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Liability or Lack Thereof Under Florida’s Dram Shop Statute

Author: Michael D. Drews

January 7, 2019 9:00am

Under the common law doctrine, a vendor was absolved of liability related to its sale of alcoholic beverages because the consumption of the alcohol was considered the cause of the conduct and the resulting damages, which the vendor had no control over.

In 1962, the Florida Supreme Court became just the third jurisdiction to modify the original common law rule to allow some negligence claims against vendors of alcoholic beverages on the basis a sale could be the proximate cause of an injury.  In Davis v. Shiappacossee, the Florida Supreme Court held the sale of alcoholic beverages was a violation of a previously enacted statute prohibiting the sale to minors and, consequently, it was negligence per se.[1]

In 1967, the Second District Court of Appeal, in Prevatt v. McClennan, noted “[t]he very atmosphere surrounding the sale should make it foreseeable to any person that trouble for someone was in the making.”[2] The court emphasized the differences between the sale and the consumption, noting “[t]he proximate cause of the injury is the sale rather than the consumption.”[3]

Following Davis and Prevatt, as well as other decisions outside the State of Florida, the focus shifted from the act of consumption to whether, under the circumstances, it was foreseeable injury or damage would occur after a sale, particularly when sales were made to persons who lacked the ability to make a responsible decision in the consumption of alcohol.

So, in 1980, the Florida Legislature enacted Fla. Stat. § 562.51, which is now codified at Fla. Stat. § 768.125.  Florida, however, does not have a traditional Dram Shop statute. The majority of states have passed Dram Shop statutes that hold a licensee liable for the service of alcohol to minors and “visibly intoxicated” patrons.  Instead, the Florida legislature passed a “reverse Dram Shop statute” which restricts liability to two limited exceptions.  That is, when the alcoholic beverages were furnished to a minor or when furnished to a “habitual drunkard.”[4] Florida’s Dram Shop statute, states in its entirety as follows:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.[5]

Of note, Florida’s Dram Shop statute applies to both first and third party claims, as the language specifically extends liability for any “injury or damage caused by or resulting from the intoxication of such minor or person.”[6]

The Underage Drinker

Simply put, and rather consistent with many other states which have enacted Dram Shop statutes, a bar or tavern has a legal duty to refrain from serving alcoholic beverages to minors, and a breach of that duty may subject the bar or tavern to liability for injuries caused by an intoxicated minor.[7]

However, the liability of a vendor who sells or furnishes alcoholic beverages to a minor for injury or damage resulting from intoxication requires the selling or furnishing of the alcoholic beverage to a minor must be done “willfully” and not merely negligently.[8]  In fact, Florida Courts have held failure to check identification of a minor’s age prior to the sale of alcoholic beverages is not willful, but rather negligent, and therefore outside Florida’s Dram Shop statute.[9]  Accordingly, “willful” sale under Fla. Stat. § 768.125 requires knowledge the recipient of the sale is not of lawful drinking age, which can be proven by circumstantial as well as direct evidence.  Sufficient circumstantial evidence includes the underage purchaser “…had the appearance, speech and mannerism of a [minor].”[10]  However, where there is no evidence other than the fact the underage patron “appeared to be” over the permissible drinking age, liability will not stand.[11]  If a vendor sells alcoholic beverages to an adult, knowing the alcohol will be consumed by a minor, the vendor can be liable under the Dram Shop statute for injury resulting from the intoxication of the minor.[12]

The Habitual Drunkard

Rather unique amongst the states with Dram Shop statutes, Florida’s cause of action extends liability in the circumstance where there is sufficient evidence the vendor had knowledge the individual the vendor served was a “habitual drunkard.”[13]  A “habitual drunkard” has been defined by Florida Courts as “someone whose habit of indulgence in strong drink is so fixed that he cannot resist getting drunk anytime the temptation is offered, with the inebriety frequent, excessive, and the dominant passion.”[14]

Notably, the Florida Supreme Court, in Ellis v. N.G.N. of Tampa, Inc., held knowledge a person is a “habitual drunkard” could be demonstrated with circumstantial evidence.[15]  Serving an individual multiple drinks on one occasion would be insufficient, in and of itself, to establish a vendor knowingly served a “habitual drunkard” alcoholic beverages.[16]  On the other hand, serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew the person was a “habitual drunkard.”[17]

What about the Social Host?

Although the wording of Florida’s Dram Shop statute imposes liability on “[a] person” who furnishes alcoholic beverages to a minor or a habitual drunkard and such person then causes harm to another person, or to themselves, the law does not apply to social hosts who provide alcohol at private gatherings.[18]  A social host may, however, face criminal penalties or other sanctions for providing alcohol to a minor, including the suspension of a culpable social host’s driver’s license.[19]

Takeaway

Under Florida’s Dram Shop statute, vendors of alcoholic beverages enjoy a very narrow scope of potential liability, making it rather difficult to prove liability against a restaurant or tavern for serving alcohol to an adult.  As shown, Florida’s law requires a plaintiff to prove a vendor who furnished alcoholic beverages did so “willfully” to an underage person or actually knew the patron was a “habitual drunkard” when served.  Moreover, similar acts by social hosts do not fall within the purview of the statute, thus shielding him or her from a cause of action under Florida’s Dram Shop statute, although other laws and consequences may apply.

 

[1] 145 So.2d 758, 760 (Fla. 2d DCA 1962), quashed, 155 So.2d 365 (Fla.1963).

[2] 201 So.2d 780, 781 (Fla. 2d DCA 1967).

[3] Id.

[4] Fla. Stat. § 768.125.

[5] Id.

[6] See Evans v. McCabe 415, Inc., 168 So.3d 238 (Fla. 5th DCA 2015); Fla. Stat. § 768.125 (emphasis added).

[7] Aguila v. Hilton, Inc., App. 1 Dist., 878 So.2d 392 (2004).

[8] Fla. Stat. § 768.125.

[9] See Armstrong v. Munford, Inc., 451 So.2d 480 (1984); see also Willis v. Strickland, 436 So.2d 1011 (Fla. 5th DCA 1983).

[10] Willis, 436 So.2d at 1012.

[11] See Publix Supermarkets, Inc. v. Austin, 658 So. 2d 1064, 1067 (Fla. Dist. Ct. App. 1995).

[12] O’Neale v. Hershoff, 634 So. 2d 644 (Fla. 3d DCA 1993); Dixon v. Saunders, 565 So. 2d 802 (Fla. 2d DCA 1990).

[13] See Fla. Stat. § 768.125; see also Roster v. Moulton, 602 So. 2d 975, 976 (Fla. Dist. Ct. App. 1992).

[14] Todd v. Todd, 56 So. 2d 441, 442 (Fla. 1951).

[15] 586 So.2d 1042, 1048 (Fla.1991); see also Peoples Restaurant v. Sabo, 591 So.2d 907 (Fla.1991).

[16] Fleuridor v. Surf Cafe, App. 4 Dist., 775 So.2d 411 (2001).

[17] Ellis, 586 So. 2d at 1048; Roster, 602 So. 2d at 976.

[18] See Fla. Stat. § 768.125 (emphasis added); see also, e.g., Bankston v. Brennan, 507 So. 2d 1385 (Fla. 1987);   Kirkland v. Johnson, App. 1 Dist., 499 So.2d 899 (1986), review denied, 511 So.2d 298.

[19] See Fla. Stat. § 322.057.

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