Originally sent to members of the CAFE committee.
I am writing you in your capacities as members of the Corporate Administration, Finance and Enterprise Committee and as those who have expressed an interest in the downtown bar situation.
By way of introduction, apart from being a 27-year resident of Guelph, I was the person who wrote the original Server Intervention Program (SIP), the first training in Ontario for bar managers and servers. It has since evolved into the Smart Serve program currently in effect for licensed premises. As of 2000, I have had a part-time “niche consulting business” (on top of my real work) acting as a consultant and expert witness in alcohol liability cases, most often where bars have over-served patrons who subsequently injure themselves or a third party. To date I have been involved in over 60 such cases, most of which involve alcohol-related injury and death from falls, violent acts, and motor vehicle crashes. As you might imagine, details regarding the injuries are unpleasant. Equally important, however, all are completely preventable.
The Liquor Licence Act Regulations state that licensees shall not “permit” drunkenness. Both the courts and the Alcohol and Gaming Commission of Ontario (AGCO) have defined the word “permit” as “fail to prevent”. Accordingly, if a bar fails to prevent intoxication, it is in violation of the law and opens itself up to administrative sanction (e.g., suspensions or licence revocation), provincial charges, and liability action. Smart Serve is used as the legal “standard of care”, prescribing the policies and procedures which bars should adopt in order to comply with the law. My work involves comparing the circumstances in any given case with the standards set out in Smart Serve – collectively, failures to meet the standard contribute to establishing liability. To date, awards by the courts have been as high as $9 million for a single plaintiff. Here in town, numerous licensees have been sued including, to my knowledge, the University of Guelph, the Manor, Trappers, Frank and Steins, and the e-Bar. All could have been prevented had Smart Serve been applied.
Many licensees argue that if they comply with Smart Serve, patrons will simply “go next door” where the standards are lax, and will be served. This suggests that monitoring all bars for compliance with both Smart Serve implementation and the Liquor Licence Act is the way to reduce patron intoxication and the attendant harm. There is good research that supports this position (available on request). It strikes me that the real problem downtown is that patrons are served to and beyond intoxication in licensed premises. If the bars knew that, as a group, they were being monitored and would be charged if they served patrons to intoxication, the practice would stop. Monitoring and enforcement is the answer.
It strikes me that, in doing everything but clamping down on over-serving, the city is turning a blind eye to the real problem and, in effect, enabling it. The message to both owners and patrons has to be that you can enjoy a few drinks in Guelph bars, but you cannot get drunk. Further to this point, staff should be posted at bar entrances to identify prospective patrons have been drinking prior to their arrival, and either deny entry to those who have or alert serving staff to limit their consumption.
Some bars, of course, will lobby against such a response. Often, this is because their business models depend on over-serving their patrons – why limit your revenue to $30 from a patron when you can get $60? Such logic, of course, will be unspoken, but is nonetheless real. This is exactly the circumstance where monitoring and enforcement strategies are needed. I suggest that your responsibility, as elected officials, is to act in the interests of the health and safety of residents and to take effective action to prevent associated threats. In my view, the over-service of alcohol in Guelph is a longstanding and serious example of such a threat.
I would be pleased to further discuss my position with you, together or individually, at your convenience.
The AGCO has just under 50 inspectors for the approximately 17,000 licensed premises across Ontario. I have met with the CEO of the AGCO, who bemoans this reality.
What is needed is a constant monitoring and enforcement presence so that owners’ perceptions (and the reality) are that there’s a high likelihood of being caught if you’re breaking the law. This is something that the local police service can do – it simply amounts to enforcing the Liquor Licence Act, and they’re in the area anyway. Once owners realize that charges are being meted out, over-serving will stop. Every owner, bartender, and server must be Smart Serve certified – training that establishes that they are prohibited from service t intoxication – but implementation fails when there is no external enforcement.
A trip downtown on a Friday night will show how there is absolutely no enforcement and that inebriated patrons are coming from almost every establishment. The incidents that have given rise to the lawsuits I have been involved with in Guelph alone are extremely serious and, as I said in the original email, entirely preventable. Brain damage, paraplegia and quadriplegia, and untimely death are common outcomes on top of the usual broken bones and acts of aggression and violence. What could possibly be the rationale for allowing this to happen? RS