Alcohol Safety. After reading this chapter, you will be able to:

Transcription

1 Chapter 2 Alcohol Safety After reading this chapter, you will be able to: Identify the major areas of legal concern for foodservice operations. Discuss legal liability related to alcohol sales for foodservice operations. Explain what Dram Shop laws are. Detect the signs of intoxication in a person. Discuss Blood Alcohol Content. Identify the BAC line in your state. Conduct alcohol training and industry certification. It provokes the desire, but takes away the performance. William Shakespeare 21

2 22 Chapter 2 Alcoholic Beverages and the Hospitality Industry Society has been trying to protect itself from abuses brought on by overindulgence in alcoholic beverages since there have been alcoholic beverages to consume. As long ago as in ancient Babylon, laws such as the Code of Hammurabi were designed to restrict possible violence and damage caused by alcohol abuse. The restaurant operator who combines the sale of food with that of alcoholic beverages, or who sells alcoholic beverages exclusively, faces many challenges. In general, there are two primary classifications of establishments that serve alcoholic beverages. The first includes full-service restaurants, in which beer, wine, and spirits are served primarily as an accompaniment to food. The second includes establishments in which beverages are sold as the primary offering. Generally, bars, taverns, and nightclubs fall into this category. While alcoholic beverage control boards in each city and county generally have specific powers and responsibilities, the final control over alcohol sales usually rests with the state liquor authority or the state alcohol beverage control board. Matters regulated by some or all states include licensing, illegal sales, hours of operation, dram shop liability, and alcohol service training. Figure 2.1 A waiter serves a customer a beer in an outdoor café. [Dorling Kindersley Images]

3 Alcohol Regulations Licensing Alcohol Safety 23 Under the Twenty-first Amendment to the U.S. Constitution, ratified on December 5, 1933, each state has the right to control the sale of alcoholic beverages within that state. A liquor license, once granted, may be revoked or suspended by the state if the licensee (the person who holds the license) violates prescribed laws. Illegal Sales Two areas of major concern for foodservice operators who plan to sell alcoholic beverages are the minimum legal age for drinking and drivers who operate motor vehicles while under the influence of alcohol. When Congress threatened to shut off federal highway funds to states that did not raise their legal minimum age requirements to twenty-one, every state that had not already done so promptly adjusted its laws. Restaurants and bars must carefully check identification cards, such as drivers licenses, in order to verify that every patron is of legal drinking age. In most states, the following types of sales are considered illegal: 1. Sales to minors (under age twenty-one). 2. Sales to visibly intoxicated persons. 3. Sales to habitual drunkards. Sales to anyone on this prohibited list may result in the suspension or revocation of a liquor license. Illegal sales can also lead to civil liability for resulting injuries and, particularly in the case of serving a minor, criminal liability for which penalties could include jail and a fine. The prudent foodservice operator will take care to avoid illegal sales. Hours of Operation The hours during which a restaurant or a bar can serve alcoholic beverages are strictly regulated by the state, the city, and or the county in which the establishment is located. The days on which alcoholic beverages can be sold both in foodservice establishments as well as in retail and package outlets also are strictly regulated. Some areas prohibit Sunday sales altogether, while other areas allow by-the-drink sales only after 12:00 P.M., and then only in establishments which also serve food. Some areas allow only the sale of beer on Sundays, while other areas allow the sale of all alcoholic beverages. In many jurisdictions, alcohol cannot be sold until after 6:00 P.M. on local and national political election days. Clearly, the prudent operator must rely on state and local authorities when determining on what days and at what times it is legal to sell alcoholic beverages.

4 24 Chapter 2 Figure 2.2 A well-stocked bar. [Dorling Kindersley Images] Dramshop and Common Law Liability Every state has strict laws forbidding people to drive motor vehicles if they have been drinking. Many states have now developed third-party liability legislation that holds the restaurant or tavern operator responsible, under certain conditions, for the actions of his or her patrons who consume excessive amounts of alcoholic beverages. These laws, commonly called dramshop laws, impose penalties on the server or on the operation that provided the alcoholic beverages. The objectives of dramshop laws are to discourage owner/operators from selling alcohol illegally and to afford some kind of compensation to those victims whose injuries are a result of an unlawful sale of alcohol. The potential liability is very significant. Some illegal sales have resulted in verdicts that have financially ruined the bar or the restaurant that wrongfully served the alcohol. Because of these laws, operators are becoming increasingly concerned with alcohol awareness and abuse. A person who is injured by the acts of an intoxicated individual also may have the right to bring a lawsuit based on the common law theory of negligence. In some states, such lawsuits may be filed against the operation that made the illegal sale, independent of any claim under a state s dramshop laws. Under the common law theory of negligence, operators must reasonably foresee that a sale to an obviously intoxicated customer could create a risk of harm to others. The foodservice operation must provide reasonable care to prevent such occurrences.

