California Business and Professions Code 25631 – the sale of alcohol after permitted hours

Definition of Selling Alcohol After Permitted Hours

California outlines what it means to sell alcohol after permitted hours under Business and Professions Code 25631. This statute prohibits:

• On-sale or off-sale establishments, or an employee or agent of the establishment,
  • On-sale establishments are defined as businesses that are licensed to sell alcohol which is allowed to be consumed while still on the premises.
    • These types of establishments are usually bars, clubs, or sports stadiums.
  • Off-sale premises concerns businesses that sell alcohol which can be consumed off the property it was sold on.
    • This would typically mean convenience stores, grocery stores, or gas stations.
  • An employee is defined as someone on the payroll, such as a cashier or sales associate.
  • An agent can include anyone commissioned or permitted to be on the premises and who is typically authorized to handle the alcohol.
• To sell alcohol,
  • This statute also includes delivering or giving away alcohol.
  • Beer, wine, hard liquor, and distilled spirits along with mixed drinks and carbonated alcoholic beverages are covered under this law.
• After permitted hours.
  • The time between 2:00 am and 6:00 am is considered unauthorized hours for the sale of alcohol.

Can you be guilty if you did not know?

A lack of knowledge that you are committing this crime does not exempt you from the consequences. It is expected that an on-sale or off-sale establishment or licensee understands state law and has policies in place that includes training its employees. If an employee claims they did not know they could not sell alcohol after permitted hours, the establishment could face harsher punishments, but the employee will still face a BP 25631 offense.

How strict is the time frame?

There is no grace period for selling alcohol after 2 am and before 6 am. It also does not matter if it was for a special occasion or holiday. If you sell, give, deliver, or serve alcohol during this time period you could still face this offense.

Example:

Zeke was a bartender and just wrapping up his shift when a couple of his friends came in at 1:50 am. He served them a last round for the night, on the house. At 2:03, his friend Shane wanted one last shot of tequila. Zeke obliged and poured him a shot. As soon as the clock struck 2 am, all alcohol should cease to be sold or served. Even though no money was exchanged as these drinks were free, Zeke could still face a BP 25631 offense for violating the permitted hours outlined under this law.

Similar Offenses

There are commonly associated offenses to BP 25631, especially in cases where alcohol continues to be consumed off the premises, in public, or unauthorized areas.

California VC 23221, Open Container Laws – Consuming alcohol while in a car; 

If a driver or passenger drinks an alcoholic beverage while in a motor vehicle on a public road, you violate California’s open container laws.

California VC 23222(a), Open Container Laws – Possessing an open container in a car;

Even if you are not consuming the beverage, it is illegal for anyone in a car to possess an open alcoholic drink.

California VC 23224, Open Container Laws – Possession of an open container in a car by someone under age 21;

You violate this law if you are under the legal drinking age and in possession of an alcoholic beverage while in a car.

California VC 23152(a), Driving under the influence of alcohol (DUI);

Operating a motor vehicle while you are under the influence of alcohol is a serious crime in California and could result in the suspension or loss of your driver’s license.

California VC 23152(b), Driving with a BAC of 0.08% or higher (DUI);

You violate this law if you operate a motor vehicle while your blood alcohol concentration is at 0.08% or higher.

California BP 25608, Alcoholic beverages at a public educational facility;

You commit this crime if you bring an alcoholic beverage on school grounds, such as public or private grade schools or public colleges or universities.

California PC 647(f), Public Drunkenness;

You violate this law if you are intoxicated to the point where you can no longer care for your safety or the safety of others.

What the Prosecution Must Do

There are specific criteria that must be met for the prosecution to get a conviction for the sale of alcohol after permitted hours, BP 25631. Often referred to as the facts of the case or the elements of the crime, these criteria are:

• The defendant was an employee, agent, or ran an on-sale or off-sale establishment,
  • This means the establishment had a license to sell and/or serve beer, wine, spirits, and other hard liquors.
• They sold, gave, or delivered alcoholic beverages, and
  • This applies to establishments that served or gave-away alcohol.
  • This means you can still be guilty even if you gave the drinks away for free.
• Did so during the unauthorized, non-permitted hours of 2 am to 6 am.
  • You can be guilty of this crime even if the time was 2:01 am or 5:59 am.

