The Law of Over Serving Alcohol – Arizona Dram Shop Law
In Arizona, a licensed bar is liable for serving intoxicated individual under these conditions: 1) the establishment sold liquor to an individual who was obviously intoxicated, and 2) the individual consumed the alcohol purchased (see A.R.S. 4-311, 4-312, and 4-244). Violators will be held responsible–this is the Arizona dram shop law must be understood by victims. Call our Arizona attorney to discuss a dram shop case.
Damages from the Vendor
The injured person can seek damages from any vendor who provided the alcohol to the intoxicated person. These cases are covered by “dram shop” laws. There must be a proximate cause between the conduct of the bar employees and the harm caused (the harm must have been foreseeable). A person is obviously intoxicated if he or she is inebriated to the extent that a person’s physical faculties are substantially impaired as seen by a reasonable person. However, if the injured person knew about the other’s intoxicated and is injured (a friend, for example) then the bar is not responsible for the injuries to that third party (the drunk’s friend).
The Problem of Drunk Driving
Alcohol and driving is a big problem in this country. The United States Center for Disease Control reported that 50% of American adults consider themselves regular drinkers. Last year, there were over 10,000 alcohol-related traffic deaths in the United States. For this reason, dram shop laws were passed by more than 30 states. In Arizona, a person injured by an intoxicated person has a right of action against the party who sold the alcohol to the intoxicated person. This is where Arizona dram shop law comes into play.
Elements of Arizona dram shop law
The elements of a dram shop lawsuit are:
- The bar sold or procured alcohol for the intoxicant; and
- The bar sold the alcohol to the intoxicant when the intoxicant was visibly intoxicated; and
- There exists a “reasonable connection” between the intoxication and the person’s injury.
Also, the sale must be made to the intoxicant when the intoxicant is noticeably intoxicated. Intoxication can be proved through the testimony of witnesses and the observation of witnesses and officers who arrested the individual after he or she left the bar. Expert testimony can also be used (a toxicologist). Sale of alcohol to a minor is always penalized and is evidence of liability against a bar.
The immunity doctrine protects the individual tribal-employee defendants
Congress authorized state regulation of liquor transactions by enacting 18 U.S.C. § 1161. That section provides that the federal prohibition of liquor on tribal lands shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register. In Rice v. Rehner, 463 U.S. 713, 103 S. Ct. 3291, 77 L. Ed. 2d 961 (1983), the Supreme Court addressed that statute and the states’ ability to regulate liquor on tribal land. The Court found that Indian tribes lacked “a tradition of self-government in the area of liquor regulation” and that, “[b]y enacting § 1161, Congress intended to delegate a portion of its authority to the tribes as well as to the States, so as to fill the void that would be created by the absence of the discriminatory federal prohibition [of alcohol on Indian lands].” Rice, 463 U.S. at 731, 733, 103 S. Ct. at 3302, 3303, 77 L. Ed. 2d at 978, 979.
Thus, the Court held, the states could “regulate the use and distribution of alcoholic beverages in Indian country” by requiring a state liquor license. Rice, 463 U.S. at 715, 103 S. Ct. at 3293-94, 77 L. Ed. 2d at 967. The Tohono O’odham Nation has adopted its own Alcoholic Beverages Licensing and Control Regulations. A person violates those regulations by failing “to comply with the law of the State of Arizona applicable under 18 U.S.C. § 1161.”
That regulation cannot be enforced by a private lawsuit against a tribal entity in state court absent a waiver of immunity. A.R.S. § 4-311 falls within the scope of permissible liquor regulation by the State of Arizona. Section 4-311 is part of a regulatory scheme set forth in Title 4 of Arizona Revised Statutes. Although § 4-311 is not included within that title’s chapter 2, entitled “Regulations and Prohibitions,” A.R.S. §§ 4-201 to 4-261, it nonetheless falls within Title 4’s broad title of”Alcoholic Beverages.” A.R.S. §§ 4-101 to 4-312. And, § 4-244(14), part of the “Regulations and Prohibitions,” makes it unlawful to serve spirituous liquor to someone who is “obviously intoxicated”—a basis for the civil action provided in § 4-311.
Additionally, a plaintiff who files a dram shop action pursuant to § 4-311 is statutorily required to “file a copy of the complaint with the department [of liquor licenses and control] within ten days after filing the complaint.” A.R.S. § 4-302(A). That notice requirement suggests the statutory dram shop action is an integral part of the state’s alcohol regulatory scheme.
The Arizona Supreme Court has stated, “[T]he police power is inalienable and cannot be surrendered or delegated, by affirmative action, by inaction, by contract, or otherwise.” Indus. Comm ‘n v. Navajo County, 64 Ariz. 172, 180, 167 P.2d 113, 117 (1946). But the exercise of police power to which Eiger refers is the creation of the statutory cause of action in the first instance—an action taken by the state, not by a private party. See Holguin, 954 S.W.2d at 854 (“hold[ing] that a statutory dram shop law that confers standing upon private individuals to sue for damages caused by violations of the state’s alcoholic beverage code falls within the exercise of the state’s police power”).
Therefore, a private dram shop action pursuant to § 4311 arguably does not constitute an exercise of the state’s police power at all but, rather, merely a means of enforcing the statute. As such, a Plaintiff cannot maintain a dram shop action in state court against a tribe that has not waived its immunity.
Thus, a state’s power to regulate certain tribal activities and its ability to bring a lawsuit against a tribe in state or federal court are not necessarily coextensive. Sovereign immunity may bar the latter but not the former. And a private suit, even if deemed a valid exercise of the state’s regulatory power, is subject to the same limitations. Thus, if a state cannot directly enforce its alcohol laws against a tribe in a civil suit in federal court, then a private party certainly cannot prosecute a suit for monetary damages against a tribe in state court.