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News

Liquored Up

Regulations won't stop BC clubs from over-serving. How else to corral the chaos?

By Darryl Greer 17 Mar 2012 | TheTyee.ca

Darryl Greer is a Vancouver-based journalist.

A cold, wet night won't get in the way of a good time on Granville Street on a wintery weekend in January. Throngs of high-heeled, short-skirted women walk about, shuffling and scurrying out of the rain among cliques of men in collared shirts with spike-gelled haircuts. When the exodus from the bars begins at about 1 a.m., around the time the last Skytrain leaves, the stumbling and staggering masses pour out and the drama begins. A police officer on patrol stops a heated argument about to turn ugly between two louts a few feet from the entrance to two popular nightspots. A few blocks down a short time later, a trio of security guards has a man pinned on the ground while a colleague has to hip-throw another to the cement for trying to aid the downed reveler.

Such is a typical evening in the city's famed entertainment district. Drunkenness abounds, and while much has been said lately about B.C.'s liquor laws, the regulations surrounding intoxication and over-service have eluded the spotlight even after the booze-fuelled Stanley Cut riot, despite their relation to both public safety, legal liability, and the challenges to the actual enforcement of anti-drunkenness statutes. Liquor industry defenders point out that people in licensed establishments were not a major factor in the Stanley Cup riot according to the riot report, but they're also quick to admit it's very easy to get over-served, especially in a modern nightclub setting.

"The people that rioted weren't in the bars, the people that rioted were the people that were already out there on the street drinking out of a twenty-six," said John Teti, owner of Vancouver's Shark Club. Sports bars, Teti says, are not exactly magnets for people hell-bent on getting drunk, but modern nightclubs with multiple bars and a large staff make it easy for people to get over-served.

Reliably liable

In a contemporary nightclub that might have a number of bars and everyone's moving around, Teti says it's "very, very difficult" to monitor over-service. With so many bartenders and servers, it's possible to never have to buy a drink from the same person.

He says there's no perfect solution to the problem, although he finds it "outrageous" that B.C.'s new drunk driving regime was ushered in without improving public transportation, such as extended Skytrain hours and improved night bus service.

"Young people make bad decisions," he says. "You have your most vulnerable people who have been out downtown drinking and now you provide them with no way to get home, so they roll the dice and drive their car home." He's critical of the liability faced by bars, which is not necessarily faced by drinkers themselves. "The bar has a responsibility to make sure they're not over-serving people," he says. "But there is no responsibility for the person who drinks. They can do whatever they want. They can go out and get drunk and they can fall down on the street and nobody's going to really do anything about it."

In B.C., a licensed establishment by law isn't allowed to serve a person to the point of intoxication, serve an intoxicated person or permit an intoxicated person to remain in their bar or restaurant, although they have a duty to take care of patrons who may become intoxicated. In other words, a bar can't get you drunk, can't get you further drunk if you're already drunk, and can't let you stay in the bar if you become drunk.

In addition, the staff must ensure you get a cab or get dragged home safe by friends. If an establishment, for example, allows someone to drink all day and stumble out, car keys in hand, only to drive home and injure someone, the owner and individual staff members could face stiff legal penalties including civil lawsuits or even criminal negligence charges.

Speedy service

Educating servers and licensees about liquor regulations falls on the shoulders of the Serving It Right program, administered by go2, a tourism and hospitality industry non-profit. Go2 CEO Arlene Keis told the Tyee that responsible beverage service training is important, but it can only go so far.

"The legal landscape has changed significantly and industry takes it really seriously," Keis says.The program has been mandatory for servers since 1990, and Keis equates it to safe driver training. "It's like training people to drive, yet they still go out and speed," she says. "There are people that don't follow it for sure, the employers and employees, and that's a real problem for the good guys out there that are trying to do everything they can to minimize that liability and public safety risk. . . We can't expect servers to be toxicologists."

John (not his real name) worked at a popular downtown nightspot for more than five years. He has his Serving It Right certificate, but saw it as more of a formality than anything. He routinely witnessed contraventions of liquor regulations. He and his coworkers were often drunk at work, his manager would jovially pour liquor down patrons' throats, and he would sometimes have to beg doormen to kick out people who were clearly drunk on the verge of vomiting. He didn't want to have to clean it up.

"The whole liquor licensing thing just doesn't make any sense to me," he says. "You don't want people to get drunk, and you think that people are going to show up to a nightclub with a liquor primary and have three drinks in an hour and sit there with their top-hats and a bow tie and have a good time? That's not how it happens, and that's not what people want to do."

