Pittsfield attorney Thomas Campoli, a longtime member of the Pittsfield Licensing Board, says the statute dealing with underage drinking is compelling in a
Pittsfield attorney Thomas Campoli, a longtime member of the Pittsfield Licensing Board, says the statute dealing with underage drinking is compelling in a legal sense but appears to have contradictions. (Ben Garver / Berkshire Eagle Staff)

PITTSFIELD -- The section of Massachusetts General Law that pertains to underage drinking seems designed to disconcert attorneys, justices and prosecutors, not to mention the public. But that could change soon, depending on the outcome of a case now before the state Supreme Judicial Court.

Chapter 138, Section 34 of state law at its core is an endless paragraph with amendments added over several years. The result might not be what some think is needed to address serious societal concerns about underage drinking. However, an amendment in 2000 that probably added more uncertainty could lead to some legal clarification.

In trying to address parents who allow their children and friends to celebrate with alcohol at their home ("social hosting"), the amendment attempts to insert and then define the word "furnish" as it relates to providing alcohol to youths below the legal age of 21.

Interpretations of Section 34 by individuals or groups surveyed recently by The Eagle always included the phrase "very confusing" in reference to the section. That general assessment led to differing opinions as to when, where or whether a parent, grandparent or guardian can legally allow their underage offspring to imbibe.

The Eagle began exploring the issue after seeing that the nonpartisan website procon.org lists Massachusetts among 11 states where a parent can buy an underage child a drink in a "restaurant, bar, or a venue where alcohol is sold," as well as serve them alcohol at home.

Procon.org prepares websites on controversial issues such as abortion, climate change or alcohol policy for debate, education and research purposes.

Some members of the legal community told The Eagle the bar/restaurant reference would be a leap of interpretation, but it might not be a leap for a brew pub or winery. And all of those interviewed agreed that the Massachusetts law is unclear, if not contradictory, in more than one instance.

A parent who feels unsure about the law and its ramifications -- and is afraid to supply their underage children with alcohol in any public setting -- likely represents the norm.

A survey of a dozen Berkshire County parents, none of whom wanted to be quoted by name, found that many are reluctant to encourage drinking at home, thinking that teens likely will experiment on their own with their peers. But most also aren't strictly opposed to an occasional beer or glass of wine at home or at a family gathering.

"I'm just happy mine are still a little too young," one mother said, "but it won't be long."

Another parent said her teen was allowed to drink beer at home, "but the car keys were taken away first."

Boston attorney Michael Tumposky, who represents a man appealing a contributing to the delinquency of a minor conviction under an aspect of the law for allegedly "delivering" alcohol he purchased at a package store to his underage daughter, said the state Supreme Judicial Court took that case (SJC-11181) from the Appeals Court.

The state's high court heard arguments in February, he said, and such SJC rulings are expected within 130 days.

Tumposky said the judge in the defendant's initial Middlesex Superior Court trial gave the jury instructions that there could be a guilty verdict for him allegedly delivering alcohol to a minor under Section 34, but not for "procuring" or "furnishing," which also are means of providing alcohol mentioned in the law.

The attorney said it's possible the Supreme Court ruling will focus on whether "furnishing" in Section 34 applies to all methods of providing an underage child with alcohol by a parent, grandparent or guardian. Or the ruling might focus on the meaning of "delivery," which he believes clearly meant commercial delivery of alcohol by a store or other distributor before the law was amended.

Another aspect of Section 34 that might be affected by a Supreme Court ruling, and which Tumposky and others termed "confusing," seems to indicate first that it is illegal to provide an underage child with alcohol in a bar or restaurant, but that the practice might be allowed in a winery or brewery and possibly a brew pub. 

"I'm not sure why they made that distinction," Tumposky said.

Beyond that, he and others said, there is other language that appears to make it illegal to ever supply alcohol to an underage person and leaves it unclear whether or when that applies to your own child.

"I think this is why the court [SJC] wanted to take the case, which was in the Appeals Court," Tumposky said, adding that some clarification could come from a decision, if not through a rewording of the section at some point through the legislative process.

The procon.org pages that show states allowing underage drinking or possession of alcohol under a range of conditions lists Massachusetts among those that allow drinking with a parent present at home or in other private settings, and also in a "restaurant, bar, or a venue where alcohol is sold" with the parent present.

Another "venue" could be a brew pub or winery.

