Holding Court: Underage Drinking & Toothless Tigers
Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
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By Joe Latwin
What’s worse than a toothless tiger? A bear with no teeth – a gummy bear! Recently, Rye Police Department issued several tickets for underage drinking (see: Rye PD Issues 22 Alcohol Beverage Control Violations in Undercover Sweep). Unfortunately, these tickets are a farce – not the fault of the police, but rather of our law makers.
The violation of the underage drinking law has no real penalties for minors. It is not an arrestable offense, so no one gets arrested. It is not a finger-printable offense so there is criminal no record. If you don’t show up in court, there can be no arrest warrant. Even if you do show up, the maximum fine is $50. The way the law is written, you can ignore the ticket without consequences. This does not apply when charges relating to fake identification is charged. That could be a felony.
I had several of these cases where parents hired “Wall Street” lawyers charging $400+ per hour fees to represent their kid. The cases were quickly resolved when I told the parents to pay the $50 and save hundreds in legal fees. Boy, were the lawyers embarrassed!
The soundest legal advice may be simply to ignore the ticket. This is because of the law and the lack of seriousness by the law makers. The consumption of alcohol by our youth is a serious problem. The impact of alcohol abuse on the lives of our young people can be seen in traffic fatalities, increased crime, decreased productivity, and countless other alcohol-related problems. This issue is not new to Rye. My predecessor, Judge Peter Lane said “Drinking by youths and the too often concomitant supplying of alcohol to the young is a very serious problem, both locally and nationally. What is deemed by some to be a mere ‘rite of passage’ too often leads to tragedy. Each year, local newspapers report on some tragedy where young lives are lost to the effects of alcohol, whether by stupidity, motor vehicle accidents, fights, falls, drowning, or poisoning followed by the mourning and bemoaning of family and friends. There is no doubt that this is a serious problem; so important that it has attracted several attempts of the State Legislature to protect us and our children from the impacts of alcohol.
The State Legislature enacted a number of laws generally restricting access to alcoholic beverages by underage individuals. Several laws are directed toward persons other than the underage drinker: a person is prohibited from giving, selling, or causing to be given or sold any alcoholic beverage to a person less than 21 years old (Penal Law § 260.20 [2]), and Alcoholic Beverage Control Law § 65 [1] [prohibiting selling, delivering, or giving away, or causing or permitting or procuring to be sold, delivered, or given away any alcoholic beverage to any person actually or apparently under the age of 21 years]—and from misrepresenting the age of a person under the age of 21 years for the purpose of inducing the sale of any alcoholic beverage to such person (Alcoholic Beverage Control Law § 65-a). Moreover, a person who knowingly causes the intoxication or impairment of ability of a person under the age of 21 years by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for that minor may be civilly liable to a third party who is injured by reason of that intoxication. General Obligations Law § 11-100 [1]. Related provisions of the Alcoholic Beverage Control Law direct that an entity licensed to sell alcoholic beverages may accept as written evidence of age only certain types of documentation. Alcoholic Beverage Control Law § 65-b [2] [b]. Licensees also must conspicuously display a notice regarding the illegality of the sale or giving of alcoholic beverages to persons under the age of 21 years and of the presentation of identification that is false, fraudulent, or not that of the presenter for the purpose of purchasing or attempting to purchase alcoholic beverages. (Alcoholic Beverage Control Law § 65-d.)
Other laws are directed toward the underage persons themselves: an underage person is prohibited from presenting or offering to a licensee under the Alcoholic Beverage Control Law any written evidence of age that is false, fraudulent, or not actually his or her own for the purpose of purchasing or attempting to purchase any alcoholic beverage. Alcoholic Beverage Control Law § 65-b [2] [a]) and from possessing any alcoholic beverage with the intent to consume it. Alcoholic Beverage Control Law § 65-c.
Merely hosting with observation and knowledge of consumption of alcohol by minors is itself not causing alcohol to be sold or given in violation of Penal Law § 260.20. What the defendants are charged with doing may be ill-advised, foolish and wrong, but that does not make it a crime. It is not socially tolerable, but the State Legislature has not made it illegal.
If the Legislature wishes to criminalize the knowing passive hosting of parties at which alcohol is served to minors, it certainly may and probably ought to do so. The Legislature has proposed changes to Penal Law § 260.20 to strengthen it and expand its reach to make it a felony and to increase fines, but those bills have not passed.
Even if the State Legislature is not so inclined, the City of Rye appears to have the authority to prohibit knowing passive hosting. The Attorney General has opined that a municipality has the authority to enact a local law that would prohibit any person over 16 years of age from hosting a party at premises under his or her control where five or more minors (meaning any person under 21 years of age) are present and alcohol is being consumed by any minor.
Pending legislative action, the police and prosecutors are limited by the language of the law as it now stands. Their diligent efforts to protect minors and the public are the right thing to do, and they do the best they can, but they are encumbered by the limiting scope of the statutes.
In the meanwhile, we are left with toothless tigers. Just give the kids (non-CBD) gummy bears.
