Alcohol and CannabisRisks and Mitigation Post-Legalization
The legalization of recreational cannabis in Canada marks the end of cannabis-prohibition, and a new landscape for commercial hosts. Patrons have ready access to alcohol and cannabis. Commercial hosts therefore find themselves with potentially more “high” and “drunk” patrons.
It is well established that commercial hosts have a duty of care to their patrons and others who their patrons may encounter, to not “overserve” their patrons to intoxication. Post-legalization, commercial hosts must turn their minds to cannabis and alcohol when considering intoxication. Following are some questions that pub and liquor store staff have recently asked.
Q. How does a server/liquor store employee know if someone is impaired/high to deny service?
A. Precisely speaking, they can’t. As with alcohol-intoxication, liquor licensees and their employees must focus on their observations and exercise reasonable judgment to decide if a patron is likely intoxicated by alcohol and/or cannabis in order to deny service.
The key consideration is knowing what to look for. Consider that the co-use of alcohol and cannabis can produce a more “intensified” intoxication compared to either one alone. Cannabis can make a person appear more intoxicated than they should be in relation to the amount of alcohol consumed. In this sense, licensees can rely on existing alcohol-service policies to identify intoxicated patrons.
Specifically, licensees and staff should be vigilant to monitor for:
· Patrons who appear to be staggering, have an unsteady gait, or are slurring their words.
· Patrons who appear to be acting in a rude or otherwise obnoxious manner.
· Patrons who display a sudden and drastic change in behaviour.
· Patrons who smell like alcohol and/or cannabis.
· Patrons who appear to have bloodshot or glassy eyes.
· Patrons who appear dizzy, confused, drowsy, or disoriented.
· Patrons who are seen using cannabis.
In any event, licensees must always remember signs of intoxication do not necessarily mean a patron is actually intoxicated. The key is prudent observation and the exercise of reasonable and professional judgment. This includes asking patrons about their consumption directly, or otherwise making reasonable inquiries. Nonetheless, when uncertain, licensees should always err on the side of caution and exercise their right under the law to refuse service.
Q. Can I serve or sell liquor to someone who smells of cannabis?
Yes. The law neither permits nor prohibits a liquor licensee from refusing entry or service under this circumstance. A licensees’ duty is to avoid overserving to intoxication. This does not necessarily mean refusing service to any patron who has already consumed some alcohol or cannabis. As with alcohol, just because someone smells of cannabis, does not necessarily mean they are intoxicated such that they should be refused service.
That said, if a person smells of cannabis and appears intoxicated by cannabis, alcohol or any other substance, then a licensee should refuse service. This is in line with observing for signs of intoxication by alcohol or cannabis.
Licensees continue to be responsible for controlling their establishment and the behaviour of patrons. Smelling cannabis or liquor on a patron is a good indication that the licensee or their staff should monitor that patron’s liquor consumption within the establishment. It is always best practice to monitor all signs of intoxication.
Licensees must also remember that a person who smells of cannabis may have used medicinal cannabis. If this is the case, licensees must be mindful not to discriminate against such patrons on the basis of their use of medicinal cannabis. Individuals with prescribed medical cannabis needs, would be protected specifically, like disabled persons, under human rights legislation such as the BC Human Rights Code and the Federal Charter of Rights and Freedoms. Of course, while a person is allowed to possess medicinal cannabis, they must provide the necessary proof of authority to possess it.
In short, establishments cannot refuse service to such individuals solely based on their medical needs. Accordingly, licensees must keep this consideration in mind in balancing their duty to avoid overservice and discrimination. For example, in the Canadian 2011 Ontario human rights case, Ivancicevic v. Ontario (Consumer Services), a person who was authorized to possess medical marijuana argued that a regulation under Ontario’s Liquor Licence Act was discriminatory because it prohibited him from possessing or using marijuana in licensed establishments. The Human Rights Tribunal found that the regulation was discriminatory but agreed that accommodating the complainant would result in undue hardship to the restaurant because of the possible pharmacological and toxicological effects of second-hand marijuana smoke on other patrons.
Q. Where can people consume cannabis? Can customers consume on a licensed patio?
In BC, adults can generally smoke or vape cannabis in a public place where smoking and vaping tobacco is allowed. However, no smoking or vaping of medical or non-medical cannabis is allowed:
· On patios that are public places, such as food primary, liquor primary or manufacturer patios (there are some liquor establishments in BC with a tobacco smoking area on their patio. Cannabis still cannot be smoked or vaped there).
· Within 6 metres of a doorway, window or air intake.
· At playgrounds, sports fields, skate parks, swimming pools and spray pools, and on any decks or seating areas associated with those places.
· In regional and municipal parks, except for designated campsites.
· In provincial parks, except for areas identified or designated by a sign or a park officer.
The reason a person cannot smoke or vape cannabis inside a licensed establishment has nothing to do with the liquor licence or permit, but rather that no one can smoke or vape cannabis in a substantially or fully enclosed workplace. Like tobacco rules, this protects establishment staff from secondhand exposure. This restriction applies to both medical and non-medical cannabis.
