One of the two real constants in my Philosophy Of Beer is that drinking is drug-taking.1 You can say this without being puerile or Prohibitionist; it is, after all, just the plain and literal truth. A lot of things are drug-taking ― from my morning coffee and daily antihistamines to things like morphine and amphetamines ― and there’s no point pretending otherwise or ignoring the wider context, variable as it is. The “drug” concept is (like everything) fuzzy at the margins, but I’m most interested in the ways it entails the need for some kind of moderation in your personal life (which I’ll return to later) and some kind of regulation in society.2 Needless to say, the details vary wildly with the character of the particular drug, and it’s entirely possible to strike the balances very badly indeed. For now, as a warmup to tackling trickier issues later, let’s address one specific rule ― age3 ― and how compliance with it is tested.
The Police regularly conduct “controlled purchase operations”, where an underage person is recruited to attempt to purchase alcohol from, say, a supermarket or a bar. That person can lie when asked their age, but they don’t carry fake ID. Recently, Dominic Kelly ― proprietor of beer bar Hashigo Zake and its importing arm Beer Without Borders ― criticised the practice, labelling it entrapment, and describing it as ‘seedy’, ‘inherently unfair’ and ‘appalling’. Now, I like Dominic. I count him a friend and consider him one of the country’s unsung beer writers; through his editorials in B.W.B.’s entertaining newsletters and his occasional blog, he’s a strong and valuable voice on its regulatory and business aspects. But here, he’s almost completely wrong.
This just isn’t entrapment. Not on the law as it stands in New Zealand,4 and not on the philosophy behind the idea. Entrapment, which definitely happens and is definitely bad,5 is all about the authorities making you do something illegal that you wouldn’t otherwise have done. If the minor in a CPO just joins the queue as a regular customer and offers money in exchange for stuff like anyone else, there’s no element of luring you into it. If they’re putting special effects make up on 17 year olds so they appear in their fifties, that’d be worth arguing. But this is an utterly banal screening, like a speed camera or breath-test checkpoint on the road.6 Indeed, it’s hard to imagine how else compliance with the purchase age could otherwise be feasibly tested.
In fairness, though, there’s a lot Dominic gets right on his way to being so wrong. He’s got a good eye for power imbalances and unlike most people I’ve read on this issue, he’s got empathy and concern for both the recruited minors and the front-line staff who are liable for significant fines. According to the CPO manual the Police use volunteers who aren’t paid in real money for a real job,7 but instead we learn that gift vouchers are “common practice”. Which is pants; work earns cash. And on the law as it stands, the fines are out of whack: service staff are on the hook for $2,000 while licensee companies face $10,000, which is almost certainly hugely disproportionate to their relative resources and doesn’t give enough incentive for real training8 — plus, there’s zero direct financial risk for door staff, which seems an oversight and sets up a strange dynamic in bars. The ‘seediest’ thing about CPOs at the moment is that they usually give a tip-off as to the where and when to the Hospitality Association, which is more of a gross and reactionary lobby-group than anything really representative of the bars I prefer to work in — and drink in.
The reality is that divining a stranger’s age is very hard. Always. Then, every single demographic difference between you and the customer makes it harder. I am double the minimum purchase age — someone born the day I (legally) bought my first beer can damn near buy one for themself — and I was ID’ed in the supermarket last week. And that’s fine. This isn’t some harmless icebreaking guessing-game among new acquaintances; they have money on the line that they can’t spare, just as I do when I’m bartending, and they are controlling access to a not-unproblematic drug. It’s always an awkward question, too: it feels impolite and accusatory and there’s a whole lot of societal bullshit around age and status bound up in it all.9 My counsel for fellow staff is to compare the actual embarrassment of asking someone for their ID to the potentially-much-greater embarrassment of telling their boss they fucked up and the person over there in the blue uniform would now like to have a word. And I am myself an assertive chap — even problematically so, on occasion — and carding someone is still uncomfortable for me.
