“I’ll Drink to That”: Minimizing the Risk of Intoxicated Patrons
My venue safety practice is becoming increasingly soaked with alcohol. I see cases where people drink and hurt themselves and cases where people drink and hurt bystanders, who sometimes are themselves too impaired to avoid trouble. There are excellent alcohol service training programs in our industry, yet the carnage continues. Admittedly, these problems put food on my table. But the human cost is terrible and frustrating because it seems so avoidable.
I defer to the training experts and toxicologists regarding the science of alcohol. But as with much of life itself, when something goes wrong the buck ultimately stops with an attorney. From that perspective, here are a few ideas to address the risks inherent in alcohol service for those who insist on selling it, and a suggestion for those who insist on playing with fire.
An essential part of risk management involves eliminating risks that are reasonably foreseeable and largely avoidable. In most states, an alcohol server violates the state dram shop law by serving a patron who is visibly or obviously intoxicated. If the server knows, or reasonably should know, that a patron is intoxicated, then the patron should be cut off. The first prong of this test, what the server observes about the patron’s intoxication, is entirely subjective.
The leading alcohol service training programs in our industry list the most obvious signs of intoxication as lowered inhibitions, impaired judgment, slowed reactions, and decreased coordination. At least some of these behavioral cues should be easy enough to spot, right? The problems I see with relying on outward signs of intoxication are that many servers cannot keep track of every patron’s consumption, and that the server usually has no idea about the drinker’s tolerance for alcohol.
Some vendors insist that they should not be held responsible for what they cannot see. This insistence is, in a word, wrong. The second prong of many dram shop laws imposes an additional and higher burden by also holding servers legally responsible for what they should know if they were reasonably diligent in their duty not to serving intoxicated patrons.
Although the subjective signs of intoxication can be unreliable, there is often objective information available, if one cares to use it.
Look at the tab
Wherever a patron uses a credit card, the point of sale system will show how many drinks they have purchased. Since all standard drinks have 1/2 ounce of pure alcohol, a server should be able to calculate the quantity of alcohol sold to any individual patron. This information, combined with the times of sale listed on the bar tab and a ballpark estimate of the patron’s size, can give the server at least a rough idea when the patron’s blood alcohol content is reaching the danger zone. This is data that servers ignore at their own risk if the patron is buying only for himself.
See who is drinking
Because it is not uncommon at public assembly facilities to buy a round for friends, a server should also pay attention to who is actually consuming the drinks that were sold. At a concession stand, the seller should ask who the second drink is for. Walking vendors can see who is handed each drink they sell. Because neither of these requires much additional effort by the server, it seems reasonable to ask them to at least try to tell who is consuming what.
Just as every day should be a training day, every person involved in event operations should have responsible alcohol service training, from top management to the people who clear the tables. This is both good practice and good CYA. The good practice part is that a manager without specific duties during an event might notice something that busy staff could miss. The CYA part is that in a lawsuit, you don’t want to have to claim that even the relatively modest price of TEAM Coalition or TIPS training outweighed the benefit of another set of trained eyes in the building.
Document what you do well
One of the best risk management techniques is also one of the simplest — documentation. If everyone’s alcohol service certification is current, make sure the company files reflect that. Every time you supplement staff training, save the sign-in sheet and agenda. Trust your instincts. If you don’t want to document a particular practice, maybe you should devise a better way of doing things. Alternatively, if you decide to maintain a status quo that looks suspect at first glance, try to clearly articulate the risk-benefit analysis so your thoroughly-considered position does not look like a thoughtless lack of judgment.
Any plan is only as good as its implementation. Particularly in a field with lots of part-time workers and significant turnover, it is important to periodically test your staff’s knowledge and understanding. During the years between initial certification and recertification, have your supervisors reinforce key alcohol service issues for your staff. Use mystery shoppers to ensure that underage drinkers are not served, fake IDs are detected, two-drink limits and closing times are enforced, and track your venue’s performance over time. The benefit of testing yourself is that you can analyze and correct deficiencies while surrounded by friendly, helpful people rather than by an opposing lawyer across the table at your deposition.
Not interested in any of these risk management ideas? There is another option: Stop selling alcohol. It has been done before. A couple of prominent examples are the New York Jets, who ended their 2007 and 2009 home schedules with dry games at Giants Stadium, and the Toronto Blue Jays, who sold no alcohol at two games in 2009. But you say your venue is unwilling or unable to forego the revenue from alcohol sales? Then you are exposed to the classic tort law argument that you put profits over people.
This is a classic argument both because it is too often accurate and because it works with juries. Every time your venue opens its doors and its taps, it increases the likelihood that someone who drinks on premises will do some alcohol-related harm. The law imposes a duty to minimize the risk of this reasonably foreseeable conduct. Either accept that duty, or go dry. So sayeth the lawyer.