Everyone John worked with knew of the establishment's duty of care toward patrons, but if someone was severely drunk and a big tipper, they often made exceptions, he said. "The business, it doesn't really want people to get over-served. . . and the bartenders have a responsibility to make sure that doesn't happen, but at the same time, if this dude is hammered drunk but he's tipping $20 a drink, we're not going to stop serving him," he says. The difference between a belligerent drunk versus a “hilarious” drunk was also a factor in deciding whether to keep serving someone, even though “either one of those people may go out and get hit by a car or jump into their car and drive. And how am I supposed to know? I'm just the fucking guy trying to make $9.25 an hour and a couple of extra bucks on the side."

Need reasonableness, not perfection: liquor lawyer

There are more than 10,000 licensed establishments in British Columbia and the province's Liquor Control and Licensing Branch carries out between approximately 9,000 and 11,000 inspections each year. The branch employs just 35 inspectors across B.C. to carry out those inspections.

"There's no question that with 35 inspectors spread around the province, we have only so much ability to observe on a day-to-day basis what is occurring in a licensed establishment," said Karen Ayers, general manager of the LCLB. The vast majority of licensees, according to Ayers, do comply with regulations; however certain environments are more challenging than others, while the problem of so-called pre-drinking -- drinking at home before going to a bar or club -- compounds the difficulty for both employers and inspectors. Contraventions, meanwhile, may not carry any consequences since enforcement actions are up to managers' and inspectors' discretion.

"A contravention might be identified, but an inspector's assessment is that enforcement action -- i.e. a fine or suspension -- is not necessary to bring the licensee into compliance because the licensee recognizes that there's an issue and we’re confident that they have and will address that issue without us moving to the next step," she said. However, establishments do face stiff penalties like fines or closures in some cases, as well as other legal consequences if injuries or tragedies occur.

While regulations can never be perfect, the standard is one of reasonableness rather than perfection, says lawyer Lorne Folick of the firm Dolden Wallace Folick. He helped write the book on Canadian liquor liability laws.

"Is it the role of the state to manage all aspects of personal autonomy? In Australia and the United Kingdom, you can't sue for civil damages arising from your intoxication," he says. "Canada's gone the other way."

He believes there needs to be a "degree of responsibility" surrounding the service of alcohol, although in cases where an over-served patron causes a single vehicle car accident, for example, "perhaps in those circumstances the patron should not be allowed to sue the bar," Folick stated in an email. "How would I feel if my own child was run over by someone who was drunk?" he asks. "Judges have imposed this duty because they're trying to affect social change, and in large measure the message has gotten through."

But when he gives speeches to industry associations, people are still flabbergasted by a legal regime that imposes such a duty on liquor providers. "I think in the past five to 10 years, there's been a greater recognition of the potential harm and consequences that flow from over-service," he says. "Changes in the law, including case law, have forced societal changes as well as how these bars are run. Is it perfect? No. Is it improving? Absolutely."

Make it easier to get home

Alex Clarke, the Vancouver Police Department's liquor coordinator, says street disorder in the Granville Entertainment District is difficult to blame solely on bars and clubs because many people arrive there already impaired. People aren't supposed to be allowed in a bar if they show signs of intoxication, yet for those who show up after so-called pre-drinking, "by the time the liquor hits them, these establishments may not have even served them a drink yet," she says.

Meanwhile, lack of adequate public transportation is a problem when partiers who live far from the district become stranded after nights of heavy drinking.

"Skytrain closes before the bars close," she says. "People are struck down there too. They can't get out of the Granville Entertainment District or Gastown. . . That's another problem for us. Some of the bars, they close at three, and so there's still patrons on the street waiting for cabs at 3:30 a.m.

"At the end of the night, between three and four in the morning, we see a lot of the arguments are over cabs because they can’t find a way out," she adds.

The report into the Stanley Cup riot placed blame on rioters while essentially absolving the city and liquor providers of culpability. Nevertheless, bars were at full capacity with people lined up outside several hours before Game 7. The Ottawa Police Service's technical review portion of the riot report notes that the Granville Entertainment District has the highest concentration of bars and nightclubs in the city. (City and LCBC policies implemented since 2005 have dramatically increased the number of liquor seats in the district.)

"With available seating for 6,700 in its licensed establishments, it is a magnet for crowds and has been a persistent trouble spot for the VPD," the report states. The body of the riot report notes that some "places report having line-ups as early as 9 a.m. Alcohol consumption in the bars and restaurants is not excessive, according to the bar owners association," the report states. "Despite the potential for some epic drinking over such a long session in the bar, as the day unfolds some bars report record food sales along with steady liquor volume. In general, licensed establishments will remain oases of reasonable behaviour."

Many months after the riot, back on Granville Street, the people staggering out of the bars hardly look as if they're leaving "oases of reasonable behaviour." However, if an accident or tragedy did occur, the fate of those involved would likely be decided by someone as sober as a judge.  [Tyee]

Read more: Rights + Justice

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