Dram Shop Expert

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  • Selling Alcohol to Minors and Intoxicated Patrons Is Bad Business—And Can Be Avoided

Selling Alcohol to Minors and Intoxicated Patrons Is Bad Business—And Can Be Avoided

By Major Mark Willingham, BS, MSA, CPM
Alcohol Solutions, LCC

My 30-year career has focused on licensing, policing, and regulating the alcoholic beverage industry, and during that time, I’ve seen plenty of retailers suffer fines, suspensions, and even license revocations for failing to comply with alcohol sales laws. And whenever this happens, I wonder why the owner and manager didn’t do more to prevent this from happening.

Let’s be clear: these penalties cost licensees a great deal. Fines take money from their pockets. License suspensions prevent alcohol sales for several days or even weeks, hurting their ability to make a profit or even to cover payroll. Revocations lead to permanent closure and on occasion prevent the owners from ever again having an alcoholic beverage license.

I’ve seen employees who sold alcohol to an underage person or served an intoxicated patron be arrested or given notice to appear in court. Judges impose fines and occasionally jail time for improper alcohol sales. Of course, an arrest record can follow the clerk or server for many years, which can affect their credit rating and their ability to obtain another job in the alcoholic beverage industry.

More recently, I have been serving as an expert witness in wrongful injury or death lawsuits pursued under state dram shop laws. When a person under 21 who has been drinking gets hurt or hurts someone else, or when an alcohol-impaired adult does the same, one of the first questions pursued during the investigation is where the perpetrator bought or got served the alcohol. This is a whole area of additional risk that licensees and their employees face when they sell alcohol improperly.

Fines, license suspensions, and even license revocations are largely insignificant when compared to the judgments imposed by juries for improper alcohol service that led to an alcohol-related injury or death. Judgments can be in the tens of millions of dollars. I’ve even seen a judgment as high as $170 million. Retailers who violate the law don’t win much sympathy when the father of young children is killed or a teenager suffers permanent brain damage because a minor or intoxicated patron was sold or served alcohol.

Smart owners and managers protect their business—and themselves—by practicing responsible retailing.

As an expert witness in these civil lawsuits, I am asked to determine if the licensee has been following responsible retailing practices and therefore acted “reasonably” and “appropriately” to prevent the alcohol law violation. Here’s what I investigate:

  • Did the retailer have appropriate alcohol sales policies in place? Did the owners and managers follow and enforce those policies?
  • Did the owners and managers comply with other alcohol-related laws and rules for their jurisdiction?
  • Did the retailer train the employees to prevent improper alcohol sales and service?
  • Did the owners and managers repeatedly stress the importance of preventing alcohol-related violations?
  • Did they provide educational materials and other resources to help the staff do a better job of consistently obeying the law?

Sometimes I find that the alcoholic beverage licensee acted appropriately and had adequate and reasonable policies, sound practices, good staff training, and solid alcohol service management. When that is the case, I can explain to the judge or jury that the owners showed proper concern for their obligation to prevent alcohol violations and that their actions did not cause or contribute to the injury or death. But if that is not the case, then the retailer is likely to face a significant civil judgment.

The bottom line is this: In my experience, the businesses that avoid penalties against their beverage license, the arrest of their clerks or servers, and the risk of millions of dollars in civil lawsuits are those retailers who adopt and utilize best practices for Responsible Retailing. It’s good for business.

Major Willingham served with the Florida Division of Alcoholic Beverages and Tobacco for twenty eight years and provided beverage licensing, regulatory, and law enforcement services throughout Florida as a Law Enforcement Commander. In addition to serving as the Division’s Chief Financial Officer and Chief Training Officer, he served as Florida’s Responsible Vendor Program Administrator, Florida’s Youth and Alcohol Program Administrator, and as a State Hearing Officer.