In our previous blog posts, we have discussed potential liability for the over-service of alcohol to an adult. In this post, we address liability for providing or selling alcohol to a minor.
In order to be liable for the improper sale or provision of alcohol to a minor, it must be shown that: (1) the person or provider was an adult that was at least 21 years old, who was not the minor’s parent, guardian, spouse or custodian; (2) the person/provider knowingly served or provided alcohol to a minor, or allowed an alcoholic beverage to be served or provided to a minor on its premises; (3) the alcoholic beverage contributed to the minor’s intoxication; and (4) the minor’s intoxication proximately caused the moving party’s claimed injuries.
The standard requires the “knowing” service of alcohol to a minor or for a provider to allow for the service to a minor. Texas courts have not expressly interpreted what “knowing” service entails. However, based on how other provisions in the Dram Shop Act have been applied, it is unlikely that “knowing” will be interpreted to require an intentional or purposeful act. Rather, it is probable that a lower standard will apply.
Furthermore, separate and apart from potential liability under the Dram Shop Act, it is a criminal violation to sell alcohol to anyone under the age of 21. The illegal sale of alcohol to a minor is classified as a Class “A” Misdemeanor. However, if a parent, guardian, spouse or custodian of the minor purchases the alcohol for or gives alcohol to the minor and the parent, guardian, spouse or custodian remains visibly present when the minor possesses or consumes the applicable alcoholic beverage, there is no criminal liability. This is often a difficult line for providers to walk.
If a provider sells alcohol to a minor there is a potential that the Texas Alcoholic Beverage Commission (“TABC”) could suspend or cancel its liquor license. The first offense generally can allow for a suspension of up to 90 days. A second offense can result in suspension of the license for up to six months. A third offense can lead to a one year suspension. The TABC also always has the potential option of cancelling the provider’s liquor license due to egregious misconduct. Consequently, the sale of alcohol to minors has potential severe negative consequences and should be carefully addressed by providers. Providers should carefully consider implementing a no tolerance policy related to the sale of alcohol to anyone under the age of 21 regardless of whether the minor customer’s parent or guardian orders the applicable drink. This is the safest way to ensure that minors are not served in your establishment.
Kane Russell Coleman Logan PC’s Retail, Restaurant & Hospitality Practice Group has extensive experience representing alcohol providers in dram shop claims and litigation. The Practice Group also has experience guiding providers through inquiries and investigations undertaken by the Texas Alcoholic Beverage Commission. Further, the Practice Group provides guidance on alcohol safety manuals and training materials and conducts workshop programs to assist providers and their employees with understanding and complying with the requirements of the Dram Shop Act.