By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The failure of state liquor regulators to close a bar with an alleged history of overserving patrons does not make the agency liable when an intoxicated customers injures others when he drives off, the Arizona Supreme Court ruled.

In a unanimous opinion, the justices acknowledged the state Department of Liquor Licenses and Control has broad authority to suspend, revoke or refuse to renew a license if the establishment fails to comply with statutes that regulate the sale of alcoholic beverages. One of those laws makes it illegal to serve liquor to an “obviously intoxicated person.”

In this case, the victims of an accident caused by someone who left Billy Jack’s Saloon and Grill in Dewey-Humbolt — a person who had a blood-alcohol content more than four times the legal limit — say the state agency’s failure to close the bar led to their injuries.

In legal pleadings, they said the bar had a “history of infractions.” The plaintiffs claim the agency renewed the license “despite it being open and obvious through their advertising and website that Billy Jack’s seeks to overserve their customers.”

Justice Kathryn King, writing for the court, said that’s all irrelevant.

“The permissive statutes make clear that the (liquor) department may suspend or revoke an establishment’s license, may inspect a licensee’s premises, and may impose civil penalties,” she said. But King said those are “discretionary statutes.”

“They do not require the department to perform any act or refrain from performing an act,” she said. That, said King, means the agency owed no duty to protect those injured by the drunk driver and cannot be held financially accountable.

Monday’s ruling overturns a decision by the state Court of Appeals which reviewed the same facts.

In its majority decision, the judges said lawmakers created the department and gave it specific regulatory authority, which they said statutes expressly identified the overservice of patrons as among the risks to the general public that they were designed to prevent.

“Conversely, those potentially harmed by an overserved patron represent the precise class of persons those statutes were designed to protect,” the appellate court wrote.

But King said the law doesn’t go that far — and doesn’t make the liquor department absolutely liable for all harms to citizens arising from alcohol-related incidents.

According to court records, David Browne went to Billy Jack’s in April 2021. After leaving the parking lot, he drove his vehicle onto State Route 69 and was involved in a multivehicle accident.

Victor Sanchez-Raveulta and Janette Dodge and their two minor children were passengers in one of the vehicles.

The lawsuit said Browne had a blood-alcohol concentration of more than 0.30 at the time of the accident; 0.08 is considered the presumptive indication of intoxication.

In filing suit, the plaintiffs said the state, through the liquor department, was negligent, grossly negligent and exhibited “wanton conduct.” They said the department has a duty to protect the public by taking reasonable measures to prevent establishments that regularly overserve patrons from creating hazardous conditions.

The problem with that, King said, is someone can be held negligent only if they have a duty to “conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.”

It is true, she said, a duty can be created by state law. But that, by itself, is not enough.

“A statute cannot be the basis of a public policy duty if it does not require or prohibit certain conduct,” King wrote. Instead, she said, the law must be written in a way that it requires or prohibits certain conduct.

Here, King said, the statutes that the plaintiffs are relying on to prove the department was negligent do not fit the bill.

“These statutes merely describe the department’s discretionary authority,” she said, like the ability to revoke a license but not a mandate.

The justices acknowledged a separate statute says a liquor license can be issued only after the applicant has shown qualifications and reliability and that “the public convenience requires and that the best interest of the community will be substantially served by the issuance.”

But King said the complaint does not allege the injuries were caused because the department improperly issued the original license but instead is based on facts after the original license was issued.

There is nothing in the court record about any separate litigation against the owner of the bar.