National alcohol policy remains a preoccupation. 60 Minutes recently featured a segment on the legal drinking age in America. There is an ongoing effort by wine-drinking consumers and vintners to eliminate Prohibition Era state laws, including one in New York, that bar an out-of-state winery from shipping directly to a consumer in another state. Closer to home, Manhasset residents are currently caught in a crossfire between Young's Liquors and supermarket chains over a New York State revenue-raising proposal that would end the decades-long, state-sanctioned monopoly that liquor stores and vineyards have enjoyed over the retail sale of wine.

In August 2008, Westchester County passed a Social Host Law and joined Nassau and Suffolk counties in bringing additional criminal penalties to bear on the problem of underage drinking. Nassau County, whose law was the model for Suffolk and Westchester counties, unanimously adopted its Social Host Law in July 2007 and Suffolk County followed suit in December 2007.

These laws impose criminal liability upon persons who serve, or allow to be served, alcohol to minors on their residential property.

In June of 2008, the New York State Senate unanimously passed a Social Host Law, although the NYS Assembly has not moved the bill forward.

If all this were not enough, under the banner of the Amethyst Initiative, a number of college presidents are calling to reconsider the minimum legal drinking age of 21. A New York Times editorial praised the college presidents for calling attention to underage binge drinking, but ultimately excoriated them for suggesting that lowering the legal drinking age is an answer. A Wall Street Journal opinion piece came out in favor of a re-evaluation of the 21 year old legal drinking age policy that it called a "failure," even as it surmised that what primarily motivated academia was the increasing number of lawsuits against schools resulting from student drinking.

Unlike Dram Shop laws, which target the commercial sale of alcohol, Social Host laws focus on those in control of residential places where minors consume alcohol. Thus, homeowners, landlords and tenants are all at risk. And, unlike other laws that regulate the non-commercial serving of alcohol to minors, these Social Host laws do not require any harm to a third-party's person or property to impose liability. Nor is it a defense that the social host only served one or two drinks or that the teen was not impaired. The laws in this regard are absolute--the serving of any alcohol is a violation regardless of intoxication. Moreover, it is no defense that the social host did not actively provide or serve the alcohol because the laws forbid a host from "allowing" a minor's consumption. Thus, it is sufficient that the host acquiesced in the minor's drinking, even if the minor consumes alcohol that was procured off the premises. Finally, because the laws define the "knowing consumption" as not just actual knowledge, but as having "awareness," not only will the host actually present be liable, but so too may the absent homeowner or renter who allows a party to take place.

Each of the laws recognizes that it will not be possible to deny alcohol to determined youths and so a person may escape liability if they make a demand upon the minor to refrain from drinking or to leave the premises, or, failing that, to call the police or the minor's parents. Each also provides for exceptions if the teen's parent or guardian is present and consents, or if the alcohol is consumed for reasons of religious observance. There is, however, an important asymmetry in the laws. On the one hand, a minor, for purposes of whom the law prohibits serving to, is anyone less than 21 years of age. On the other hand, in Nassau and Suffolk anyone 18 years or older is potentially liable as a social host, whereas Westchester set the minimum liability age at 21.

In Nassau County, any violation is a criminal misdemeanor, with penalties escalating for multiple occurrences. The first two violations impose monetary penalties of $250 and $500, respectively, while the third violation imposes a $1,000 fine plus possible incarceration of up to a year.

The law targets at least three scenarios. In the first, the parents host a party and serve alcohol to minors. In the second, they do not serve alcohol, but the minors are allowed to drink alcohol purchased off premises. In the third, alcohol is consumed while the parents are away. There seems little doubt about the outcome in the first two scenarios. But, consider the third, with some additional facts.

Imagine a small gathering of friends in the summer of 2009 at a Manhasset home hosted by a high school senior born in May of 1991. The host's parents are away for the weekend and sternly warned their son to refrain from hosting any parties involving alcohol, although there is alcohol in the house. And, they deputize his older sister to ensure compliance with their "no party" edict. Further, they ask their next-door neighbor to check up on things. Among the teen host's friends is a college junior who will not turn 21 until the autumn of the year. Another of the minors has a fake ID purporting to show he is not a minor. The friends show up bearing beer and alcohol and begin drinking despite the young host's mild protestations. The 18-year old host soon joins in the revelry, although it is unclear if he consumed his friends' alcohol or some of his parents' alcohol. The elder daughter does nothing, but the neighbor stops by, announces that all underage drinking must cease, accepts the fake ID without close examination that would have revealed it was the driver's license of the minor's older brother, asks another minor, caught in the act of drinking, to leave, who leaves, but returns moments after the neighbor exits. Not long after, the police, responding to a noise complaint from another neighbor, enter the premises.

Whom will the law hold responsible? The parents? Did they acquiesce in the revelry or did they take sufficient precautionary measures? Should they have locked up the liquor? Would it make a difference if this were not the first party the son had hosted while his parents were away? What about the son for allowing his older, but still minor friends, to drink? Recall that in Nassau, an 18-year-old can be liable as a host for serving alcohol to anyone under 21 years old. Is it reasonable for the 18-year-old host to police his older friends? Nassau's law imposes liability on anyone 18 or older. How about the daughter for failing to supervise? Did she control the premises? And the neighbor? By acting as the good next-door neighbor, will he be deemed to have controlled the premises at the homeowner's direction?

Avoiding the risks of the law is easy: host no parties or strictly enforce a no-alcohol policy. Anything less entails a risk whose magnitude depends upon vigilance and other, unpredictable circumstances.

There is a clear need to address alcohol and the young. The articulated reasons for the permissive attitude to teen drinking is that it is an inevitable rite of passage, and alcohol, especially beer, is less dangerous than illegal drugs and residential drinking is preferred to drinking in public places.

Whether exposing Manhasset parents and their children to liability addresses that need remains to be seen. Logo
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