- How do laws that impose criminal or civil penalties for serving underage persons or intoxicated adults relate to commercial host liability?
- How many states have underage furnishing and sales to intoxicated persons (SIP) laws?
- How intoxicated must an adult patron have been for a commercial host liability case to succeed? Is evidence of legal intoxication for the purposes of operating a motor vehicle sufficient?
- Is it unfair to expect alcohol retailers to monitor the drinking of their patrons and determine when they are underage or visibly intoxicated?
Most commercial host liability claims involve sales of alcohol that are illegal in and of themselves, including service to an underage person, typically referred to as “underage furnishing,” or service to a visibly intoxicated adult, referred to as “sales to intoxicated persons” (SIP) laws. Although linked to commercial host liability laws, underage furnishing and SIP laws are distinct, since they define criminal behavior and impose criminal and administrative penalties. If a retailer sells alcohol to an underage or intoxicated person, he/she may be charged with a crime, imprisoned, or required to pay a criminal fine, or have administrative sanctions placed on his/her license to sell alcohol, regardless of whether an injury to a third party occurred.
Though most commercial host liability laws are linked to these underage furnishing or SIP laws, they allow an injured party to recover damages from the retailer without regard to whether criminal or administrative penalties are imposed for the illegal sale itself. Many court opinions applying common law liability rely on the doctrine of “negligence per se,” which holds that a violation of certain state laws designed to protect the public—such as furnishing and SIP laws—constitutes conclusive evidence that the violator was negligent.11
All states prohibit sales to minors, and all but two states – Florida and Nevada– have at least some form of SIP laws, which legally require that alcohol retailers’ staff look for behavioral signs of intoxication prior to serving or selling alcohol.20,21 Wyoming’s SIP law is limited only to drive-through liquor stores.20,21
States use different terms to describe the level of intoxication required for service to be illegal. Many states use the terms “visibly,” “apparently,” or “obviously” intoxicated. In general, the plaintiff must show that a reasonable person in like circumstances would have known through observation of the patron’s behavior that the patron was intoxicated. The patron’s blood alcohol level may provide evidence of intoxication, but the fact that he/she was legally intoxicated for the purposes of operating a motor vehicle is not sufficient to meet this standard. Actual behavioral signs of intoxication must have been apparent, too.11
As discussed above, liability occurs only if the plaintiff can show that the patron was underage or was visibly or obviously intoxicated, based on his/her behavior (such as slurred speech or stumbling). Note that the fact that a server’s patron has a blood alcohol level of .08 or higher (the legal definition of intoxication for adults for the purposes of driving under the influence (DUI) laws) is not sufficient for purposes of either sales to intoxicated persons (SIP) or commercial host liability laws.11 SIP laws are based on a basic assumption that retailers can take reasonable steps to avoid such sales.
One way retailers are able to meet the obligation of taking steps to avoid sales to intoxicated persons and minors is through Responsible Beverage Service (RBS) programs.22 These programs provide model policies, procedures, and skill development for identifying and refusing service to intoxicated persons. As of January 1, 2016, 19 states mandate that all or most alcohol retailers and their employees who sell or serve alcohol participate in them.23 A retailer can provide evidence that RBS procedures were adhered to, arguing that he/she acted reasonably and did not negligently serve an intoxicated person.
Although studies on the effectiveness of RBS programs generally show positive results for reducing excessive alcohol consumption and related harms, these results are often from academic research studies that evaluate programs focused on individual establishments and implemented under favorable conditions (e.g., intensive training programs, short follow-up times). Because of these limitations, based on studies published from 1987 to 2009, the Community Preventive Services Task Force determined that further evidence is necessary to assess the public health impact of sustainable, community-wide RBS programs.22