Last month, an Odessa widow filed a civil lawsuit against three bars alleging they over-served her husband in the hours before he died in an alcohol-related crash, but statistics show it is rare for the people who over-serve alcohol to face criminal charges. It is also rare for bars and restaurants to be held accountable.
According to Texas state statutes, it is a misdemeanor to “sell an alcoholic beverage to an habitual drunkard, or an intoxicated or an insane person.”
Ector County Clerk statistics indicate just one person has been charged with that crime since Jan. 1, 2019.
Authorities allege the defendant in the case was observed by an undercover Texas Alcoholic Beverage Commission officer serving an intoxicated person at Zucchi’s Sports Bar on Feb. 1, 2020. The case remains open.
Ector County District Attorney Dusty Gallivan said such cases are often difficult to prove.
“You have to show beyond a reasonable doubt that whoever served them knew they were drunk and intoxicated and should not be served and that’s not the easiest thing to do,” Gallivan said.
Ideally, prosecutors heading into court would be armed with video surveillance clearly showing the person being served was intoxicated and the number of times they continued to be served while drunk, but that isn’t often the case, Gallivan said.
According to Ector County Medical Examiner statistics, there were 64 fatal DWI crashes within the county from 2019 through 2022 and while it’s unclear how many of the drivers in those cases were drinking at bars and restaurants, certainly some of them were, Gallivan agreed.
Gallivan said he isn’t sure why more over-serving cases are not presented to his office for possible prosecution, but he is willing to pursue convictions if there is sufficient evidence.
When officers encounter suspected drunk drivers, Gallivan said he suspects officers are more focused on obtaining evidence against them than bartenders and wait staff.
As for local law enforcement agencies, Sgt. Steven Blanco, a spokesman for the Texas Department of Public Safety, Odessa Police Cpl. Steven LaSueur and Ector County Sheriff Mike Griffis all said they enlist the help of the TABC primarily when there’s a fatal crash and they suspect a bar or restaurant has over-served to an intoxicated person.
ADMINISTRATIVE MEASURES
Chris Porter, a spokesman for the TABC, said from Jan. 1, 2019, to May 15, 2022, the TABC has filed administrative charges against 14 bars and restaurants in Ector and Midland counties for over-serving or serving to minors.
The agency can administer a warning or fine in cases of relatively minor violations, with increased penalties such as suspension or cancellation of a license for more serious offenses, Porter said.
Eleven of the 14 bars or restaurants are located in Ector County. Two of the cases were dismissed and four remain open.
In five of the 13 cases, the TABC placed the establishments in “restrained” status because they fell under the state’s Safe Harbor Rule, Porter said. Under that rule, if a bar or restaurant meets certain criteria it won’t be held accountable for the actions of a server.
The establishment won’t be held accountable if the server wasn’t an owner or officer of the company, holds a current seller-server training certificate from the TABC, all of the establishment’s servers were certified within 30 days of their hire date, the establishment has written policies regarding responsible alcohol service and the server’s boss didn’t encourage the employee to violate the law.
According to TABC records, one bar in Odessa has been accused of violating state laws three times, The Halftime Grill & Cantina. An over-serving case from June 2019 remains open. Another over-serving case from March 2020 was restrained and the bar owners received a $3,000 fine for serving a minor in January 2019, records show.
TABC records show the Red Stag paid a $1,500 fine in 2019 for selling to a minor.
Ector County court records show seven people have been criminally charged with selling alcohol to minors from Jan. 1, 2019, to May 15, 2022. Another two were charged with purchasing or furnishing alcohol to a minor.
There are 58,000 businesses in Texas that hold liquor licenses and 200 commissioned TABC officers, Porter said.
Those officers have to focus their energy on high-problem areas, he said.
“Enforcement activities are patterned on a risk-based approach, meaning businesses or areas with high instances of previous violations are more often the subject of inspections, both open and undercover,” Porter said. “The agency relies on information provided by concerned citizens, as well as coordination with local law enforcement to best direct our resources where they’re needed most.”
Ector County Sheriff Mike Griffis said he believes that for the most part, bars and restaurants have gotten better at “self-policing” themselves after several local tragedies, including the July 2019 deaths of 6-year-old twins, Mia and Mya Coy.
