JUNE 26, 2015 (UPDATE)
A case that has drawn widespread attention in the area took a new turn Thursday evening when County Attorney Mike Hogan messaged Lazer offices with the following:
Re: order dismissing selling beer to minor – citations
“…The charges are being diverted. The order has yet to be signed by the judge but it’s my understanding they were sent to [Judge J. Kevin Holbrook] today (Thursday).”
Mike Hogan, Lawrence Co. Attorney
Hogan was out of the office yesterday and could not be reached for comment but he sent the message when he returned home last night about 7:30 pm. He did not elaborate. District Judge J. Kevin Holbrook, to whom the case was assigned, was not in Lawrence County today and a call to his Paintsville office went to voice mail.
Louisa businessman Gene Wilson had complained about the manner in which the Louisa Police Department and ABC local officer William Leedy carried out a sting operation and cited three local store employees for selling beer to a 17 year-old. The three cashiers were issued citations (see story below).
“I just think it stinks when the police department attempts to fool stores into sellling to a minor,” Wilson said. “In fact the sale of beer has only been in effect for about thirty days and the cashiers are given 60 days to take an online course on checking ID’s. They didn’t even have a chance to finish the course.”
Wilson said it is also alarming that the officers chose only stores in his shopping center and did not check other beer sellers, one of which is managed by Leedy’s wife.
“They had plenty of time to check all the stores, but they chose to check only the ones in my shopping center,” Wilson said.
Chief Greg Fugitt said yesterday the reason the sting was done at Wilson’s store, The Outpost, is because of a complaint made to them that beer was being sold to minors there so they checked it and since the other two were close by, they checked them, too.
“We weren’t out to make criminals out of these girls, it was done to make them and the public aware of our intention to enforce it carefully,” Chief Fugitt said. “We are fine with the case being diverted, that is up to the county attorney and the judge,” Fugitt said Friday morning.
He said he undersands that a diversion gives the accused up to six months to not commit the offense again and if they don’t, the case is expunged from their record.
Hogan said today that Chief Fugitt is correct, the case will remain in abeyance and if the girls do not commit the same act, it will be stricken from the record.
He also said one of the girls had lost her job over the incident but her employer has agreed to rehire her today.
“I spoke to mayor (Harold) Slone, Chief Fugitt, City attorney Adams and Gene (Wilson) about it and they all agreed this was the best way to resolve the issue.”
“Diversion is an agreement where the defendant makes no admission of guilt but agrees there is a legal basis for the bringing of the charges. Additionally, by diverting the charge the Commonwealth agrees to place the charges off docket for a specified period of time to monitor good behavior. After the diversion period, in this case 6 months, if there is no further violations of law then the charges go off the defendants criminal history. I didn’t want to scar these people’s arrest record with a conviction and as we discussed one girl lost her job. In today’s economy if someone is trying to work and do the right thing then I’m all for helping them maintain gainful employment. I think the lesson was learned by all merchants selling beer and that in the future IDs will be checked more thoroughly,” Hogan added.
June 25, 2015
UNDERAGE DRINKING SALES BUST DISPUTED BY WILSON; ARRAIGNMENTS SET FOR JULY 14
Wilson says officers “fooled” beer sellers illegally
Louisa Police Department officers and Louisa Alcohol Beverage Control Administrator William Leedy conducted several quality control checks on establishments selling alcohol on June 19 which resulted in three citations for cashiers who sold beer to an underage person.
Local businessman Gene Wilson, who was the driving force behind the legalization of alcohol sales in Louisa in January, is irate over what he calls the “illegal bust” of three cashiers who were cited in a LPD/ABC sting last week for selling beer to an underage person.
Wilson said the citations do not follow Kentucky law and he has spoken to Lawrence Co. Attorney Mike Hogan about getting the citations thrown out because of the alleged illegal acts by the city officials. But Hogan did not have the citations dismissed in District Court this week as Wilson expected. Hogan was not in his office today for comment.
Instead, the three cashiers have been set for arraignment on the charges on July 14, 2015 in District Judge Kevin Holbrook’s court, Circuit Clerk Jodie Parsley said.
According to Louisa Police Cheif Greg Fugitt, the departments made busts for selling alcohol to minors at Rite Aid, Food City and the Outpost, all located in a shopping center owned by Wilson. They used underage, undercover individuals to purchase alcohol using false identification. The 17 year old males were able to make purchases at the three locations successfully. Two of the locations sold to the undercover individual who was using an ID for a 32 year old female while the other location sold to the individual using a 25 year old female ID, which was later found to be a suspended license, the statement said. The suspended license was that of a female, Anna Gilpin.
But Wilson said Kentucky law does not allow for individuals under the age of 18 to be used in such sting operations. He also claims the decoy was wearing a cap and sunglasses in order to disguise himself. He also said the drivers licenses used were older licenses that had been confiscated in cases and should have already been sent to Frankfort.
Louisa City Attorney Eldred “Bud” Adams said today that he sees nothing wrong with the busts. “I haven’t researched it in detail but I don’t see anything wrong with what the LPD did,” Adams said. Adams also mentioned he has not spoken to either Hogan nor Wilson about the matter.
But Wilson said yesterday that he had spoken to someone from the city that said they [Louisa Police Department] were willing to go along with the dismissal and “chalk it up to a learning experience.”
“I just don’t see how this is right,” Wilson said. “They deliberately tried to fool the cashiers and catch them doing something they had no intention of doing.”
Wilson also complained that the busts were only done in his shopping center while other businesses who sell beer were not part of the sting. He said the Clark’s Marathon station where Leedy’s wife is a manager nor the local Speedway was not part of the sting, for example.
The lists below show information on underage purchase and attempted purchase along with laws targeting alcohol suppliers and false identification for obtaining alcohol.
