Servers who work for restaurants and bars that sell alcoholic beverages pursuant to an ABC permit are prohibited by G.S. 18B-305(a) from knowingly selling or giving alcoholic beverages to a person who is intoxicated. Violation of this provision is a Class 1 misdemeanor and may result in suspension of the establishment’s ABC permit. In cases where overserving results in injury, the restaurant or bar also may be liable for the damages that result. I’ve often wondered how servers know when to say when. After all, they are engaged in the business of selling alcoholic beverages—drinks that affect the brain functioning of everyone who consumes them. When does the statutory duty override their business interests?
The rule. North Carolina law has prohibited the sale of alcoholic beverages to an intoxicated person for more than 75 years—since enactment of the Beverage Control Act of 1939. See Hutchens v. Hankins, 63 N.C. App. 1, 4 n.1 (1983). The reasons for the rule are obvious: it protects the consumer of the alcohol as well as the members of the public he or she may encounter after drinking. Id. at 16. To establish a violation, the State must demonstrate that a person with an ABC permit or his or her employee sold or gave an alcoholic beverage to an intoxicated person and that the server knew the person was intoxicated. There were 17 such charges statewide last year.
A recent case. The facts in Davis v. Hulsing Enterprises, __ N.C. App. __ (April 5, 2016), a case decided by the court of appeals earlier this month, demonstrate the tragic consequences that can result when a person consumes excessive amounts of alcohol, even when the person does not drive or injure a third party. The plaintiff in Davis sued a hotel and its restaurant for the death of his wife, who died from acute alcohol poisoning after drinking at least ten alcoholic drinks served to her in the hotel restaurant. According to the plaintiff’s complaint, he and his wife checked into the hotel on October 5, 2012 to celebrate their wedding anniversary. The two sat in the hotel restaurant from 5:30 p.m. until 10 p.m. and were served twenty-four drinks. The decedent became so intoxicated that when she attempted to walk back to her room, she fell in the hotel floor and was unable to get up. Hotel employees placed her in a wheelchair and took her to her room, where they left her with her husband. The next morning, the plaintiff awoke and found his wife lying dead in the floor. The issue before the court of appeals was whether these allegations were sufficient to state a claim for negligence per se based on the violation of G.S. 18B-305. The court held, over a dissent, that they were.
Drawing the line. The ABC Commission provides guidance here on preventing sales to intoxicated customers. There are no firm rules; the Commission tells servers to rely on their “own good judgment.” The Commission describes several types of impaired drinkers: the drink spiller, the money fumbler, the stumbler, the agitator, the entertainer, and the loner. It suggests delaying tactics to prevent customers from becoming a problem, such as slowing down service and encouraging the customer to eat food. And then it suggests methods for firmly but tactfully refusing service.
Too impaired to drive, but not to drink? I imagine that a server’s view of whether a person is intoxicated differs from a law enforcement officer’s view of whether a person is too impaired to drive. My guess is that officers have a far lower threshold than servers. The ABC Commission provides Responsible Alcohol Seller Program (RASP) training to educate sellers and servers. Perhaps it provides guidance to servers that is more structured than the good judgment rule. The ABC defines drinking responsibly here as up to 1 drink a day for a woman and up to 2 drinks a day for a man. I know from experience that servers don’t follow that rule; they probably wouldn’t be in business long if they did. If you are a server and are willing to disclose how you determine when to cut a customer off, please use the comment feature to share your thoughts.