Busted Bars Suing Underage Drinkers

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When Kate, a 19-year-old University of Notre Dame (search) freshman, went out with friends for a night of drinking at a local bar called The Boat Club last January, she had no idea what was in store for her.

Shortly after midnight on Jan. 24, officers from the Indiana State Excise Police, the Indiana State Police and the local South Bend, Ind., police surrounded the two-story nightspot in a surprise raid aimed at cracking down on underage drinking.

Kate and 212 other underage drinkers were busted in the sting, and were ordered to appear in court.

The bar was given the option of having its liquor license revoked or paying a $5,000 fine and selling its liquor permit to a new owner.

Kate entered a pretrial diversion program, paid a $220 fine and agreed to a one-year probation. Notre Dame also "sentenced" her to do 40 hours of community service.

At that point, Kate thought her brush with the law was over.

Then things went from bad to worse for Kate, who asked that her last name not be used. In mid-April, a notice of hearing was pushed under the door of her dorm room: The Boat Club was suing her and others nabbed in the raid for $3,000 a piece.

"I was shocked and surprised -- sort of in disbelief -- I didn't think they could do this, I didn't think it was legal," Kate said.

Surprisingly, it can be legal. Stories like Kate's are increasingly common, as bars caught serving underage patrons are turning the tables on their busted clientele, suing for damages they incur from fines and loss or suspension of liquor licenses.

Bar owners like Mike McNeff, who exclusively owns The Boat Club's parent company, The Millennium Club (search), can sue their underage patrons for misrepresentation -- a type of civil fraud -- if they have reasonable grounds to rely on their claims that they are of legal age.

John Korpita, owner of the Amherst Brewing Company (search) in Amherst, Mass., successfully sued an underage patron for $3,713 in 1998. Korpita sued a University of Massachusetts senior after she used two fake IDs to enter his popular brewpub (search).

When undercover state alcohol investigators discovered the underage student, Korpita was told that his liquor license could be suspended for a period of three days or he could pay a $2,500 fine. Korpita opted to pay the fine, but filed a civil complaint against the student to recoup the loss.

Korpita said that liquor laws, which vary from state to state but tend to be similar, unfairly place a burden on alcohol retailers who are legitimately trying to prevent underage drinking. With high-tech fake ID production techniques that can make a bogus ID almost undistinguishable from a valid one, underage drinkers need to be held accountable, Korpita said.

"The fines are really horrendous and can even put a place out of business," Korpita said. "If you're doing the best you can, they should have some sort of consideration that you're just not blatantly letting people in underage."

But Joanne Stella, a lawyer retained by the University of New Hampshire's student government, said alcohol retailers are shirking their legal and ethical responsibilities when they try to recoup damages from busted underage customers.

Stella defended three underage students who were sued by a Durham, N.H., grocery store for damages after the students used fake IDs to purchase alcohol in two separate cases in 1998 and 2001.

"I think people that are selling liquor feel frustrated that they should have to do what the law requires you to do to sell alcohol," Stella said. "If you are going to make money off a dangerous product, you have to accept the responsibilities that go along with that. This isn't selling milk and cookies."

Stella said that alcohol retailers feel entitled to damages because when underage drinkers are busted, the establishment that sold liquor to them faces fines, loss or suspension of liquor license. The establishment owners and bartenders can even be arrested on the spot themselves. But Stella said that the onus should still be on the retailers to prevent underage drinkers from buying alcohol.

"In the three cases that ended up in a lawsuit, if they had asked for a second form of ID, none of these kids would have been able to buy alcohol," Stella said. "The bars and grocery stores and restaurants don't want to do that -- they make tons of money off of underage drinkers."

Stella successfully defended the 1998 case involving two students and settled the 2001 case out of court. But the legal precedent set by successful lawsuits like Korpita's don't bode well for new cases.

Attorney Ed Sullivan, who is defending 42 of the students in the complaint by The Millennium Club, said that liquor laws need to be tough on alcohol retailers so that they don't encourage them to use clientele accountability as a way to flout the law.

"By shifting that financial burden, it sets up an incentive for the bar owner to accept unreasonable IDs, let underage students in, make money off them drinking and then, if they are busted and fined, try to recoup damages," Sullivan said.

Sullivan has filed a motion to dismiss, which will probably be heard by a judge in September. South Bend attorney Mitchell Heppenheimer, who is representing McNeff and The Millennium Club, did not return repeated phone calls to his office regarding the case.

Kate said that she just wants to get the trial over with, but is miffed that she's being charged.

"I feel like I made my mistake and I paid for it," she said. "I did my hours of service, I learned my lesson. And just because they were negligent, I don't think I should have to pay."