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Uphold Individual Accountability in
Pennsylvania Public Drinking Laws
By Jodi A. Corbett
Filling the busy Saturday night atmosphere of local bars and restaurants is small talk and clichés in overheard dinner conversations. The flagship cliché “everyone has a vice” is justification for a dessert, a cigarette, or another drink. As a society we often exalt our vices through the hard sell to beautify them while the courts decide and determine punishment for our excesses. The personal vice of consuming alcohol has serious public and legal implications through the Pennsylvania drinking laws.
Specifically, the Dram Shop Act and the recently changed ACT 141, enforced through divisions of the Pennsylvania Liquor Control Board [PLCB], reach for full accountability in drinking crimes through holding the establishment and server responsible for a “visibly intoxicated person” (PLCB, 2001c, para. 1 & 5). PLCB expects the server to interpret and enforce these laws to determine intoxication in another human being without weighing fully the factors that complicate that decision. These Pennsylvania Drinking laws are short-sighted public policy for a long-suffered social issue, the misuse of alcohol, that should uphold personal accountability in public drinking rather than create another layer of punitive law against the working class server.
The intent of the Dram Shops and ACT 141 is to prevent driving while intoxicated; however, the laws fail their intent and our society by creating a social unjustness because it holds one citizen, the server, liable for the criminally intoxicated actions of another. Justice is challenged here by allowing the citizen who acts in excess to have the right to sue the server. Is this blame-shifting? The interpretations of these laws and judging “visible intoxication” for what it actually means are argued throughout the paper from different societal perspectives. How do we as a society stop drinking and driving when we are unsure from a subjective standpoint of what “visible intoxication” is?
The Dram Shops are listed under section 497 of the Pennsylvania Liquor Code, ARTICLE IV (D) unlawful acts; penalties. As stated under Liability of Licensees:
No Licensee shall be liable to third persons on account of damages inflicted upon them off
of the licensed remises by customers of the licensee unless the customer who inflicts the
damages was sold, furnished, or given liquor or malt brewed beverages by the said
licensee or his agent, servant or employee when the said customer was visibly intoxicated.
(“Pennsylvania Liquor Code,” 2001, par. 1)Act 141 is listed under Senate Bill 1531 P.N.
2308.
The document is forty-seven pages on Pennsylvania Liquor Laws. It was amended to include Act 141 on November 20, 2000, and went into effect on July 18, 2001. The establishment and the server are subjected equally to any fine. According to the PLCB web site, the substantial changes to the liquor code under Act No. 141 are as follows: “The penalty for providing alcohol to a visibly intoxicated patron is increased from a fine of $50.00 to $1,000.00 to $5,000.00” (Senate Bill 1531, para. 31).
All Pennsylvania licensed establishments and servers are subjected to these laws. To explore how the laws are interpreted, three local establishments in Reading, Berks County, Pennsylvania, are used throughout the paper. These three restaurants face a continual conflict to enforce the Dram Shops and ACT 141 to the best of their ability and represent their patrons. The Café Unicorn is a forty-year old fine dining and intimate art gallery in Hyde Park (K. Lesniak, personal communication, November 30, 2001). The Peanut Bar is an established gathering place for journalists and politicians across from the Reading Times on Penn Street (M. Leifer, personal communication, Nov 29, 2001). Lastly, Hooters is a chain restaurant located on Fifth St. Highway that markets to the interests of men. The guest book reservations, credit cards, and regular visits hint of the uneasy alcoholic relationship between server and the patrons of these establishments. Where there is the culture of patrons dining and drinking, there is in the background the work-a-day people watching all levels of society unfold with their comfort of human vice in public places. Due to their occupation, a server is required by law to seriously judge for people who are relaxed in the vice of public alcohol consumption.
