Affirmative defenses are available to store owners that sell to someone over the age of 21 or someone who purports to be over the age of 21 who buys alcoholic beverage from your establishment and then sues when they are breaking the law with a liquor violation. An affirmative defense is a type of defense raised in criminal law by the defendant. Affirmative defenses operate to limit or excuse or avoid a defendant’s criminal culpability or civil liability, even if the factual allegations of plaintiff’s claim are admitted or proven. A criminal defendant may be exonerated, if he can demonstrate that he had an honest and reasonable belief that his conduct was necessary to protect himself against another’s use of unlawful force.

The three affirmative defenses are use of a transaction scan device, age statement forms or photographic equipment. There are particular processes to follow with these defenses, too many to list here. Go to our website www.ctpsa.com for more specifics on each portion of the affirmative defenses or call Josh Hughes at the CPSA office for copies of the regulations.
The following are the three affirmative defenses available to protect store owners from selling to a minor. Please note that the last defense (age statement form) will not hold up on its own as a defense and should accompany one of the other two defenses.
Sec. 30-86b. Photographing a person whose age is in doubt, or photocopying such person’s driver’s license or identity card. Use of photograph or photocopy. Regulations. Affirmative defense. (a) A permittee issued a permit pursuant to this chapter or an agent or employee of such permittee may require any person whose age is in question to have such person’s photograph be taken by, and a photocopy of such person’s driver’s license or identity card issued in accordance with the provisions of section 1-1h, be made by, such permittee, agent or employee as a condition of selling or delivering alcoholic liquor to such person.

(b) No permittee or agent or employee of a permittee shall use a photograph taken or a photocopy made pursuant to subsection (a) of this section for a purpose other than the purpose specified in said subsection (a).

(c) No permittee or agent or employee of a permittee shall sell or otherwise disseminate a photograph taken or a photocopy made pursuant to subsection (a) of this section, or any information derived from such photocopy, to any third party for any purpose including, but not limited to, any marketing, advertising or promotional activities, except that a permittee or an agent or employee of a permittee may release such photograph, photocopy or information pursuant to a court order.

(d) The Department of Consumer Protection shall adopt regulations, in accordance with chapter 54, to establish guidelines and specifications for the photographic equipment to be used and the format of the photograph to be taken by a permittee or an agent or employee of a permittee.

(e) In any prosecution of a permittee or an agent or employee of a permittee for selling or delivering alcoholic liquor to a minor in violation of subsection (b) of section 30-86, it shall be an affirmative defense that such permittee, agent or employee sold or delivered alcoholic liquor to such minor in good faith and in reasonable reliance upon the identification presented by such minor and, pursuant to subsection (a) of this section, photographed the minor and made a photocopy of such identification. In support of such defense, such permittee, agent or employee may introduce evidence of such photograph and photocopy.
Sec. 30-86. Sale or delivery to minors, intoxicated persons and habitual drunkards prohibited. Exceptions. Use of transaction scan devices. (a) As used in this section:

(1) “Cardholder” means any person who presents a driver’s license or an identity card to a permittee or permittee’s agent or employee, to purchase or receive alcoholic liquor from such permittee or permittee’s agent or employee;

(2) “Identity card” means an identification card issued in accordance with the provisions of section 1-1h;

(3) “Transaction scan” means the process by which a permittee or permittee’s agent or employee checks, by means of a transaction scan device, the validity of a driver’s license or an identity card; and

(4) “Transaction scan device” means any commercial device or combination of devices used at a point of sale that is capable of deciphering in an electronically readable format the information encoded on the magnetic strip or bar code of a driver’s license or an identity card.

(b) (1) Any permittee or any servant or agent of a permittee who sells or delivers alcoholic liquor to any minor or any intoxicated person, or to any habitual drunkard, knowing the person to be such an habitual drunkard, shall be subject to the penalties of section 30-113.

(2) Any person who sells, ships, delivers or gives alcoholic liquor to a minor, by any means, including, but not limited to, the Internet or any other on-line computer network, except on the order of a practicing physician, shall be fined not more than one thousand five hundred dollars or imprisoned not more than eighteen months, or both.

(3) The provisions of this subsection shall not apply (A) to a sale, shipment or delivery made to a person over age eighteen who is an employee or permit holder under section 30-90a and where such sale, shipment or delivery is made in the course of such person’s employment or business, (B) to a sale, shipment or delivery made in good faith to a minor who practices any deceit in the procurement of an identity card issued in accordance with the provisions of section 1-1h, who uses or exhibits any such identity card belonging to any other person or who uses or exhibits any such identity card that has been altered or tampered with in any way, or (C) to a shipment or delivery made to a minor by a parent, guardian or spouse of the minor, provided such parent, guardian or spouse has attained the age of twenty-one and provided such minor possesses such alcoholic liquor while accompanied by such parent, guardian or spouse.

(4) Nothing in this subsection shall be construed to burden a person’s exercise of religion under section 3 of article first of the Constitution of the state in violation of subsection (a) of section 52-571b.

