Permit Holders Claiming Entrapment Rarely Win
Legally Speaking by Marc Myers is a feature of the Ohio Tavern
Reprinted from Ohio Tavern News September 17, 2002
All permit holders know that the sale of alcoholic beverages to
an underage person is unlawful and can subject the person making the
sale to criminal prosecution and the permit holder to a liquor
Many individuals and permit holders, however, believe they have a
defense when those charges result from a "sting" operation where the
underage person has been specifically requited and sent into the
premises by law enforcement to attempt a purchase. Employees
and permit holders should be aware of when this defense, known as
"entrapment," is available and the legal requirements to establish
More and more frequently, law enforcement agencies are conducting
sting operations to test whether permit holders are requiring proof
of age prior to sale of alcoholic beverages. This is especially true
in central Ohio. Typically, the law enforcement agency will
select an underage person who may look of age but is not. The
underage person is not given false identification, but is instructed
to present his or her valid drivers license if identification is
requested by permit holder or employee prior to the sale.
Unfortunately, many times a sale occurs without any identification
requested or even after the underage person presents a driver's
license showing him or her to be underage.
In the vast majority of sting cases, criminal charges first are
pursued against the person making the sale and, if there is a
conviction, a liquor citation is issued to the permit holder
requiring a hearing before the Liquor Commission. The permit
holder often is cited for the criminal conviction rather than the
underlying sale because the conviction , by itself, constitutes a
Also, because of the criminal conviction, it is unnecessary for
local law enforcement to produce the underage person at the Liquor
Commission hearing. Oftentimes, law enforcement does not want
to disclose the identity of the underage "confidential informant"
because it may want to use the same person in the future sting
operations. However, the permit holder also may be cited at
the time of the alleged violation before any criminal case has been
Permit holders and employees sometimes believe that sting
operations are improper set-ups and they have been unlawfully
entrapped. In almost all cases, this is not true.
Entrapment is a legal doctrine known as an affirmative defense.
It must be proven by a preponderance of evidence and it generally is
only available in criminal cases. Courts have held that the
entrapment defense is available only to one who has been induced or
lured by the law enforcement officer for the purpose of prosecution
and into the commission of a crime which he otherwise had no
intention of committing. Courts also have held that where a
law enforcement officer merely provides an opportunity for another
to commit a crime, the defense of entrapment is not established.
In a case decided by the Franklin County Court of Appeals in
Columbus, a permit holder alleged that a Liquor Commission order
revoking its permit as a result of an employee's criminal conviction
in a sting operation was unlawful because the employee was
entrapped. The facts of the case simply were that a local
police department had sent an underage person into the permit
premises to purchase alcoholic beverages.
The court also noted that it assumed, without deciding for purposes
of the case, that entrapment could not even be used as a defense by
the permit holder in a Liquor Commission hearing. Again,
entrapment is a defense generally only applicable to criminal
prosecution and hearings before the Liquor Commission are not
criminal prosecutions, but administrative proceedings.
The decision of the Franklin County Court of Appeals is
significant because, as a result of a law change in 1999, all
appeals of Liquor Commission orders must be made through the
Franklin County court system. Permit holders may no longer
appeal to their home county court system. Therefore, the
Franklin County Court of Appeals' decision will apply to all permit
holders, regardless of where they are located in Ohio.
What does the court of appeals decision tell permit holders and
employees? First, any attempt to raise the defense of
entrapment should be made in the criminal case against the person
making the sale. Permit holders should not wait until the Liquor
Commission case to argue entrapment, because it is not clear that
entrapment is available as a defense in the administrative hearing.
Further, the mere act of local law enforcement sending in an
underage person to purchase alcoholic beverages is not enough to
prove entrapment. The courts will view that as law enforcement
merely providing an opportunity to make an illegal sale.
Something more is needed. Perhaps if law enforcement provides
the underage person with some form of false identification and the
person shows the identification after it is requested, the defense
may be established. However, each case will be decided on its
own facts, remembering that the defense bears the burden to prove
Permit holders and employees often feel they have been improperly
set up by sting operations and they should not be found guilty in
such situations. That, however, it not true. Permit
holders should know when the defense of entrapment can be raised and
what does and does not constitute entrapment. Of course, the
best policy to avoid these issues altogether is to ask for
identification at all times when in doubt and review the
identification carefully to determine the purchaser's age.
Marc Myers is official legal counsel for the Ohio
Licensed Beverages Association. Questions or comments should
be address to Myers at Blaugrund, Herbert & Martin Inc., 5455 Rings
Road, Suite 500, Dublin, Ohio, 43017, (614) 764 0681