TERMS OF SERVICE: SERVE’S UP
Some hard truths from behind the bar about handling drunken patrons
I had the fear of God put into me my first year working in a Boston restaurant. I had mistaken an extremely drunken woman for a very strange woman, and I served someone who I should have turned away.
When I realized my mistake and pulled her drink, and she tottered out to Newbury street, a server working with me said, “You know if she gets in a car and kills somebody you’ll be arrested for serving her.”
I went out back by the trash cans and burst into tears.
This is an aggravated misconstruction of what actually happens if you over-serve someone. Nevertheless, under Massachusetts state law, bars and restaurants are on the hook for serving people who are later convicted of operating a motor vehicle under the influence (OUI).
As part of the aforementioned restrictions, judges ask defendants in OUI cases for their place of last drink. The name of the bar or restaurant who last served the defendant (or where the defendant remembers being served) is recorded in a state report. These reports are then used by local police and boards that regulate alcohol licensing and service, like the Boston Licensing Board and the state-run Alcoholic Beverages Control Commission (ABCC), to identify problematic establishments — “problematic” meaning that they may have a habit of over-serving.
A recent Boston Globe article put this reality, which is always on the minds of those of us who work in the service industry, front and center. According to the scoop, the Massachusetts Restaurant Association (MRA) is asking the newly minted Alcohol Task Force, a statewide coalition to examine “the legal and regulatory framework governing the alcoholic beverage industry in the Commonwealth” launched by Treasurer Deb Goldberg, to recommend that “place of last drink” provisions to OUI investigations be removed.
The director of the MRA told the Globe that local officials use the reports to peg “problem” bars and lamented that “the bar never had a chance to say, ‘That guy was never here.’” In response, a top ABCC investigator claimed the Commonwealth has “a very effective program that’s been cited as a national model for preventing impaired driving.” “Why would you get rid of that?” he asked.
It’s an interesting question. And an important one. After all, there does need to be some accountability when it comes to responsibly serving alcohol. But the real question is, “Who is being held responsible?” And, “Are they even the right individuals?”
Under the current law, local courts send last-drink reports to the ABCC and municipalities, who can then use the information to target frequently cited establishments with enforcement stings. If, during a sting, investigators witness employees serving guests who should no longer be served, citations are likely to follow.
However, merely appearing on a last-drink report does not allow authorities to immediately sanction a bar or restaurant. As the aforementioned investigator told the Globe (and seems to be the case in my experience), leads garnered from such reports allow the state to “do targeted investigations instead of random investigations.” If illegal behavior appears to be continuing, bartenders and restaurants are cited. On the other hand, if everything seems legitimate, then an establishment can continue operating uninterrupted.
Treasurer Goldberg’s Alcohol Task Force is expected to announce its recommendations for changes in August, and state regulators are concerned. At the same time, local restaurateurs and front-of-house employees are also concerned, and they have a lengthy list of what they see as flaws in the law. Not everything is covered in last-drink reports, and in conversing with industry colleagues I have devised recommendations for what the Alcohol Task Force should take into consideration when it makes recommendations later this month:
- The basis of an OUI charge is that someone is too impaired to safely operate a vehicle. How in the world, then, is taking their recollection of where they last had a drink reliable information?
- Sometimes when people drink, perhaps particularly when they drink to excess, they barhop. The last place they were in may not have served them. I can’t tell you how many times I’ve refused service to someone who just walked in the door.
- High-volume dynamics are tricky. If a group of people is out and one person is ordering rounds, particularly in a club atmosphere, there may be someone drinking in your establishment who hasn’t directly interacted with a staff member all night.
- Here’s a big one: People lie. Especially when it comes to alcohol-related questions. I can ask people if they plan on driving home, and often do just that, but that doesn’t mean half of the diners who claim they are walking or taking a cab don’t actually wind up behind steering wheels.
- Most important to consider are the varying, incongruous standards. Just because someone isn’t visibly intoxicated and is good to be served one more beer — the standard by which the state board measures when a bar should cut them off — does not mean they are capable of driving.
Ultimately, it is important to know where people may be repeatedly over-served. At the same time, the state reports in their current form don’t address the myriad factors that play into whether someone who’s out drinking ends up on the road.
With services like Lyft and Uber so accessible, the days of “hey man, let me call you a cab” are long gone. If the Alcohol Task Force should ask the legislature for anything to help curb OUIs across the Bay State, it ought to be for another extension of late-night T service or for a state-funded ride hail account to increase the odds that people will get home safely.