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POSTED: Sunday, March 22, 2009

Question: I know Hawaii has a dram shop law, making the establishment that serves liquor to an individual who gets in an accident and harms someone partially liable. With the current number of terrible alcohol-related traffic fatalities, is the dram shop law enforced? I see guilty drunken drivers punished, but rarely see the bars mentioned being penalized.

Answer: Hawaii does have a law—Section 281-78(b) of the Hawaii Revised Statutes—that in part says: “;At no time under any circumstances shall any licensee or its employee: (1) Sell, serve, or furnish any liquor to, or allow the consumption of any liquor by”; any minor; any person already under the influence of liquor; any person known to the licensee to be addicted to the excessive use of intoxicating liquor; or any person who will be consuming the liquor in a motor vehicle.

That law is enforced by the Honolulu Liquor Commission, but it is not a “;dram shop law,”; said Administrator Dewey Kim Jr.

The name of that law comes from the 18th century shops in England that illegally sold gin by the dram (about 3/4 of a teaspoon).

The law allows a person to sue a bar or restaurant or any commercial establishment that continues to sell liquor to an intoxicated customer who ends up injuring or killing someone, usually because of drunken driving.

Although we found Internet sources saying 43 states have dram shop laws, it really is a “;common law”; in Hawaii and most states, rather than a statutory one, said William H. Lawson, a Honolulu personal injury lawyer.

He also said the more correct term would be “;doctrine”; rather than law.

“;It's a question of how far the legal duty to act responsibly toward your fellow citizens (should) be extended when you're talking about drunk drivers,”; Lawson explained.

The Hawaii Supreme Court has extended that legal duty to commercial sellers of liquor—that they not sell to intoxicated patrons, he said.

Currently, it does not extend to social hosts, unless they are found to have knowingly served liquor to a minor under 21.

Another exception might involve an employer who, in certain circumstances, could be considered a commercial supplier, by allowing employees to drink within the work place.

“;But the classic cases (involve) a bar,”; Lawson said.

However, both Kim and Lawson said dram shop cases are difficult to prove.

Regarding HRS 281-78(b), that statute gives Kim's office authority to investigate whether a business, licensed to sell alcohol by the liquor commission, was in violation for serving someone who was intoxicated.

Such an investigation is ongoing in the case of the Feb. 26 car crash at the entrance to the Wilson Tunnel, in which three people were killed. All three were intoxicated, with the driver, James Krzywonski, having a blood alcohol content of 0.225. That's almost three times the legal limit of 0.08 for driving.

Kim said the facts are still to be determined, but “;we believe three licensed bars (were) involved.

“;So, the question is, did one or all the bars know that this gentleman was drunk when they served (him) liquor,”; he said.

The Honolulu Liquor Commission “;regularly”; gives out violations for what it calls “;overservice, which is serving somebody who is already intoxicated,”; Kim said.

Penalties for violations can range from fines and probation to a suspended or revoked license. A revocation usually would come after a number of violations for overservice.

Kim said Honolulu liquor commissioners have asked him to look into two overriding areas of concern: drinking by minors, “;which is a huge problem in Hawaii,”; and serving people who are already intoxicated.

Asked how many establishments have been cited for either of those violations, Kim provided these figures:

» For fiscal year 2008 (July 1, 2007 to June 30, 2008), there were 240 violations of serving liquor to minors. So far this fiscal year, there are approximately 41.

» Total fines levied for serving to underage drinkers was $218,637 in 2008. Figures for this fiscal year are not available.

» For fiscal year 2008, there were 10 violations for overservice to customers and approximately 3 so far this fiscal year.

» Fines for overservice totaled $6,000 in fiscal year 2008; no figures are available for this fiscal year.

In addition to fines, some establishments also were slapped with probation and/or suspension or revocation of their licenses. There are many cases still to be adjudicated from last year, so the number of violations and the amount of fines could be considerably higher.

Kim noted the difficulty in proving overservice violations.

In cracking down on overservice problems, he said the commission is “;reinvigorating”; its “;Trace Program,”; in which investigators go to the scene of an accident possibly involving an intoxicated driver and “;we trace the accident back to its source.”;

“;A lot of times there are extreme accidents and no one's trying to find out where this person has been drinking,”; Kim explained.

“;If it was a private party or if they're drinking in the car, there's not a lot we can do about it,”; he said.

“;But if they were drinking at a licensed facility, someplace we licensed, then we need to take some kind of corrective action.”;

Licensees include retail stores, restaurants that serve alcohol, bars, lounges, hostess bars and ships.

Kim said the problem is not just with drunken driving accidents, but with brawls that break out because people are excessively intoxicated.

“;If you ask police and our investigators, one of the big things that happen after people get intoxicated or drunk is that they get into huge fights, with 30, 40, 50 people involved,”; he said.

Other consequences involve date rape drugs and muggings.

Fatal accidents involving drunken drivers “;may be just the tip of the iceberg based on what we know because we're in the bars every night,”; Kim said.