Law Offices of John P. Connell, P.C.: Tourism supports over 100,000 jobs in Massachusetts and contributes over $1 billion in state and local taxes. An out of state visitor attempting to enjoy an alcoholic beverage in the Commonwealth, however, may be surprised when their driver’s license is not accepted at a bar or package store because while many Massachusetts retail licensees accept out of state identification, they do so at their own peril.
Pursuant to Section 34B of Chapter 138, in order to avoid being cited for serving alcohol to a minor, a licensed retailer may only reasonably rely upon a customer’s Massachusetts driver’s license, liquor purchase identification card issued by the Massachusetts Registry of Motor Vehicles, military ID, or Passport. Out of state driver’s licenses can be accepted by a retailer but should that identification turn out to be either a fake driver’s license or the driver’s license of someone other than the customer, the retailer will be held liable for the violation of service to a minor even if that person’s out of state driver’s license looked real and passed through a scanner designed to spot fake ID’s.
The law in Massachusetts is that retailers cannot reasonably rely on out of state drivers’ licenses to verify a customer’s age, and such licenses are relied upon at the retailer’s peril. Murray’s Liquors v. ABCC, 48 Mass. App. Ct. 100, 104 (1999). When a retailer accepts the out of state driver’s license and the purchaser is in fact under 21, there are few legal defenses available to the licensee where the identification provided later proves to be false, altered, or belonging to someone other than the purchaser. Licensees in the Commonwealth should therefore be aware that accepting an out of state license means that if the purchaser is found to be under 21, it is highly likely that a violation hearing will result in a finding against the licensee.
The inquiry does not end when a licensee accepts identification that is permissible under § 34B. It has been found that it is not reasonable for a licensee to rely upon a Massachusetts driver’s license where it can be concluded that the identification tendered does not appear or look like the person attempting to purchase the alcoholic beverage. Municipalities and the ABCC regularly are presented with minors who have purchased alcoholic beverages using identifications wherein the person photographed does not look similar to them or the information contained in the identification, such as height or eye color, clearly does not match the person in possession of the identification. ABCC decisions frequently find that the establishment should have been able to discern that the minor in question was not the same person appearing in the otherwise acceptable identification. In one case, for example, the ABCC found that a licensee did not properly rely on a Massachusetts driver’s license despite the fact that the minor used his older brother’s license and the licensee requested and received additional documentation (including his older brother’s expired license and credit card). Hollywood Liquors, Inc., ABCC Decision Dated March 15, 2011.
Accordingly, while reliance on a Massachusetts driver’s license depends on the facts of the case and whether the retailer was reasonable in its reliance, there is no “reasonable reliance” defense allowable under current law when the retailer accepts an out-of-state driver’s license. There have been numerous bills introduced in the Massachusetts Legislature that would allow licensees to rely upon out of state licenses but none have become law. See, e.g., SB 1520 (1992); HB 497 (1993); HB 956 (1999); HB 287 (2007). A bill currently under consideration would allow licensees to rely upon an out of state, non-duplicate driver’s license for the purchase of alcohol. SB 161. Even if the current bill passes, the actions of licensees would still be scrutinized to determine whether they “reasonably relied” upon the identification presented. Even then, the pitfalls are numerous.
There is no typical punishment for sales to a minor. First offenses for selling alcoholic beverages to a minor for an establishment with a clean record of ten years or more can often generate just a warning from the ABCC or municipal licensing boards. A second offense, however, can generate a five (5) day suspension or longer of it occurs in close proximity to the first offense. Multiples violations found on the same day can yield suspensions of two weeks or longer, or possibly even revocation if the licensee has been found to more than merely negligent. In all such cases, however, a licensee should be prepared for the hearing wherein his actions will be judged and all efforts should be made to “win” such hearings, as a violation today can yield significant problems tomorrow if the violation occurs again.