I’m all for changing the norms on this. Recently, I’ve had several customers just wordlessly offer their ID, and it’s been brilliant; a simple reversal of the presumption which makes everything so much more civilised. If you’re under 25, do that. Hell, if you’re under 30, or think 5% of people might think you are, or it’s been less than a year since you were last carded — do that. Too often I’ve felt I should check someone and stalled; too often I’ve had someone take umbrage that I did ask. Why does anyone get grumpy that we might not feel like wagering a month’s pay on how many candles were on a random person’s most-recent birthday cake? Everyone knows that this is a controlled substance, right? This check is one of the controls. Some beloved local bars have dropped the ball and been stung lately, and as much sympathy as I have for the complexities here, this needn’t be that hard. The rules are the rules — and on this occasion, there’s really very little wrong with them. So let’s all play nice and retain our moral authority to complain about things that are actually crap, of which there is no shortage. We are drug dealers. You are buying drugs. Let’s both do it better. We can practice on the easy stuff like this, then tackle the thornier problems.
- The other is that the diversity of beer you see around you in the modern market is a) not new, and b) easily navigable (with a little preparation). This is essentially my shtick in tastings and presentations at festivals, and I plan to get something of a ‘series’ of posts together along that line ― but it does need a pithier title. Something along the lines of “to beer is human”, perhaps.
- And yes, even caffeine is regulated. Not much, in comparison, sure. But not none.
- Remember the relatively-uncommon quirk of New Zealand law, here: we have no set “drinking age”; our limit of 18 is only a purchase age.
- A recent Court Of Appeal decision (McKee v R, 2013) cites a short chain of authority that goes back to a “useful test” in a House Of Lords decision: “whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime”.
- Read up on some of the terror-plot examples if you want to be hugely depressed and/or angry.
- And spare me the “it’s revenue-raising!” whines on the former. Think of it as a voluntary donation. Don’t want to pay? Easy: make sure the number on your little dial is smaller than the one on the big sign. Entrapment, in these cases, would be chasing motorists down narrow roads in unmarked cars to scare them into escaping at speed or pretending to be badly injured and pleading with a drunk person to get you to the hospital a.s.a.p..
- Protecting their identity — a problem which the manual is hip to — might be part of the reason, but I think we can be clever about this, can’t we?
- There are also $10K fines for managers and the possibility of company-wide shutdown periods (and thereby massive lost revenue) as a punishment, admittedly, but I deal in edge cases on these things. Get those right. The rest will follow.
- Please can we ditch the nonsense line that women in particular should be “flattered” when they’re ID’ed? I know it’s a defusing little joke that everyone shares, but the underlying premise is gross.
21 thoughts on “We are drug dealers”
Yes. I don’t offer my ID any more because it’s pretty rare I get asked for it, but when I do I always reassure people there’s no offence (especially when they see my age and get apologetic). They’re just doing their job!
In some states in the US there’s a mandatory requirement to card no matter what age you look, which is one way to solve the problem :: You KNOW you will be carded no matter what, so you don’t try to buy if you don’t have ID, and it’s impossible* to be offended when there’s no judgement on the part of the person asking.
* Some people can be offended at anything, so I suppose I should say ‘nigh on impossible’
Actually the word in the wikipedia definition that you cite was induce, not lure. Luring sounds like some elaborate cold war honey-trap is involved. The simple act of someone under 18 offering cash for alcohol still constitutes an inducement to commit a crime.
You might be very-slightly-technically-correct on the raw linguistics, there. But it’s just not a problem. There’s no interesting or relevant difference, from the salesperson’s point of view, between a minor offering cash for alcohol under the supervision of Police and a minor offering cash for alcohol on their own initiative. It’s a fair test. (As I ask above, how else would we check this?)
Phil, the word you’re looking for is “correct”, not “very-slightly-technically-correct”. We’re talking about law aren’t we?
And yes it’s a huge problem.
You and I and the places we work at have kept our noses clean with respect to selling to under-18s. Partly because we’ve all been fairly conscientious in checking age but also because places like GFD and HZ don’t attract many (or even any) under-age customers.
But we could still get busted at any moment because the police choose to pick on us one day and on that day one member of staff makes a single mistake.
If and when that day comes it is quite possible that that sale would have been the only one ever made to anyone under age at that business. But will the court ask the police to provide evidence that the offence they induced actually goes on the rest of the time? No.
It’s an incredibly arbitrary, unfair method of policing.
The lack of a better alternative doesn’t make it fair.
Nope. We’re talking about linguistics. Because if we’re talking about law, you’re just wrong. Not technically wrong. Wrong. This is not inducement or entrapment under New Zealand law. Nor should it be.
