Refusing Service and The Law

Inevitably in this business, there will come a time (many of them actually) where you will have to refuse customers service for a wide variety of reasons – many of which you can imagine.  Obvious inebriation comes to mind immediately – unless you enjoy having said drunk get in his/her car, mowing down some school kids, resulting in the PoPo cuffing you and shutting down your bar, whether you own it or not.  This is where the aforementioned T.I.P.S certification and experience dealing with these types of customers comes in handy.  

So let’s address the law first.  In NYC and NYS, the interpretation that you’ll get from most professionals is that you can refuse to serve anyone for any reason so long as you don’t discriminate against that person for reasons of religion, creed, sexual orientation, disability, marital status, military status or color.  Effectively, you can get away with not serving folks if they have become or are suspected of becoming problematic, intoxicated, dangerous, or really – for any reason at all.  Just don’t state a stupid reason that will land you and your establishment in hot water.  This is commonly referred to in the industry as the “Inkeepers Law” or the “Inkeepers Rule” and dates back to English and Colonial Common Law.  It should be noted that the law does vary from state to state here in the U.S.

Since my focus is on bartending in New York City, I suggest you familiarize yourself with the applicable New York State Human Rights laws which proclaim:

“It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, including the extension of credit . . . .” N.Y. Exec. Law § 296(2)(a)

Here’s the snippet applicable to the City taken from the New York City Human Rights laws:

“It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of the actual or perceived race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof . . . .”  N.Y. City Admin. Code § 8-107(4)(a) 

It should further be noted that the New York Alcohol Beverage Control Law and the New York Dram Shop Act prohibit businesses and persons from serving or selling alcoholic beverages to visibly intoxicated persons or persons actually or apparently under 21 years of age.  Section 65 of the New York Alcohol Beverage Control Law, captioned “Prohibited sales,” provides:

No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to1.  Any person, actually or apparently, under the age of twenty-one years;2.  Any visibly intoxicated person;3.  Any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages.

N.Y. Alco. Bev. Cont. Law § 65(1) – 65(3); see also N.Y. Dram Shop Act, N.Y. Gen. Oblig. Law § 11-101(1) (imposing strict liability on liquor licensees for injuries caused by the illegal sale of alcoholic beverages). 

Taking all of this into account, let’s look at a practical example.  In a situation where you have a regular Tuesday night customer let’s say, that tips you extraordinarily well on a regular basis.  You but him/her a drink here and there, engage them in bar banter and laughs, and everything is usually hunky dory.  One night Joe Tuesday has had a shitty evening with his significant other and you’re now preparing his 7th vodka Martini, the equivalent of at least 14 drinks (which you should reflect on to begin with).  Joe weighs 135lbs, stands 5′ 6″ tall and has had nothing to eat all night.  He’s happily blabbing with the stranger at the next stool about the finer points of Herman Cain’s sexual scandal and his fall from grace.  He doesn’t appear to be stumbling or slurring his words.  You reconsider and say something like “Joe, maybe you should have some coffee or would you like to take a look at a menu?”  He becomes irate and demands his drink.  

Here’s how I like to handle the situation based on experience in human behavior and having dealt with many angry drunks over the years.  Firstly, there is no way in hell he’s not legally or otherwise smashed based on what he’s consumed in the 2 hours he’s been sitting there.  His BMI and BAC dictate that he would be arrested and charged with DUI if he were to get into a car right now no matter how he’s acting or not acting.  That’s important for you to know.  Secondly, keep in mind that everyone likes to “feel” as if they’ve won or gotten over whether that’s in fact the case or not.  I’d politely put my hand on his shoulder and whisper something like 

“Joe, look.  I’d hate for you to wake up tomorrow feeling like crap.  I know you’ve having a great time right now and I’d love to serve you another drink.  You’ve had quite a bit already.  If my manager wasn’t looking over my shoulder, I might think about sneaking you another.  Come back tomorrow and I’ll buy you your first drink – on me, eh?”

Now this particular phrasing has many implications and psychological ploys going on.  It’s very different than saying “You’re drunk and I can’t serve you anymore.”  All I’ve done is (1) pass the buck of blame, whether true or not (2) put myself in their camp with some sympathy (3) said no indirectly by saying yes and (4) given them a freebie – one which they’ll likely never remember to bring up the next day anyway.

In the end, there are many ways to handle situations where you have to cut people off other than the friendly example I’ve just mentioned.  Keep your head on your shoulders and remember that everyone’s safety is your top priority followed by Business Continuity – not  that’ night’s ring and tips, getting laid, or whatever.  


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