Dram Shops and ACT 141 ask for the server to assess the patron’s behaviors and appearance to determine visible intoxication. However, human tolerance of alcohol creates unique physiological responses, making it a difficult decision to determine each patron’s behavior. It would be simpler to rely on a blood alcohol concentration or BAC, legally limit set at 0.1. According to the National Institute on Alcohol Abuse and Alcoholism (NIAAA), through regular drinking “humans compensate by adaptation of both their behavior and their body functions and show few obvious signs of intoxication even when at high blood and alcohol concentrations” (NIAAA, 1995, para. 3). In an interview with Lynzie Biggs, server and promotions person at Hooter’s Restaurant, she stressed her concern with recognizing intoxicated patrons. Recounting one incident, she explained that a group of regulars left the restaurant “looking fine with no visible signs of intoxication” and proceeded to ride their motorcycles. Police stopped the group two blocks away, and one patron was fined a Driving under the Influence or DUI (L. Biggs, personal communication, November 30, 2001). When a regular patron drinks his “usual amount of alcohol,” it is hard to draw the line between “holding their liquor” with no visible signs of intoxication and stopping service because their BAC would read over the legal limit of .01. If the intentions of the Dram Shop Act and Act 141 are to prevent driving while intoxicated, specific parameters should be used rather than server judgment.
Alcohol’s slow absorption rate plays a factor in identifying intoxicated patrons. As stated by Dr. Ross Fishman, Ph.D. (1986), “In some ways, alcohol’s effect on the brain is under the control of the drinker” (p. 37). Alcohol metabolizes about a drink an hour for most people under normal condition, although there are many additional factors (p. 37). When a patron drinks alcohol faster than the body can metabolize it but shows no signs at a previous restaurant, this creates what Michael Leifer, President of the Peanut Bar, defines as a “delay effect” of intoxication. He had a patron “visibly intoxicated” come in for a cup of coffee late in the evening, making Mr. Leifer liable for calling a cab. It raises the question of “how did he leave the last place?” (M. Leifer, personal communication, November 29, 2001). With the failure to fully consider the human factors involved in alcoholic behavior, compounded by the social acceptance of public drinking, there is a need for significant insight and knowledge to determine another human’s visible intoxication that will prevent them from driving. Quite simply, the Dram Shops and Act 141 are difficult for the server to interpret into action.
Upholding the Dram Shops and Act 141 is particularly challenging in finer establishments due to the occupational status of the patrons. It is socially complicated to have a working class server stop a patron of higher social status from drinking. The law expects an unreasonable amount of accountability for the server to control another human being’s actions. To illustrate, at the Café Unicorn a priest who drank a whole bottle of wine refused to take a cab that the owner, Karen Lesniak, called in an effort to prevent him from driving. Although she tried not to upset him, he reacted with embarrassment and walked to his car. Ms. Lesniak followed behind him with a “struggle for the keys” which the Priest won. She did call the police, but she had allowed her beliefs to trust the Priest in his actions (K. Lesniak, personal communication, November 30, 2001). Faced with an intoxicated leader of the community, servers and owners are hesitant and equally disgraced to point out drinking excess. Our society’s leaders must consider their own personal accountability first. Practicing the law in a working situation has the server’s accountability precariously pitted against a leader’s accountability.
The Dram Shops holds the server accountable for intoxicated patrons, who through their own actions, harm themselves or another (“Dram Shop Liability,” 1998, para. 1). The law’s specific implication for the server unfairly holds the working class responsible, suggested by the very nature of servers’ job: an economic sector of citizens who agree to labor in a service position for a state minimum wage of $2.76, plus tips, mostly without benefits. The other provable point is the criminally intoxicated patron. Contrary to the server who only has personal judgment to determine guilt through court trial, criminally intoxicated patrons have a law-enforced breath analyzer test administered within three hours of their suspected criminal intoxication. If the blood alcohol concentration or BAC is over the defined legal limit of .01, then the patron who drank excessively has a statistical measurement to prove guilt (PLCB, 2001a, para. 16). The evidence for defense is subjective for the server and objective for the criminally intoxicated, which leads to a circumstantial argument in a court trial. The server is left vulnerable by a law that sets out to protect a society from drunk drivers but creates a gap of fair representation in a same court of law for the server. The law’s interpretation could harm the server economically by giving the criminally intoxicated the benefit to sue.
Using statistics from Alcoholics Anonymous (AA) it is evident that alcohol creates problems in all classes of society (AA, 1998a, par. 8). The Dram Shops implies that the working class server is the “responsible judge” for all classes of society where public alcohol abuse creates societal tensions. It’s a wrong solution to burden the working class with the responsibility of another citizen who has problems controlling his drinking. It encourages an addictive society that lives in denial at the possible expense of another citizen.
