Little pain for pouring too much

Published Sunday January 2, 2011
By Henry J. Cordes
OMAHA WORLD-HERALD

The woman spent the whole afternoon drinking vodka and diet 7-Ups at an Omaha bar before getting behind the wheel of her pickup.

Later testing with a blood-alcohol level at almost double the legal limit, she swayed across the center line on Highway 36 at least a half dozen times before slamming head-on into a car driven by Joe Cowan of Council Bluffs.

The horrific crash in northern Douglas County on March 30, 2009, instantly killed both drivers.

The bar where the woman drank faced no repercussions.

While Nebraska prohibits alcohol establishments from serving intoxicated patrons, a months-delayed state investigation — conducted largely due to the Cowan family’s persistence — could not prove any wrongdoing by the bar.

The bar faced no civil liability in the crash, either. Nebraska is one of only 14 states that does not hold alcohol establishments at least partly responsible for deaths or injuries caused by their serving an intoxicated patron.

Such a law — often called dram shop — is on the books across the river in Iowa, where Joe Cowan had lived. Cowan’s widow said it doesn’t seem there’s anything to deter bars in Nebraska from irresponsibly profiting by pouring too much.

“It’s such a broken system in Nebraska,” Michelle Cowan said. “What’s it going to take for it to change?”

She isn’t the only one asking that question.

With the 2011 Legislature convening this week, a dram shop bill is one of several measures expected to be offered as part of a crackdown on drunken driving.

The alcohol industry has successfully fought dram shop proposals in Nebraska for decades. Opponents say it wrongly makes bar owners responsible for the acts of others.

“Dram shop is a form of socialism, putting the blame on everybody,” said Mike Kelley, an attorney and bar owner from Omaha who lobbies for the Responsible Beverage Operators of Nebraska. “What about personal responsibility?”

State Sen. Tom Carlson of Holdrege says the dram shop bill he plans to reintroduce this year recognizes a shared responsibility between an individual drinker and a business licensed to sell a dangerous product.

The push for new laws is shining light on Nebraska’s inattention to making sure bars and restaurants turn off the tap before their customers become dangerously drunk.

Nebraska’s Liquor Control Commission, the state agency that regulates liquor licensees, currently has a rule that prohibits bars from serving drunken patrons, but it is rarely enforced. That’s true even in cases where people leave bars drunk and go on to kill or maim.

Law enforcement officials say that because of the way the rule is written, about the only way to get a case to stick is if an officer actually witnesses a bar serving a visibly drunken patron.

The result: Over the last five years, an average of 13 establishments a year have been sanctioned under the rule. Compare that to the 13,000 drivers a year who are cited for drunken driving — about half of whom, studies would suggest, took their last drink in a bar or restaurant.

Neither Nebraska or Iowa mandates training of servers on ways to keep patrons from drinking to intoxication, a requirement in 18 states. Nebraska even allows people serving alcohol to drink while on the job.

“As to how you do business in this state, it’s pretty much anything goes,” said Diane Riibe of Project Extra Mile, an Omaha organization devoted to stopping underage drinking.

Both Riibe and law enforcement officials point out that most alcohol licensees try to serve responsibly.

Sgt. Martin Costello, head of the Nebraska State Patrol’s alcohol enforcement unit, said in his experience about 95 percent of license holders want to do what’s right. About 80 percent work hard at it, with a smaller percentage succeeding.

That leaves room for over-service to thousands of Nebraskans, many of whom take to the road.

Supporters say a dram shop law could help stop that. While such a law allows lawsuits seeking monetary damages to be filed in the event of deaths or injuries, the idea is to prevent such casualties by giving bars economic incentive to follow responsible serving practices. The law takes its name from 18th century England, where small shops sold gin by the dram.

Nebraska did pass a limited dram shop provision several years ago, applying in cases where bars, liquor stores or social hosts provide alcohol to minors. Carlson’s bill now would extend liability to cases in which adults are over-served by bars.

“If you’re going to serve it, it must be in a responsible manner,” Carlson said.

Few know the limitations of Nebraska’s current system better than the Cowans.

Joe Cowan, a 55-year-old Creighton University graduate and an avid bicyclist, worked as an accountant at the University of Nebraska Medical Center.

On that March day in 2009, Joe had just finished buying a new car for his wife of 19 years and was on his way home from the Fremont auto dealership.

Michelle became frantic when her husband didn’t return and didn’t answer his cell phone.

Then came the knock at the door by the two Iowa state troopers, telling Michelle and 15-year-old daughter Anna Jo about the tragedy across the river. Anna Jo fell sobbing to the floor.

A month later, when getting paperwork for an insurance claim, Michelle Cowan made an infuriating discovery: Linda Therien, the 51-year-old woman who had crashed into Joe, had a blood alcohol level of nearly .15 percent.

Michelle also learned through an acquaintance the name of the bar where Therien had been drinking: the KoZee Lounge, on north 60th Street in Omaha.

For weeks, Michelle urged the Nebraska State Patrol to investigate the bar, eventually taking her case to the patrol’s chief.

By early June, a liquor control officer for the patrol was on the case. But Sgt. Bob Elliott soon ran into walls.

The bartender working that afternoon, the daughter of the owner, recalled serving Therien no more than three drinks over the five hours she was in the bar. Many patrons interviewed said Therien never appeared drunk. Others refused to talk to the investigator at all.

