Sue the Minor and Parents of the Minor Who Uses False ID to
Buy Alcohol
By Ralph Barat Saltsman with Stephen Warren Solomon
and Stephen Allen Jamieson
Some kid with false identification walks into your store or bar
one fine day and manages to buy alcohol from your employee. Yes,
your clerk or waitress or bartender did check the ID, but a better
inspection would have shown that the ID was a second class attempt
at a computer generated out of state license. Standing about five
feet from the minor are two ABC investigators taking mental notes.
A few moments later, one investigator asks the kid how old he or
she is, and he or she eventually admits his or her true age as 16
or 17. The investigators find the fake identification and easily
see its errors and flaws. You are busted by the ABC, pay an
attorney to fight the criminal case and the ABC case. Your license
is suspended for 25 days, and you lose $ 75,000 in sales. Can you
sue the kid and parents and get your losses back from them in
civil court?
If the kid with the false ID was driving and negligently or
intentionally ran you over, you could sue that kid and get a
judgment for serious money damages. If the minor was under the age
of 18 at the time, and intentionally drove over you, you could go
after the parents as well in civil court. California law tells us
“Any act of willful misconduct of a minor which results in
injury or death to another person or in any injury to the property
of another” may result in liability for the minor and the
parents of the minor.
This law provides the means to hold parents of minors legally
liable for injuries caused by the willful misconduct of their
children. The law was designed to find the minors’ parents
liable for acts of malicious mischief and vandalism. By a
different statute the minor is legally responsible for intentional
misconduct and for negligent acts where others are injured as a
result. In our scenario, the 16 or 17 year old intentionally
engaged in fraudulent misconduct that injured you the ABC
licensee. That minor could be liable for money damages in civil
trial. Parental liability is a more difficult issue. Does it
matter whether the parent knew or should have known what the kid
was up to at your licensed premises?
Recently, the family of a teenage girl paid $250,000 to a severely
injured woman where the victim had been stabbed by a 16 year old
girl when the teenager broke into the victim’s home in a
methamphetamine induced burglary. The same Civil Code Section was
the basis for liability. In another case the Court of Appeal
recently reviewed the statutory liability created by this section
and found the reasonable interpretation of the statute would hold
parents liable where a parent had either legal custody or control
of the minor.
This conclusion should be compared to the holding of the Court of
Appeal in Cynthia M v. Rodney E. (1991) where 16 year old Cynthia
delivered minor Rodney’s baby all with great medical expense.
Rodney’s parents were held not liable, because while financially
injured by the willful misconduct of Rodney, Cynthia herself was
not an innocent victim in a civil law sense. The Court reasoned:
We have emphasized the word
"innocent" because we believe there is an important
distinction between a party who is injured through no fault of
his or her own and an injured party who willingly participated
in the offense about which a complaint is made. Given the
admittedly scant legislative history of …[the statute] we do
not believe the Legislature intended …[the law] to encompass
torts in which the injured party was a willing participant in
the "willful misconduct." "Between those who are
equally in the right, or equally in the wrong, the law does not
interpose." …. Also, "He who consents to an act is
not wronged by it." (Citations omitted)
In the scenario where the 16 or 17 year old with false
identification buys alcohol from your employee, in discussing
general issues of liability, some of the questions come down to
these: did your waitress or clerk or bartender consent to the
wrongful act of the minor? Was your employee a willing participant
in the misconduct? Did your employee innocently get taken in by
this kid’s fraud and deceit?
In a few states, this very type of litigation has been tried and
has been successful to some extent. Last summer Fox News Channel
reported on a 19 year old female Notre Dame freshman who, along
with around 212 other kids, bought alcohol in a bar in Indiana in
January 2003. Faced with the choice of “having its liquor
license revoked or paying a $5,000 fine and selling its liquor
permit to a new owner” the bar’s corporate owner sued this
freshman and others seeking about $3000 each as compensation for
the damages and losses caused by the alcohol purchase and
resulting administrative action. In that case and in some similar
cases around the country, bar owners caught selling to minors are
suing those kids for misrepresenting their age. In those cases,
the suits are based on fraud since the minors lied about their age
and/or presented fake ID’s, and the bar owner or the waitress or
bartender relied on the misrepresentations. A few years ago a
Massachusetts bar owner was successful in suing a minor who used
fake ID to buy beer in his bar.
Let’s change our scenario a little. The 17 year old minor is
accompanied by local law enforcement officers, because that minor
is a police decoy. The identification presented is real and shows
a person who won’t be old enough to buy alcohol for another four
years or so. Your clerk is utterly fooled by the smooth demeanor
and sophisticated manner of the decoy and sells to the kid. At the
administrative hearing the judge is impressed by the decoy’s
fairly adult behavior but is overwhelmed by his or her ever so
youthful face and physique. Accusation sustained. Suspension or
revocation as above. You turn to your lawyer and ask: Can I sue
this kid? Can I sue this kid’s parents? Can I sue the police
department?
In addition to the questions, concerns and factual issues that
apply to the non-decoy, there’s another layer of legal analysis.
As far as the police are concerned: no you cannot sue the police
department just for using a police decoy. This is not to say that
if the police engage in some physical abuse or attack on your
civil rights, you are without recourse. However, you cannot sue
the police for simply doing their job. They are immune from civil
liability for their discretionary acts within the scope of their
employment. State statute provides: “A public employee is not
liable for his act or omission, exercising due care, in the
execution or enforcement of any law. Nothing in this section
exonerates a public employee from liability for false arrest or
false imprisonment.”
However, most police decoys are not government employees. Most
decoys are simply volunteers who hold some relationship to an
officer or the department or attend an after school program or
have an unpaid cadet position with the police department. Under
wholly different circumstances, volunteers have been given public
employee type immunity from civil liability, but not always as a
volunteer acting with police in police investigations. Deputized
or appointed Reserve Officers are immune by statute. Volunteers
rendering technical assistance in a hazardous occurrence are
immune by statute. There is no specific immunity delineated by
statute to cover minor decoys. Generally, without statutory
protection, volunteers to the government are not public employees
who enjoy immunity from civil liability. In fact, the volunteer
decoy may be specifically excluded from the definition of public
employee by the statute that excludes: “Any person performing
voluntary service for a public agency…” unless the government
issues a specific legislative authorization.
Most likely the problem with suing the minor decoy lies elsewhere.
The minor decoy is authorized by state statute to work with local
law enforcement. Purchasing alcohol wouldn’t then constitute
misconduct nor would it constitute a negligent act resulting in
injury. However, be advised that if the decoy negligently knocks
over the coffee machine and burns down the building, he isn’t a
city employee. He may be liable for damages; the city probably
won’t be. If he does that intentionally, maybe his or parents
may be liable as well.
That 17 year old kid who presented your employee with false
identification may be the first named defendant in California in
such a lawsuit where you the licensee will sue him or her and his
or her parents and will allege that when the minor showed up at
your business with fake ID in order to buy alcohol, he or she
engaged in willful misconduct and intentional misrepresentation
resulting in the loss of your ABC license as severe economic
injury.
Solomon, Saltsman & Jamieson are
attorneys practicing in the areas of ABC law, ABC Appeals Board
cases, and all related Land Use Matters such as City and County
Conditional Use Permits, Variances, Police and Fire permits,
Entertainment law, and Gambling Law; as well as Business and
Personal Injury litigation. Solomon, Saltsman & Jamieson can
be reached at 800 405 4222."
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