FLORIDA'S ANTI-DRAM SHOP LIABILITY ACT: IS IT TIME TO EXTEND LIABILITY TO SOCIAL AND COMMERCIAL HOSTS?

• Date: 22 September 2016
• Author: Garcia, Hugo L.

1. INTRODUCTION

   Since primeval times, "the [peril] of alcoholism from prolonged and excessive consumption of alcoholic beverages has been widely known and recognized." (1) In the United States, drivers who mix alcohol with gasoline are the leading contributors to the motor vehicle crash fatality dilemma. (2) In 2014, Florida ranked third, among all states, for alcohol-impaired (3) driving fatalities. (4) From 2003 to 2012, Florida also ranked third for having one of the highest fatality rates (8,476), across the nation, resulting from motor vehicle crashes involving an alcohol-impaired driver. (5) "There is no doubt that the clear public policy of our nation and [the] state[s] is to prevent individuals from driving while [drunk]." (6) However, "[p]eventing the future loss of innocent lives because of intoxicated drivers requires both legislative and judicial action in a combined effort to win the war against the devastating consequences of drunk driving." (7)

   In Florida, the war against drunk driving has been an ongoing dilemma. (8) Yet, under Florida's Dram Shop Act (Act), the Florida Legislature has failed to expressly provide for a cause of action against both social and commercial hosts who provide alcoholic beverages to visibly intoxicated persons (9) Because of the legislature's reluctance to extend civil liability under the Act, there have been numerous instances where both the victims of drunk driving catastrophes and their families are uncompensated (10) for their emotional, physical, and financial loss. (11) The ultimate question then becomes: "[d]oes our society morally approve of the decision to continue to allow the charm of unrestrained social drinking when the cost is the lives of others, sometimes of the guests themselves?" (12)

   This Comment focuses on Florida's Dram Shop Act, in a moral societal context, and how such civil liability should be extended to include social and commercial hosts under limited circumstances, for subsequent causally related damages to third persons. Part II of this Comment provides and defines the necessary terms to fully understand the practice area of Dram Shop Liability. Part III discusses the evolution of Florida's Dram Shop Act, beginning with the traditional common law approach and ending with a glance at previously proposed legislation. Part IV examines the rise of social and commercial host immunity, in Florida, by tracing its origin from early case precedents. Part V provides an analysis that lends support to this Comment's proposal by examining how Florida courts in the late 1990s have shifted away from the traditional common law rule and began recognizing a limited exception to social host immunity under a theory of negligence per se. Additionally, Part V argues that Florida law should impose a duty on hosts who serve alcoholic beverages to persons who are visibly intoxicated and looks to other states that have expanded liability to social and commercial hosts. Finally, Part VI proposes an amendment to Florida's Dram Shop Act that would incorporate additional subsections and, therefore, extend liability to both social and commercial hosts that provide alcoholic beverages to visibly intoxicated persons.

2. BACKGROUND

   1. WHAT IS A DRAM SHOP?

      1. Generally

      The term "dram shop" is a legal term that refers to a commercial establishment where alcoholic beverages are served to the general public to be consumed on the premises. (13) "Examples of dram shops are bars, taverns, and some restaurants." (14) "Traditionally, the [legal] term referred to a shop where spirits were sold by the dram, an English unit of liquid." (15)

      2. Dram Shop Liability

      The phrase "dram shop liability" refers to the body of law that governs the liability of commercial establishments that serve alcohol. (16) Generally, dram shop statutes exist throughout the states to impose civil liability on commercial establishments that furnish alcohol "to either visibly intoxicated persons or minors... who[,] by operation of a vehicle or other measure[,] cause personal injury or death to third parties who have no relationship to the commercial establishment." (17) Dram shop liability aims to police the conduct of, and protect the commercial interests of, commercial establishments "selling alcoholic drinks responsibly, while at the same time prohibiting [commercial establishments] from making money by irresponsibly plying intoxicated people with drink[s] who may, because of their intoxication, pose a hazard to others." (18)