Elliott heard suggestions that Therien had stopped at another bar after leaving the KoZee Lounge but determined that that was not plausible. Also complicating the case was the presence of other drugs, including methamphetamine, in Therien’s system, reports show.

In the end, the Nebraska Attorney General’s Office declined to bring a case before the liquor commission.

Pee Wee Burgess, owner of KoZee Lounge, said last month that he remains sure his business did nothing wrong. He’s convinced that the drugs, a medical problem or alcohol that Therien consumed elsewhere were behind the tragedy.

“I know she didn’t get drunk here,” he said.

Burgess and other Nebraska bar owners say responsible service is already their rule.

Brian Kitten, co-owner of the six Brewsky’s sports bars in Omaha and Lincoln, said he doesn’t hesitate to cut off patrons who show any tell-tale signs of intoxication: slurred speech, fumbling around, bumping into things. He’ll encourage a switch to non-alcoholic drinks or food.

But some people, he said, have a high tolerance for alcohol and are able to have elevated blood-alcohol levels without showing signs of intoxication. That creates a lot of fear among bar owners of how courts would interpret their actions in a dram shop case.

“We’re not dealing with an exact science here,” Kitten said.

Kitten doesn’t oppose mandatory training, and he already requires his servers to pass an online course offered through the University of Nebraska-Lincoln.

Even more important than server training, he said, is manager training — something mandated by city ordinance in Lincoln. Training servers means nothing, Kitten said, if the manager or owner doesn’t support cutting off the regular customer who spends $500 a week in the bar.

“We find training very, very important, because we don’t want to see intoxicated people,” Kitten said. “I have kids. The last thing I want to see is an intoxicated person on the street.”

Regardless of whether a dram shop law passes, Hobie Rupe, chief administrator of the Nebraska Liquor Control Commission, said mandatory training of alcohol servers is probably inevitable in Nebraska.

Meanwhile, Nebraska’s primary measure to deter intoxication in bars is the commission rule barring service of drunken patrons. Rupe said the rule is an important one. When a person has had too much to drink, he or she incapable of knowing it’s time to stop. The burden for stopping the drinker shifts to the bar operator.

Any examination of the rule, however, shows it has its limits.

While an average of more than 80 Nebraskans each year are killed by drunk drivers, and about 250 suffer disabling injuries, even those cases almost never result in action against a bar.

Law enforcement agencies investigating such crashes don’t routinely try to learn where drivers took their last drink.

Even in cases where the driver is tracked to a certain bar, the rule requires proof that the person was served despite being visibly intoxicated. That means finding a witness willing to testify to seeing that. The server often suggests that the drunken patron must have gotten those critical final drinks after leaving the bar.

“These investigations can be very time-consuming, for not the greatest result,” said the patrol’s Costello.

That’s why the handful of cases that end up before the commission typically originate when officers witness a violation during a bar walk-through. A first offense usually results in the bar paying a fine of $500 to $2,000 and being required to have its staff take server training.

Such bar walk-throughs aren’t particularly common, though.

The State Patrol has an alcohol staff of nine officers who spend the vast majority of their time doing background checks, bar inspections and administrative tasks involving 4,000 liquor license holders statewide. Enforcement initiatives are directed mostly at underage drinking.

Local police departments also enforce state liquor laws but vary widely in bar-check efforts.

Lax enforcement of such laws is not unique to Nebraska. A 2009 federal study found enforcement rare across the country. It cited evidence and resource problems and cultural acceptance of people getting drunk in bars — even among enforcement agencies.

Despite the longtime controversy over dram shop in Nebraska, studies consistently have found the law to be a powerful tool against drunk driving.

The most recent statistical analysis in 2003 found states that adopted such laws saw a 5 percent reduction in drunken driving deaths. In Nebraska, that drop on average would save four lives every year.

Besides the statistical evidence, surveys of bartenders and bar owners have shown dram shop laws change behavior.

“This is a policy we’ve studied and studied, and it seems like a no-brainer from a societal point of view,” said Frank Sloan, a Duke University economist who has written about over-service. “The servers and owners of establishments are scared to death of this, and they should be. It pays for them to train their employees to engage in safe drinking practices.”

Carlson’s bill would exempt bars that can show they properly trained servers. In such cases, liability would shift from the establishment to the individual server.

Most beverage operators would probably obtain insurance to cover their liability. Insurers would be expected to watch bar practices, making it hard for bad operators to obtain policies.

Carlson said he shares opponents’ concern that dram shop could lead to frivolous lawsuits. His hope is that Nebraska lawmakers can craft a plan that would protect responsible licensees while punishing those who show gross negligence.

For the Cowans, it’s become a personal crusade to pass a dram shop law in Nebraska.

Anna Jo and her mother talked to numerous state senators, at first finding none willing to take up the issue. That’s when they turned to Tom Osborne, the UNL athletic director and former congressman who has shown willingness to take on the alcohol industry.

In February, almost a year after the crash, Anna Jo, her mother and Osborne all testified in favor of the dram shop bill Osborne asked Carlson to introduce.

Now Carlson, Osborne and the Cowans are preparing to bring it back again.

Michelle Cowan is expecting to again hear bar owners talk of how onerous dram shop liability would be for them. To that, she asks: Why can’t a law already in place in the vast majority of states work in Nebraska, too?

“My husband is already gone,” she said. “I want senators to step up to the plate. It’s time.”

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