Wednesday, May 30, 2012

Summer in the City: In post-drinking death, is anyone responsible?

published in the Portland Phoenix; co-written with Chelsea Cook

Conflicting reports about why exactly Nathan Bihlmaier was asked to leave RiRa on the night of May 19 — whether he was drunk, whether he was behaving inappropriately toward another patron, or whether he stumbled over some musical equipment — leave questions about responsibility on nights out in the Old Port.
Bihlmaier, 31, was due to graduate from Harvard Business School just days after his celebratory evening out with friends; instead he was found dead in the water near Custom House Wharf, leaving behind his pregnant wife.
The police account has Bihlmaier, 31, being asked to leave because he was visibly intoxicated, a condition that under state law requires ejection from a bar. Bihlmaier's two friends did not accompany him when he left.
RiRa security manager Scott St. Ours has claimed Bihlmaier wasn't drunk, but rather was asked to leave after he tripped over some band gear (another early account also alleged Bihlmaier was bothering another customer). Despite the claim of sobriety, St. Ours says he walked "a block and a half" with Bihlmaier and twice attempted to get him a cab. (Sauschuck says security video shows St. Ours and Bihlmaier leaving together, and St. Ours returning to the bar within 30 seconds.)
According to the law, Bihlmaier was responsible for himself. But an inebriated person — particularly if determined to be so by a trained staff member of a bar — by definition has impaired judgment. Leaving an impaired person to their own devices could be construed as negligence. And courts have held that bars that sell alcohol to people who are already obviously intoxicated — are at least partially responsible for any negative aftermath. (Sauschuck has said he does not believe RiRa staff did anything illegal, and has said RiRa employees are assisting with the investigation.)
"It's a shared responsibility, between the person and the bar," says Doug Fuss, owner of Bull Feeney's and president of the board of directors for Portland's Downtown District (PDD). Fuss is also a former chair of the Nightlife Oversight Committee (NLOC), which has been instrumental in making rules for both bar owners and patrons.
The guidelines were established in 2008 based on the feedback of bar owners and security personnel, and include specific regulations, one of which is that management must designate floor staff to look for and interact with visibly intoxicated customers. Maine law says, "No licensee [of liquor] shall permit or allow visibly intoxicated persons to remain on the licensed premises," but isn't helpful about explaining how to eject someone in a way that doesn't incur liability if something bad happens afterward.
Fuss says NLOC, the PDD, and the police have been meeting recently to devise solutions for handling visibly intoxicated patrons. Fuss advocated personal responsibility and the "buddy system," as well as using a cab, while recognizing the complications that could arise in either scenario, as happened with Bihlmaier.
Laurence Kelly, owner of Brian Boru, shared ideas as well, including a potential helpline or phone number that would act similarly to Homerunners, a designated-driver car service.
"Talking to and assessing the customer's state is the best way. If we see someone staggering or not responding, take them outside and stay with them," Kelly says. A more out-there idea apparently batted around was the laughable — and ugly — idea of putting a chain link fence around the harbor. Either way, it's time for patrons and bar owners to bridge the gap between law and common sense.