• Justin Hein

Liability for Serving an Obviously Intoxicated Person?

While you can be jailed for buying your buddy one for the road, you cannot be found liable for damages from the latter victims of his/her intoxicated state.

In California, every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any "habitual or common drunkard" or to any "obviously intoxicated person" is guilty of a misdemeanor.  (Bus. & Prof Code, section 25602.)

Um, Vague!

In 1960, the California Supreme Court determined that a subsection of a prior version of Penal Code, section 647, that imposed criminal consequences for individuals deemed as "habitual" or "common" drunkards as being unconstitutionally vague, uncertain, and incapable of being uniformly enforced. (See In Re Newbern (1960) 53 Cal. 2d 786.) And although it did not explicitly repudiate the above-referenced companion statute or Penal Code, section 397, it would appear that enforcing the "habitual or common drunkard," prong of the statute has gone the way of the dinosaur.

That being said, the other half is still viable. And it is still enforceable. This means, technically, if you buy a beer, shot, wine, or cocktail for your obviously intoxicated friend, you are technically breaking the law.

Well, how is "obviously intoxicated" any less "vague, uncertain, or incapable of being uniformly enforced," than common drunkard? Ah ha, your trusty Legislature and Department of Alcoholic Beverage Control stepped in and provided a more specific definition.

Definition of Obviously Intoxicated

A person is obviously intoxicated when "the average person in his/her presence can plainly determine intoxication by physical appearance and mental judgment." The statute goes on to identify some examples of that, which ABC then expanded upon in its regulations and training materials.

Intoxication by way of physical appearance can be determined by:

  • Staggering gait

  • Thick tongue or muttering

  • Sweating or flushed face

  • Lack of balance or coordination (e.g. falling off stool; fumbling with money)

  • Loud and boisterous behavior

  • Blood-shot eyes, droopy eyelids;

  • Disheveled condition of clothes and hair;

  • Changing volume, speed of speech;

  • Slow and deliberate movement; or

  • Using foul language.

Intoxication by way of mental judgment can be determined by:

  • Argumentative (e.g., low-key, altercations, confrontations or heated arguments);

  • Careless with money;

  • Irrational statements;

  • Belligerent;

  • Annoying others;

  • Loss of train of thought; or

  • Argues with persons of authority (e.g. bartender, bouncer, police).

Limitation of Liability

California case law and legislation has consistently held that the consumption of alcohol--not the purchasing or serving thereof--is the proximate cause in the case of any resulting criminal or tortuous conduct. Thus, the sale of alcohol by bars and liquor stores in California is not going to be considered the proximate cause of a resulting driving under the influence or--worse yet--vehicle accident.

Unlike many states, California’s Alcoholic Beverage Control laws has extremely limited dram shop. Dram shop is a term for laws that hold retail establishments civilly liable for damages caused by serving alcohol to an obviously intoxicated patron. The purpose of dram shop laws is to place responsibility on those who profit from the distribution of alcohol. Plus, the laws provide an incentive to owners of alcohol establishments to develop responsible service policies, and to properly train employees to refuse alcohol sales.

Not that this limitation of civil liability goes away when the licensee, server, or purchaser of the alcohol did so for an obviously intoxicated person was under the legal age to consume alcoholic beverages.

Licensing Liability

Liability is not always about maintaining your freedom (criminal) or your wallet (civil). When it comes to bars and liquor stores, it also includes liability for your privilege to sell alcohol (license).

Specifically, an ABC licensee or one of its servers who serves an obviously intoxicated person faces possible ABC disciplinary action and criminal prosecution. (Bus. & Prof. Code, sections 25602(a), 23001.) This would typically come up in circumstances where there was criminal or tortuous conduct by the patron or there is an allegation - either in the complaint or asserted as a defense - that the patron had been oversold. Depending upon the circumstances, ABC would likely investigate and could file an accusation and seek a substantial penalty, perhaps even revocation of your license.

Document through Incident Log

Thus, this is no small potatoes for ABC licensees. They need to properly train their staff on how to identify obviously intoxicated patrons. ABC has a number of resources and ideas on how best to do that and then how best to handle the aftermath (e.g. advisement management/owners, be courteous, do not bargain, arrange for transportation, etc.).

For ABC licensees dealing with a denial of service due to an obviously intoxicated patron, the licensee should immediately document the occurrence in its Incident Log. The Incident Log is very important in demonstrating your policies of responsible service. The Incident Log documents all details about an event, including date, time, what happened, who was involved and who witnessed the event.

The server or ABC Licensee should fill out the Incident Log immediately after an incident. Do not wait until the end of a shift or the next day. An Incident Log should be filed whenever:

  • Refuse service to an intoxicated customer

  • Arrange transportation for an intoxicated customer

  • Minor presents a false I.D.

  • ABC/police visit your establishment

  • Whenever

  • When a customer becomes ill or is involved in an accident

  • Whenever you call the police

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