Who is liable for the drunk driver?
Publication: Portsmouth Magazine
By Larry David Hansen
“They want to make us policemen,” says Peter Rice, owner of The Dolphin Striker restaurant.
The “us” means restaurant owners in New Hampshire and the “they” is the New Hampshire’s Governor’s Task Force Against Drunken Driving.
The Task Force, a bi-product of the recent awareness of drunk driving in New Hampshire, is proposing recommendations to the legislature to reduce alcohol-related accidents. And one facet of those recommendations is currently causing a bit of apprehension for restaurant and bar owners: mandatory suspension of liquor licenses to restaurants and bars that served the last drink to a person picked up by police for driving while intoxicated.
The recommendations the task force hopes to give the legislature in January will make mandatory a liquor license suspension of seven - 15 days for the first offense and 15-30 days for the second. This proposed suspension would affect New Hampshire’s number one industry, says Rice: the hospitality business.
Hal C. Thomas, executive director for the New Hampshire Hospitality Association, recently complained, “All you have to do is to put a state police cruiser in the parking lot, wait for the first three cars to leave after midnight, and you’ll get yourself a DWI. It would take only six months to shut down all the bars in New Hampshire.”
“Disaster” is the word Rice solemnly uses to describe the affect of a suspension on a restaurant. He says that if a suspension occurred during the busy summer season, a restaurant could possibly be forced to “shut its door forever.”
“What they (the task force) are proposing is that we should be responsible for someone else’s actions,” says Rice. “This is a classic example of the liberal pendulum swinging way outside of the clock.”
But Thomas Powers, chairman of the task force and state Director of Motor Vehicles, believes the purpose of his committee is not to make the restaurant or bar owners guardians or babysitters, but to emphasize the need for a mandatory suspension. “The responsibility still lies in self-control (of the person driving),” he says.
The New Hampshire Task Force was formed on June 30 of this year, a year in which the drunk-driving awareness has skyrocketed due to a nationwide movement that started in the ‘70s in California with a group of mothers who had lost members of their families in drunk-driving accidents.
Members of the 21-person task force include the State Attorney General; the head of the state police; four members of the state legislature (none from the Portsmouth area); Judge Francis Frazier, a justice in the Hampton Court; a legal attorney; a surgeon; and a telephone company executive, among others. Three of the persons on the committee have had relatives who were victims of drunk-driving accidents.
Since the middle of summer, State Police have enacted several periodic “Wolfpack” crackdowns to supply research for New Hampshire’s drunken-driving problem (57 percent of New Hampshire’s highway fatalities are caused by a drunken driver, while the national average is 45 percent, according to information supplied by the recently-formed Seacoast-area group “Concerned Citizens Against Drunk Drivers”).
All-out efforts by the police to arrest persons driving with intoxication levels at or over .10 percent have provided information encouraging Power’s committee to focus some of its recommendations on the restaurant business: two-thirds to three-quarters of the persons who were convicted for DWI had last come from either a restaurant or a bar, not from a private home or a private party, as was previously suspected.
Already on the books in New Hampshire is State Statute 175:6 – a law enacted in 1934 that states that a liquor license can be suspended (for about a week) if an establishment serves a person under the age of 20, a person who is insane, or a person who is already drunk or a habitual drunk. The State Liquor Commission has the authority under 175:6 to subjectively decide if an establishment should lose its liquor license.
The Task Force proposes a non-subjective, mandatory suspension according to certain guidelines: the person convicted of drunken driving must have been arrested within two hours of leaving the bar or restaurant, must have a blood alcohol content of .20 percent (twice the legal limit), have been served at least two drinks in the establishment and had nothing else to drink after leaving.
Powers says, “If a commercial establishment gets caught under these terms, it deserves to get caught. The guy is pretty gone.”
State inspectors are known for enforcing the state statute during the busiest night of the week. The Dolphin Striker has been visited by undercover inspectors, says Rice, usually when the downstairs bar, the Spring Hill Tavern, is packed with patrons.
Rice says, “You can’t always tell if someone is drunk. Liquor affects different people in different ways. Your or my interpretation of someone being drunk may differ from the state’s interpretation.
“The problem lies in the courts,” Rice says. “The courts – that’s where it’s got to start. The courts are not tough enough. The liberal judicial system dominates every court in the land, and in this instance, the liberal system is slapping people on the wrist and letting them get off. If they take someone’s life, they should go to jail. That’s all.
“Regardless of whether I am in the hospitality business, I have great sympathy for the people who have lost loved ones to this national tragedy. It is an irresponsible slaughter on the highways.
“What is ironic (to this proposal) is that for the most part, any good ‘saloon keeper’ who is worth his salt is going to be cognizant of this problem, specifically in those areas where overserving a customer can possibly be a contributing factor that could ultimately result in a highway death.”
Rice points to an example that occurred on a Saturday night (Dec. 18) at The Warehouse restaurant, of which he is part-owner. An international franchise had a corporate Christmas party there, and the usual merry-making got a little out of hand. The following week Rice’s co-partner Russel Rahn mailed a letter to the head of the worldwide company and stated that The Warehouse would not permit their company on the premises again unless it changed its social manners. Rahn noted in the letter that The Warehouse could have been held liable if one of their parties had caused a highway accident and was convicted for a DWI.
Restaurants and bars can be sued in New Hampshire if the court decides that a drunk-driving accident was directly related to the overserving of a patron. A landmark case, reportedly during the middle ‘60s, opened the doors for holding drinking establishments liable under certain circumstances. A restaurant was sued for serving a drink to an individual who either was in a semi-intoxicated or intoxicated state, and a highway accident resulted. The case evolved into the Dram Shop Law, and restaurants and bars usually carry Dram (a little bit of something to drink) Insurance for protection against this kind of civil suit.
Rice raises the question of whether the state would be penalizing one of its main sources of revenue with the passing of the Task Force proposal. “We got a problem in the state of New Hampshire, and it’s called money,” Rice says. “A significant portion comes from the so-called sin tax, and one of the most prominent is the sale of liquor, which is a state-run monopoly.”
Rice also raises the question of what happens if a convicted drunken driver just came from a state-owned liquor store, not a restaurant or a bar. Shouldn’t the liquor store be suspended?
The Dolphin Striker owner has been a member of the New Hampshire Hospitality Assn. since he started the restaurant eight years ago, and a member of Portsmouth’s Olde Harbour Association, an eight-restaurant organization. He says that the Portsmouth organization has been discussing a “Tipsy Taxi” service, where the restaurants would assist with the cost of taxi service for an intoxicated person.