A STAGGERING DECISION
by Peter S. Saucier

Changing attitudes of society toward alcohol and tobacco use, coupled with every politician’s instinctive drive to perpetuate her term in office, have resulted in legal restrictions upon retailers that require prescience of the nation’s storekeepers. From coast to coast, purveyors of alcohol are charged with responsibility and liability for the behavior of customers. It is almost uniformly true that if you sell alcohol, you had better not sell it to anyone who "appears to be intoxicated."

The August entry in the You Can’t Win For Losing Sweepstakes comes from Maine (a particularly hostile state for employers), where a conscientious clerk in a convenience store landed her employer in federal court by trying to follow the rules. David Dudley suffered "substantial physical and/or mental disabilities" in an automobile accident in 1993. Apparently, Dudley’s injuries left him with a condition that resembles intoxication. Whether because of slurred speech or staggering gait, when Dudley approached the check-out counter to purchase a four-pack of wine coolers, the cashier refused to tender the sale, because she believed Dudley was intoxicated. Dudley has made no attempt to buy alcohol at the store in the two years since the incident.

In response to a Complaint based upon Dudley’s alleged disability, the convenience store filed a motion to dismiss. Compliance with the laudable goal of not selling alcohol to someone who "appeared to be intoxicated" seemed to be a good defense. "Not so," said United States District Judge George Z. Singal. The opinion notes that other disabled persons who appear to be intoxicated may be deprived of their right to slip into the local Shop and Save and purchase a brace of wine coolers if the Dudley case is dismissed. The Judge wrote, with apparent disapproval, that the store does not have a policy addressing the sale of alcohol to disabled customers, adding that "if the Court issued an injunction instructing Defendant to amend its policies to require its employees to sell alcoholic beverages to disabled persons, Plaintiff's injury would be remedied."

It is unlikely that store owners who instruct their employees not to sell alcohol to persons who appear to be intoxicated were aware of the serious breach of public policy for which they were responsible. In Maine at least, you had better know that the person is drunk, or ship him onto the highway with his wine coolers in hand. If he kills somebody, the courts will get to you that way. Or you might consider testing customers. Imagine the boom in breathalyzer sales! Imagine the invasion of privacy lawsuits that will follow against the store when the ACLU jumps into the fray!

Every now and then a client will say to me, "It almost is not worth staying in business." I always disagree, but I am on the path to changing my mind.

September 2001

Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093   Phone: 410-727-4300
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