Clear, concise procedures and policies protect restaurants in dram shop litigation

Nation's Restaurant News, March 3, 2008 by M. Randy Durnal

Dram shop actions are on the rise and have continued increasing for years. Once the facts are uncovered, plaintiffs' attorneys will demonstrate how and why your operation was the cause of this incident. On the other hand, alternative evidence can also express how your venue is not liable.

Policies and procedures are the foundations in any business or governmental entity, advocating how organizations operate. Law enforcement, sales people, large retail outlets and virtually every other industry have procedures in place explaining what standards to follow and the consequences for not following those protocols. Consequences of deviating from company guidelines can extend from letters of warning, suspensions, remedial training and termination.

Chains are the most consistent in regards to their policies and procedures, due to their large staffs. They are able to input and expand on ideas and verify their needs. Yet it is incredibly rare to see any chain or small venue with written consequences in regards to a violation of a liquor liability policy. It also is unusual for there to be disciplinary action enforced against an employee for any infraction.

Management commits the policy to paper, yet it doesn't have any methods for verifying that employees are implementing the policies correctly. This lack of regulation for management to ensure and oversee that the procedures are adhered to is a main contributing factor in this dilemma overall. How can one expect to punish an employee when there is not even a disciplinary policy attached to the original guidelines? Even more troubling is that chains and large venues write enormous standard operating procedures encompassing hundreds of pages explaining operational guidelines. Looks good on paper, but can it be followed?

If you really want to adopt good procedures, make them precise, brief and clear and have set guidelines by which management can verify they are not only followed, but, more importantly, can be followed. As an owner, make your employees accountable for themselves, but management's accountability should be key.

Alcohol awareness training is now being presented on a national level that is as easy as paying $25 for online training. This is one of the easiest and safest methods for you to begin writing your procedures. Ensure you are using a nationally acknowledged program. Every employee should be trained prior to serving any alcohol in your operation.

Have the state liquor organization in your location review the procedures as well, ensuring they do not conflict with state statutes. Get law enforcement on your side and consider the liquor laws when writing procedures.

Create fairly short policies and have a checklist for management on every policy so you can verify and show employees training and other disciplinary actions they have undergone. Have mandatory management checklists and consequences for management's failure to evaluate employees on a regular basis. These performance records are key during litigation and, if used properly, will show that you are responsible.

Remain current with your state liquor lobby organization in order to be updated on case law that affects your industry. Encourage state liquor organizations to provide workshops with guest speakers who can provide additional information to developing the policies. Most of these organizations already have attorneys on retainer, and will be happy to speak at these meetings. Invite a representative from the state liquor organization to speak as well, because this is how and where you will get the approval you desire for your procedures.

If your state liquor operation cannot hold workshops, then ask it to develop policies for the industry in your state. Use a website to solicit input by members in your industry that present ideas for new policies. You may even consider asking for Mothers Against Drunk Driving to review the policies and give their impression. For the most part you will be concerned with three areas: overserving, minors and violence.

During liquor litigation your operation is sued either for serving a minor, serving an obviously intoxicated patron or for an act of violence on your premise. There must be action by you against the employee who served the minor or who served the obviously intoxicated patron or who allowed violence to occur on your premise. More importantly, there must be repercussions for management regarding inadequate training or supervision of the employee leading to the incident.

Some may believe that once an owner has taken action against an employee for any of these scenarios is admitting guilt. Ask yourself, what sounds worse: That a violation occurred and the employee was never dealt with, even though your policies strictly prohibited such actions and required protocols, or that it happened and your employee continued status quo? Juries can accept a mistake; they cannot accept an error that was allowed to occur without so much as a consequence by the employer.

M. Randy Durnal provides consulting, expert testimony and seminars and is an invited speaker at many state organizations, trade shows and liquor liability seminars nationwide. He has been a guest speaker at law enforcement meetings regarding our country's trends in dram shop litigation. He can be reached through his website, www.dramshop.net.