5 Alcohol Safety 25 Dramshop Laws Dramshop is an outdated term once used to describe establishments that sold alcoholic beverages. Dramshop laws date to the mid-1850s, and they made owners and operators of drinking establishments liable for injuries caused by intoxicated patrons. Before that time, tavern owners and bartenders were exempt from such liability the theory being that the consumption of alcohol, not the serving of it, made customers liable. The dramshop laws changed that. More than a dozen states have dramshop acts on the books, and over three dozen states have modern legislation that closely emulates the original dramshop laws. Because the general public is demanding responsible alcohol service, those who serve alcohol are being held to higher standards of care. Because dramshop legislation and common law liability vary from state to state, the prudent operator should seek the advice of qualified counsel. Selling alcohol to people who are already intoxicated is illegal. It is difficult to determine someone s level of intoxication based solely on the basis of how much alcohol that person has consumed. The effects of alcohol will differ greatly from person to person. To qualify as illegal, the person s appearance or actions must indicate he is intoxicated. Although intoxication is sometimes difficult to detect, that difficulty may not be a defense to a charge of an illegal sale. Bartenders and servers are expected to be familiar with the indicators of intoxication. These indicators include slurred speech, bloodshot and watery eyes, flushed face, and poor coordination, which is often evidenced by difficulty in performing such acts as making change or handling money, lighting a cigarette, or walking without staggering or stumbling. Behavioral evidence of intoxication may also include being overly friendly, boisterous, loud, argumentative, crude, and or annoying to other customers. In a lawsuit, intoxication is usually proved in one of two ways. The first, used primarily when a criminal charge of driving while intoxicated (DWI; also known as driving under the influence, DUI, in some jurisdictions) is involved, is to show an elevated blood alcohol content (BAC) in a person. BAC is the percent by weight of alcohol in the person s blood. The BAC is determined by analyzing the person s blood, breath, urine, or saliva. Alcohol affects people differently, and several factors affect the amount of alcohol absorbed in a person s blood. Among them is the amount of alcohol consumed, the time involved, the person s body weight, food in the stomach, and the person s general health, especially liver condition.

6 26 Chapter 2 Alcohol and Its Effects In general, for a 160-pound person drinking for an hour on an empty stomach: Number of Drinks Blood-Alcohol Content Two 0.04% Three 0.07% Five 0.11% Seven 0.16% A drink is defined as ounces of 80-proof liquor, 12 ounces of beer, or 5 ounces of table wine. ALCOHOL-INDUCED CHANGES Blood-Alcohol Level Effects (for Most Drivers) 0.01% to 0.05% Mild alteration of feelings and slight intensification of mood. Bad driving habits are slightly pronounced % to 0.10% Feeling of relaxation. Vision, hearing and speech are impaired. Minor disturbance of balance. Longer reaction time. Fine motor skills (such as braking) are impaired. Judgment impaired. 0.10% to 0.15% Judgment and memory seriously affected. Physical coordination impaired. Motor skills badly impaired. Driving becomes very difficult. Over 0.15% Difficulty in standing, walking and talking. Distortion of all perceptions and judgment. Major impairment of all physical and mental functions. Irresponsible behavior. Euphoria. 0.40% or more Death can occur. Source: The Courier-Journal, Louisville, KY, Saturday, June 23, 2001.