   2. SOCIAL HOST V. COMMERCIAL HOST

      "A social host is a noncommercial supplier of [alcoholic beverages]... who, 'in his [or her] own house or elsewhere, gives a glass of intoxicating [alcohol] to a friend as a mere act of courtesy and politeness.'" (19) "The typical example of a social host... is where a host invites associates to participate in a social gathering, in a private setting, and furnishes and serves alcohol to a guest." (20) However, "not every [social] host entertains guests at home[;] [m]any entertain at hotels, clubs or resorts." (21) It is common for a social host to even entertain guests in settings outside of the home (i.e., by opening a tab at a tavern or bar), and still be considered a social host. (22)

      A "commercial host" is distinguishable from a social host. (23) Commercial hosts are persons or commercial establishments that are licensed (24) to sell alcoholic beverages in a commercial setting. (25) In Florida, commercial hosts must apply for a license through the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, in order to sell alcoholic beverages (26) to the general public. (27) In contrast, a social host is not subject to Florida's alcohol licensing requirements. (28) Social hosts are free to serve and provide alcoholic beverages, in a private setting, subject to minimal restrictions. For example, in Florida, criminal penalties (29) are prescribed against social hosts "if any alcoholic beverage... is possessed or consumed at the residence [of a social host] by [a] minor." (30)

      Currently, the possibility of imposing civil liability on social and commercial hosts in Florida varies. (31) For example, section 768.125, Florida Statutes (Florida's Dram Shop Act), is dormant when it comes to imposing liability on social hosts, but conscious when it comes to imposing liability on commercial hosts. (32)

   3. SOCIAL HOST LIABILITY

      Social host liability is an area of tort law controlling the duties owed by a social host to both his or her guests and the general public. (33) The phrase "social host liability" is used to designate a negligence claim against a person (the social host) who gratuitously furnishes intoxicating beverages to another person (the guest), which subsequently causes the guest or a third party to sustain injury as a result of the guest's intoxicated state. (34) Such liability is premised on the theory that, because the social host furnished the alcoholic beverages, the social host should, therefore, be liable for the resulting injuries. (35)

3. THE EVOLUTION OF FLORIDA'S DRAM SHOP ACT

   1. THE TRADITIONAL COMMON LAW APPROACH

      "To resolve this [moral dilemma], it is first necessary to review the legal history of the duty placed on [commercial hosts]... ." (36) Originally, prior to 1959, Florida's common law provided that a commercial host could not be liable for the negligent sale of alcoholic beverages when either the purchaser or third parties were injured as a result of the consumption of those beverages. (37) "This common law principle was based on the conclusion that the proximate cause of the injury was the consumption of the intoxicating beverage by the person, rather than the sale of intoxicating beverages to the person and, [therefore], there could be no valid claim against a [commercial host] for damages." (38) For example, the drinking of the wine, not the furnishing of wine, was considered the legal cause of the injuries. (39)

   2. JUDICIAL MODIFICATION OF THE COMMON LAW

      1. Out-of-State Precedent

      In 1959, a modification to this common law view first occurred when the Supreme Court of New Jersey, in Rappaport v. Nichols, (40) modified the common law's consumption-sale distinction and "took [it] upon itself to fill a judicially-perceived vacuum of restraint on commercial [hosts]." (41) In Rappaport, a commercial host sold and served intoxicating beverages to a minor under circumstances in which the commercial host knew that the purchaser was a minor and, therefore, could not lawfully be served such beverages. (42) After ingesting the alcohol, the minor became drunk and killed a third party while driving an automobile. (43) In holding that the commercial host could be civilly liable to the deceased's estate, the Supreme Court of New Jersey explained:

      [W]e are convinced that recognition of the plaintiff's claim will afford a fairer measure of justice to innocent third parties whose injuries are brought about by the unlawful and negligent sale of alcoholic beverages to minors and intoxicated persons, will strengthen and give greater force to the enlightened statutory and regulatory precautions against such sales and their frightening consequences, and will not place any unjustifiable burdens upon [commercial hosts] who can always discharge their civil responsibilities by the exercise of due care. (44) Analogously, the same year that Rappaport was decided, the Seventh Circuit Court of Appeals, in Waynick v. Chicago's Last Dep't Store, (45) abolished the consumption-sale distinction by placing a duty on commercial hosts when legislation was dormant. (46) In Waynick, commercial hosts in Illinois sold and served alcohol to two men who were subsequently involved in an automobile collision in Michigan due to their intoxication, which resulted in one fatality. (47) Because the Illinois Dram Shop Act was not applicable in Michigan and the Michigan Liquor Control Act was not applicable in...