Intoxicated patron

Dealing with Intoxicated Patrons

Practical Advice to Limit your Liability

People working in the liquor industry have to be extremely diligent when dealing with intoxicated patrons, yet there are times when employees are unclear about their legal responsibilities and what they should do with those patrons. The Publican asked Insurance Defence Lawyer Lorne Folick some common questions that employees have asked, and he has provided some practical tips on what your staff needs to do.

Q What do you do when you realize, after you have already made a sale, that the customer might be intoxicated? You see the person stumble as he’s leaving, for example.
Commercial hosts owe a special “duty of care” to intoxicated customers to take positive steps (e.g., calling a cab to ensure a safe ride home) to protect both customers who become intoxicated and third parties (such as other drivers) who might encounter them from reasonable risks of harm.

Because the liquor establishment in this scenario knew the customer was impaired, it may be exposed to liability if that customer leaves unassisted and ends up injuring themselves or someone else. No further alcohol should be served to the customer. If that customer still has a drink in front of them, that drink should be taken away and a non-alcoholic drink suggested. The establishment should also take positive action (such as inquiring as to how the customer will be getting home and taking steps to prevent the customer from driving away) on the basis that an accident is reasonably foreseeable if the intoxicated customer leaves unassisted.

A customer who refuses to leave after being asked to do so is no longer a “patron” to the establishment and is instead a trespasser.

Q What do you do when an intoxicated customer gets mad, after being refused service, and refuses to leave?
Pursuant to BC’s Liquor Control and Licensing Act, liquor establishments are mandated by law to remove intoxicated customers from the premises. In complying with this statutory rule to eject an intoxicated customer, a liquor establishment is permitted to use force, which is reasonably necessary to remove that customer, in the event that the individual does not comply with a request to leave the premises.

There is also the option to notify the police if an intoxicated customer refuses to leave. A customer who refuses to leave after being asked to do so is no longer a “patron” to the establishment and is instead a trespasser, and can accordingly be charged criminally under the Trespass Act. A person convicted of trespassing can face a fine of up to $2000, or imprisonment for up to 6 months, or both.

Q Are employees allowed to physically remove disruptive customers?
Yes, liquor establishments are authorized by BC’s Trespass Act to remove disruptive customers and bar them from re-entry. In some situations, an establishment may have to take physical action to eject disruptive customers. However, as was noted previously, the degree of force used must always be reasonable in the circumstances.  In other words, a liquor establishment must take reasonable care to ensure that customers are removed from the premises.

Q When angry intoxicated customers hang around outside and threaten staff, why won’t the police take calls seriously and respond?
In short, it appears to be less of an issue with police “not taking calls seriously” and more of an issue to do with a lack of police resources to handle the volume of calls concerning social disorder problems.

A 2007 VPD Patrol Deployment Study found that “licensed premises seating capacity has increased by 20% from 1998 to 2001 within the downtown core. The impact on police resources has been most significant within the Granville Mall area, where late night bar crowds and intoxicated persons have created social disorder problems for police (e.g. assaults, disturbances, noise, intoxicated persons).”

A report from the VPD to Vancouver City Council in 2007 on the downtown “Entertainment District” also found that statistics showed a rise in calls to the police following the implementation of the extended hours for liquor establishments in the Entertainment District.

The same report observed that due to the Entertainment District being “plagued with disorder”,  which meant that police resources “have been taxed on the weekends in particular, having to deal with this disorder in the Entertainment District, which results in a lack of appropriate police service for the rest of the District.”

Note as well that a single large fight may utilize a considerable amount of police resources, resulting in diminished assistance elsewhere.

Liquor establishments can help ease the resource load on officers and correspondingly receive faster response times by complying with any “disorder reduction initiatives” that may be implemented by the VPD.

Q Explain the policy where the last licensed establishment that an intoxicated person enters is responsible for that person’s well-being, even when that person has not been sold alcohol at this location.
Regardless of whether someone who enters a licensed established is served alcohol or not, the establishment is required by law as an “occupier” (i.e., someone who has control over the premises) to take reasonable, context-sensitive care to ensure that all visitors are safe while on the premises.

Generally speaking, if a person is not served and sold alcohol at a liquor establishment, that establishment’s “duty of care” to that person will not extend beyond the immediate walls of the establishment to encompass injuries that occur off-premises.

Q Are employees responsible for calling taxis for customers who enter the store but are too intoxicated for service? Should they take their keys away?
The courts have been unwilling to impose an “unlimited” duty on licensed establishments to protect visitors who have not actually been served by the establishment. For a liquor establishment to be obliged to actually detain someone (by taking their keys) and prevent them from leaving, when the establishment had no role in creating the risk, would be an onerous and unrealistic duty. Commercial hosts cannot assume responsibility for all drunk-passersby. A liquor establishment could call the police if a visibly intoxicated person is clearly going to drive away, but even then, it is highly doubtful that a court would say the establishment was under an actual duty to do so.

Q What do you do if you refuse service due to over intoxication, but the customer insists he has a medical condition and is not intoxicated?
Although a liquor establishment can and must refuse to serve someone who is intoxicated, it cannot do so if the person is sober and simply has a disability. To make an informed decision as to whether a person really does just have a medical condition and is not intoxicated, the establishment staff should engage the patron in conversation to determine whether the conduct is due to a disability or the imbibing of alcohol.

A liquor establishment is obliged by law to refuse or discontinue service when a customer shows signs of intoxication.

Q Do you have to refuse service to regular customers that you know are alcoholics and physically “need” alcohol, if they just seem a little tipsy and you know they are walking?
Irrespective of whether a chronic drinker “needs” alcohol, a liquor establishment is obliged by law to refuse or discontinue service when a customer shows signs of intoxication. If a chronic drinker known to the establishment is already showing mild signs of intoxication, it is entirely possible that he or she has already consumed enough alcohol for a non-alcoholic person (who has not built up a tolerance) to be visibly intoxicated. If a customer walks away from a liquor establishment and then staggers into traffic due to intoxication, the establishment could be found liable. This actually happened in Jordan House Ltd. v. Menow, [1974] SCR 239.

Q How do you deal with customers who you can tell are on drugs, but are not necessarily drunk?
If a customer is clearly on drugs, a liquor establishment should ask that person to leave. If that person refuses, he or she ceases to be a welcomed “patron” to the establishment and instead becomes a trespasser. The liquor establishment is entitled under BC’s Trespass Act to remove and bar that person from re-entry.

A customer smelling strongly of marijuana should be denied service and asked to leave the premises. A drug like marijuana can intensify symptoms of intoxication, leading to unpredictable behavior, and may make the person more intoxicated than they would be if only alcohol was involved in the “intoxication”. The risk of a motor vehicle accident occurring when drugs are used in combination with alcohol is also heightened.

Lorne Folick is a partner in Dolden Wallace Folick and is a regular speaker at ABLE BC’s educational events.