The November 2008 hit-and-run that left a pueblo member dead and put a politically connected lawyer on trial for vehicular homicide has implications beyond the fate of the lawyer, Carlos Fierro, and the survivors of the dead man, William Tenorio.
Last week, the state police Special Investigations Division completed an inquiry into two bars where Fierro had been drinking, under a state law providing for fines and suspensions against liquor license holders and servers who let customers get plastered.
The results? “WilLee’s Cited; Rio Chama Isn’t,” the Journal North headlined its story on the investigation.
The “why” behind that headline raises questions about the fairness of holding bartenders accountable for the actions of their patrons. And the police investigation into the bars Fierro patronized did nothing to assuage a widespread presumption of favoritism when it comes to liquor laws.
Fierro and his drinking buddy, former State Police Sgt. Alfred Lovato, reportedly ran up a 16-drink tab at Rio Chama—owned by Gerald Peters, a friend of Gov. Bill Richardson—before taking their party to the now-defunct WilLee’s Blues Club. Why did one bar get busted and the other get off?
“The politicians go [to Rio Chama] after the Legislature. Who goes to the other bar? It’s gangsters,” Matthew Slaughter, 27, a bartender at San Francisco Street Bar & Grill, says.
Whether or not Rio Chama overserved Fierro, Slaughter says police had an obvious reason to cite WilLee’s.
“They’re looking for a scapegoat,” he says.
Suspicions about “good old boy politics” were commonplace among bartenders and patrons SFR spoke to last week.
Even New Mexico Department of Public Safety spokesman Peter Olson acknowledges Rio Chama’s “connection to political bigwigs” creates the perception of favoritism. “People are sick of that, thinking that people get away with stuff because of their connections. It does happen, I’m sure,” Olson says. “But I also know, in this case, that the agent that did the investigation was told to dig in and find it and not play any favors at all. People may or may not believe that. But I believe that’s the truth. He’s not playing favorites.”
Jeff Jinnett, president of the parent company of Peters-owned Rio Chama, says any insinuation of favoritism is “ludicrous.”
“I don’t think there was any special influence at all. We were thoroughly investigated,” Jinnett says.
Olson says police failed to find enough evidence to cite Rio Chama for overserving. “What we need to be able to prove at a citation hearing was that those people who bought alcohol were obviously intoxicated,” Olson says.
Police found witnesses at WilLee’s who testified to Fierro and Lovato’s intoxication, he says. This was not the case at Rio Chama. Besides which, police tested Fierro’s blood-alcohol content at 0.21 after leaving WilLee’s. “Had circumstances been different, and Carlos Fierro [had failed] a BAC test after leaving Rio Chama…then they would’ve been issued a citation. Unfortunately, that didn’t happen,” Olson says.
Just because police couldn’t prove Fierro was overserved at Rio Chama doesn’t mean it didn’t happen.
Elizabeth Findling has taught bartender training courses in Santa Fe for 16 years and tells students that many practiced drinkers don’t show signs of intoxication. “When people mask their alcoholism, they don’t appear to be intoxicated, but they are. They’re just able to control their behavior,” Findling says.
In that case, Findling teaches servers to count drinks, estimating intoxication with a blood-alcohol content chart.
Fierro weighed 228 pounds, according to booking information at the Santa Fe County Jail. He and Lovato drank at Rio Chama for nearly four hours the night of the crash. “In the BAC chart it says that a person who is about 240 pounds could have four drinks the first hour, and thereafter one drink per hour to keep them within the legal limit,” Findling says. “They could’ve had six drinks in three hours and probably be within the legal limit. But if they had more than six drinks, they were probably beyond.”
A third man joined Fierro and Lovato at Rio Chama, Jinnett says. The police investigation did not clear up who drank what on their 16-drink tab.
“If you assume that those two guys drank all of the alcohol at Rio Chama that was purchased on the credit card, and you take into account the absorption rates, their body weights and everything, it’s conceivable that they were close to that presumed level of intoxication, 0.14,” Olson says. “The problem is you have to make a major assumption, which is those two guys drank all the alcohol themselves—which may be the case, but we don’t know for sure.”
The case against WilLee’s was more clear-cut.
“It’s not the fact that they got drunk at Rio Chama; it’s the fact that they were served when they were drunk, which happened at WilLee’s for sure,” Olson says.
Assuming the investigation was thorough, the question remains: Is it fair to hold 20-something bartenders responsible for the conduct of middle-aged patrons after they leave a bar?
“No. Absolutely not,” Joe Maloney, a 26-year-old bartender at Cowgirl, says.
Maloney says he was working at Cowgirl the night Tenorio was killed, and racked his brain afterward to remember if Fierro and Lovato had been in his bar.
Ben Callan, a La Casa Sena server who organized a short-lived Service Industry Association, puts it in stronger terms. The “‘third party liability law’ is WRONG!” he writes to SFR on Facebook. In his view, the law places responsibility on the people with little control and, typically, few means to defend themselves: servers.
“Your manager has the power to override you, and say, ‘No, Joe’s a regular, we’re going to serve him,’” Callan says. If a bartender refuses service anyway, he won’t last long. “You’re not going to get fired for that—you’re going to get fired for being five minutes late,” Callan says.
Eighteen states, including New Mexico and the District of Columbia, have mandatory server training laws. Sixteen states still have no training laws, and the remainder have voluntary programs, according to the National Institute on Alcohol Abuse and Alcoholism.
Bob Saltz, a senior research scientist at the Prevention Research Center in Berkeley, Calif., has studied mandatory server laws in New Mexico and nationwide. “There’s evidence they can be effective,” he says. “It’s rare that training alone can have an impact. You need the enforcement.”
How about that training? Callan says server classes are “a joke.”
And enforcement? Obviously, police don’t cite bartenders every time they arrest a drunk driver. “I don’t think it comes up unless there is a horrible accident,” Findling says.
In any case, the law puts bartenders in a difficult position.
“A lot of people have asked me in my class, ‘If you cut them off, they may not tip us.’ We tell them, ‘Would you rather lose a $5 to $10 tip or be sued?’” Findling says. (Servers also are potentially liable in civil cases.)
Olson, who hasn’t had a drink in 30 years, has little sympathy for bartenders. “What’s a $2 tip worth? Somebody’s family?” he says.
WilLee’s leased a liquor license from an owner’s father, Robin Adams. Adams now leases that license to Corazón, which opened in the old WilLee’s location last month.
Because violations count against a license owner—not a lessee—it’s possible the new bar could suffer for a citation against WilLee’s. A first overserving violation in a 12-month period calls for a fine of up to $2,000 and suspension of all alcohol sales for a day.
Mikey Baker, a co-owner of Corazón, says his bar is in the clear, as far as he knows.