Review of Previous Research
The public health research literature has largely ignored the role of alcohol service laws in reducing problems related to alcohol intoxication. What little research is available strongly suggests that: (a) there is an association between serving practices and the over-consumption of alcohol, and (b) intervention in support of improved serving practices and the enforcement of laws governing these practices is associated with a decrease in alcohol-related harm.
Research of Happy Hour and Other Drink Specials Practices:
In the 1970s, an experimental study was conducted in which a small group of subjects was tested in a clinical setting (Babor, et al., 1978). The subjects were divided into experimental and control groups. The experimental group was given a 50 percent price reduction for alcoholic beverages during a daily three-hour period in the afternoon, and the control group was offered drinks at full price. A significant increase in consumption was observed among both casual and heavy drinkers in the experimental group, with consumption returning to normal when happy hour price reductions were discontinued. Casual and heavy drinkers in the happy hour group drank about twice as much as those in the non-happy hour group.
Using data collected in 2001 by the Harvard School of Public Health College Alcohol Study, researchers examined the relationship between binge-drinking rates on college campuses and the availability of large volumes of alcohol, low sales prices, and frequent promotions and advertisements in the vicinity of campus (Kuo, et al., 2003). Binge-drinking rates for 119 colleges were determined using college students’ self-reports on alcohol consumption. An assessment study of the alcohol environment surrounding each campus was conducted, which included the monitoring of on-site premises for serving sizes, prices, promotions, and so forth. The results demonstrated a significant correlation between lower drink prices and higher binge-drinking rates. The presence of weekend beer specials and alcohol promotions was also highly correlated with a higher binge-drinking rate. This same study demonstrated a reduction in self-reported drinking-and-driving rates when laws limited underage access to alcohol and high volume sales of alcohol (Wechsler, et al., 2003). The presence of these laws was associated with lower rates of drinking-and-driving among college students, a group at risk for both binge drinking and alcohol-related traffic fatalities (Wechsler, et al., 2003; NHTSA, 2002; NHTSA, 2004). This effect was enhanced when there was active enforcement of laws limiting underage access to alcohol and high-volume sales of alcohol.
Only one study has attempted to directly evaluate the efficacy of happy hour laws in lowering alcohol consumption. The banning of happy hour practices in Ontario, Canada, was studied by observation of drinking habits before and after the ban, supplemented with analyses of total per capita consumption in the city (Smart and Adlaf, 1986; Smart, 1996). No significant decline in alcohol consumption was observed following the ban. Given that there was little time (two days) allotted to observing pre-ban drinking habits, and given that aggregate consumption figures may not be that sensitive to changes in happy hour practices, the results were inconclusive as far as the overall effect on alcohol consumption of the presence or absence of happy hour practices.
Research on the Prohibition of Sales and Service of Alcohol to Intoxicated People:
A study that directly examined enforcement of these laws was conducted in Washtenaw County, Michigan. Compliance was observed before and after the implementation of a publicized campaign to enforce laws directed at sales to intoxicated individuals (Edwards, et al., 1994). Enforcement included the issuing of warnings to businesses that violated the law, followed by enforcement visits and citations. These actions were conducted in conjunction with education and training of bar and restaurant staff. Compliance with the law was measured before and during the enforcement program by the rate at which patrons simulating intoxication were refused service. Refusals of service rose from 17.5 percent before the enforcement program to a peak of 54.3 percent after the first three months of the enforcement intervention. Significantly, the percentage of impaired drivers arrested after leaving bars and restaurants declined from 31.7 percent to 23.3 percent during the same period. While refusals of service to pseudo-intoxicated people declined from the initial peak of 54.3 percent to 47.4 percent after six months, and 41.0 percent after one year of the program, these later refusal rates remained significantly higher than the baseline, indicating that the intervention had an enduring effect on server compliance with no-sale-to-intoxicated laws (McKnight and Streff, 1994).
A few studies have examined dram shop liability laws, which hold alcohol servers responsible for harm caused by intoxicated or underage patrons, another avenue toward curbing over-intoxication2. Studies indicate that enforcement and prosecution of dram shop laws (and resulting case decisions) are associated with a substantial reduction in alcohol-related harm. The initiation of a dram shop liability lawsuit in Texas in 1983 resulted in 6.5 percent fewer single-vehicle nighttime injury crashes (which are associated with high percentages of alcohol involvement). After a second suit was filed the following year, an additional 5.3 percent decrease in such crashes resulted (Wagenaar and Holder, 1991). One study found that in States where servers have a relatively high level of exposure to liability, there are fewer low-price drink promotions and more servers check identifications for underage purchases. Both of these changes in serving practices can prevent alcohol-related traffic crashes (Holder, et al., 1993).