Considering the Liquor Control Board and The Department of Health are both state run, enforcing protection by using server judgment to combat alcohol abuse for public safety is incongruous with how alcohol abuse is understood and treated for public health. Effective Pennsylvania public policy would take into account the information collected by the Department of Health and would understand that shifting accountability will not help enforcement in dealing with the social disease of alcohol misuse, abuse, and alcoholism. Last year alone 1,344 Berks county citizens underwent state-sponsored treatment for alcohol abuse (Pennsylvania Department of Health, 2000). That doesn’t include the Alcoholics Anonymous attendance. This non-profit support group to help the problem drinker stresses two main principles—personal accountability and privacy—because of the stigma of the disease of alcoholism (AA, 1998b, par. 4 & 6). The Dram Shops and ACT 141 ignore the findings of the Department of Health which has studied the many factors of the addictive and adaptable behavior of alcohol consumption, making these laws short-sighted in their attempt to hold accountable the server.
Having explained the complicated human aspects of the law, one can ascertain the Dram Shop Act is a lawyer’s law and not a people’s law. As a third-party defense law, it opens up cases based on claiming the server’s intention to intoxicate. The server has no option but to defend his or her judgment in court action, once action is taken by the criminally intoxicated. Speaking on the Dram Shop law, Mr. Leifer protests against “this kind of law and how it feeds into our ‘suing society.’” He also commented on the fact that it’s not a well-known law outside licensed establishments and the Pennsylvania Liquor Control Board: “It’s the private lawyers who advertise it.” Cautious of even one incident that could affect his livelihood, Mr. Leifer, carries a hefty $23,000 a year in liability insurance for the Peanut Bar Restaurant (M. Leifer, personal communications, November 29, 2001). Corporal Hairston, Berks Liquor Control Enforcement counter argues, “Anyone can sue anyone” (C. Hairston, personal communication, November 29, 2001). While this may be a true contention, the Dram Shop Law, by its very existence, encourages suing of the server and establishment and shifts personal accountability for the irresponsible behavior.
Under the new law, Act 141, just passed in June, 2001, the server’s punishment for serving alcohol to a “visibly intoxicated person” has become an enhanced penalty of $1,000 to $5,000 for the first incident as described by Corporal Hairston. The only way a server could reduce these charges is to take the Responsible Alcohol Management Program through the PLCB (C. Hairston, personal communications, November 29, 2001). The weights of punishment are different for a first offense. Driving while intoxicated or DUI, is less of a fine, $300 to $5,000, than the server receives for serving a drink to a “visibly intoxicated person” (PLCB, 2001a, par. 18). The server’s judgment concerning patron behavior is trapped in unbalanced punishments, enforced through circumstantial evidence.
It could be argued that there is free training available to servers through the state of Pennsylvania called the Responsible Alcohol Management Program [RAMP]. RAMP’S web page concedes that servers do not know the blood alcohol level of the patron. It does state, “As a server you need to use your skills and experience to determine visible intoxication” (PLCB, 2001b, par. 3). Upon speaking to the Central Pennsylvania RAMP representative, Ms. Lori Rizzo, in regards to obtaining statistics on restaurant compliance for RAMP training, she conceded that no official records are kept. (L. Rizzo, personal communication, November 29, 2001). RAMP is a voluntary program that could be very pro-active. To have effective servers, with the server turnover in the restaurant industry, RAMP must be more diligent about training server in their rights and responsibilities. In the continued conversation she spoke of the new ACT 141, passed in June 2001, mentioned earlier. When questioned about how servers could be held accountable if they were unaware, Ms. Rizzo said that “she wasn’t supposed to talk about legal issues” and advised this author “to talk to a personal lawyer or the Liquor Control Enforcement” (L. Rizzo, personal communication, November 29, 2001). Considering the possible financial ramifications on a working class server’s wages, communication is critical in upholding equal protection of the server’s rights in their possible implication in a criminal drinking case.
