Element #1 of the Safe Harbor Defense: The Bar Requires TABC Certification.
Under Texas law, bars are liable for accidents and injuries caused by intoxicated patrons who were served at their establishment. However, built into the same law that allows drunken driving victims to sue bars is a provision that allows bars to have the case dismissed if they can prove that they meet certain criteria.
The idea at work is that the law enables victims to sue bars that produced a drunken nuisance due to the bar's general disregard for the laws governing safe alcohol service, yet they also wanted to provide "good bars" with a built-in shield from liability when a drunk driver flies under the bar's radar. In other words, our lawmakers have essentially said, "Here's a law that lets you punish really dangerous bars, but it also lets bars that are typically good escape liability."
The way that this goal is realized is through a built-in defense to dram shop cases called the Trained Server Defense, though it's referred to by lawyers as the Safe Harbor Defense. In order for a bar to be eligible to plead Safe Harbor and have a dram shop case against them thrown out of court, the bar must show that they meet three criteria:
- Element 1: The bar must have a policy requiring all servers to be certified by the Texas Alcoholic Beverage Commission by taking a special training class
- Element 2: The bar must actually follow through and make sure that all servers have actually attained said certification.
- Element 3: The bar's day-to-day conduct must be one of fostering rule following, not one of encouraging employees to ignore TABC rules.
In this article, experienced Texas dram shop attorney Michael Grossman will explain the first element of this defense, that all of the service staff of an alcohol provider is required to take a Texas Alcoholic Beverage Commission (TABC) approved safe-service course.
To learn more about the Safe Harbor defense, in general, check out our Trained Server Defense Overview page.
Questions answered on this page:
- What are the elements of the trained server defense?
- What are the general rules of safe alcohol service?
- How does certification further a bar or restaurant's defense?
- How do experienced dram shop attorneys confront this defense in evidence gathering, negotiations, and in court?
The rules on TABC certification.
In order to legally sell alcohol, all Texas bars, clubs and restaurants must be licensed by the Texas Alcoholic Beverage Commission. However, servers are NOT required to be certified or licensed. Even though it's not required, the Texas Alcoholic Beverage Commission and Texas lawmakers both want servers to be certified. To help encourage bars to voluntarily have all of their servers be TABC certified, our legislature made TABC certification one of the requirements of the Safe Harbor Defense. If bars know it can protect them from liability, or so the thinking goes, then they are more likely to require their servers to become certified.
Without trained and certified employees, however, the drinking establishment opens itself up to liability when one of its patrons gets into a drunken driving accident after consuming alcohol in the bar.
How TABC certification programs work.
The certification "classes" used by most bars and restaurants are generally online self-teaching modules that are supposed to take between ninety minutes and two hours to complete. Their price ranges from between $10 and $15 per person. In reality, many of these classes allow you to skip through most of the content and can be completed in as little as 30 minutes. In fact, since the classes are done online there is really no way to verify that the person who is supposed to be taking the test is the one actually taking it.
Still, some bars and restaurants avoid taking these easy steps and instead will force their employees to watch a 15-minute training video and then attempt to claim after an accident has happened that their employees had adequate training, even though, this is clearly not TABC-certified training. In other instances, employees may take TABC-certified training only to have their managers or fellow employees help them cheat on the exit exam. There are numerous ways bars and other drinking establishments can attempt to game the system.
How bars do and don't "require" their servers to get TABC-certified.
Well-run alcohol establishments have formal, written policies that mandate employees get TABC-certified and maintain it. These policies should be in the employee manual, which employees should have to read and sign before being allowed to come to work. Further, responsible bars require proof of certification upon hiring a new employee as well as maintaining accurate records to make sure that certifications are up to date. Anyone in the business can tell you that this is quite easy--the TABC website has an easily-accessible database to look up individuals to see if that person is certified.
The absence of a written policy is not necessarily fatal to the Safe Harbor defense, but it's not good. Many bars will later claim that it was "understood" that each server must be certified by the TABC, or that each employee was verbally instructed upon hiring to do so. Occasionally, this is true, but often enough the bar never really had an official policy that employees get certified.
Even if the restaurant does have an official policy, they still have to maintain accurate records and proof that all of their employees who serve alcohol are TABC certified. A solid policy, without proper enforcement will not stand up in court.
One last game that bars and restaurants play is that they very rarely require their bussing staff or bar-backs to be certified. When witnesses are deposed, the owners of the questionable bar will claim that alcohol service was not part of a bar-back's job, therefore they did not need to be certified. However, often our attorneys will find that it was the company's policy that everyone had an obligation to serve drinks, regardless of job title. In this instance, requiring staff who were not certified to serve alcohol undermines the basis for their defense.
Call the attorneys who can fight back.
At Grossman Law Offices, our attorneys have been litigating dram shop cases all across Texas for more than two decades and we've been able to strike down the Safe Harbor Defense every time its been invoked. Every time. To ask any questions you may have about whether or not the servers in a bar or restaurant were TABC certified or to discuss other aspects of the Trained Server Defense, call us any time for a free consultation at (855) 326-0000 (toll free).
To learn more about Element 2: All Servers Must Be Certified on the Day of an Incident and Element 3: Establishments Cannot Encourage Their Staff to Break the Law, click the preceding links.
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