(c) (1) A permittee or permittee’s agent or employee may perform a transaction scan to check the validity of a driver’s license or identity card presented by a cardholder as a condition for selling, giving away or otherwise distributing alcoholic liquor to the cardholder.

(2) If the information deciphered by the transaction scan performed under subdivision (1) of this subsection fails to match the information printed on the driver’s license or identity card presented by the cardholder, or if the transaction scan indicates that the information so printed is false or fraudulent, neither the permittee nor any permittee’s agent or employee shall sell, give away or otherwise distribute any alcoholic liquor to the cardholder.

(3) Subdivision (1) of this subsection does not preclude a permittee or permittee’s agent or employee from using a transaction scan device to check the validity of a document presented as identification other than a driver’s license or an identity card, if the document includes a bar code or magnetic strip that may be scanned by the device, as a condition for selling, giving away or otherwise distributing alcoholic liquor to the person presenting the document.

(d) (1) No permittee or permittee’s agent or employee shall electronically or mechanically record or maintain any information derived from a transaction scan, except the following: (A) The name and date of birth of the person listed on the driver’s license or identity card presented by a cardholder; (B) the expiration date and identification number of the driver’s license or identity card presented by a cardholder.

(2) No permittee or permittee’s agent or employee shall use a transaction scan device for a purpose other than the purposes specified in subsection (c) of this section or subsection (d) of section 53-344.

(3) No permittee or permittee’s agent or employee shall sell or otherwise disseminate the information derived from a transaction scan to any third party for any purpose, including, but not limited to, any marketing, advertising or promotional activities, except that a permittee or permittee’s agent or employee may release that information pursuant to a court order.

(4) Nothing in subsection (c) of this section or this subsection relieves a permittee or permittee’s agent or employee of any responsibility to comply with any other applicable state or federal laws or rules governing the sale, giving away or other distribution of alcoholic liquor.

(5) Any person who violates this subsection shall be subject to a civil penalty of not more than one thousand dollars.

(e) (1) In any prosecution of a permittee or permittee’s agent or employee for selling alcoholic liquor to a minor in violation of subsection (b) of this section, it shall be an affirmative defense that all of the following occurred: (A) A cardholder attempting to purchase or receive alcoholic liquor presented a driver’s license or an identity card; (B) a transaction scan of the driver’s license or identity card that the cardholder presented indicated that the license or card was valid; and (C) the alcoholic liquor was sold, given away or otherwise distributed to the cardholder in reasonable reliance upon the identification presented and the completed transaction scan.

(2) In determining whether a permittee or permittee’s agent or employee has proven the affirmative defense provided by subdivision (1) of this subsection, the trier of fact in such prosecution shall consider that reasonable reliance upon the identification presented and the completed transaction scan may require a permittee or permittee’s agent or employee to exercise reasonable diligence and that the use of a transaction scan device does not excuse a permittee or permittee’s agent or employee from exercising such reasonable diligence to determine the following: (A) Whether a person to whom the permittee or permittee’s agent or employee sells, gives away or otherwise distributes alcoholic liquor is twenty-one years of age or older; and (B) whether the description and picture appearing on the driver’s license or identity card presented by a cardholder are those of the cardholder.

Sec. 30-86a. Statement from purchaser as to age. (a) For the purposes of section 30-86, any permittee shall require any person whose age is in question to fill out and sign a statement in the following form on one occasion when each such person makes a purchase:

…., 20.
I, …., hereby represent to …., a permittee of the Connecticut Department of Consumer Protection, that I am over the age of 21 years, having been born on …., 19.., at ….. This statement is made to induce said permittee to sell or otherwise furnish alcoholic beverages to the undersigned. I understand that title 30 of the general statutes prohibits the sale of alcoholic liquor to any person who is not twenty-one years of age.

I understand that I am subject to a fine of one hundred dollars for the first offense and not more than two hundred fifty dollars for each subsequent offense for willfully misrepresenting my age for the purposes set forth in this statement.

…. (Name)

…. (Address)

Such statement once taken shall be applicable both to the particular sale in connection with which such statement was taken, as well as to all future sales at the same premises, and shall have full force and effect under subsection (b) of this section as to every subsequent sale or purchase. Such statement shall be printed upon appropriate forms to be furnished by the permittee and approved by the Department of Consumer Protection and shall be kept on file on the permit premises, alphabetically indexed, in a suitable file box, and shall be open to inspection by the Department of Consumer Protection or any of its agents or inspectors at any reasonable time. Any person who makes any false statement on a form signed by him as required by this section shall be fined not more than one hundred dollars for the first offense and not more than two hundred fifty dollars for each subsequent offense.

(b) In any case where such a statement has been procured and the permittee is subsequently charged with serving or furnishing alcoholic beverages to a minor, if such permittee, in proceedings before any court of this state or the Department of Consumer Protection, introduces such statement in evidence and shows that the evidence presented to him to establish the age of the purchaser was such as would convince a reasonable man, no penalty shall be imposed on such permittee.