Also remember, a business, other than one holding a recreational cannabis retail store licence, cannot provide cannabis to anyone. Therefore, establishments such as food primary or liquor primary establishments cannot use cannabis in their cooking as an ingredient. Additionally, under the Federal Cannabis Act, establishments (including liquor manufacturers) cannot infuse liquor with cannabis products or sell any mixture of substances that contain cannabis and alcohol, caffeine, or nicotine.
Q. Does an establishment need to have a designated smoking area for cannabis?
Not necessarily. As discussed above, there are restrictions on the consumption of cannabis in licensed establishments, including on licensed patios. This is to protect establishment staff from secondhand exposure.
That said, as with rules regarding tobacco smoking, a licensee could direct patrons outside their establishment and associated perimeters (e.g. within 6 metres of a doorway, window or air intake) where cannabis consumption may be allowed, subject to other public consumption restrictions. If the establishment designates cannabis smoking or vaping areas, remember that cannabis smoking or vaping is not allowed: on patios that are considered public places, or within 6 metres of a doorway, window or air intake.
Furthermore, all licensees must remember section 37 of the Cannabis Control Regulation prohibits a person from marketing, advertising, or promoting any place as a place to consume cannabis or spend time after consuming cannabis. Therefore, a licensee cannot market a cannabis smoking area as part of promotions for their business, but can provide a designated smoking/vaping area for patrons when they are on-site.
Q. Can I post signage banning (or permitting) cannabis smoking and what language should I use on the sign?
A liquor licensed establishment can have a house policy that prohibits cannabis smoking or vaping on its outdoor property, or limits it to certain areas. This applies to properties of any size.
Because smoking or vaping cannabis in a private place, or in an open air public place that is not a patio, park, playground, or other prohibited place, is not against the law, enforcing a house policy prohibiting smoking or vaping cannabis on an establishment’s outdoor property is the responsibility of the licensee. If the licensee has trouble with a patron who refuses to cooperate with staff and becomes troublesome, the licensee can ask the police to remove that person.
Keep in mind though, that there is no prohibition in provincial law against patrons bringing cannabis products into a liquor establishment. In this way, it is no different from tobacco. Moreover, consider again the human rights implications of restricting cannabis use, which would apply to cannabis possession. As such, a sign banning possession altogether may raise potential human rights/discrimination concerns. Further, consider that like preparing a cigarette, it is legal for patrons to prepare joints within the liquor licensed area, provided they do not smoke them. Thus, you cannot prevent someone from preparing cannabis for consumption within your establishment (i.e. rolling a joint).
In this sense, a sign prohibiting cannabis consumption should say explicitly that cannabis consumption is banned in or around the establishment.
Q. Do I need to update my house and employment policies?
Yes. House policies should be updated to reflect the emphasis on both cannabis and alcohol intoxication as an increased risk. Specifically, licensees should revise their policies and retrain staff regarding cannabis rules.
Policies should reflect the need to accommodate the greater risk posed by recreational cannabis users. For instance, with respect to preventing intoxication, licensees could consider including in their policies the following mandates:
· Observing for patrons seen using cannabis outside the premises;
· Observing for patrons who smell like cannabis;
· Monitoring and refusing further service of alcohol to patrons who appear “high” even if they have had little to drink;
· Observing for patrons who are not using alcohol, but who are otherwise intoxicated from cannabis, and taking reasonable steps to ensure they do not leave their premises and operate a motor vehicle; and
· Having protocols, policies and training for staff in place to deal with “intoxicated” patrons.
As far as employment policies, revisions are not necessarily required. As the federal government notes, impairment in the workplace is not a new issue, and is not limited to cannabis. An obvious comparison is employee alcohol use in the workplace.
The provinces will be responsible for workplace safety with respect to cannabis. And while available, employers do not necessarily have to rely on specific cannabis legislation to govern workplace use of cannabis, but instead implement their workplace rules pursuant to existing workplace safety legislation. Employers have always and will continue to have the right (and duty) to ensure a workplace is reasonably free of risk to their employees’ health and safety—it is up to each employer to determine appropriate workplace conduct, policy, and procedures relating to cannabis. As such, legalization does not mean employees can simply consume cannabis at work or come to work impaired. Specifically, employers can restrict their employees’ use of cannabis at work and during working hours, which also means they can restrict cannabis use at least immediately prior to working hours.
Q. What changes have been made to SIR and do I need to recertify?
BC’s mandatory certification for liquor licensees, Serving It Right, has been updated to train licensees and staff on the safe service of alcohol in relation to legalized recreational cannabis. While Serving It Right already speaks to drug consumption, legalization requires greater emphasis with respect to the co-use of alcohol and cannabis. The new updated SIR addresses this issue.
Specifically, the Serving It Right course and manual have been updated to include information about:
· federal and provincial recreational cannabis regulations, including criminal legislation;
· the effects of cannabis use;
· the co-use of alcohol and cannabis, and resulting effects; and
· policies and procedures with respect to alcohol and recreational cannabis.
Liquor licensees and their staff can access updates at no charge. However, owners or managers may require staff to update their certifications at any time and would be charged to recertify. For more information, consult go2HR that administers the Serving It Right program: https://www.servingitright.com/index.html.
Lorne Folick practices exclusively in specialty insurance defence litigation. Lorne has advised clients and stakeholders on the emerging cannabis sector.