If one day I fuck up (as comrades in places not too dissimilar to GFD and HZ have done) then, well, this blog post will be hugely embarrassing. But that won’t amount to a defence. The Police don’t need to prove that I’ve ever broken the speed limit before or since in order to ping me with a speed camera fine. I just don’t see any disanalogy to that, here.
(But will a pattern or lack of pattern be relevant to the nature and magnitude of the punishment? Obviously and rightly so. But that’s not the same question.)
If the speed camera wasn’t there would you still have been speeding? Yes.
If the police don’t send an under 18 in to a bar to buy alcohol would a crime otherwise have been committed? No.
That still doesn’t seem enough, since (done right) a CPO is just such a straightforward test. You feel free to talk about the kinds of bars where serving minors doesn’t or wouldn’t happen — but, quite literally, without testing like this… how would we know?
Serious question. Is anything entrapment under NZ law?
Yes. Though we don’t use that term as such in legislation so far as I know. See the McKee v R case I cited in footnote 4. If the Police infiltrated a so-far peaceful protest group and kept nudging them to violence, they may well fall foul of the rules on entrapment in the process.
WONKISHNESS ALERT: I think what’s happening here is a confusion between causation and counterfactuals. Your sense of “induce” is causal and yes, the Police have caused the illegal act to occur. But that isn’t the legal question, which is rather one of the counterfactual: “would you have served this underage person if they weren’t working for the Police?”, and in the running of a normal CPO failure the answer is obviously yes because that’s the server assumes!
actually, no, your confusing my statement that CPOs are entrapment with some kind of reference to a specific law or regulation about police entrapment, which doesn’t exist.
I’m talking about fairness and moral legitimacy. And, while we’re at it, effectiveness at improving attitudes to alcohol at the same time. Judged against those criteria CPOs are farcically bad.
Which is why I’m mystified that you compose a lecture telling the hospitality industry to just live with them.
I’ll re-direct you to my last four sentences. But it seems we’re at an impasse. My position is simply that treating the purchase age seriously is a really easy starting point for addressing the rest of the wider issues. There’s a lot to be done. A lot of bad allocation of resources and a lot of terrible attitudes to this drug. But if we throw our toys over being actually tested on our claims that we aren’t the kind of people who serve minors, we’ve given up a whole bunch of moral authority.
I wonder if the police pay tax on the ‘gift vouchers’ they give?
BTW, the law is grossly one-sided in a crime that requires two parties to complete. How can it be that a bar person making a simple mathematical mistake can get punished, but the 17 year-old who has deliberately and openly lied about their age simply be sent on their way?
Who was the one who made the conscious decision to do something illegal here?
You ask how else would you police it? Simple – have a plain-clothes officer checking ID’s as people exited the venue. That, and prosecuting those who purchase alcohol while under-age would help solve the problem.
The 17 year old in a CPO hasn’t committed an offence. And, yeah, if one was caught buying underage otherwise, I’d hope they were dealt with somehow as well as the server.
But that’s not a bad point about other ways of checking for compliance. You could use a checkpoint approach as people left. You could also (and the Police do) send people through a venue to check everyone present. I’ll concede that. I guess I just feel like this is a pretty economical way to get it done. You’re right, though; it’s not the only one conceivable.
Can I just cut and paste this entire conversation into Pursuit of Hoppiness? Good discussion – thanks fellas!
A most excellent post and discussion
Another point Phil, in my piece I mentioned a business that BWB is friends with who were stung in a CPO. I was vague because the people in question didn’t want it publicised. But it definitely wasn’t Countdown Blenheim and their “offending” was very different. I suspect you’d sympathise with them. You may yet be inconvenienced by the consequences.
Ah, then on that point I was misinformed. I’ll correct the post when I get home. And I’d be keen to hear the particulars of the other story. I know there’s a lot of crappiness in how these (and other Police actions) are executed. I’m not going to defend all CPOs! (But equally I’m not going to be mad at one just because it inconveniences me.) And on the wider issue of badly prioritised Police-work, you just wait. There’s something in my Drafts folder that you might like…
Heya Phil. Love to chat sometime about some of the things we actually do. Opposed to just Gross and reactionary lobbying. Dylan HNZ
Any time! There’s a contact form on my About The Author page.
Frustration over alcohol being sold to minors
Gawd. That’s abysmal. No idea why Auckland would be failing harder than the national average. I guess the optimistic interpretation is that the Police are better-targetting their checks up there. But I’m not sure I’m comfortable being the one making the optimistic interpretation of anythng, really…