Amended in Senate June 26, 2013

Amended in Assembly April 18, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1128

Introduced by Assembly Member Salas

February 22, 2013

An act to amend Section 25658 of the Business and Professions Code, relating to alcoholic beverages.

LEGISLATIVE COUNSEL’S DIGEST

AB 1128, as amended, Salas. Alcoholic beverages: underage drinking.

Existing law provides that every person who begin insert sells, furnishes, gives, or causes to be sold, furnished, or given away an alcoholic beverage to a person under 21 years of age, or who end insert purchases any alcoholic beverage for, or furnishes, gives, or gives away any alcoholic beverage to, a person under 21 years of age who thereafter consumes the alcohol and then causes great bodily injury or death to himself, herself, or any other person begin insert , end insert is guilty of a misdemeanor begin delete punishable by a fine of $1,000 and community service end delete .

This bill would begin insert require that these acts be performed knowingly for the penalties to apply. The bill would end insert include in begin delete this end delete begin insert the end insert provision begin insert regarding great bodily injury or death, described above, end insert a person who sells any alcoholic beverage to a person under 21 years of age and would provide that a violation of the prohibition is begin insert also end insert punishable as a felony. This bill would provide for an exception from felony prosecution for a begin delete retail employee of a end delete licensee begin insert or employee, agent, or representative of a licensee end insert , unless the begin delete retail employee knew end delete begin insert person had actual prior knowledge that end insert the person to whom the alcoholic beverage was sold was under 21 years of age. By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 25658 of the Business and Professions
Code is amended to read:

25658.  

(a) Except as otherwise provided in subdivision (c),
every person who begin insert knowingly end insert sells, furnishes, gives, or causes to
be sold, furnished, or given away any alcoholic beverage to any
person under 21 years of age is guilty of a misdemeanor.

(b) Except as provided in Section 25667, any person under 21
years of age who purchases any alcoholic beverage, or any person
under 21 years of age who consumes any alcoholic beverage in
any on-sale premises, is guilty of a misdemeanor.

(c) (1) Any person who violates subdivision (a) by begin insert know end insert begin insert ingly end insert
selling to, purchasing any alcoholic beverage for, or furnishing,
giving, or giving away any alcoholic beverage to, a person under
21 years of age, and the person under 21 years of age thereafter
consumes the alcohol and thereby proximately causes great bodily
injury or death to himself, herself, or any other person, is guilty
of either a misdemeanor or a felony.

begin delete

(2) A retail employee of a licensee shall not be subject to felony
prosecution under this subdivision for the sale of any alcoholic
beverage to a person under 21 years of age unless the retail
employee knew the person to whom the alcoholic beverage was
sold was under 21 years of age.

end delete begin insert

(2) A licensee or employee, agent, or representative of a licensee
shall not be subject to felony prosecution under this subdivision
for the sale, furnishing, giving, or giving away of any alcoholic
beverage to a person under 21 years of age unless the licensee or
employee, agent, or representative of the licensee had actual prior
knowledge that the person to whom the alcoholic beverage was
sold, furnished, given, or given away was under 21 years of age.

end insert

(d) Any on-sale licensee who knowingly permits a person under
21 years of age to consume any alcoholic beverage in the on-sale
premises, whether or not the licensee has knowledge that the person
is under 21 years of age, is guilty of a misdemeanor.

(e) (1) Except as otherwise provided in paragraph (2) or (3),
or Section 25667, any person who violates this section shall be
punished by a fine of two hundred fifty dollars ($250), no part of
which shall be suspended, or the person shall be required to
perform not less than 24 hours or more than 32 hours of community
service during hours when the person is not employed and is not
attending school, or a combination of a fine and community service
as determined by the court. A second or subsequent violation of
subdivision (b), where prosecution of the previous violation was
not barred pursuant to Section 25667, shall be punished by a fine
of not more than five hundred dollars ($500), or the person shall
be required to perform not less than 36 hours or more than 48 hours
of community service during hours when the person is not
employed and is not attending school, or a combination of a fine
and community service as determined by the court. It is the intent
of the Legislature that the community service requirements
prescribed in this section require service at an alcohol or drug
treatment program or facility or at a county coroner’s office, if
available, in the area where the violation occurred or where the
person resides.

(2) Except as provided in paragraph (3), any person who violates
subdivision (a) by furnishing an alcoholic beverage, or causing an
alcoholic beverage to be furnished, to a minor shall be punished
by a fine of one thousand dollars ($1,000), no part of which shall
be suspended, and the person shall be required to perform not less
than 24 hours of community service during hours when the person
is not employed and is not attending school.

(3) Any person who violates subdivision (c) shall be punished
by either imprisonment in a county jail for a minimum term of six
months not to exceed one year, by a fine of one thousand dollars
($1,000), or by both imprisonment and fine, or as described in
Section 25618.

(f) Persons under 21 years of age may be used by peace officers
in the enforcement of this section to apprehend licensees, or
employees or agents of licensees, or other persons who sell or
furnish alcoholic beverages to minors. Notwithstanding subdivision
(b), any person under 21 years of age who purchases or attempts
to purchase any alcoholic beverage while under the direction of a
peace officer is immune from prosecution for that purchase or
attempt to purchase an alcoholic beverage. Guidelines with respect
to the use of persons under 21 years of age as decoys shall be
adopted and published by the department in accordance with the
rulemaking portion of the Administrative Procedure Act (Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of
Title 2 of the Government Code). Law enforcement-initiated minor
decoy programs in operation prior to the effective date of regulatory
guidelines adopted by the department shall be authorized as long
as the minor decoy displays to the seller of alcoholic beverages
the appearance of a person under 21 years of age. This subdivision
shall not be construed to prevent the department from taking
disciplinary action against a licensee who sells alcoholic beverages
to a minor decoy prior to the department’s final adoption of
regulatory guidelines. After the completion of every minor decoy
program performed under this subdivision, the law enforcement
agency using the decoy shall notify licensees within 72 hours of
the results of the program. When the use of a minor decoy results
in the issuance of a citation, the notification required shall be given
to licensees and the department within 72 hours of the issuance of
the citation. A law enforcement agency may comply with this
requirement by leaving a written notice at the licensed premises
addressed to the licensee, or by mailing a notice addressed to the
licensee.

(g) The penalties imposed by this section do not preclude
prosecution or the imposition of penalties under any other provision
of law, including, but not limited to, Section 272 of the Penal Code
and Section 13202.5 of the Vehicle Code.

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.