As the weather turns warmer, folks who have been cooped up all winter start thinking about getting outside and going to cookouts and get-togethers with friends, along with weekends at the lake or beach. And when friends and family come together for fun and recreation, often alcohol is involved. Convenience stores are one place where people buy their beer and wine. For this reason, convenience store retailers need to be on guard.
When people think about alcohol liability (also sometimes known as Dram Shop) and the service of intoxicated customers, they mostly think of bars or restaurants and the patron who were served one too many before last call. However, c-stores need to be mindful about the over service of their customers as well. How you say? Here’s an example that has likely been played out time and again:
After a long day on the lake one sunny May, the group of friends that were together on the water decide to finish up the day with a cookout at one of their houses. On the way home, the group stops into a local convenience store. The group have been drinking while out on the boat and while they are not obscenely drunk as they walk into the store to buy more beer, it’s apparent to the store associate they have been drinking and are perhaps intoxicated, as defined by South Carolina law.
99 out of 100 times, this sale is made without any incident. However, what about the 1 time where the sale is made, a customer drinks the beer sold to him by the c-store, and then later gets into a traffic accident that results in catastrophic injuries or even death to innocent third persons? In addition to the human costs that have been incurred from this accident, the c-store retailer may likely face substantial financial exposure in the many millions of dollars via a lawsuit brought by the injured third party (or the decedent’s family if there is fatality).
In South Carolina, while there is no liability owed to an adult first party injured or killed by his or her own intoxication, the law clearly articulates liability to the permit holder for sale to an intoxicated customer who injures or kills a third party due to the customer’s intoxication. See Hartfield v. Getaway Lounge, 388 S.C. 407, 697 S.E.d2d 558 (2010). And keep this in mind: In South Carolina, in the civil trial setting, a jury may determine the existence of intoxication in an alcohol liability using the criminal standard, which is codified. In our state, a jury may infer intoxication if there is a showing of a BAC of .08 and above.
We know that a .08 BAC is not difficult to achieve. Accordingly, in the scenario above, the associate who elects to make the sale to the group who are or appear to be intoxicated is potentially a dicey proposition for the retailer. So, the choice will be this: Will your operation potentially mortgage its future and incur astronomical exposure in exchange for the sale of a $15.99 case of beer? Hopefully, the answer is pretty clear.
Take away tips for c-store retailer when it comes to alcohol sales:
- Have written policies and protocols in place that clearly prohibit alcohol sales to customers who are intoxicated or could be intoxicated.
- Have training programs in place that teach associates what to look for regarding the signs of intoxication when making alcohol sales. Document this training.
- Periodically give associates refresher courses in the dos and don’t when it comes to alcohol sales. Document this training.
- Reinforce your company culture regarding safe alcohol sales by creating “zero tolerance” for violations of the law and company policies.
- Give your associates the right to exercise their judgment and refuse alcohol sales to customers where there is suspected intoxication.
- Review corporate insurance policies to ensure there is sufficient primary and excess coverages available for alcohol liability. Be mindful of limitations and exclusions, especially as it pertains to punitive damages awards, which are always in play in alcohol liability cases.
(Article in the SCACS 2016 Spring Newsletter, Publication for Members and Prospects of the SC Convenience Stores Association and Industry)