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Mike Stobbe of the Associated Press reported yesterday that a new study to be released in October by the Centers for Disease Control (CDC) found that one in ten binge drinkers drove the last time they drank heavily. And half of those impaired drivers were coming from a beverage premises after drinking. One of the study’s leaders, Timothy Naimi, stated that binge drinking is a main factor behind more than 11,000 deaths annually from alcohol-related motor vehicle crashes. These findings, while not surprising to those who regulate the alcoholic beverage industry or investigate impaired driving crashes, brings into sharp focus a long-standing debate on the bar owner’s responsibility to prevent impaired driving and whether bars are in fact their brother’s keeper.

No one will argue that the impaired driver is blameless. There has been a definitive change in impaired driving related norms due to education, advertising, public pressure and law enforcement. In fact, the number of impaired driving deaths has actually declined in recent years (although a strong argument can be made that we are putting impaired drivers and the people they hit into safer cars). However, the CDC study and numerous previous studies continue to show that half of the impaired drivers on the road are coming directly from a beverage license premises. That has not changed over time. Obviously, individual self-control and personal responsibility are not sufficient to stem the tide of impaired driving related death and carnage.

What is a beverage retailer’s responsibility to prevent intoxication and prevent impaired driving? Does a drinker have a right to get hammered in a bar if he or she chooses? All you can drink and gender based specials tend to suggest that they can. The answer depends on the state in which the bar or restaurant operates. The 21st amendment to the United States Constitution vested the authority to regulate alcoholic beverage sales and service to each state. Each state has chosen to address retailer responsibility in a different manner and has established different levels of responsibility.

Forty-eight states hold beverage retailers responsible for over-serving or serving their patrons to the point of intoxication. They do this through criminal charges or possible suspension or revocation of the alcoholic beverage license. I agree with Naimi who said that these are among the most disregarded laws in the country. Even though the bars and restaurants that over-serve and usher their intoxicated patrons out the door represent fewer than 10% of the beverage premises in any community, law enforcement and regulatory agencies either do not have the resources to adequately investigate and prevent these occurrences or do not give over-serving sufficient priority. The truth is that a small fine or suspension of the beverage license is often considered a cost of doing business by a beverage retailer when the financial benefits from over-serving far outweigh the costs and risks. Fines and suspensions are generally ineffective in changing retailer behavior.

Thirty eight states allow an injured party or survivor to bring a civil law suit, a Dram Shop action, against a beverage retailer for the death or injury caused by over-serving a patron. Most of these cases involve a vehicle crash, however, causes of action also relate to homicide, sexual assault, and other incidents where the intoxicated patron loses the ability for self-regulation. While administrative and criminal charges generally result in small fines, civil lawsuits can result in significant judgments. These judgments provide far greater opportunity to change the behavior of the irresponsible retailer than any other method. In addition, civil lawsuit judgments often provide a measure of justice to the injured or to the survivor.

To many retailers, these judgments can not be dismissed simply as a cost of doing business. They do affect behavior and they encourage responsible retailing for that retailer and others who may be operating in the same manner. Unfortunately, some beverage retailers still look at this as a cost of doing business, albeit, at a much higher level. Some retailers do a cost-benefit analysis determining how many wrongful death lawsuits are worth the increase in business these over-service practices support.

Is a beverage retailer his or her brother’s or sister’s keeper? It is true that the decision to have the first, second or perhaps the third alcoholic beverage is a rational choice made by the drinker. At a certain point the drinker loses their ability to make rational decisions on further alcohol consumption and on appropriate behaviors including assessing their ability to safely operate a motor vehicle. Alcoholic beverages are the only legally available consumer product that when used in excess, change one’s ability to make these rational decisions, life and death decisions.

Yes, a beverage retailer is his or her brother’s or sister’s keeper. Their first priority is to prevent their patrons from becoming intoxicated to the point where they are a risk to themselves or to others. If by chance a patron does become intoxicated, the retailer’s second priority is to prevent harm to that patron and others that patron may harm. Even where this is not a requirement of law or subjects the retailer to a Dram Shop lawsuit, this is a requirement of responsible retailing.

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