Attorney General: Honorable Albert J. Solnit, M.D. , Department of Mental Health and Addiction Services , 1998-014 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

July 31, 1998

Honorable Albert J. Solnit, M.D.
Department of Mental Health and Addiction Services
410 Capitol Avenue
P. O. Box 341431
Hartford, CT 06134

Dear Commissioner Solnit:

This is in response to a request from your Department for an opinion on whether your agency can use minors in unannounced tobacco age law enforcement checks at Connecticut bars serving alcoholic liquor. For the following reasons, our answer is in the affirmative.1

Your request arises in the context of your agency's role in enforcement of the laws which prohibit tobacco sales to minors. State and federal law generally prohibit the sale or delivery of tobacco to persons under eighteen years of age. Conn. Gen. Stat.  12-295(a);2 53-344;3 21 C.F.R.  897.14(a).4 Retailers must ask for proof of age when age is in question. Conn. Gen. Stat.  53-344a.5 Proof of age is not required of persons over age twenty-six. 21 C.F.R.  897.14(b)(2).6 You point out that the State receives over $15 million in federal Substance Abuse Prevention and Treatment grants conditioned, inter alia, on enforcement of the tobacco age law "in a manner that can reasonably be expected to reduce the extent to which tobacco products are available to individuals under the age of 18." 42 U.S.C.  300x-26(b)(1). Specifically, the goal is to reduce the violation rate during inspections to under 20 per cent. 45 C.F.R.  96.130(g).

To reach these goals, your agency has entered into a Memorandum of Agreement (MOA) with the Department of Revenue Services, which shares jurisdiction over tobacco vendors, to recruit and train under aged youth in detecting cigarette sales violations as follows:

Pursuant to the MOA, a DMHAS employee, accompanied by youth under the age of eighteen years, conducts unannounced enforcement visits to tobacco retailers for the purpose of attempting to purchase tobacco products. The underage youth, who were recruited and trained by DMHAS and for whom parental permission has been obtained, do not consummate purchases. When the youth asks for a tobacco product and the vendor offers it for sale, the youth states that he doesn't have enough money to make the purchase and leaves the establishment. The DMHAS tobacco compliance employee subsequently mails a letter to the retailer citing him for non-compliance with the Connecticut General Statutes,  12-295a and 53-344a and advising the retailer that a copy is being provided to DRS for possible further action.

Request for Opinion, pp. 1-2.

Your question focuses on the use of minors at liquor permit premises with bars where cigarettes are sold. Under the Liquor Control Act, generally minors7 under the age of twenty-one are prohibited from entering any room "where alcoholic liquor is served at any bar." Conn. Gen. Stat.  30-90.8 You inquire whether your agency may bring underaged youth into these otherwise prohibited areas. The need is clear. As you note, "In many instances, it is in these areas that illegal sales of tobacco products to minors take place, either over the counter or through cigarette vending machines." Request for Opinion, p.2.

The use of decoys, informers and under cover operators in the detection and apprehension of criminals has long been recognized and approved as a law enforcement tool. Thus, it is universally recognized that law enforcement officials and those who help them may present an opportunity for the commission of crime by feigning complicity in the act or assistance in its commission. 22 C.J.S. Criminal Law  61(c) at pp. 79-81. Specifically, in the context of liquor control laws prohibiting certain conduct by minors, it has been held that such provisions are inapplicable to minors in decoy programs supervised by law enforcement agencies. Provigo v. Alcoholic Bev. Control App. Bd., 869 P.2d 1163, 1166 (Cal. 1994). Analogous cases make it clear that law enforcement involvement in criminal activity for the purpose of investigating violators is permissible even if technical violations of law occur. See e.g. United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (drug law violation); United States v. Bowling, 666 F.2d 1052, 1054 (6th Cir. 1981) cert. denied, 455 U.S. 960 (1982) (informant participating in illegal activity); People v. Superior Court (Orecchia), 65 Cal. App. 3d 842, 846, 134 Cal. Rptr. 361 (1976) (decoy drug purchase). In fact, the Liquor Control Act was recently amended to eliminate any question as to whether underaged youth could assist police in the detection of violation of the law which prohibits the sale of liquor to minors. See 1998 Conn. Pub. Acts. No. 98-164. Your agency's cognizance and avoidance of circumstances which would give rise to the defense of entrapment is presumed. Also, any liquor law violations observed should be reported to the Department of Consumer Protection, which is the administrative agency responsible for enforcement of the Liquor Control Act.9

Accordingly, we believe that your agency can use minors in unannounced tobacco law enforcement checks at bars serving alcoholic liquor under the circumstances you describe.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Robert F. Vacchelli
Assistant Attorney General

RB/RFV/bob


Footnote:

1 This opinion has been reviewed by the Office of the Chief State's Attorney, and that Office concurs with the conclusions set forth herein.

2 Conn. Gen. Stat.  12-295(a) provides, in pertinent part, as follows:

(a) The commissioner may suspend or revoke the license of any dealer or distributor for failure to comply with any provision of this chapter or regulations related thereto or for the sale or delivery of tobacco in any form to a minor under eighteen years of age . . .

3 Conn. Gen. Stat.  53-344 provides:

Sale of tobacco to minors under eighteen. (a) Any person who sells, gives or delivers to any minor under eighteen years of age tobacco, unless the minor is delivering or accepting delivery in his capacity as an employee, in any form shall be fined not more than two hundred dollars for the first offense, three hundred fifty dollars for a second offense within an eighteen-month period and not more than five hundred dollars for each subsequent offense within an eighteen-month period.

(b) Any person less than eighteen years of age who purchases or misrepresents his age to purchase tobacco in any form shall be fined not more than fifty dollars for the first offense and not less than fifty dollars nor more than one hundred dollars for each subsequent offense.

4 21 C.F.R.  897.14(a) provides:

(a) No retailer may sell cigarettes or smokeless tobacco to any person younger than 18 years of age;

5 Conn. Gen. Stat.  53-344a provides:

Each retailer of cigarettes or tobacco products or employee of such retailer shall require a person who is purchasing or attempting to purchase cigarettes or tobacco products, whose age is in question, to exhibit proper proof of age. If a person fails to provide such proof of age, such retailer or employee shall not sell cigarettes or tobacco products to the person. As used in this section, "proper proof" means a motor vehicle operator's license, a valid passport or an identity card issued in accordance with the provisions of section 1-1h.

6 21 C.F.R.  897.14(b)(2) provides:

(2) No such verification is required for any person over the age of 26.

7 The Liquor Control Act defines "minor" as any person under twenty-one years of age. Conn. Gen. Stat.  30-1(12).

8 Conn. Gen. Stat.  30-90 provides:

Any permittee who, by himself, his servant or agent, permits any minor or any person to whom the sale or gift of alcohol liquor has been forbidden according to law to loiter on his premises where such liquor is kept for sale, or allows any minor other than a person over age eighteen who is an employee or permit holder under section 30-90a or a minor accompanied by his parent or guardian, to be in any room where alcoholic liquor is served at any bar, shall be subject to the penalties of section 30-113.

9 You may wish to consider revising the program to have minors complete the sale of tobacco. You should also consider coordinating visits to liquor permit premises with the Department of Consumer Protection.


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