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Superbowl Don’t Drink & Drive, on the job, in restaurants, at home!

Great advice from David Gabay, Attorney, With the Super Bowl less than 2 weeks away, many restaurants and bars are busy planning and promoting their Super Bowl parties. Of course, beer and alcohol sales are usually a large component of your Super Bowl event, and every once in a while (I’m told) one or more of your customers is going to get drunk. And since that drunk customer is going to leave your establishment after the game is over, there is some chance that her or she will hurt someone else on their way home. If that actually happens, your restaurant or bar may get sued under New York’s Dram Shop Act.

In light of these facts, now would be a good time to refresh your staff’s understanding of the Dram Shop Act’s requirements and review your company’s policies and procedures for reducing your legal exposure to a lawsuit.

The Law:

The Dram Shop Act provides that a restaurant or bar can be sued for unlawfully sells or assists in procuring alcohol to any person apparently under the age of 21 or who is visible intoxicated. Specifically, New York General Obligations Law § 11-100 and §11-101, and New York Alcoholic Beverage Control Law § 65, are the New York’s Dram Shop Act. Section 11-100 allows for a lawsuit against “any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years.”

Section 11-101 provides a cause of action against any person who unlawfully sold or assisted in procuring liquor for such intoxicated person and caused or contributed to such intoxication. The unlawful conduct set forth in §11-100 and § 11-101 is defined in New York Alcoholic Beverage Control Law § 65, which provides that “no person
shall sell, deliver or give away or cause or permit or procured to be sold, delivered or given away any alcoholic beverages to (1) Any person, actually or apparently, under twenty-one years and (2) Any visibly intoxicated person.”

These rules apply only to the commercial sale of alcohol, in other words, for profit. There are a number of situations in which the activities in question do not constitute the commercial sale of alcohol. It is important to consult with an experienced restaurant or bar attorney to determine whether your Super Bowl event qualifies for possible Dram Shop liability.

Also, Dram Shop liability can only be imposed in cases where the customer is visibly intoxicated. There are numerous reported Court decisions discussing the type and level of evidence needed to demonstrate that a customer was or was not visibly intoxicated. For all practical purposes, the type and quality of evidence needed to demonstrate visible intoxication is, in my opinion, quite low, which increases your risk of liability in the event a drunk customer leaves your premises and injures someone else.

Finally, liability for serving or procuring alcohol to persons apparently under the age of 21 can be imposed on anyone providing, selling, or helping to sell or provide alcohol to a minor. No commercial sale is required, although actual knowledge or a reasonable belief that the customer is under 21 must be proven. If you did not know of the drinking, did not approve the drinking at your place of business, and did not provide the alcohol to the minor, there should be no liability under the law.

Policies and Procedures:

In order to minimize the risk to your business of a Dram Shop lawsuit, you should have detailed written procedures for your staff to follow for serving alcohol to customers. The two (2) main areas to address are: (a) reviewing and recording the identification of customers, (2) rules and training for servers to help them know when to stop serving alcohol to a customer. These policies can and should be custom tailored to the requirements of your business, and there are a number of restaurant consultants or lawyers who can assist you in developing and executing appropriate policies.

Your rules and procedures should be distributed to all responsible staff, the staff should acknowledge receipt of the policies in writing, and you should certainly have at least one training or review session just prior to opening of business on Super Bowl Sunday.

For more information on reducing Dram Shop liability or for help developing Dram Shop policies and procedures, please contact me. Otherwise…..go Giants!

Posted by The Law Offices of David A. Gabay, PC |

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