Duff on Hospitality Law

Our latest post comes from Malcolm Seymour, a member of our New York office who specializes in commercial litigation and regulatory enforcement actions. His post discusses the ins and outs of Dram shop laws, and how they vary from state to state. -Greg

"A guy walks into a bar and orders a drink”: these words usually foreshadow some benign if tasteless joke. But these same words are increasingly found prefacing legal complaints based on laws known as dram shop statutes. And for businesses that sell or serve alcohol, these lawsuits are no laughing matter.

Under dram shop laws, businesses that sell alcohol can face civil liability for injuries that their intoxicated patrons inflict on third parties – even after those patrons have left their premises, and (in some states) even when the injury caused is intentional. Despite the anachronistic name, more states enact dram shop laws every decade, under political pressure from groups like M.A.D.D. These laws vary significantly from state to state, and their severity in certain jurisdictions can come as an unwelcome surprise. Any hotel, restaurant or bar that sells or serves alcohol, especially one with operations in multiple states, would do well to familiarize itself with these laws and their jurisdictional differences.

Take New York City – a nightlife capital and global destination for travelers – which happens to fall under the reach of one of the nation’s harshest dram shop laws. New York State’s Dram Shop Act allows private plaintiffs injured by intoxicated individuals to sue anyone who may have “unlawfully” sold those individuals alcohol. This would not be so vexing if New York used a clear standard to define what sales are considered unlawful. Legally prohibited sales include sales to minors, habitual drunkards and – most problematically for those on the receiving end of a dram shop complaint – anyone who is “visibly intoxicated.”

Several clients have lately been asking about notices they've received that look like this. If they come from the Eastern District court in New York, they’re legitimate, and if you are a merchant who accepted Visa or MasterCard or both between January 1, 2004 and November 28, 2012, you are a probably a member of the class and should have received one too. If you didn't, the lawsuit and proposed settlement are discussed in detail here. Take a look; the settlement could affect your legal rights. You have until May 28, 2013 to exclude yourself from the settlement (opt-out) or object to its terms; the final hearing on the proposed settlement will be September 12, 2013. Assuming the court approves the settlement, with or without changes that may occur as the result of objections, claim forms will be issued after that date to class members and a claim deadline will be set.

Alcohol has been making the headlines over the past several weeks in Washington as the state prepares for Initiative 1183 to take effect. And while the privatization of liquor sales remains a popular topic, another alcohol-related headline deserves some notice from business owners. The Seattle Times recently described a questionable situation caught by KOMO News cameras: beer in the temporary offices of Kiewit, the construction firm responsible for some of the work being done on Highway 520. Partially in response to the pending investigation by the Department of Labor and Industry, clients and other readers have been asking whether a business can have alcohol in the workplace without running afoul of liquor regulations.

The Washington State Liquor Control Board has issued a Notice of Rule Making for a proposed amendment to the Washington Administrative Code (WAC) prohibiting the manufacture, importing and sale of “alcohol energy drinks.” The Board defines alcohol energy drinks as any beverages containing beer, strong beer or malt liquor and “caffeine, guarana, taurine, or other similar substances.” The public may comment on the proposed rule until February 23, 2011.

This new rule is virtually identical to the emergency rule adopted by the Board on November 10, 2010, which is currently in effect and will continue until March of this year. Unlike the emergency measure, the proposed rule contains language making clear that the prohibition is not intended to extend to substances in which coffee and chocolate are added to alcohol. Irish coffees and liquored chocolates are still safe!

For those of you that routinely purchase split cases of wine, December 8 is an important date. On December 8, the Washington State Liquor Control Board will hold public hearings in Olympia on proposed regulatory changes that would authorize wine distributors to collect handling fees from hotels, restaurants and other retail licensees that order and receive split cases of wine. As you may have already guessed, the newly proposed rule is the result of a request made by the Washington Beer and Wine Wholesalers Association.