Could a Maryland bar or club lose its liquor license if an underage patron possessed alcohol on the premises, even if the licensee didn't know about it?

Plain-English summary

Counsel for the Prince George's County Board of License Commissioners asked the Attorney General, in 1989, whether a 1974 opinion correctly stated that an alcoholic beverage licensee could not be sanctioned when an underage person possessed liquor on the premises, so long as the licensee neither purchased nor knowingly served it to that person and didn't know a violation was happening. The Attorney General concluded the 1974 opinion was wrong and overruled it: a separate provision of Article 2B, §118(d), unaddressed by the 1974 opinion, made it a violation for a licensee to "permit" the consumption or possession of alcohol by anyone under 21 on the premises "no matter by whom" it was purchased or obtained, and courts interpreting similar "permit" language in other states had consistently held that a licensee's lack of actual knowledge is no defense. The opinion concluded that licensees who allow underage patrons on the premises have an affirmative duty to supervise against violations of that provision.

Currency note

This opinion was issued in August 1989 and interpreted Article 2B of the Maryland Code as it existed at that time. Maryland's alcoholic beverage laws have since been substantially reorganized (Article 2B was eventually recodified into the Alcoholic Beverages Article), and the specific section numbers, penalty amounts, and even the underlying drinking-age framework discussed here may no longer reflect current law. This page is a historical record of how the Attorney General analyzed licensee liability for underage possession under the statute as it read in 1989. It describes what the opinion concluded at the time and is not a statement of current Maryland alcoholic beverage law. Verify the current statute and its section numbering directly before relying on anything here.

Common questions

Did a 1989 Maryland AG opinion say bar owners could be held responsible even if they didn't know an underage person had alcohol? Yes. The opinion concluded that Article 2B, §118(d) made it a violation for a licensee to permit anyone under 21 to consume or possess alcohol on the premises regardless of who purchased or supplied it, and that a lack of actual knowledge of the specific violation was not a defense, drawing on similar rulings from other states interpreting comparable "permit" language.

Did this 1989 opinion change what a 1974 Maryland AG opinion had said about licensee liability? Yes. The opinion expressly overruled 59 Opinions of the Attorney General 39 (1974) to the extent that opinion suggested an "innocent" licensee, one unaware that liquor purchased by an of-age patron had been passed to someone underage, could not be sanctioned; the 1989 opinion found that the 1974 opinion had overlooked a separate statutory provision imposing that duty regardless of the licensee's knowledge.

Background and statutory framework

The 1974 opinion at issue, 59 Opinions of the Attorney General 39, had interpreted Article 2B, §118(a), which made it a misdemeanor for a licensee to "sell or furnish" alcohol to a minor, subject to a due-caution defense if the licensee reasonably believed the person was of age. Reading that provision alone, the 1974 opinion concluded that an "innocent" licensee, one who neither purchased for nor knowingly served an underage patron when an of-age companion passed along a drink, could not be charged, and it went on to encourage licensees to give 18-to-21-year-olds full access to licensed premises.

The 1989 opinion found that the 1974 opinion had overlooked a separate provision, former Article 2B, §118(g) (renumbered §118(d) by 1989), which independently barred a licensee from permitting the consumption or possession of alcohol by anyone underage "no matter by whom such alcoholic beverages shall have been purchased or from whom obtained." Applying the standard the office had set two years earlier in 72 Opinions of the Attorney General 200, 202 (1987), that a prior opinion embodying "a significant mistake in legal reasoning" should be overruled even though the office otherwise stands by its precedent, the 1989 opinion concluded that §118(d)'s plain language imposed a duty on licensees to supervise their premises against underage possession regardless of knowledge or consent. It supported this reading with decisions from California, Colorado, Ohio, and Texas interpreting similar statutory language barring licensees from "permitting" violations without requiring proof of actual knowledge, and with a federal Eighth Circuit decision applying the same reading of "permit" outside the liquor-licensing context. The opinion noted the practical tension the 1974 opinion may have been responding to, since Maryland at the time allowed 18-to-21-year-olds to buy some but not all alcoholic beverages, and observed that the General Assembly had set a comparatively modest $50 maximum fine for a §118(d) violation, far below the $1,000 fine and up to two years' imprisonment possible under §118(a).

Citations and references

Statutes:

• Article 2B, § 118(a), the sell-or-furnish provision interpreted by the 1974 opinion, with its due-caution defense
• Former Article 2B, §118(g), the original "permit" provision barring underage possession regardless of who purchased the alcohol
• Article 2B, § 118(d), the 1989-renumbered version of that same "permit" provision, reflecting the uniform drinking age of 21

Cases:

