Cutting off the tap to drunks is a messy business By CURT BROWN, Star Tribune March 26, 2010 Special agent Carla Cincotta found her target when the woman staggered through the door of a VFW club on a recent Saturday night and stumbled her way to the bar. If Cincotta caught the bartender serving the obviously intoxicated woman, it could cost the joint a $200 fine. But the case fell apart when the woman's friend, who appeared far more sober, handed the woman a tiny paper cup topped with whipped cream -- a so-called Jell-O shot. "That's no deal for us," said Cincotta, a former Stillwater cop who now works for the state Department of Public Safety's Alcohol Enforcement Division. "We didn't see the server actually serve her, so it wouldn't hold up in court." As the episode shows, it's not easy to catch servers breaking state law by providing alcoholic beverages to an "obviously intoxicated person." Since Cincotta and six other plain-clothed agents started visiting liquor establishments in September 2008, they have hit 366 bars but issued just 25 warnings and 27 fines. And they don't have much competition. While local police departments frequently work together to generate high numbers of drunken-driving arrests via saturation patrols, they virtually ignore the bars and restaurants that serve those drunken drivers. Under Minnesota law, it is a gross misdemeanor to serve alcohol to someone who is obviously intoxicated. St. Paul tried to prosecute bars for over-serving, but officials said they gave up because such cases were unwinnable. Minneapolis police Lt. Christopher Hildreth, who works with the city licensing staff, said he can't recall his cops ever busting a bartender or waitress for serving intoxicated people. "It's very difficult from a criminal standpoint to prove," Hildreth said. "And it's usually a misdemeanor crime, so we don't expend huge resources on that." The lack of enforcement angers public safety advocates, who are outraged by bars that promote heavy drinking through three-for-one specials or by allowing people to drink free all night if they are women, or if it's their birthday, or if they spend $9 for pizza. In the past five years, drunken drivers have killed nearly 900 people statewide and injured thousands more. "I don't think they've done enough -- not at all," said Sharon Gehrman-Driscoll, an advocate with Minnesotans for Safe Driving. "I'm appalled by the tendency of certain bars to over-serve, mostly neighborhood bars. It's totally insane." Not an easy call Servers and bar owners say it's harder than it seems to spot a drunk, especially in crowded taverns, where patrons share pitchers of beer and bartenders rotate to different spots. "It's like people who say it's easy to spot a toupee," said Dan Jette, a veteran bartender now working at Pazzaluna in St. Paul. "Well, it's easy to spot a bad toupee, but the really good ones, you don't know if you missed it -- just like drinkers." Bartender Tony Kauck, who works at Station 280 in St. Paul, said servers sometimes have less than 15 seconds to decide if a customer is intoxicated. "In the time they say, 'I want a Mic[helob] Golden Light,' I have to decide whether to serve them," Kauck said. Bartenders said they are often caught in the middle, with owners urging them to hit certain sales numbers by pouring as much as they can while making sure they don't get sued after a drunken patron crashes. "The law basically says you can't get someone drunk," Kauck said. "At some level, everyone is responsible for their actions. You can blame the bartender, but we didn't force drinks down your throat." Suing the servers One of the most powerful weapons against bars that serve drunken patrons is the so-called dram shop act, a state law that allows someone to sue a bar or other business for illegally serving alcohol to someone who later dies or suffers an injury. The family of Amanda Jax used the law to go after the Sidelines Bar and Grill in Mankato after the Twin Cities woman drank herself to death while celebrating her 21st birthday in 2007. In its lawsuit, the family accused the bartender of ignoring "Amanda's obvious state of intoxication" by buying her a drink after she had already consumed a large amount of liquor. City officials faulted the bartender for failing to seek emergency assistance after Jax passed out on her bar stool. Instead, he helped carry her to a friend's car, city officials said. Jax died the following morning of acute alcohol poisoning. Her blood-alcohol content was about 0.46 percent, nearly six times the legal limit for driving. Sidelines denied any wrongdoing, but the bar -- which was repeatedly cited for serving minors and drunken patrons -- went out of business shortly after Mankato officials suspended its liquor license. The bar owners agreed to a confidential out-of-court settlement with the Jax family last year. In recent years, dram-shop suits have become increasingly popular. Attorney Harry Sieben, a former legislative leader, said his Minneapolis law firm sues about 50 bars each year for allegedly serving alcohol to intoxicated customers. If a high-wage-earner is killed, settlements can top $1 million, while other cases fetch as little as $5,000, Sieben said. Attorneys said dram-shop cases rarely go to juries. The bulk of claims are settled out of court, with insurance lawyers negotiating payouts for bars -- almost always on the condition of confidentiality. "From a public policy perspective, the confidentiality is a bad idea because it doesn't serve as a deterrent for future similar conduct," said attorney Cory Whalen, who sued the Big Ten Supper Club in Arden Hills after a patron crashed into a squad car in 2008 and killed a Ramsey County deputy's wife who was riding with him, a case settled out of court. 'Filling and flinging' Sometimes, however, servers simply aren't paying attention. On a recent Saturday, Cincotta was working the VFW Hall in Maple Lake, where the bartender spent the night filling one plastic cup of beer after another without looking up from the tap. Another worker pushed the cups out on a table and took the customers' cash. "They're filling and flinging and there's no way they can tell if the people they're serving are intoxicated," said Cincotta, a member of the state's fledgling Retail Alcohol Vendor Enforcement (RAVE) campaign. VFW manager Karen Albrecht said her crew did its best under trying conditions. "We sure try to watch it, with extra security and server training," Albrecht said. "But nothing's foolproof -- especially on crowded Saturday nights. I hate these busy nights, but they do make a lot of money for the club." Still, even if Cincotta caught one of her workers serving a drunk, Albrecht wouldn't be in big trouble. Although RAVE has the power to revoke and suspend liquor licenses, its agents have been stressing cooperation rather punishment. So far, the biggest fine levied by a RAVE agent is $200, well below the $2,000 maximum. RAVE was created to reduce the number of DWIs and alcohol-related accidents. "We want the bars to join us in rowing in the same direction,'' Cincotta said. "If we have to enforce, we enforce. But talking to people can be more effective than slapping them."