A study evaluating the effects of the Alcohol Risk Management (ARM) program highlights the benefits of promoting voluntary compliance with over-service laws. The ARM program is a five-session one-on-one consultation program for owners and managers of on-site alcohol outlets. The purpose of the program is to help owners and managers develop policies and practices that increase compliance with State alcohol laws and reduce the risk of alcohol-related problems (Toomey, et al., 2001). Pseudo-intoxicated and underage patrons were sent to test sites and control sites before and after the training sessions to determine the efficacy of the educational efforts at the intervention outlets. Underage sales declined by 11.5 percent after the intervention at the test sites, while sales to the pseudo-intoxicated patrons declined by 46 percent.
Another recent finding of a strong relationship between enforcement efforts and reduced alcohol-related harm comes from New South Wales, Australia (Wiggers, et al., 2001). The Linking Project was a collaborative effort between researchers and law enforcement officers. Law enforcement officers in selected districts of New South Wales identified licensed establishments that were listed as “last place of drink” by people apprehended for alcohol-related incidents (including drinking and driving, assault, domestic violence, and other criminal activities). A random sample of these establishments was chosen for intervention, which included giving the licensees feedback on incidents associated with their establishments, conducting audits of responsible alcohol service practices, and the offer of resources and assistance to the licensees for improvement in their service practices. Following these interventions, a follow-up workshop on responsible alcohol service was conducted. The number of alcohol-related incidents associated with the intervention sites decreased by 36 percent following the intervention actions, compared to a 21 percent decline for a control group of establishments. The results were a clear demonstration that enforcement efforts focused on alcohol serving practices could have a much larger impact on reducing crime, and therefore benefit the public and reduce the burden on law enforcement. These impressive findings have convinced political leaders and law enforcement agencies to expand the Linking Project to the entire enforcement system of New South Wales.
Enforcement and Adjudication of State Laws Restricting Over-consumption of Alcohol
Current Statutes and Regulations:
Sales to Intoxicated Statutes: A review of the statutes prohibiting sales and service of alcohol to intoxicated people revealed that 47 States and the District of Columbia have such laws as of January 1, 2003 (PIRE, 2003). Florida, Nevada, and Wyoming do not have comprehensive laws prohibiting sales to intoxicated people. (See Appendix A.) State provisions vary in terms of language used to describe the state of intoxication (e.g., obviously intoxicated; visibly intoxicated; appears to be intoxicated; noticeably intoxicated; reason to believe is intoxicated; apparently under the influence of liquor), as well as that used to describe the provision of alcohol (e.g., serving, selling, furnishing, giving, bartering, exchanging, providing, delivering, and procuring).
Interpretation of these statutes in court may vary, most notably regarding the level of proof required for a finding that the law has been violated. Most statutes state or imply that a violation occurs if the server acted negligently—the server failed to act in a manner expected of a reasonable person in like circumstances. Some statutes use language that could be interpreted to require proof that the server knew the person being served was intoxicated or was reckless rather than merely negligent in his or her actions. These are higher standards of proof, making findings of violation much more difficult. Requiring proof that the server knew that the patron was intoxicated is particularly difficult to establish since it requires evidence of the server’s state of mind. This requirement is rare in cases determining whether a violation has occurred. Courts have tended to interpret statutes as requiring only the negligent standard even when the language of the statute suggests a higher level of proof. The reckless standard in particular is more common in dram shop liability lawsuits, which involve monetary compensation to those injured by the intoxicated patron. In the case of some older alcohol statutes, strict liability for the sale or service of alcohol to an intoxicated person is imposed; that is, no defense is allowed that encompasses knowledge or recognition of the signs of intoxication. If the person served is intoxicated, the establishment selling the alcohol to that person is liable, regardless of whether or not they were aware of the person’s intoxication (Moore, 2003). Case law must be carefully reviewed to determine the level of proof issue and even a detailed analysis may result in inconclusive findings. Because of the ambiguities in the law and the difficulty of conducting comprehensive case law research, we have not attempted to report level of proof requirements in our State law review.