• Mitchell v. Register of Wills, 228 Md. 305, 310 (1962), cited for the precedential weight the office gives its own opinions
• Ballesteros v. Alcoholic Beverage Control Appeals Board, 44 Cal. Rptr. 633 (Cal. App. 1965), California decision holding a licensee liable for "permitting" underage presence without requiring actual knowledge
• Clowns Den, Inc. v. Canjar, 518 P.2d 957 (Colo. App. 1973), Colorado decision similarly rejecting an actual-knowledge requirement for "permit" violations
• Mundell v. Dep't of Alcoholic Beverage Control, 27 Cal. Rptr. 62 (Cal. App. 1962), cited alongside Ballesteros
• B.P.O. of Elks v. Board of Liquor Control, 155 N.E.2d 523 (Ohio Ct. Comm. Pleas 1957), cited alongside Ballesteros
• Texas Liquor Control Board v. Floyd, 117 S.W.2d 530 (Tex. App. 1938), cited alongside Ballesteros
• United States v. Denver & R.G.R. Co., 249 F. 464 (8th Cir. 1918), cited for a similar no-actual-knowledge reading of "permitting" outside the liquor-licensing context
• Brodsky v. California State Board of Pharmacy, 344 P.2d 68 (Cal. App. 1959), cited alongside the Denver & R.G.R. Co. discussion

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 42-47 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ALCOHOLIC BEVERAGES

Licensees - Duty To Prevent Underaged Persons From Consuming Or Possessing Alcohol

August 10, 1989

Edmond B. O'Connell, Esquire
Counsel for the Prince George's County
Board of License Commissioners

You have requested our opinion on whether 59 Opinions of the Attorney General 39 (1974) correctly reflects the law governing the responsibility of an alcoholic beverage licensee for allowing the possession of alcoholic beverages by underaged persons on the licensed premises.

For the reasons stated below, we conclude that a licensee is subject to sanctions for permitting the consumption or possession of alcoholic beverages in licensed premises by anyone under the age of 21 years, even if the alcoholic beverages were obtained by someone over that age. To the extent that 59 Opinions of the Attorney General 39 suggests the contrary, it is hereby overruled.

I

The 1974 Opinion

59 Opinions of the Attorney General 39 (1974) was primarily an interpretation of Article 2B, § 118(a) of the Maryland Code, which in pertinent part provided at the time as follows:

No licensee under the provisions of this article, or any of his employees, shall sell or furnish any alcoholic beverages at any time to a minor under twenty-one years of age, except that the age shall be eighteen years for beer and light wine, either for his own use or for the use of any other person .... Any person violating any of the provisions of this subsection shall be guilty of a misdemeanor ...; provided, however, that any person charged with selling or furnishing any alcoholic beverages to a minor under twenty-one years of age, except that the age shall be eighteen years for beer and light wine, shall not be found guilty of a violation ... if such person established ... that he used due caution to establish that such minor under twenty-one, or eighteen years of age where beer or light wine is sold or furnished, was not, in fact a minor....

The Attorney General described the problem posed to him as follows: "We understand that certain licensees, alarmed by what they deem to be the implications of this section, feel a need to protect themselves from possible prosecution or license revocation or suspension stemming from circumstances over which they have little or no control, e.g., a charge arising out of the possession by an 18 year old of liquor which was neither purchased by him nor served to him but was in fact purchased by a companion of legal age who passed the liquor to the 18 year old without the knowledge or consent of the licensee or any employee of the licensed establishment."

The Attorney General concluded that "neither [§118(a)] nor any other provision of law will support charges against an innocent licensee or employee when a person 21 years old or older, who has been served liquor for his own use, passes it to a person under 21 at the same or a different table or at the bar or anywhere else in the licensed establishment." 59 Opinions of the Attorney General at 40 (emphasis in original). By "innocent," the Attorney General meant that the licensee neither knew of nor consented to the underaged person's obtaining of the liquor. Id.1 This conclusion was a predicate to a discussion in the balance of the opinion intended to encourage licensees to allow persons 18 through 21 years of age full access to licensed premises. 59 Opinions of the Attorney General at 42-45.

1
The Attorney General suggested extremely limited circumstances under which the licensee would be on notice of a possible violation, "for example, where liquor is found in the possession of an 18 year old at the bar of a liquor establishment with none present except the Licensee or his employees." 59 Opinions of the Attorney General at 41.

II

Effect of Article 2B, § 118(d)

In an opinion two years ago, we wrote as follows concerning the precedential value of prior opinions and our standards for overruling them:

Although the opinions of this office do not have the binding effect of judicial decisions, nevertheless they "serve as important guides to those charged with the administration of the law." Mitchell v. Register of Wills, 228 Md. 305, 310 (1962). In the absence of judicial decisions, Attorney General opinions promote steady application of the law. Accordingly, this office stands by its precedent, much as a court would.... We do not overrule a prior opinion simply because we might have resolved a close question the other way, were we first presented with it. See 67 Opinions of the Attorney General 98, 99 (1982). At the same time, we will not perpetuate a significant mistake in legal reasoning. We are also prepared to recognize that a prior opinion has been eroded by changed circumstances.

72 Opinions of the Attorney General 200, 202 (1987).

In this instance, we believe that the 1974 opinion embodies "a significant mistake in legal reasoning." While we do not disagree with the opinion's analysis of §118(a), its conclusion that "[no] other provision of law" imposes a duty on the licensee is wrong.

