpenae purposes) SECTION B 6. DECOY NAME DECOY INFORMATION 7. HEIGHT 8. WEIGHT 9. HAIR COLOR 10. EYE COLOR 11. BIRTH DATE 12. AGE 13. DECOY CONTACT ADDRESS (may be agency address) 14. DECOY CONTACT PHONE NUMBER 15. TYPE OF I.D. POSSESSED BY DECOY CA Driver License CA Identification Card Other SECTION C DECOY PROGRAM CHECKLIST 16. REQUIRED BY RULE 141 CALIFORNIA CODE OF REGULATIONS OR SECTION 25658(f) B&P CODE Decoy less than 20 years of age Decoy answers truthfully any questions about his/her age Decoy has appearance of a person under 21 years old If decoy carries identification, must be own, correct I.D. Decoy makes face-to-face identification of seller Licensee notified of results (in writing) If decoy carries identification, must present to seller on request SECTION D PROGRAM RESULTS 17. AGE OR I.D. WAS REQUESTED 18. I.D. WAS SHOWN Yes No Yes No 19. TOTAL PREMISES VISITED BY THIS DECOY 20. ADDITIONAL INFORMATION On-Sale Off-Sale TOTAL NUMBER OF BUYS TOTAL DENIALS TOTAL PREMISES VISITED Continued on reverse LICENSEE NAME ABC USE ONLY LICENSE NUMBER SELLER NAME PREMISES ADDRESS DBA DATE DECOY VIEWED DECOY VIEWED BY (Name) DECOY'S APPARENT AGE ABC INVESTIGATOR SIGNATURE Badge Number DATE SIGNED ABC-304 (12/03) P 314 Illustration No. 1.1

6 INSTRUCTIONS AND GENERAL INFORMATION Complete this form for each separate decoy buy. Attachments The following items are to be attached to this form: Photograph of decoy (with seller, if possible) Copy of citation Copy of ID used by decoy, if any Case Report Case Report Checklist The case report should include the following information: Prior to the Sale Whether or not the decoy is a regular customer of the premises. Whether or not the decoy was wired and/or the transaction recorded. Whether or not a letter was sent to licensees announcing the decoy program. If so, the date the letter was sent. During the Sale Age, appearance and mannerisms of the decoy. Any factors of distraction (e.g., one seller, store very busy, poor lighting, etc.). Sample of a Good Face-to-Face Identification: "At the time of the identification of the seller, the decoy and the seller were facing each other, approximately 6 feet apart, at which time the decoy pointed at the seller and said, 'He sold me the beer'." Sample of a Poor Face-to-Face Identification: "Decoy entered the premises and identified the seller as the one that sold him the beer. I then asked the seller if he sold the decoy the beer and he said, 'Yes'." Issues Often Raised Was the seller aware he was being identified by the decoy? How close were the decoy and the seller at the time of the identification? What affirmative action did the decoy make in the identification process? Since the argument by defense counsel is generally that this is supposed to be a learning experience for the seller, this identification process must be in some close proximity at the time of the identification. After the Sale (Face-to-Face Identification) Whether or not the decoy and seller were facing each other at the time of the identification. Proximity of the decoy to the seller at the time of the identification. Whether or not the decoy made an affirmative action to identify the seller (e.g., verbal or point and nod). Any obstructions at the time of the identification (e.g., sales counter, display or another customer). Name of the person who seized the evidence. Name of the person who stored the evidence. Rule 141 states in part:... The peace officer directing the decoy shall make a reasonable attempt to enter the licensed premises and have the minor decoy who purchased the alcoholic beverages make a face to face identification of the alleged seller of the alcoholic beverages... ABC-304 (12/03) P 314 Illustration No. 1.2

7 Department of Alcoholic Beverage Control DECOY OPERATIONS RESULTS State of California ARNOLD SCHWARZENEGGER, Governor Attach to each report. Use a separate form for each decoy. DECOY NAME DATE OF OPERATION LAW ENFORCEMENT AGENCY CASE AGENT (NAME) DBA Premises Address On-Sale Off-Sale Violation ID Asked For Age Asked No Violation 25658(f) Letter TOTALS ABC-338 (7/04) P 314 Illustration No. 2

8 STATE OF CALIFORNIA BUSINESS, TRANSPORTATION AND HOUSING AGENCY DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL 3927 Lennane Drive, Suite 100 Sacramento, CA (916) ARNOLD SCHWARZENEGGER, Governor Date: (Licensee) (Address) Re: License # Dear, (Licensee) On ( ), the ( ) conducted a minor decoy operation at (date) (Police Department/Department of A.B.C.) various licensed establishments in your city. A decoy, under the age of 21, was sent into your establishment in an attempt to purchase an alcoholic beverage. Your establishment was unsuccessful in preventing this activity. The result of this action will lead to a criminal complaint filed against ( (seller s name) ) with the District Attorney s Office. In addition, the Department of Alcoholic Beverage Control may take administrative action against the licensee. Sincerely, Chief of Police/District Administrator Original: mailed to licensee; or left copy at premises. Attach copy to report. ABC-339 (7/04) P 314 Illustration No. 3