Bartenders Busted 

Good help is harder to find as Utah laws increase the burden on private clubs and their servers.

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It goes something like this: Two men walk into a bar in Utah. Once inside, the usual smoky atmosphere, the clacking of pool balls and one particularly loud karaoke singer apparently living the pain of the country song he’s singing greet them.

The karaoke singer’s buddy waits in line for a pitcher of beer. The bartender’s busy checking patron IDs, while a table of U.S. servicemen motion for another round of drinks.

The two men watch as the bartender explains to the singer’s friend that Utah law forbids the sale of a pitcher of beer to a single patron. “But we’ve already had one pitcher, and he’s just over there singing karaoke. Don’t you remember us?” the man asks.

The bartender smiles and then points to the sign posted on the bar that cites the law. The man then returns to his seat to wait for his buddy to finish his awful rendition of the song.

Next, the bartender approaches the table of servicemen visiting from the local U.S. Army post, placing his arm around the shoulders of the ranking officer. “Hey buddy,” the bartender says, “You all look like you’ve had enough to drink, how ’bout I call a cab and you go home now. It’s a serious crime in Utah to sell alcohol to an intoxicated person.”

The table empties quickly and the bartender finally devotes his attention to the two men.

“We’re from out of town and we’ve been checking out the city. We’re parched and would like a pitcher of beer,” the first man says. The bartender eyes him keenly.

“Have you been to any other bars in town?” the bartender inquires politely.

“Yes, we had a couple of beers up the street, but we heard this place has an excellent pool tournament,” the second man replies.

“We certainly do,” the bartender says. “I’m sorry I can’t sell you that pitcher of beer. You’ve already been drinking, and it’s illegal to sell alcohol to an intoxicated person in the state of Utah. Good evening.”

The two men leave the establishment.

OK, maybe it’s not much of a joke. Unless, of course, you’re of the wicked few who have ventured into one of the drinking establishments along the Wasatch Front. But the aforementioned scenario portrays the perfect behavior of a bartender, according to the Utah Department of Alcoholic Beverage Control, the DABC.

Still, many bartenders in the industry believe the standards are not just unrealistically high but practically unattainable, with consequences that may exceed the seriousness of the crime. Utah maintains a zero-tolerance policy with regard to mistakes that involve violations of state liquor law. Regardless of the history of the offending bartenders or the history of the establishment, both receive stiff fines and license suspensions.

A 15-year veteran bartender with no previous violations might read an ID incorrectly, or sell one more beer to the local loner who’s a fixture in the establishment. Considering that bartender had inspected thousands of IDs during his career, one mistake in 15 years would be an impressive margin of error in any other industry.

Local law enforcement and the DABC aren’t impressed by anyone’s slim margin of error, however, and recent efforts to gain total compliance of local liquor laws have resulted in the ticketing and temporary privilege suspension of several local clubs. Although the DABC boasts an all-time high in liquor law compliance on its Website, there’s confusion regarding who’s responsible for keeping track of the agency’s effectiveness. Individual law-enforcement agencies refer all liquor-law violations to the DABC, but the DABC was unable to produce any statistics on its programs, specifically whether or not the number of alcohol-related violations have increased or decreased over the past year. Questions about the program’s effectiveness were redirected by the DABC to the Highway Patrol’s division of investigations, which claimed its statistics applied only to its task-force initiatives, and made reference back to the DABC. Around it goes.

What is known, apparently, is the frequency of certain violations. According to Ken Wynn, director of the DABC, one of the most common violations, along with overserving alcohol, is selling alcohol to a minor. Bartenders and bar owners both feel the use of underage decoys'minors supervised by law enforcement'is unfair and unnecessary. They resent such attempts to intentionally trip them up.

Utah law states “It is unlawful for any person under the age of 21 years to misrepresent his age, or for any other person to misrepresent the age of a minor, for the purpose of purchasing or otherwise obtaining an alcoholic beverage for a minor.” Note the absence of “Except for law-enforcement officials.”

On the subject of overserving, bartenders claim that the condition of a patron is solely a judgment call and that, as servers, they should know a patron’s level of intoxication better than an undercover officer who spends just a few minutes assessing the alleged offender. Utah law also states “a person may not purchase any alcoholic beverage or product when he is under the influence of intoxicating alcoholic beverages, products or drugs.”

Overserving poses a huge risk to alcohol servers and is a double-edge sword for bar owners. Rocky Byrd successfully owned and operated the popular Rocky’s establishment in the Salt Lake Valley for more than 40 years but left the business after his club received what he considered an unfair citation for overserving a patron.

Byrd believes there are two reasons people frequent bars: “Either they go there to be themselves, or they go there to not be themselves,” he said. Regardless of his patrons’ intents, he provided a safe establishment that remained in compliance with Utah’s ever-changing liquor laws for decades.

“I always made it a point to be on good terms with local law enforcement. I complied with every law and code, and so I got on well with vice or local cops that used to come into the place. I had security inside and outside, and if we ever needed a hand with getting someone we didn’t want there to leave, we could count on the cops to help us out,” Byrd says.

