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Jim Kenyon: Diversion Lessens the Sting

  • Valley News columnist Jim Kenyon in West Lebanon, N.H., on September 15, 2016. (Valley News - Geoff Hansen) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

Published: 12/21/2016 12:35:46 AM
Modified: 12/27/2016 5:08:34 PM

On a Friday evening in October, a young woman came into Moe’s Southwest Grill, a cafeteria-style Mexican restaurant on Route 12A in West Lebanon, and ordered a Bud Light.

The counter worker who took the order was under 18, so she couldn’t serve the customer. She summoned the restaurant’s manager to get the bottle of beer.

“Did you card her?” asked Hilary Tyler, who has been Moe’s manager since it opened about four years ago.

The teen indicated that she had. Tyler looked at the ID, as well. By her quick calculation, the woman was 21.

Tyler, 50, served the beer. Fifteen minutes later while Tyler was cleaning up the kitchen, a Lebanon police officer and an agent with the New Hampshire Liquor Commission entered the restaurant.

They cited Tyler for serving alcohol to a minor — an 18-year-old who was working undercover. Tyler faced a potential fine of up to $1,200 and a criminal record that could stick with her forever.

She wasn’t alone.

That night, Lebanon police and the state liquor commission conducted a sting operation that netted eight restaurant workers and store clerks who had allegedly sold beer or wine to people under 21. They had either misread the customer’s ID or hadn’t asked to see it, said James Wilson, the liquor commission’s chief of enforcement and licensing.

Law enforcement officials call such an operation a “compliance check,” and they’re carried out from time to time in communities across the state.

The liquor commission enlisted a half dozen or so New Hampshire teens who had expressed interest in pursuing law enforcement careers to fan out across the city. Liquor commission agents and Lebanon police officers backed them up — hiding in the weeds, so to speak. The underage operatives visited all 58 Lebanon businesses with liquor licenses to try to buy alcohol.

I get that these kind of undercover law enforcement operations can serve as a deterrent. But it’s hard to overlook the tactic’s gotcha component that snags working-class people who can’t afford lawyers. As Tyler aptly pointed out, “It’s not the wealthy who are doing food service.”

On Monday, Tyler and the others who had been nabbed — ranging in age from 22 to 59 — made their initial appearance in Lebanon District Court. (Businesses where employees are caught selling alcohol to underage customers also can be fined.) Tyler, who lives in Thetford, was good enough to talk with me shortly after arriving at the courthouse.

What happened the night of the sting? I asked.

“I was on my third double (shift) of the week,” she said. “We were trying to get through the dinner rush.”

In checking the birth date on the customer’s ID, “I must have gotten the numbers transposed,” she said. “It’s not OK, but it certainly wasn’t intentional.”

Tyler had resigned herself to paying a hefty fine and getting saddled with a criminal record.

But during their morning at the courthouse Tyler and the others received a pleasant surprise: Lebanon prosecutor Ben LeDuc said he wouldn’t pursue the criminal charges against them at this time.

Instead, he offered them a deal: Admit to their mistake, and they can enter a court diversion program. If they complete a training session in alcohol management and stay out of trouble for a year, LeDuc will drop the charges.

“The goal is to keep (first-time offenders) out of the court system,” LeDuc told me. “People deserve a second shot.”

Lebanon hasn’t always taken an enlightened approach. In 2005, I wrote about a similar sting operation in the city that resulted in five women paying fines, after appearing before a judge.

I’m not sure Tyler and the others would have fared any better, if not for LeDuc. He’s brought a more progressive mindset to the job since his arrival from southern New Hampshire last year.

“He’s a knowledgeable and fair prosecutor,” said Norwich attorney George Ostler, who happened to be at the courthouse on other matters on Monday.

In the past, Lebanon used a police officer to prosecute misdemeanor cases. As crazy as it sounds, local prosecutors in New Hampshire don’t have to be licensed attorneys. (Fortunately, the state doesn’t take a similar approach to physicians.)

Among LeDuc’s first initiatives was to expand the city’s use of court diversion to include more than just juveniles caught with alcohol. He reached out to a nonprofit organization based in White River Junction called Valley Court Diversion Programs, which has been around since 1982.

Police, prosecutors and judges can send cases to the program, which focuses on restorative justice rather than punishment. Last year, Valley Court Diversion handled about 120 cases from across the river in southern Grafton County.

The biggest challenge has been getting New Hampshire law enforcement officials to buy into the idea that adults — not just juveniles — should be considered for court diversion.

Lebanon Police Chief Richard Mello, who also came to the city from southern New Hampshire last year, and Wilson, the liquor commission’s enforcement chief, both told me they supported LeDuc’s decision to go the diversion route.

“We’re not looking to hurt people long term,” Wilson said. “We’re looking to turn this into a learning experience.”

If Tyler and the other offenders are successful in the program, which is strictly voluntary, they can avoid criminal records.

“It can be hard enough to get a job as it is,” said Regina Rice Barker, Valley Court Diversion’s executive director.

Tyler plans to take LeDuc up on his offer. It will cost her $325, which is no small amount, but potentially less costly than a fine and the lifelong consequences of having a criminal record.

In this case, justice was served.




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