In a civil acknowledgment, the server is the first line of defense to stop a patron’s public drinking that turns to intoxication. It is argued that servers “build the bill” to increase tips by serving more drinks. Because servers earn their gross wages by the socially-accepted tipping etiquette of 15% to 20% of the bill, it is possible and does happen. It is true that a fine line exists for servers to draw between making a living and stopping a patron from driving while intoxicated (L. Biggs, personal communication, November 30, 2001). However, a stronger working argument would reveal a more concerned pattern for the patron. As stated by Mr. Leifler, “We want patrons to drink responsibly,” and “we don’t condone or encourage excessive drinking” (M. Leifler, personal communication, November 29, 2001). Servers, especially those experienced with the public, understand the social and psychological difficulties of interacting with an intoxicated person. This truth predominately outweighs the “build the bill” theory. Giving the criminally charged patron the right to sue the server is demoralizing, considering that as a class of individuals, many who choose restaurant service are concerned with raising families, going to school, and making ends meet to better their lives.
From the personal communications at all the levels of people who took time to discuss the Dram Shop law and ACT 141 -- servers, restaurant owners, RAMP training representative, and law enforcement officials -- there was mutual understanding that public policy towards citizens’ public alcohol drinking could improve. We must change the social paradigm that shifts accountability away from the individual responsible and eliminate third party laws like the Dram Shops and ACT 141. Consuming alcohol to excess is the result of either choice or disease of one citizen. Our society portrays outward intolerance for drinking and driving, while clearly the individual drinker still risks driving in all classes of society. Strong leadership in public policy should not dictate one class of people, the servers, as liable to the fallible human condition of alcohol abuse. Rather, there should be a movement to improve ethical character at every level of society in regard to public drinking. What represents a healthy society -- personal integrity exemplified or punitive laws that shifts blame? As public policies are created to deal with the crimes of personal vice, they must remain prudent not to infringe upon the civil rights of another. In our Democratic, socially regulated society citizens should continually question the value of personal freedom and how it is considered for all. The Pennsylvania Dram Shops and Act 141 fail to uphold and protect a whole society based on its lack of personal accountability, lack of fair statistical checks, and lack of the ability to inform and train properly.
References
Alcoholics Anonymous (1998a). Alcoholics Anonymous Membership Survey. Available
http://www.alcoholics-anonymous.org.
Alcoholics Anonymous. (1998b). The Importance of Anonymity. Available
http://www.alcoholics-anonymous.org/english/E_FactFile/M-24_d9.html
Fishman, R. & Snyder, S. (Eds.). (1986). Alcohol and Alcoholism. New York: Chelsea House.
“Literature Summaries on Dram Shop Liability Laws.” (1998). Available
http://www.tf.org/tf/alcohol/ariv/dram4.html
Pennsylvania Department of Health. (2000). Programs Client Information System Data State Fiscal Year 1999-00. Harrisburg, Pennsylvania: Bureau of Drug and Alcohol Programs.
Pennsylvania Liquor Control Board. (2001a). Alcohol & Law Enforcement. Harrisburg, Pennsylvania: Office of Chief Counsel. Available
http://www.lcb.state.pa.us/edu/resource-law.asp
Pennsylvania Liquor Control Board. (2001b). Recognizing Intoxication.
Harrisburg, PA: Office of Chief Counsel. Available http//www.lcb.state.pa.us/EDU/ras-intoxification.asp
Pennsylvania Liquor Control Board. (2001c). Responsible Alcohol Management. Harrisburg, Pennsylvania: Office of Chief Counsel. Available
Http://www.lcb.state.pa.us/EDU/ras-index.asp
Pennsylvania Liquor Code. (2001, November). ARTICLE IV (D) Unlawful Acts; Penalties. [1 paragraph.] Section 497. Liability and Licensees. Available
http://www.lcb.state.pa.us/Agency/legal/Liquorcode/ARTICLE_IVd.htm
National Institute on Alcohol Abuse and Alcoholism (1995, April) Alcohol
Alert (No. 28 PH 356) 6 p. Bethesda, Maryland: Office of Scientific
Affairs. http//www.niaaa.nih.gov/publication/aa28.htm
Senate Bill 1531. (2001) P.N. 2308. Available http//www.legis.state.pa/WU01/BT/
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