7 Alcohol Safety 27 Figure 2.3 Each container holds equal amounts of alcohol. [Dorling Kindersley Images] In general, a 170-pound man with an empty stomach would likely reach a BAC of 0.08 percent after drinking four servings of alcohol in an hour. A 137-pound female would reach the same level after drinking three servings of alcohol in an hour. In order to reduce the alcohol-related problems on American highways, the National Highway Traffic Safety Administration (NHTSA) made it illegal to operate a motor vehicle with a BAC at or above Each state has laws specifying the BAC level at which one can be charged with driving under the influence and the consequences. See Table 2.1 for BAC-related data for the fifty states and the District of Columbia. According to the U.S. Department of Labor, as of December 2001, twentynine states, Washington, D.C., and Puerto Rico had 0.08 as the established BAC level, whereas twenty-one states remain at the 0.10 level. In October 2000, Congress passed 0.08 BAC as the national standard for impaired driving regulations. States that do not adopt 0.08 BAC by a certain date will be denied a portion of their federal highway construction funds. Massachusetts is the only state that does not prohibit drinking and driving with a specific BAC level. Some states also have adopted a zero-tolerance standard for teenage drivers. In these states, teenage violators will have their licenses suspended for operating a motor vehicle with any detectable blood-alcohol levels. Because states increasingly are formulating legislation that lowers the limit at which one is considered legally impaired, the prudent operator may stay abreast of these laws by consulting with qualified counsel and by joining a state chapter of the National Restaurant Association.

8 28 Chapter 2 Table 2.1 BAC defined as BAC defined as State illegal per se State illegal per se Alabama 0.08 Montana 0.10 Alaska 0.10 Nebraska 0.08 Arizona 0.10 Nevada 0.10 Arkansas 0.10 New Hampshire 0.08 California 0.08 New Jersey 0.10 Colorado 0.10 New Mexico 0.08 Connecticut 0.10 New York 0.10 Delaware 0.10 North Carolina 0.08 District of Columbia 0.08 North Dakota 0.10 Florida 0.08 Ohio 0.10 Georgia 0.08 Oklahoma 0.08 Hawaii 0.08 Oregon 0.08 Idaho 0.08 Pennsylvania 0.10 Illinois 0.08 Rhode Island 0.08 Indiana 0.08 South Carolina 0.10 Iowa 0.10 South Dakota 0.10 Kansas 0.08 Tennessee 0.10 Kentucky 0.08 Texas 0.08 Louisiana 0.08 ** Utah 0.08 Maine 0.08 Vermont 0.08 Maryland 0.08 Virginia 0.08 Massachusetts None Washington 0.08 Michigan 0.10 West Virginia 0.10 Minnesota 0.10 Wisconsin 0.10 Mississippi 0.10 Wyoming 0.10 Missouri 0.08 ** Effective 9/30/03. Source: U.S. Department of Labor, September, The second way that intoxication can be proved is by providing a witness for the behavioral indicators of intoxication mentioned earlier in this chapter. A witness can be anyone who observed the patron in an intoxicated state, such as a bartender, wait staff personnel, other customers, or the police. Training and Industry Certification Proper training of management and staff is essential and should include specific training for recognizing the signs of customer intoxication. Requiring management and service staff to participate in training programs such as TIPS (Training for Intervention Procedures for Servers), offered by Health Communications Incorporated; or C.A.R.E. (Controlling Alcohol Risks Effectively), sponsored by

9 Alcohol Safety 29 Figure 2.4 People enjoy alcohol in an outdoor German Bier Garten. [Dorling Kindersley Picture Library/Osterreich Werbung] the American Hotel and Lodging Association, is helpful. While only a few states require server education, servers who have obtained this type of certification have gained information about alcohol and its effect on people, the common signs of intoxication, and how to help patrons avoid becoming intoxicated. In some cases, server certification in alcohol awareness may assist in a reasonable care defense should the establishment be sued under common law theory of negligence. Frequent refresher courses are an important component of alcohol service training. Employee meetings provide a good opportunity to reinforce the message that alcohol must be served responsibly. Some states, Maryland being one example, have laws that require all establishments that serve alcohol to be certified in an alcohol awareness training program. More and more states are formulating policies that show they will not tolerate people getting behind the wheel of a motor vehicle if they have been drinking. Key Terms Common law Dramshop laws Intoxicated Reasonable care Blood-alcohol content TIPS C.A.R.E.

10 30 Chapter 2 Study Questions 1. What are three cases in which alcohol sales are illegal? 2. What are dramshop laws? 3. What are some telltale signs of intoxication? 4. What does the acronym BAC stand for? 5. What is the BAC considered illegal in the state in which you live? 6. Name two training programs related to alcohol safety.