Angelica Garcia is accused of killing the girls in a drunk driving accident after spending time at Toby’s Lounge at the MCM Grande Hotel and Fun Dome. Jury selection is scheduled to begin today for her trial on two counts of intoxication manslaughter.
The twins’ parents, Raul and Agueda Coy, settled their civil lawsuit against the lounge in December. The couple accused the lounge of continuing to “provide alcoholic beverages to Garcia, while she was obviously and dangerously intoxicated.”
The terms of the settlement were sealed as part of the deal, but court records indicate the defendants did not admit liability.
Griffis said he wishes there were more TABC agents working in the area.
“About 25 years ago we had half a dozen agents in this area and I could name almost all of them,” Griffis said. “They would routinely go into bars and do inspections. Nowadays, their investigations are pretty much after the fact.”
Griffis also said he wants local establishments to know that if they ever have any issues from a patron they no longer want to serve, they can call law enforcement officers for help.
ANOTHER AVENUE
Just as in the Coy case, bars and restaurants can theoretically be held accountable for over-serving people through the filing of civil lawsuits, but there are difficulties there as well.
They are called “dram shop” lawsuits. They are cases in which drinking establishments are sued when a drunken driver kills or maims someone. Historically, a dram was a small drink of liquor.
Odessa attorney Robert White, who has been practicing law 39 years, said the Safe Harbor Rule, which was implemented about 17 years ago, has limited the number of dram shop cases that are filed.
Most bars and restaurants make sure they fall under the exemptions contained within the rule. It’s a rare establishment that tries to cut corners, he said.
Unless an establishment has cut corners and unless an attorney can prove the employers encouraged their staff to serve someone who is intoxicated or underage, attorneys tend to stay away from such cases, White said.
Getting evidence can be tough, but “sometimes we can get videotapes and it’s obvious what’s going on and sometimes we can get cash register receipts,” White said.
Other cases are rejected because the bars or restaurants aren’t insured, so there’s no money to compensate the victims, White said.
When lawsuits are filed, the law requires the parties to go through mediation, White said. Most cases are settled at that point because each side knows what evidence the other side has.
In addition, attorneys often don’t want to go to trial because jurors always have the option to assign a percentage of the blame to the drunk driver in the case, White said. If a jury decides the driver was more to blame than the establishment, the amount of the award could decrease significantly.
Gallivan said he finds the whole topic incredibly frustrating.
He finds it troubling that 13 of the TABC’s 16 cases filed over the last three years were in Ector County.
“I think it’s just part of, unfortunately, in my opinion, the culture here to drink. I’m not against drinking, but I think alcohol-related offenses, specifically DWI and those offenses that occur from that, intoxication assault, intoxication manslaughter, are the most preventable offenses,” Gallivan said. “All you have to do is have a plan not to drive. Go drink all you want. Have somebody give you a ride, call an Uber. Do something.”
Ector/Midland county licenses with administrative violations
Jan. 1, 2019 through May 15, 2022
Trade Name/Violation/Status
- Club 305 Sell/serve/dispense/deliver to minor Open
- The Lone Star Bar Sell/serve/dispense/deliver to intoxicated person Restrained
- Halftime Grill Sell/serve/dispense/deliver to intoxicated person Restrained
- Halftime Grill Sell/serve/dispense/deliver to intoxicated person Open
- Halftime Grill Sell/serve/dispense/deliver to minor $3,000 fine
- Bottoms Up Bar Sell/serve/dispense/deliver to minor Restrained
- Zucchi’s Sell/serve/dispense/deliver to intoxicated person Restrained
- Basin Nights Sell/serve/dispense/deliver to intoxicated person Restrained
- Tumbleweeds Sell/serve/dispense/deliver to intoxicated person Restrained
- Clamatos Sell/serve/dispense/deliver to minor Dismissed
- Pat’s Place Sell/serve/dispense/deliver to intoxicated person Open
- Wingstop Sell/serve/dispense/deliver to intoxicated person Open
- Your Place Sell/serve/dispense/deliver to intoxicated person Restrained
- Tilted Kilt Sell/serve/dispense/deliver to intoxicated person Restrained
- La Playa Sell/serve/dispense/deliver to minor Dismissed
- Red Stag Sell/serve/dispense/deliver to minor $1,500 fine
Source: Texas Alcoholic Beverage Commission