When his establishment was cited for a liquor violation, he fought to keep it in the jurisdiction of the local court, only to have it referred back to the DABC, which enforced the zero-tolerance policy. Never mind that his business had been in operation 40 years without a single violation.

“I told them right then, ‘You’re chasing me out of the bar business. I’ve paid my taxes; I’ve brought revenue to the city.’ But not anymore; I knew the industry was only going to get worse, so I retired from the bar business,” Byrd said. Given what many pub and bar owners see as a recent spate of crackdowns by the DABC, he doesn’t regret his exit.

Part of the problem, according to Byrd, is that people who frequent drinking establishments in Utah are considered to be undesirables. “When I plead my case to the judge, I felt that I, along with all my witnesses, were treated as second-class citizens. I felt I had been immediately judged, and nothing any of us had to say was taken into regard. It wasn’t right, and I believe bar owners now have every reason to be afraid of retribution,” he says.

Even bartenders who take their jobs in relative stride remain vigilant. “Bartending here is not difficult at all. You learn the law, and you just abide by it,” said Erika Palmer, who’s been in the profession for 13 years and now works at The Bayou. But knowing the law also means never letting your guard down. “We live in Utah. I’d be silly to think that the vice isn’t in here at any one time.”

Earl F. Dorius, deputy director of the DABC and 16-year veteran of the department, has witnessed many battles between alcohol servers, bar owners, local law enforcement and the DABC during the decades-long struggle to gain 100 percent compliance to Utah’s ever-changing and complicated liquor laws. He supports the zero-tolerance policy dictated by his department and feels the methods used by local law enforcement, state agencies and the Utah Department of Public Safety as well as the fines levied against offenders are fair.

How serious is any one offense? The DABC rates four categories of offenses, ranging from “minor” to “grave.” The DABC has classified the selling of alcohol to an intoxicated person as a “grave” offense and the sale of alcohol to a minor as a “serious” offense.

The rating system allows the DABC to determine the intent and extent of the violation, which then helps determine the appropriate punishment for an offender. Minor offenses may include not wearing a name badge or not posting your business license in the establishment. Moderate offenses might include allowing nonmembers into private clubs. A serious offense would involve a threat to public safety and includes selling alcohol to a minor. A grave offense includes selling alcohol to an intoxicated person, which poses a threat to the public for obvious reasons. Intoxicated persons are at increased risk for fraud, deceit, lewd acts, as well as driving accidents, according to the state.

First-time offenses carry penalties of $500 to $3,000 in fines. In addition, a first-time offense may also bring up to a 30-day suspension of liquor-serving privileges or simply the suspension without the fine. Bar owners charged with a first-time offense are offered the option of a $500 fine and a five-day suspension, during which time their business can stay open but cannot sell alcohol. Bar owners must post a notebook-size sign in their front windows stating they have had their privileges revoked because of a violation of liquor laws. A five-day suspension can cost a popular establishment much more than $500 in lost sales, and although the DABC claims its penalties are in place to protect the public, the department offers a more expensive alternative to closure. If bar owners want to avoid closure and the subsequent embarrassment of posting a sign of shame for all patrons to see, they may pay the maximum fine of $3,000.

The practice of posting signs to atone for violations later evolved into a widespread belief that establishments were required by law to use them for listing and describing the nature of their violations. Not true, says Dorius.

“They need to post only one sign at the entrance to the establishment. Sometimes we give them two signs so they can keep one as a souvenir,” he says, noting also that if an establishment begins its suspension on a Sunday, it could sell alcohol the following Friday.

For purposes of job security, bartenders try very hard to avoid violating Utah liquor laws. Still, they feel the DABC has placed an unfair burden on them with strict penalties. As with any new job, there’s bound to be a learning curve'a new accountant who, under stress, inverts two numbers rendering a balance sheet useless has made a costly and timely mistake, but it’s a mistake he or she will take care not to repeat.

Every capable bartender knows to check ID. But aside from the mistake of wrong math, a foreign ID, or selling alcohol a minute too early'9:59 a.m.'or a minute too late'1:01 a.m.'should every bartender double-check the work of a club’s door manager? Clubs typically check the age of every patron at the door, but the DABC’s been known to cite alcohol servers who make the mistake of assuming the door staff did its job.

“You walk a fine line. It’s very difficult for [bartenders],” said John Paul Brophy, co-owner of the Dead Goat Saloon for five years while it was a private club before closing in 2003. “If the doorman doesn’t do his job and lets someone in who shouldn’t be there it’s a lot easier for the bartender to make a mistake. They work under two strictures.”

New bartenders on the job hope they never get caught in the snag of the learning curve should local law-enforcement agents conduct a random compliance check of the establishment.

Experienced bartenders aren’t immune either. A bartender with 20 years on the job will have checked tens of thousands of IDs and recited Utah’s legal code to customers countless times. But, as with any job, there’s the danger of falling into routine, of becoming absent-minded, tired or bored. But is public safety served when longtime bartenders, punished for their transgressions after many error-free years on the job, are replaced with even less-experienced bartenders new to the task of serving alcohol?

