It was interesting to read your LC Watch in the Oct. 13, 2005 issue of Maui Time. You discuss how the Sports Page Bar was prosecuted by Maui County Liquor Control for over-service because a customer was arrested for DUI later that night. This particular LC rule is actually unlawful, violates its own statutes, is not a rule in any other Hawai’i county and is not enforceable on the mainland. The reason why it continues to get prosecuted on Maui is because of the LC’s long-time intimidation factor with bar owners and the “good ol’ boy” network that exists on Maui.
First off, the LC rule says that you cannot serve a customer who appears to be “under the influence of alcohol” or is “obviously intoxicated.” This is vague and is up to the discretion of the server or bartender at the time of service. But a person who is arrested for a DUI must have a blood alcohol level of .08 or above. There is no connection here. Every person who drinks has a different tolerance level depending, among other things, on size, how much they have eaten and their tolerance to alcohol.
Since the rule does not require a bar owner to administer a blood alcohol test before serving someone, there is no feasible way that a server or bartender can say for sure that a customer is not over the .08 DUI limit (or if the drink that you just served him put him over the limit). Every other liquor jurisdiction in the country requires that the LC officer witness service to an obviously intoxicated customer to cite for over-service, not just assume that the customer was obviously intoxicated when they were served because they got a DUI later in the night.
The second issue is that everyone who drinks to the level of being obviously intoxicated gets to a point where one minute they appear to be okay and the next minute they can appear to be obviously intoxicated. There is no way for the server or bartender to know which drink will make a person obviously intoxicated. The Maui LC makes no distinction between this and chooses to ignore its own rule.
The third issue is that if a bar or restaurant does serve someone and they become intoxicated, then the Maui LC rule is that the person must be cut off and escorted off the premises. But if the bar complies with this rule and the person gets in their car and gets a DUI, then the bar gets cited. So basically, the bar got cited for complying with the LC rule.
Another bogus part of this rule was stated by you in your column. This customer was cited 55 minutes after he had left the bar. Alcohol has a delayed effect on people. You can drink four shots in a half hour and not appear to be obviously intoxicated until 30 minutes later. The effect doesn’t hit you immediately. Plus, how many drinks did this customer have after he left the bar? If he was drinking in his car would he tell the officer” If he was cut off by the bar, would he be trying to get back at the bar? And then after the police officer takes the statement from the driver, they do not even have to show up and testify at the LC hearing where they could be cross-examined. They just use his statement as evidence.
So you can see, even if you follow the LC’s rules, you can still get cited for over-service. Because of their ongoing intimidation factor and the “good ‘ol boy” network, they have gotten away with this for decades. [Defense] attorneys don’t fight it too hard because pleading these cases is good work for them and they like to maintain their relationships at the LC. The kangaroo court that is the Adjudication Board is a rubber stamp of the LC. It [is] much easier to plead no contest, pay your fine and avoid getting hassled by the LC.
But things changed a couple years ago, when the county instituted the four strikes law. If you are convicted of four offenses in a five-year period, you will lose your liquor license. This seems like a lot of offenses, but this is something that the bar owners simply cannot control (unlike service to a minor or other rules). But the LC likes bogus rules like these so that they can keep the intimidation factor high.
With the new four strikes law, bar and restaurant owners are now challenging the legality of the rule. Recently, one case was thrown out by a circuit court judge who said that the LC officer had to actually witness the over-service and that they couldn’t just assume that the person was obviously intoxicated at the time of service. But do you think that stopped the LC? No, they continue to prosecute these bogus cases. But do they prosecute them the same with all licensees? When was the last time you heard of a resort getting cited for over-service? I am sure that they all serve a lot of alcohol. I am sure that some customer at some time must have gotten a DUI. But I have never heard of them getting cited. What would be the effect if a major resort hotel lost its liquor license because of this bogus law? The reality is that they would fight it and bring in mainland attorneys to make fools out of the Maui LC and the law would likely be taken off the books (and the LC loses one of its big hammers for smaller bars and restaurant owners).
I want to keep drunks off the road as much as anyone. And 99 percent of all bar/restaurant owners on Maui are diligent in training their staff not to serve obviously intoxicated customers. But the LC’s goal is not to keep drunks off the road, because this rule does not do that. Their goal is to intimidate bar and restaurant owners into an impossible situation of compliance.
-A Maui County liquor licensee who asks to remain nameless
The Editor responds: To be fair, the LCdid prosecute the Hyatt Regency Maui in November, 2004 for serving minors, but that arguably because an 18-year-old girl died as a result. In any case, on Nov. 3, the LC’s Board of Adjudication is scheduled to hear an overserving case involving Koho Grill and Bar in Kahului. The establishment is, as usual in these cases, pleading no contest.