Gary Happ, owner of the Barrington Brewery and Restaurant on Railroad Street in Great Barrington, said no one at his establishment has tried to buy a drink for an underage child by claiming it is legal.

"For anyone who has a liquor license, it would jeopardize our license if they were served," he said.

Such service "would be more like the European model," Happ said.

He noted that the intent of laws in the United States tends more toward a prohibition stance than those of many nations in Europe, where a parent can purchase a drink for underage children in a restaurant.

Procon.org officials could not be reached for comment about the infomation on their website.

Another entity, the Alcohol Policy Information System (APIS), a project sponsored through the National Institutes of Health, also compiles information on state laws pertaining to alcohol and posts data on a website -- http://alcohol policy.niaaa.nih.gov -- for research and similar purposes.

Jonathan Schuler, director of the Arizona-based project, said the website summarizes, by state, data compiled by a team of attorneys who research specific topics related to alcohol. In this case, the APIS looked at specific general behaviors that are either prohibited or allowed for minors under state law.

"We have to get specific to put this into tables [for researchers]," Schuler said. "We must come up with topics to code specifically to create tables."

"Our goal," he said, "is to make as little a judgment call as possible; basically no assumptions."

For instance, one category for comparison with other states says that Massachusetts does not specifically prohibit underage consumption of alcohol, but possession of alcohol by minors is prohibited.

"We also do not look at court cases," Schuler said, as rulings can be open to interpretation.

The amendment to Section 34 on "furnishing" was intended to deal with adults hosting parties for underage drinkers, some of whom were not their own children, but it adds to the section being "convoluted," Schuler said.

And like many state laws, he said, Chapter 34 "goes back decades and decades and decades," and new language has been inserted over time. In many cases, he said, state laws still have 19th-century wording that probably needs to be rewritten by the state's legislature to provide clarity.

Pittsfield attorney Thomas Campoli, a longtime member of the Pittsfield Licensing Board, termed Section 34 confusing in places but compelling in a legal sense.

"It's fascinating," he said, referring to the interplay between the "social hosting" amendment in 2000 and the pre-amendment wording. "It all evolved from a public outcry from drunk-driving accidents after parties."

Campoli said that when Section 34 is examined in totality, it appears to have contradictions.

He said he's "comfortable" that the law allows a parent or grandparent to furnish alcohol to an underage child at home. But he added that the sentence beginning, "Whoever makes a sale or delivery of any alcoholic beverage" could "theoretically apply to a parent" as well as a business.

Legal gray areas aside, Campoli said, "Whether or not it is a good idea to furnish alcohol to a minor is debatable. That is among the many decisions we have to make as responsible parents."

To reach Jim Therrien:
jtherrien@berkshireeagle.com,
or (413) 496-6247
On Twitter: @BE_therrien

State law: Chapter 138, Section 34

No person shall receive a license or permit under this chapter who is under 21 years of age. Whoever makes a sale or delivery of any alcoholic beverage or alcohol to any person under 21 years of age, either for his own use or for the use of his parent or any other person, or whoever, being a patron of an establishment licensed under section 12 or 15, delivers or procures to be delivered in any public room or area of such establishment if licensed under section 12, 15, 19B, 19C or 19D or in any area of such establishment if licensed under said section 15, 19B, 19C or 19D any such beverages or alcohol to or for use by a person who he knows or has reason to believe is under 21 years of age or whoever procures any such beverage or alcohol for a person under 21 years of age in any establishment licensed under section 12 or procures any such beverage or alcohol for a person under 21 years of age who is not his child, ward or spouse in any establishment licensed under said section 15, 19B, 19C or 19D or whoever furnishes any such beverage or alcohol for a person under 21 years of age shall be punished by a fine of not more than $2,000 or by imprisonment for not more than one year or both. For the purpose of this section the word "furnish" shall mean to knowingly or intentionally supply, give, or provide to or allow a person under 21 years of age except for the children and grandchildren of the person being charged to possess alcoholic beverages on premises or property owned or controlled by the person charged. Nothing in this section shall be construed to prohibit any person licensed under this chapter from employing any person 18 years of age or older for the direct handling or selling of alcoholic beverages or alcohol. Notwithstanding the provisions of clause (14) of section 62 of chapter 149, a licensee under this chapter may employ a person under the age of 18 who does not directly handle, sell, mix or serve alcohol or alcoholic beverages.