Although most bar owners are sympathetic to the offending employee, and the DABC recommends giving the offender a second chance, stiff penalties levied for subsequent offenses mean many bar owners feel they can’t afford the financial liability of keeping the offending bartender on the job.

A bartender who requested anonymity for herself and her employer remains angry over the fact that her boss faced costly penalties, while she received a $230 fine and one year’s probation from a local municipal court. She also paid a $100 fine to the DABC, and was reluctantly fired by her boss. Her crime was misreading an ID, which, it turned out, belonged to an undercover minor. “I understand I violated the law, and there are no excuses for my actions,” she said. “I haven’t been a bartender very long, and after my experience, I probably won’t be one anymore. But my boss has been diligent for almost 20 years, and has never received a violation. He trusted me, and I screwed up.”

While everyone in the industry agrees serving the underage is a serious offense, some wonder if efforts to curb underage drinking aren’t misdirected. Just how serious is the problem of minors sneaking into bars? According to the DABC’s own Website, 7 percent of underage drinkers report obtaining alcohol at a licensed establishment, while 65 percent got their alcohol from family and friends and 28 percent reported using fake identification or the favor of a stranger. Seven percent seems small. Still, many argue that kids trying to sneak into bars is a decades long tradition.

Lt. Robby Russo, chief of Police Services for Cottonwood Heights, believes serving underage drinkers in bars is a huge problem. He’s proud of his department’s efforts in the eight months since Cottonwood Heights became a city. His department has ticketed and temporarily suspended the privileges of three private clubs in Cottonwood Heights for serving alcohol to minors.

“I think there’s a huge issue with underage drinking and the impact it has on families. We maintain a zero-tolerance policy in our city, and when we do random compliance checks we use minors that use actual IDs and that are young enough that it should be apparent they’re underage,” Russo said.

Nearly every city along the Wasatch Front has declared a crackdown on liquor-law compliance using local, state or federal grants to help fund the operation. The DABC wholeheartedly supports these efforts, claiming alcohol is America’s number one drug problem on its Website: “At a time when alcohol is generally regarded as the No. 1 drug problem in America, with millions of adult and teenage problem drinkers, the public responsibility to promote moderation is painfully clear. It’s not alcohol itself, but abuse of it, that is dangerous.”

It surprises no one that the DABC, founded in 1935, is not interested in promoting liquor but making it available only to adults who choose to drink responsibly. By keeping liquor out of the private marketplace, no economic incentives are created to maximize sales, open more liquor stores or sell to underage persons. So it is that all its policies promote moderation or enforce existing laws. So it is that private clubs, interested in business, battle the DABC.

What can be done to minimize violations of liquor laws and still protect the rights and livelihood of bartenders and bar owners?

Although it’s not likely anytime soon, Byrd said simply that the state of Utah should get out of the liquor business. “You can’t have a government entity running a business that solely benefits them. Every ounce of alcohol sold in this valley benefits the state. Yet they prevent others from advertising or benefiting from the sale of alcohol,” he said.

Byrd also believes the state’s teetotaling liquor commission governing the DABC should take its own alcohol-server training program, known as the “TIPS” class, and spend more time in bars and clubs to see first-hand how the law affects patrons and bartenders. “They [the commission] have no idea what’s going on in the real world of clubs and bars,” he said.

Brophy also believes some officers have little familiarity with what’s par for the course in bars and clubs. Indeed, Brophy says that when one of his Dead Goat patrons became especially loud and boisterous during a pool game a DABC officer stepped in to judge the patron intoxicated, resulting in a $2,500 fine for his business. “It was almost a crime to be having a good time,” Brophy said.

Some bartenders would like to see a probationary period for first-time offenses, including a fine and temporary suspension of licensing privileges for the first-time offender'a common practice in states such as Washington. There, offending bartenders are issued citations and receive fines, but instead of the owner of their establishment receiving a stiff penalty automatically, the bartender is placed on probation and knows they will be watched closely for the next six months. In Utah, both bartender and bar owner are punished for the bartender’s transgression. And although DABC recommends that bartenders get a second chance, the fact that bar owners pay also means they’re reluctant to keep bartenders who flub so much as once.

The anonymous bartender with the $230 fine feels she’s now considered a bad bartender. She’d like to see a probationary period attached to each new server fresh out of the state’s training course for alcohol servers, as well as better mandatory training across the board. “The training was adequate in outlining the complicated laws and teaching me how to deny customers a drink,” she said. “But the workplace was an entirely different scenario than the training, and I was overwhelmed the minute I poured my first drink.”

The DABC and local law-enforcement officials understand the margin of human error in the industry, but believe current laws and regulations are fair and necessary for maintaining the safety of the public, and have no reason to modify or change existing polices. Local law enforcement officials, the DABC and the Department of Public Health stated they would gladly offer manpower to help educate and inform bartenders and bar owners.

Barring change, Utah bartenders today really have one option to protect themselves: Treat all customers as if he or she were undercover police officers. Be suspicious. Believe that even their regular customers pose a danger to their license and livelihood. Study every existing liquor law, and be prepared to become an expert at every subsequent law.

Only the paranoid survive.

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Tabatha Deans

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