California takes Business and Professions Code violations seriously. Do not expect leniency just because it was a special occasion or holiday. Do not expect an easy case just because the purchase was made within minutes of legal selling hours.

Who Can Be Charged

The following examples illustrate who can be charged with BP 25631, selling or giving away alcohol after permitted hours. If you can relate to any of these situations, contact a criminal defense attorney as soon as you can.

Examples

• Daken ran a nightclub and wanted to celebrate New Year’s day with the last round of free shots. It was already 1:55 am and the club was still crowded. He continued serving the celebratory shot after 2 am.
  • Daken is not exempt from this law just because it was a holiday. He could be charged with BP 25631 for serving the shots after permitted hours. The possibility of facing maximum penalties is high in cases like his, where a large party of people was served an alcoholic beverage after hours. You can be charged with this offense for serving just one alcoholic drink to someone. Serving a large crowd of people will carry stricter consequences.
• Lewis worked the graveyard shift at a gas station. His friends would stop by and buy beer during his shift. They showed up at 2:30 a.m. and wanted to buy a 12-pack of Bud Light. Lewis trusted them not to tell anyone and sold them the beer, even though it was after permitted hours. Of course, his off-sale place of employment has in-door and out-door cameras as well as a register that records every transaction. This includes the time items were rung-up and sold.
  • Lewis could be charged with BP 25631 for selling the beer after 2 am. As an employee of the gas station, he violated company policy. Remember, there are additional consequences that are often overlooked. Not only will Lewis face legal penalties for breaking this law, but he would also lose his job.
• Terry loved Christmas. He owned a Bar & Grill restaurant and decided to introduce a breakfast menu. The breakfast drinks included Bailey’s infused coffee or alcohol spiked hot/cold teas. On Christmas Day he decided to open his doors at 5 am and allowed customers to order an alcohol mixed coffee or tea with their breakfast.
  • Terry could face a BP 25631 offense for serving alcohol too early. Just because it was a popular holiday does not mean his establishment would be excluded from the law.

Unfortunately, a criminal record of any kind will hurt your future regardless of whether you have a conviction for misdemeanors or felonies. Most employment opportunities require a criminal background check which will affect your hiring process. A criminal background history could affect future employment plans, housing opportunities, and academic goals. For instance, losing your business over multiple code violations will only make it harder to attempt similar business ventures in the future.

Legal Defenses

There are some defenses that an effective criminal defense lawyer can use to challenge a BP 25631 offense. Here are just some examples of the common legal defenses used to dispute charges for selling alcohol after permitted hours.

Sold within permitted hours

You should not be charged with BP 25631 if it was not yet 2 am. This law specifically states you are guilty if you sell, give, or deliver alcohol between 2 am and 6 am. If you made the sale, but the patron did not consume it until after 2 am, you are still not guilty of meeting the elements of the crime and should not face this offense.

Example:

Sven worked at a bar and would often have patrons hang-out after hours just to chit-chat with him. He sold a last glass of beer to Charlie at 1:55 am. Charlie needed to use the restroom and his drink sat on the counter until he came back to it at 2:08 am. While everyone was chatting and Sven was cleaning, Charlie finished his beer. One of the patrons was an undercover cop who stepped into the bar just before closing. The officer did not know Charlie ordered his drink at 1:55 am and assumed Sven served him the drink after 2 am. He charged Sven with BP 25631.

His lawyer was able to get Charlie and other patrons’ statements. The charges were dropped when they stated Sven sold him the beer with five minutes to spare. This law only applies to selling, giving, or delivering alcohol after 2 am. If it was served during permitted hours and the patron takes their time consuming the beverage, you should not be charged.

Not an owner, agent, or employee

BP 25631 only applies to on-sale and off-sale establishments, employees, or agents of the establishment. If you do not fall under this category, you should not face this offense.

Example:

Tony went to his favorite bar and bought a bottle of 151 Rum to celebrate his birthday. He was so consumed with finishing his birthday drinks from his friends that he neglected the bottle all night. By the time the bar was closing he still hadn’t drunk it. When they were walking out of the bar, Tony’s friend Chris offered to buy the bottle from him. Tony agreed and they made the exchange right in front of the bar entrance. A police officer spotted them, assumed Tony worked there, and charged Tony with BP 25631.

