Tis the season. Bars and restaurants are packed with patrons looking to get in the holiday spirit – or perhaps just consuming spirits. Either way, selling alcohol comes with many responsibilities and potential for liability if an impaired patron causes injury or death to another.
Similar to social hosts discussed in my last article, an establishment licensed to sell alcohol cannot sell or give alcohol to someone who is intoxicated. Again, this intoxication standard means someone who is materially impaired; it is not necessarily the .08 standard for drunk driving. Further, the law requires that service be refused to someone who is impaired.
I often have clients tell me cutting someone off or refusing service is very difficult. They do not want to embarrass a customer and, let’s face it, bars and restaurants are in the business of selling alcohol.
With that in mind, here are four tips I give to bars and restaurants who are licensed by the state to sell alcohol: know and understand the law; have policies in place consistent with the law; train your staff to follow the law; and keep records that show that compliance.
I outline each of these tips below:
North Carolina General Statute § 18B-305 makes it unlawful for a permittee or his employee or for an ABC store to knowingly
sell or give alcoholic beverages to any person who is intoxicated. Note here that the permittee must know the patron is intoxicated. The law also requires that the patron be intoxicated at the time the patron is served
. Intoxication after service is generally not sufficient to prove liability for negligent service.
If your establishment has a license to sell alcohol, you need guidelines in place to educate your servers on signs of impairment, effects of alcohol on the body, how to respectfully and discreetly discontinue service, and what to do if a customer has been overserved.
It is not enough to have the policies; your staff must be trained on them. Go over the policies with each new hire, maintain a copy of policies at your establishment for reference, and provide training several times a year. Servers should be able to identify signs of intoxication, determine if a patron is exhibiting those signs, and know what to do if they determine someone has been overserved.
Maintain all records for sales. This includes point of sale software, when feasible, but also a system for keeping track of consumption by cash paying customers. Servers should ideally be able to account for all drinks served.
Even with all possible safeguards in place, sooner or later, if alcohol is being served, chances are someone will become intoxicated at your establishment. When that occurs, servers need to cut off an intoxicated patron, provide food and water, and offer a cab or rideshare, such as Uber or Lyft. It’s important that bars and restaurants show they acted reasonably once the intoxication became apparent.
If an incident occurs involving an intoxicated patron, it is imperative to preserve all records and evidence in the event a dram shop claim is brought by the injured party. The sooner servers and potential witnesses are interviewed, the more likely they are to remember key information.
Cases involving intoxicated patrons who injure third parties can have significant exposure for bars and restaurants. It is important to immediately advise your insurance carrier of a claim or potential claim and hire an experienced dram shop lawyer to ensure critical evidence is preserved and the claim is properly investigated and defended.
Deedee Gasch has over a decade of experience litigating catastrophic claims involving serious injury or death. While Deedee’s practice is primarily focused on the defense of premises liability, trucking and commercial vehicle accidents, and medical malpractice, she also has a wide range of civil litigation experience. She spent approximately half of her career representing injured plaintiffs before returning to her first love of civil litigation defense work. This experience on both sides of a case uniquely situates her in negotiations and at trial if settlement is not possible. Deedee is a third-generation Tar Heel and attorney, following in the footsteps of her grandfather, a North Carolina Resident Superior Court Judge (deceased), and her father, a career trial lawyer. She has dual degrees in Journalism and Political Science and earned her law degree cum laude from Florida Coastal School of Law in Jacksonville, Florida, where she attended on a prestigious merit based scholarship. She is licensed to practice law in both North Carolina and Florida.