Safe Harbor Defense Element 2: Servers Are TABC Certified

While Texas law permits those who have suffered injuries due to irresponsible alcohol service to sue the establishments whose improper service directly led to their injuries, it also attempts the balance the rights of bars, restaurants, and liquor retailers. It does so by affording them a specific defense, which, when proven, can release a bar or restaurant from any liability, even if it can be proved that they illegally served a patron and that led to injuries.

This defense is known as the Trained Server Defense, or more informally as the Safe Harbor Defense. In order for an alcohol provider to be eligible to use this "silver bullet" defense, they must prove that they meet the following three criteria:

1. An establishment must require all of its alcohol-serving staff to be certified for safe alcohol service.
2. An establishment that serves alcohol must show that all of the staff actually was certified on the date when an incident occurred.
3. The management of the establishment cannot encourage the staff, directly or indirectly, to ignore or violate Texas Alcoholic Beverage Commission Guidelines.

If a bar can prove that they meet these criteria, then a lawsuit against them for the improper service of alcohol will be dismissed. In this article, one of Texas' most experienced dram shop attorneys, Michael Grossman, explores the 2nd element of this defense: that alcohol providers must be able to prove that their employees actually did obtain their TABC certification.

Questions answered on this page:

• What does it mean when we say that employers have to prove that their employees are TABC certified?
• How to businesses try and fake this element of their defense?
• How do experienced dram shop attorneys combat this element of the Safe Harbor Defense?

Establishments must must be able to prove their staff was certified.

As we mentioned in our article on element 1 of the Safe Harbor Defense, if bars want to be able to use the Safe Harbor Defense (and in doing so have the case against them dismissed), they must have a policy that requires that all of their servers be certified by the Texas Alcoholic Beverage Commission. But the second element of the Safe Harbor Defense is that bars must be able to prove that they actually followed through with the requirement established in the first element.

It's all fine and good to have an official policy, but it's another thing entirely to enforce it. In order to seek the broad protections of the Safe Harbor Defense, the bar must show that each of its servers was TABC-certified on the day the over-service occurred. There is no wiggle room for this--the bar can't claim that its servers have subsequently been certified or that their certification had "only just lapsed." Either their employees were certified or they weren't.

Responsible bars and restaurants can easily ensure this. We've seen cases where the manager kept a spreadsheet up in his or her office with each employee's next certification date coming up. That way, they could monitor when their employees need to be re-certified or taken off the schedule. Further, other establishments our firm has come across have even hired private companies to come in and teach everyone the official certification class once a year, which ensures that all their employees are certified.

Finding out if the bar actually required their employees to attend training is relatively easy. First, the defendant has the burden of producing TABC certifications that were in place at the time of the incident. Second, our attorneys can simply request records from the TABC from the time that the over-service took place. If either one of these processes shows some employees lacked certification, the Safe Harbor Defense is not an option that the alcohol provider can take advantage of.

Here, though, is where an inexperienced attorney could get hoodwinked. Bars have been known to produce doctored certifications, or even certifications that happened after the incident, as evidence that their employees were certified. Or, we've seen bars claim that only 3 (certified) employees were working on the night in question, while 2 (non-certified) employees were also working (and clearly visible serving drinks on their security camera footage). We've been hit with every trick in the book by this point and we know how to tell when bars are trying to misrepresent the certification status of their servers.

Other times restaurants and bars simply fail to account for everyone who served a drink. Since almost every bar has a security camera to ensure that bartenders are not pocketing money that should go to the bar, these camera's provide invaluable evidence in many dram shop actions against the bar. Often these cameras pick-up images of bar-backs and bussers serving drinks during particularly busy times. Normally, bussers and hostesses and other ancillary staff of a bar or restaurant do not need to be TABC certified in order for the establishment to qualify for the Safe Harbor Defense. But if they are serving alcohol, then they aren't really bus boys and hostesses. By serving alcohol, they become servers, and they need to be certified. In court, these same bars will try to argue that these employees weren't required to be certified. That's when our firm breaks out the video of them serving alcohol. Anyone who serves alcohol has to be TABC certified. Period.

How uncertified servers "slip through the cracks" even when there's an official policy against it.

If a bar or restaurant has a written-in-stone policy against servers working without their certification, how does it still happen? Here are just a handful of examples we've seen:

• A Houston-area bar's main bartender was quite popular with customers. She had many "regulars" come in to see her, and the nights she didn't work, there were fewer customers. Her certification lapsed, and her boss kept telling her to get re-certified, but she never did. Rather than take her off the schedule and lose money, her boss kept her on. She later served an astounding amount of alcohol to someone who killed our client.
• A Dallas bar brought in a trainer once a year to make sure all its employees were certified. However, several new employees joined the bar soon after and they weren't certified. Those employees later served a driver to the point of intoxication who later caused major injuries.
• A San Antonio restaurant had an employee who worked two jobs and went to school full time. Her manager knew she wasn't certified, but didn't have "the heart" to take her off the schedule. Here, again, she later overserved a drunk driver who killed himself in a car accident.

To be clear, bars and restaurants are allowed to have servers and waitstaff that are not TABC certified working for them and serving alcohol. There's nothing illegal about that. The point we're making is that they can't have uncertified servers working for them and then still try to obtain special legal immunity for an accident caused by over-service of alcohol. If bars want the "get out of jail free card," then they have an obligation to ensure that anyone who serves a drink in their establishment has obtained TABC certification.

You need dram shop lawyers with the right experience.

Two things that happen in every dram shop case that Grossman Law Offices has ever worked on are that the establishment who over-served a patron will attempt to argue the Safe Harbor Defense and some aspect of the business' operation will make that defense unusable in court. Many other law firms will not take dram shop work, because they assume that the Trained Server defense cannot be overcome.

Sadly, many people who hear about Safe Harbor, or the Trained Server, defense give up pursuing their case and do not get the compensation they deserve under the law. While Safe Harbor is an obstacle in every dram shop case, rarely is an insurmountable one. Over the years, the attorneys at Grossman Law Offices have litigated and won more dram shop cases than almost any other law firm in Texas. We, like most Texans, believe that alcohol is something that adults should enjoy responsibly. When businesses who have an obligation to safely serve the community, fail in that duty, it is only right that their victims receive compensation. It is in that spirit, that we have been helping victims get just that for almost a quarter of a century.

If you'd like to learn more about how we can help you look into whether or not a bar's employees have attended TABC training as they've claimed, then call us now for a free consultation at (855) 326-0000 (toll free).

If you would like to know more about Element 1 or Element 3 of the Safe Harbor Defense, click the preceding links.

If you've been injured by a drunk driver and suspect that a restaurant or bar may have over-served that drunk driver, you may be interested in the following related articles:

• Some Common Dram Shop Accident Scenarios
• How Comparative Fault Works In Texas Dram Shop Litigation
• How Much Compensation Can Victims Recover In Texas Dram Shop Cases?