Statutes may also vary in terms of who can be held in violation. Most State statutes apply to both commercial and noncommercial servers, although in some cases the statutory language is vague and may be subject to an interpretation that it only applies to service in commercial establishments. Finally, statutes will vary in terms of the types of penalties that may be imposed on violators. For commercial servers, violations may be either civil or criminal. Civil offenses are handled administratively by the agency responsible for adjudicating violations of the Alcoholic Beverage Control (ABC) laws. As discussed below, penalties can include suspensions or revocations of licenses and/or fines. Civil offenses are more easily prosecuted because they are administrative in nature, requiring only that the preponderance of the evidence supports the finding of violation. Both commercial and noncommercial servers can be found criminally liable. Criminal liability suggests moral approbation, is adjudicated in courts of law, and can involve both fines and imprisonment. Because of the more serious consequences, a conviction must be proven by the prosecutor beyond a reasonable doubt, the highest legal standard of proof, and defendants are given the right to a jury trial.
Happy Hour and Drink Specials Statutes: As of January 1, 2003, 27 States had provisions expressly prohibiting excessive drinking practices, or “happy hour” types of promotions. (See Appendix B.) In addition, many communities have passed local ordinances prohibiting these practices. The following information refers to State legislation only.
Drinking practices referred to in these statutes include:
Most of the States prohibiting happy hour practices specifically proscribe two or more of the practices listed above. For example, the Texas State statute specifies 11outlawed practices:
Enforcement and Adjudication of Sales to Intoxicated and Happy Hour Statutes:
The most commonly reported enforcement strategy (reported by 12 States) was the use of surveillance and undercover agents to identify violations of sales to intoxicated and drink specials laws. In many States, investigations are primarily complaint-driven. A few State agencies identified walk-through inspections as their primary method of identifying violations and enforcing these laws.
A promising strategy that is being implemented by some States (e.g., Massachusetts, Oregon, Utah, and Washington) involves identifying the place of last drink for those arrested on driving under the influence/driving while intoxicated (DUI/DWI) charges. The collection of this data allows States to identify and target problem outlets that may be in violation of laws prohibiting sales to intoxicated people or drink specials that encourage over-consumption of alcohol.
The imposition of penalties for violations of the law is an integral part of the enforcement process and can play an important role in deterring future violations. As discussed above, laws addressing sales to intoxicated people and happy hour and drink specials can be adjudicated through administrative proceedings and can lead to fines and license suspensions and revocations.
Researchers examined the penalties specific to sales to intoxicated laws. The States vary widely in the range and severity of administrative penalties imposed for violations of sales to intoxicated laws. Most States increase the severity of the punishment as the number of offenses committed increase. There may be an increase in number of days of suspension, revocation may become more likely, and fines may increase. The suspension of a license is included as a potential maximum penalty for a first-time offense in most States. At least 36 States and the District of Columbia allow for the revocation of a liquor license as a potential maximum penalty for a first-time offense. However, interviews with enforcement officials reveal that revocations rarely occur, and are highly unlikely after a first offense. In a smaller number of States (seven, plus the District of Columbia), license revocation is the only allowable penalty for a licensee convicted of a fourth violation of sales to intoxicated laws. In at least 10 States, fines can be paid in lieu of license suspension, primarily for first offenses only. For an expanded chart of penalties imposed for sales to intoxicated violations by State, please see Appendix C.
Promising Enforcement Strategies:
Enforcing Sales to Intoxicated Laws by Identifying “Place of Last Drink”: As indicated above, both Washington and Utah are using the “place of last drink” strategy, sometimes in conjunction with other enforcement efforts, to reduce sales to intoxicated people.
Enforcing Happy Hour and Drink Specials Laws Through Observation, Surveillance, and Undercover Operations: A number of strategies may be employed to reduce the over-consumption of alcohol by enforcing happy hour and drink specials laws. In the following examples, emphasis was placed on identifying violations through observation, surveillance, and other undercover operations, in coordination with other concentrated enforcement efforts.
4In the remaining five States, the researchers were either not able to locate a State agency that held the primary responsibility for enforcing alcohol laws, or the agency identified declined to participate in the interview. In addition, the enforcement of alcohol laws in Hawaii and Maryland is primarily conducted at the county level. In those States, interviews were conducted with representatives from one county, and therefore, the results are not applicable to the entire State.
6Revised Code of Washington (RCW) 46.20.308. Note that arrested people have the right to refuse the breath test, but they face revocation of their driver’s licenses if they do so.