Tony’s defense lawyer was able to get the charges dropped, citing the fact that Tony was not an employee or agent of the bar nor did he have a license to sell, serve, or deliver alcohol.

Illegal Search & Seizure

Under the fourth amendment, everyone is protected from unreasonable police intrusion. This means they need probable cause to stop, question, detain or arrest you. You are a victim of illegal search and seizure if law enforcement does not have a reasonable explanation for searching you, seizing your property, or charging you with a crime.

Example:

Fred owned a club downtown and was already under investigation for HS 11352, the distribution of illegal drugs. Police officers had a warrant to search only his home. When a group of teenagers within the same vicinity of the club were caught with bottles of alcohol at 4 am, they claimed they got the bottles from “a club down the street.” Law enforcement jumped at the chance to blame Fred’s club for furnishing alcohol to minors. They searched his bar and found the same brands as the alcohol the teenagers possessed. They also searched his back office in the bar and found a small amount of cocaine on his desk. Fred was charged with HS 11350 for possessing an illicit substance, BP 25631 for selling alcohol after 2 am, and BP 25658 for furnishing alcohol to minors.

Luckily, Fred’s lawyer was able to dispute the charges, stating that a broad statement from intoxicated teenagers and a popular beer brand does not warrant these serious allegations. There were also three other clubs in the same vicinity that carried the same brand of beer the teenagers had acquired. The teenagers’ full statements also alluded to a woman giving them the alcohol. Fred was not the one who sold them the bottles and none of his female employees were working that night. This created enough reasonable doubt for the BP 25631 and BP 25658 charges to be dropped. This case could arguably be considered a situation in which overzealous officers who simply wanted to go outside the scope of their legal warrant acted unreasonably. Instead of thoroughly investigating the other suspected clubs for furnishing alcohol to minors, they chose to illegally search his business property.

Penalties for PC 25631

If convicted of selling alcohol after permitted hours, you face:

Misdemeanor;

Summary (informal) probation,

As long as six months in county jail, and/or

Fines as high as one thousand dollars.

Enhanced Penalties

You could face longer incarceration times and steeper fines if you made multiple sales or had previous warnings, infractions, or misdemeanors. Facing the maximum penalties can also depend on the details of the case and your criminal background history.

Penalties for Similar Offenses

It is not surprising to be charged with more than one offense in these cases. If so, infractions can worsen, resulting in higher civil and court fees. You can also face harsher penalties for subsequent offenses. This could lead to potentially longer county jail sentencing or stricter long-term probation guidelines.

California VC 23221, Open Container Laws, consuming alcohol while in a car;

Infraction (civil penalty);

A fine of up to two hundred fifty dollars.

California VC 23222(a), Open Container Laws – Possessing an open container in a car;

Infraction;

Fines of up to two hundred fifty dollars.

California VC 23224, Open Container Laws – Possession of an open container in a car by someone under age 21;

Misdemeanor;

As long as six months in county jail,

Fines of up to one thousand dollars, and/or

Your vehicle could be impounded for up to thirty days.

California VC 23152(a), Driving under the influence of alcohol (DUI);

Misdemeanor (1st offense);

3 to 5 years of summary (informal) probation,

Fines of up to one thousand dollars, and/or

A potential six-month county jail sentence.

Driver’s license will be suspended for six months, and

Required enrollment in DUI school for three or nine months.

California VC 23152(b), Driving with a BAC of 0.08% or higher (DUI);

Misdemeanor (1st offense);

3 to 5 years of misdemeanor (summary) probation,

A minimum fine of three-hundred-ninety dollars or up to one thousand dollars, and/or

A possible 48 hours jail sentence or up to six months in county jail.

Driver’s license will be suspended for six months, and

Required enrollment in DUI school for thirty or ninety hours.

California BP 25608, Alcoholic beverages at a public educational facility;

Misdemeanor;

A potential six-month county jail sentence, and/or

Fines of up to one thousand dollars.

Possible judge-granted informal probation in lieu of jail time.

California PC 647(f), Public Drunkenness;

Misdemeanor;

A potential six-month sentence in county jail, and/or

Fines as high as one thousand dollars.