* Compliance check protocols require the decoy for the sting be under 21 and between the ages of 18 – 20.5 years old. A 17 year old decoy was used for operating these stings.
* Age-appropriate appearance and character is also required, according to an excerpt from the 2014 report to Congress on the Prevention and Reduction of Underage Drinking which does not carry the weight of law. The decoy is to present his/her actual state-issued ID that clearly states that he is underage, and cannot lie about his being underage when questioned by the store clerk, otherwise this could be construed as entrapment.
But Kentucky makes driver’s licenses for persons younger than 21 easily distinguishable from adult licenses, in more than one way. Persons younger than 21 have an ID that runs vertical and has a date stating person is under the age of 18 AND under the age of 21 with birthdate listed at the bottom. Adult licenses run horizontally and show birthdate; no exact indication listed of holder actually being 21 or older besides the birthdate.
Citations were issued to Ashley Branham, 21, of Blaine, Jennifer Wilson, 27, of Genoa, WV, and Rebecca Watts, 52, of Fort Gay, WV. Arraignment for the cases will be held July 14 under Judge John Holbrook.
[Lazer Editor/Publisher Mark Grayson contributed to this story]
According to a 2013 report to Congress on the Prevention and Reduction of Underage Drinking – Submitted to Congress by the U.S. Department of Health and Human Services
Underage Purchase and Attempted Purchase
This report uses two sets of variables for purchase of alcoholic beverages by those under age 21.
1. Purchase Prohibited
States may have provisions prohibiting actual or attempted purchase of alcoholic beverages by minors.
2. Exemption: Youth May Purchase for Law Enforcement Purposes
States may permit minors to possess and purchase alcohol for law enforcement purposes, typically as part of a program to check merchant compliance with underage drinking laws. A state may have this exemption even if it does not have a law specifically prohibiting underage purchase (making it an exemption to its underage possession law).
False Identification for Obtaining Alcohol
1. Provisions That Target Minors
Use of False Identification (ID) Prohibited
All states make it a criminal offense for minors to use a false ID when attempting to purchase alcoholic beverages.
License Suspension
States may mandate or authorize the suspension or revocation of the minor’s driver’s license as a sanction for violating false ID laws. The suspension can occur through either an administrative or a judicial process. The state agency issuing the driver’s license is responsible for administrative actions, which do not involve a judicial proceeding. Judicial suspensions occur as part of a court proceeding after the minor has been found guilty of violating the false ID law (and may be accomplished by a court order issued to the licensing authority). State law may authorize both types of processes. For further discussion of policies pertaining to the suspension or revocation for alcohol infractions of minor’s licenses, see the “Loss of Driving Privileges for Alcohol Violations by Minors (“Use/Lose” Laws)” section of this report.
2. Provisions That Target Suppliers
Lend/Transfer/Sell
States may prohibit lending, transferring, or selling valid government-issued IDs to persons to whom they do not belong.
Production
States may prohibit altering a valid ID or creating or manufacturing a false ID for the purpose of purchasing alcoholic beverages.
3. Retailer Support Provisions
Scanner
Some states provide incentives to retailers who use electronic scanners that read birth dates and other information digitally encoded on valid ID cards. Incentives may include an affirmative defense in prosecutions for sales to minors if the retailer can show that the scanner was used properly.
Distinctive Licenses
States may have a law or regulation that makes driver’s licenses for persons younger than 21 easily distinguishable from adult licenses (e.g., by having the picture in profile for one and frontal for the other).
Seizure of an Identification Document
States may permit retailers to seize apparently false IDs without fear of prosecution even if the identification is valid. The retailer must act reasonably or in good faith (the standard may vary by state) in order to avoid prosecution.
Affirmative Defense
States may grant retailers a defense in a prosecution involving an illegal alcohol sale to a minor based on the retailers’ belief that the minor was of age. There are two types of affirmative defenses:
• Specific: The retailer inspected the false ID and came to a reasonable conclusion that it was valid.
• General: The retailer came to a good faith or reasonable decision that the minor was of age without necessarily inspecting an ID.
Right To Sue Minor
States may allow a retailer the right to sue a minor who uses a false ID to purchase alcohol for any losses or fines suffered by the retailer as a result of the illegal sale.
Detention of Minor
State law may give retailers the authority to detain minors who use false IDs to purchase alcohol. This authority may protect the retailer from liability for false arrest, false imprisonment, slander, or unlawful detention.
Information below has been excerpted from the 2014 Report to Congress on the Prevention and Reduction of Underage Drinking
Laws Targeting Alcohol Suppliers
Furnishing of Alcohol to Minors
Furnishing is prohibited with the following exception(s):
• Parent/guardian
Compliance Check Protocols
Age of decoy
• Minimum: 18
• Maximum: 20.5
Appearance requirements
• Age-appropriate appearance and character
ID possession
• Prohibited
Verbal exaggeration of age
• Prohibited
Decoy training
• Mandated
Penalty Guidelines for Sales to Minors
• Time period/conditions: 2 years
• First offense: $1,800 fine and/or 36-day suspension
• Second offense: $3,600 fine and/or 72-day license suspension
Responsible Beverage Service
No beverage service training requirement
Minimum Ages for Off-Premises Sellers
• Beer: 18
• Wine: 20
• Spirits: 20
Condition(s) that must be met in order for an underage person to sell alcoholic beverages
• Manager/supervisor is present.
Note: Although 20 is the minimum age requirement to sell alcoholic beverages at both off-sale and on-sale establishments, 18-year-olds may stock, arrange displays, accept payment for, and sack malt beverages by the package, under the supervision of a person 20 years old or older.
*** Links to Alcoholic Beverage Control (ABC) statutes and regulations are available at http://abc.ky.gov/Pages/default.aspxlaws.
