On January 1, 2013, certain amendments to Section 6-16 of the Illinois Liquor Control Act of 1934 (the “Act”) will take effect. These amendments may impact the way that institutions of higher education address underage drinking on campus.
The Act has long regulated many aspects of the production, sale, service, and distribution of alcohol. More specifically, Section 6-16 of the Act makes it a crime to sell, give, or deliver alcohol to an intoxicated person or to a person under 21 years of age. Section 6-16 also makes it a crime for a person to knowingly authorize or permit his or her residence to be used by an invitee under the age of 21 for the purpose of possessing or consuming alcohol. Thus, the Act arguably imposes a duty on certain individuals to proactively stop minors from drinking at the individuals’ residence; those who fail to do so risk possible criminal penalties. This potential for criminal liability is at odds with the general rule in Illinois that adult social hosts cannot be civilly liable for serving alcoholic beverages to minors who are subsequently injured. See Wakulich v. Mraz, 203 Ill. 2d 223 (Ill. 2003).)
The Act includes language that appears to be specifically intended to protect landlords and other property owners (including colleges and universities) from potential liability under the Act. Section 6-16 provides that “where a residence has an owner and a tenant or lessee, there is a rebuttable presumption that the residence is occupied only by the tenant or lessee.” Thus, there is a rebuttable presumption that only the tenant or lessee, and not the owner of such a residence, can face criminal liability under the Act. This should make it difficult to hold a college or university criminally responsible if minors consume alcohol in residence halls or other housing facilities owned by the institution. It is possible, however, that institutions could face prosecution on the theory that having a resident advisor or other institutional employee or representative live in a residence hall should be enough to make the college or university itself qualify as a “resident” subject to criminal liability under the Act.
It seems more likely, however, that Section 6-16 could be used in an effort to impose criminal liability on resident advisors or other individuals (including students) who live in residence halls or other college- or university-owned housing facilities, inasmuch as those individuals clearly would be “residents” of such facilities. The same could be true with regard to students or other individuals residing in off-campus student housing or fraternity or sorority houses, regardless of whether such housing facilities are owned by the institution or located on campus. This means that college or university employees or students who live in campus housing, fraternity or sorority houses, or off-campus housing could face criminal liability if underage drinking occurs in those residences and they fail to stop it.
It is important to note that the new amendments to Section 6-16 include a safe-harbor provision that provides a way to avoid criminal liability. Specifically, Section 6-16 provides that:
A person shall not be in violation of [the Act] if (A) he or she requests assistance from the police department or other law enforcement agency to either (i) remove any person who refuses to abide by the person’s performance of the duties imposed by [the Act with regard to underage drinking] or (ii) terminate the activity because the person has been unable to prevent a person under the age of 21 years from consuming alcohol despite having taken all reasonable steps to do so and (B) this assistance is requested before any other person makes a formal complaint to the police department or other law enforcement agency about the activity.
As a result, individuals who request assistance from law enforcement in a prompt and timely manner should be able to avoid criminal liability under the Act even if minors are consuming alcohol in their residence. Most, if not all, colleges and universities already have established relationships with local law enforcement. The recent amendments to the Act serve as a useful reminder to institutions of higher education that they should evaluate their current policies and practices with respect to underage drinking and train residence hall and other personnel about the Act’s requirements.