Legal loophole protects bars in death cases

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by Jeremy Rogalski, KHOU Chief Investigative Reporter

kvue.com

Posted on November 24, 2010 at 11:39 AM

HOUSTON – As in most states, a bar owner can be held liable if a drunken patron injures someone else. But the I-Team discovered how the big liquor lobby pushed through a legal loophole that gets bars around the law, and leaves some Texas families in anguish.

Matthew Garcia was bright and talented, and at 21, too young to die, his family said.

"He would sit at the piano for hours and play," recalled Laurri Garcia of her son’s affection for music.
“Life is horrible without Matthew, I miss him incredibly."

But amid his parents' pain, there’s something else.

“Rage,” said his father Kent Garcia.

The rage is directed at David Coleman Wilson, the drunk driver who hit and killed their son in August 2008. But also at the bar which over served him, even though he was already drunk. It’s called Janie’s Bar, and is located in the 19600 block of Kuykendahl in northwest Harris County.
  
"They didn't stop him, had he had a gun in his hand they would have called the police, but he didn't, he used a car," Laurri Garcia said.
 
So what did the Texas Alcoholic Beverage Commission do to Janie’s Bar? Virtually nothing. In fact, the 11 News I-Team has discovered that in Harris County, bars hardly ever get in trouble for serving drunks. After reviewing thousands of TABC administrative actions, we found the TABC cited bars only 22 times for serving drunks, and that’s over five years. But during the same time, the agency wrote up 4,982 other violations against bars, mostly for tax and regulatory issues.
  
But in the Garcia case, "we thought this was a slam dunk," according to Kent Garcia.

So did the lead TABC agent investigating it.

"They knew he was intoxicated, they continued to serve after becoming intoxicated, and they didn't take any steps after they realized he was intoxicated," said Agent Chuck Cornelius.

By all accounts, it was a solid case, but the result wasn’t.

"Nothing happened to them, they didn't get suspended," said TABC Lt. Harry Schreffler, adding that Janie’s didn’t get fined either.

Why not? Something in Texas law known as Safe Harbor, which is the only law of its kind in the nation. It says if liquor license owners take a few simple steps, they're immune from liability for serving drunks or serving minors. What are those steps? Make sure bartenders and waitresses go through state-approved training; make sure liquor serving laws are posted at the bar, and make sure nobody encourages violation of the law.

Follow those rules, and you're protected against lawsuits and action by the TABC.

Janie Parker is the owner of Janie’s Bar.

I-Team: “The TABC couldn't touch you because of Safe Harbor."

Parker: “That's because all my people are TABC certified."

I-Team: “Nothing happens to you, is that right?

Parker: “No comment.”

But if the Safe Harbor law keeps the bars safe, what is it doing for the public overall?

"Texas leads the nation in drunk driving fatalities," said Bill Lewis, Public Policy Liaison for Mothers Against Drunk Driving in Texas.

Lewis said the stats don’t lie.

"Harris County has more drunk driving fatalities per capita, than any other county in the nation," Lewis said.

So the I-Team wanted to know, who put Safe Harbor into law back in 1987, nearly two dozen years ago.

"The amendment was brought to me by the alcohol beverage services," said Bob McFarland, a former Texas state Senator who now practices law in Arlington.

Bob McFarland concedes it was the liquor lobby's idea, but called it a good deal.

"It was a quid pro quo," he said.
  
McFarland said the idea was to give immunity from liability to the bars, and in return get better educated bartenders who could spot when someone had too much.

"The benefit to the public at large would be that, that patron would no longer be served," McFarland said.

And that would happen by completing a state-certified training course, which McFarland called “fairly extensive.”

But the I-Team found problems with that too. We signed up my 4-year-old son Nicholas Rogalski, for an online version of that course. But Nicholas can’t read, so I completed the three-hour training and passed the test. However in the eyes of the State of Texas, my boy is a certified bartender.

I-Team: "It seems like there's a loophole this big in the certification process.”

McFarland: “And we probably need to slam that shut."

But the I-Team also discovered another problem by talking with former lawmaker McFarland--he did not know the meat of the very law he helped get passed.

I-Team: "When someone comes into an establishment, and is over served, and is intoxicated, and goes out and injures or kills somebody, and nothing happens to that bar owner, what kind of message does that send?”

McFarland: “Well there's no doubt the TABC ought to be enforcing it more strictly.”

I-Team:  “But they can't enforce it because you provided that bar owner ‘safe harbor.’”

McFarland: “Right.”

I-Team: “So how are they supposed to enforce it?”

McFarland:  “Well they can fine.”

I-Team: “They can't.”

McFarland:  “They have sanctions to levee penalties.”

I-Team: “They can't under this amendment, that's the point sir.”

McFarland: “They can levy fines.”

I-Team: “They cannot."

"You know our hands are tied," said TABC Chuck Cornelius.

“It can be very frustrating with the number of death cases we have," he said.

You don't have to tell that to the family of Matthew Garcia. They say they already know.

"Families are devastated simply because of this law," said Kent Garcia.

"Do something to change it, so that somebody else isn't sitting where we're sitting talking about their child in the past tense," Laurri Garcia said.

The Garcia family did file a lawsuit against Janie’s Bar. While the Safe Harbor law does protect a bar in a civil court, it does not prohibit anyone from actually filing suit against such a business for over serving. However, owner Janie Parker said the case was settled for an undisclosed amount by her insurance company because it was cheaper than going to court.

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