In 1974, as today, §118 contained the following provision, not discussed in the 1974 opinion:

No licensee, proprietor, or operator of any establishment dispensing alcoholic beverages shall permit the consumption or possession of any alcoholic beverages other than beer or light wine by a person under the age of twenty-one years or the consumption or possession of beer or light wine by any person under eighteen years upon said premises no matter by whom such alcoholic beverages shall have been purchased or from whom obtained.
Anyone violating this subjection shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than fifty dollars [$50.00] in addition to any other penalties as provided under this article.

Former Article 2B, §118(g). This provision, modified to reflect the reestablishment of a uniform drinking age of 21 years, now appears as Article 2B, § 118(d).2

In our view, this provision imposes on a licensee a duty to supervise the premises, to assure that underaged persons do not consume or possess alcoholic beverages. It is no defense to a violation of this subsection that the alcohol was first obtained by someone of legal age or that the licensee was unaware of the violation.

Authority from other states supports this conclusion. In Ballesteros v. Alcoholic Beverage Control Appeals Board, 44 Cal. Rptr. 633 (Cal. App. 1965), the statute in question provided that: "Any licensee ... who permits a person under the age of 21 years to enter and remain in the licensed premise without lawful business therein is guilty of a misdemeanor." 44 Cal. Rptr. at 636. The California court found that the licensee was guilty of a violation when the bartender failed to check the age of a patron under 21 who accompanied a group of other patrons over 21: "In the present case it is apparent that the bartender, who was the only one in charge of the barroom and was very busy selling beverages to the many patrons who were crowding around the bar, was inactive or passive with respect to his affirmative duty to ascertain the age of [the patron]. Such passive conduct on his part amounts to 'permitting' [the patron] to be present in the barroom." 44 Cal. Rptr. at 637.

2
The present wording is as follows:
No licensee, proprietor or operator of any establishment dispensing alcoholic beverages shall permit the consumption or possession of any alcoholic beverages by a person under the age of twenty-one years upon said premises no matter by whom such alcoholic beverages shall have been purchased or from whom obtained. A violation of this subsection is a misdemeanor punishable by fine of not more than $50 in addition to any other penalities provided under this article.

Similarly, in Clowns Den, Inc. v. Canjar, 518 P.2d 957 (Colo.
App. 1973), the licensee was accused of violating a regulation instructing that licensees "shall not permit within or upon the licensed premises" various forms of improper behavior. The licensee charged with a violation of this provision claimed "that the word 'permit' in this context denotes knowing acquiescence or consent and that, therefore, it was necessary to allege and prove actual knowledge by the
[licensee] of the conduct in question." 518 P.2d at 958. Looking to the purpose of the statute, the Colorado court rejected this argument: "[W]e hold that to have 'permitted' a violation of the regulation, the
[licensee] need not have had actual knowledge of the specific activities constituting the violation." 518 P.2d at 959. See also Mundell v. Dep't of Alcoholic Beverage Control, 27 Cal. Rptr. 62 (Cal. App. 1962); B.P.O. of Elks v. Board of Liquor Control, 155 N.E.2d 523 (Ohio Ct. Comm. Pleas 1957); Texas Liquor Control Board v. Floyd, 117 S.W.2d 530 (Tex. App. 1938).3

We have no doubt that ensuring compliance with the prohibition in § 118(d) would have posed practical problems for licensees at a time when persons between 18 and 21 years of age were authorized to buy some kinds of alcoholic beverages, but not others.4 This practical difficulty, together with an evident desire to ensure that 18 to 21 year olds would be able to enjoy their new privilege, might have led to the oversight in the 1974 opinion. But, as a matter of proper statutory construction, the 1974 opinion erroneously failed to give effect to the restriction in former § 118(g), now § 118(d), and, to that extent, must be overruled.

3
Courts have given a similar reading to the word "permits" in other contexts.
In United States v. Denver & R.G.R. Co., 249 F. 464 (8th Cir. 1918), the court rejected the defense of lack of knowledge of a company charged with violating a prohibition against "permitting" employees to perform excess service. "It was bound to see to it that the agent did not remain on duty for an excess period. If it failed to discharge that duty, it 'permitted' the employee to perform the excess service, and was liable to the penalty affixed by the statute." 249 F. at 466. See also, e.g., Brodsky v. California State Board of Pharmacy, 344 P.2d 68 (Cal. App. 1959).
4
Perhaps in recognition of this difficulty, the General Assembly imposed a much less severe sanction for violations of §118(d) than of § 118(a), a $50 maximum fine, instead of a maximum fine of $1,000 and imprisonment for up to two years, or both.

III

Conclusion

In summary, it is our opinion that Article 2B, §118(d) subjects a licensee to sanctions if the licensee permits anyone under the age of 21 to consume or possess alcoholic beverages in the licensed premises, even if the licensee neither knew of nor consented to the underaged person's obtaining of the alcohol. A licensee who allows persons under 21 on the premises has an affirmative duty to safeguard against a violation of § 118(d).

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice