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ALCOHOLIC BEVERAGE REGULATION ADMINISTRATION
ALCOHOLIC BEVERAGE CONTROL BOARD
NOTICE OF PROPOSED RULEMAKING
The Alcoholic Beverage Control Board (Board), pursuant to the authority set forth in D.C. Official Code §§ 25-211(b) and § 25-830(e) (2012 Supp.), hereby gives notice of its intent to amend section 807 of title 23 of the DCMR to clarify that selling an alcoholic beverage to a minor where the minor was not asked by the licensee to produce identification constitutes an “egregious” first-time sale to minor violation.
The proposed rules were initially adopted by the Board on March 14, 2012, by a five (5) to zero (0) vote. On June 13, 2012, the Board held a public hearing, pursuant to D.C. Official Code § 25-354 (2012 Supp.), to receive public comment on the proposed rules. The Board heard testimony from Andrew Kline, legislative representative for the Restaurant Association of Metropolitan Washington (RAMW), and Michael Sindram, a Washington, D.C. resident.
At the hearing, RAMW suggested two changes to the Board’s proposed rules regarding the definition of “egregious” for first-time sale to minor violations. The first suggestion was the substitution of the word “shall” for “may,” thus making it mandatory for the Board to give written warnings for first-time sale to minor offenses, excluding those that are deemed to be egregious. RAMW’s second suggestion to amend the proposed rules was to delete the reference to the licensee’s failure to ask the minor for identification as a part of the expanded definition of egregious.
RAMW testified that changing “may” to “shall” in section 807.1 will bring clarity to the rules because the Board would be required to issue written warnings for any and all first-time sale to minor violations that are not egregious. As a result, licensees would have certainty that if their behavior is not egregious, they will be entitled to a warning the first time they sell to a minor. RAMW argued that as long as the violation is clearly a first offense, and it is not egregious as defined by the rules, the language should require a mandatory issuance of a written warning.
RAMW’s opposition to broadening the definition of egregious to include those instances where the licensee failed to ask the minor for identification was based on a belief that most licensees are successfully endeavoring to ascertain the minor’s age, but there are instances where a doorman or a bartender may have unintentionally failed to request the patron’s identification. RAMW conceded that intentionally selling an alcoholic beverage to a minor was indeed egregious, but it argued that the unintended failure to request identification does not rise to the level of egregious, and, thus, should be omitted from the rules.
Mr. Sindram testified that the penalty for a first-time sale to minor violation should not be draconian. Instead, the penalty should be commensurate with the offense and should increase with every subsequent violation.
The Board gave thoughtful consideration to the testimony provided by RAMW and Mr. Sindram. The Board carefully weighed RAMW’s two amendments as it relates to developing sound public policy, and determined that a first offense for a sale to minor violation shall merit a written warning. The Board does not treat this offense lightly, but finds that a mandatory issuance of written warnings comports with the requirements of § 25-830(e)(1).
The Board does not concur with RAMW’s second recommendation to narrow the definition of “egregious”. The very reason the Board undertook this rulemaking is to curb those instances where licensees fail to ask the minor for identification. By expanding the definition of egregious, the Board can more fully capture those occasions where the licensee is derelict in its responsibility to ascertain the patron’s age before selling or serving alcoholic beverages.
In reaching its decision on these two recommendations, the Board determined that it is in the best interest to issue warnings to first-time sale to minor offenders, with the overall goal of uniform treatment of all licensees in deterring this type of conduct. It is also in the public’s interest to expand the definition of egregious to include failure to ask the minor for identification, to deter the conduct in this regard too.
These amended proposed rules were adopted by the Board on July 25, 2012, by a six (6) to zero (0) vote.
The Board gives notice of its intent to take final rulemaking action to adopt these amended proposed rules on a permanent basis in not less than thirty (30) days after the date of publication of this notice in the D.C. Register. Pursuant to D.C. Official Code § 25-211(b)(2) (2012 Supp.), these proposed rules are also being transmitted to the Council of the District of Columbia (Council), for a ninety (90) day period of review. The final rules shall not become effective absent approval by the Council.
Section 807, SALE TO MINOR VIOLATIONS, of chapter 8, ENFORCEMENT, INFRACTIONS, of title 23, ALCOHOLIC BEVERAGES is amended to read as follows:
807.1 The Board shall give warnings for first-time sale to minor violations, excluding “egregious” sale to minor violations.
807.2 Egregious shall be defined as a sale to minor where the licensee: (1) sold or served an alcoholic beverage to a minor who was unable to produce a valid identification after a request from the licensee to do so, (2) failed to ask the minor for identification, or (3) intentionally sold an alcoholic beverage to a minor.
807.3 The Board may, in its discretion, give warnings for egregious first-time sale to minor violations if the licensee shows good cause for failure to ask the minor for identification.
Copies of the proposed rulemaking can be obtained by contacting Martha Jenkins, General Counsel, Alcoholic Beverage Regulation Administration, 2000 14th Street, N.W., Suite 400, Washington, D.C. 20009. Persons with questions concerning the rulemaking should contact Martha Jenkins at 202-442-4456 or email martha.jenkins@dc.gov. All persons desiring to comment on the proposed rulemaking must submit their written comments, no later than thirty (30) days after the date of publication of this notice in the D.C. Register, to the above address.
