A Policy Response to Reduce Alcohol-Related Risk in Municipal Facilities and Areas

• Introduction
• The Problem
• The Solution
• Policy Content
• Policy Strategies
• Where to Go From Here
• Community Alcohol Resource Guidelines For Responsible Drinking

INTRODUCTION

In recent years, several Ontario municipalities have adopted formal policies to address the consumption of alcohol in their facilities and other areas (including recreation centres, halls, arenas, lounges, parks, beaches, sports fields, and so on). It is predictable that this trend will become increasingly widespread over the coming decade.

It would be incorrect to interpret this trend as a move toward neo-prohibition. Rather, it represents a progressive move toward the responsible management of municipal assets by addressing two fundamental imperatives: a reduction in potential liability exposure (risk management) and an increase in community enjoyment of the facilities (client satisfaction). This article begins by briefly developing each of these themes. It then introduces a process to guide the development of local policies, and provides an overview of both policy content and associated implementation strategies.

THE PROBLEM

Over the past 25 years, drinking has become highly integrated into the leisure activities of the Ontario public. This is not a moral judgment, but simply a statement of fact. At present, about 83% of Ontario adults drink - as a point of reference, that's approximately 23% more than our U.S. neighbours. It is also true that most drinkers are responsible - that is, their drinking practices do not place them at risk of harmful consequences or problems (including damaged relationships, poor work performance, physical injury, or other health problems such as heart disease, cancer, or cirrhosis). One estimation formula suggests that up to 68% of Canadian drinkers can be classified as responsible (a list of responsible guidelines is included at the end of this article). While this may be a reassuring statistic, the other side of the coin is that 32% of all drinkers - one in three - do not drink within responsible guidelines and are at risk of problems.

By far, the most harmful consumption behaviour is drinking to intoxication. Intoxication is caused by the combination of having too many drinks and consuming them too quickly. The human body is only able to eliminate about 2/3 of a drink[1] per hour. Consumption levels which exceed this rate result in an accumulation of alcohol in the bloodstream, and create a positive Blood Alcohol Concentration (BAC). As alcohol in the blood circulates throughout the body, it enters the brain and impairs its ability to function. Physical coordination, vision, thinking, and judgment are all negatively affected. Accordingly, as a person's BAC increases, so does the risk of disruptive incidents and physical injury.

Because alcohol is an intoxicating drug, its sale and distribution is regulated by law, much of which is contained in provincial liquor licence acts. In Ontario, the Liquor Licence Act specifically prohibits the sale of alcohol "past the point of intoxication," and establishes liability for anyone who does not comply. This is known as statutory liability, as it is established in a provincial statute.

There is a second form of liability which applies to the sale of alcohol in Canada (with the exception of the Province of Quebec). It is known as common law liability, and is not embedded in any particular legislation. Rather, it exists in the form of legal principles which are considered and applied by the courts on a case-by-case basis. Previous rulings can be used as precedents, which accumulate over time as new applications of a particular principle are accepted by the courts.

A key to understanding alcohol-related liability has to do with where the buck stops. When more than one individual or organization can be shown to have contributed to an injury or death (through their negligence, for example), they can be held "jointly and severally liable." A feature of this principle is that if one party is unable to come up with its share of the cash award to a victim, then another more affluent party must pay the full amount, regardless of how little it was at fault.

For example, if a bartender and a municipality were found "jointly and severally liable" in a particular case, and an award of $1 million was granted to the victim, the municipality would have to pay the full amount if it turned out the bartender was without resources. This would apply even if the bartender was found to be 90% responsible and the municipality only 10%. Municipalities, of course, are well insured and for this reason are regarded as "deep pockets" by lawyers acting for victims.

In Canada, the common law base for alcohol-related liability has become well established over the past 15 years. If alcohol is consumed in municipal facilities or on municipal property, and somebody is injured or killed by a person who became intoxicated at the event, then the municipality may be named in any subsequent liability action. Such exposure applies whether the drinking was authorized (under a Special Occasion Permit) or whether the drinking was not authorized (for example, when a sports team drinks without permission at a municipal field).

There are two ways to reduce the exposure of the municipality to alcohol-related risk. The first is to minimize the incidence of intoxication at licensed events held in municipal facilities or on municipal property. The second is to ensure that drinking does not occur in municipal facilities or on municipal property where no licence has been granted.

Although it has been our principal focus so far, there is more to this issue than liability. Intoxicated people at licensed events and those who drink in unauthorized areas have direct effect on levels of use and enjoyment by others. People stay away from licensed events such as dances when there is a history of intoxication and rowdiness. For the same reason, they stay away from multi-purpose facilities on Friday and Saturday nights, even if they were not there to attend the licensed event. Parking lot incidents, rowdiness, and the demeanour of patrons are powerful persuaders to keep away. People stay away from arenas where beer gets spilled over them and brawls break out. People stay away from sports fields where drinking is open and widespread. People stay away from events and situations which expose their children to undesirable behaviour and to contradictory messages about the role of drinking and appropriate concern for safety. And finally, people lodge complaints with the police and with the municipality when they witness or are affected by inappropriate drinking.

These observations are not levelled from some moral high horse. Instead, they are constant themes brought forward in communities where we have assisted in the development of alcohol policies. The complaints are legitimate, and the complainants share a single sentiment: "Why are we forced to withdraw when we are the ones obeying the rules?"

There is no defensible response to this questions, other than to change circumstances so that the interests of people who play by the rules are given priority. This end, in addition to risk management, is addressed by the introduction of a local alcohol policy.

THE SOLUTION

An alcohol risk management policy, properly designed and implemented, is an effective preemptive mechanism. Liability risk will be eliminated, and user satisfaction will be high when two conditions are met:

These of course are ideal conditions, and real world circumstances suggest that they may not be immediately attainable. Nevertheless, significant movement toward the ideal will minimize risk exposure and increase user satisfaction levels (keeping in mind that even a single incident involving an intoxicated person can result in a law suit). In order to establish an effective policy and move toward the ideal, the following seven step process is recommended.

Step (1): Secure Stakeholder Involvement

Stakeholders include all groups that have an interest in the policy or will be affected by it. Each group should be invited to bring its perspective to the policy development process by nominating a committee member. Not all will accept, but the credibility of the product will be enhanced if it can be shown that all were invited. Accordingly, consider inviting sports league representatives, regular facility users (such as service clubs or dance organizers), the police (who have a major role in handling incidents and complaints), elected municipal officials, and parks and recreation staff members. Also consider including the voice of those who have been negatively affected by alcohol use in the past. For example, people who have registered complaints might be invited to join the policy development committee.

Step (2) Review Major Issues and Relevant Statutes

The policy development process only works when driven by informed participants. All principal issues must be identified and framed to clearly express benefits and trade-offs. Relevant statutes and regulations must be reviewed and placed into the specific context of local circumstances. Armed with such information, committee members will be able to discuss and agree upon a set of goals and principles in relation to their proposed alcohol policy. If goals are understood as the "ends" the policy strives to achieve, and principles as the guidelines within which the policy will operate, the stage will be set for discussion of the "means" - that is, the specifics of the local policy which will achieve the desired outcomes.

This step is pivotal. As policy development consultants, we believe that a facilitator who is knowledgeable in both process and content will add efficiency to the task and will ensure that all relevant issues are brought to the table. Also, an external facilitator is often well positioned to bring about consensus on goals and principles among committee members who may hold diverse perspectives. Failure to agree upon goals and principles will result in a less focused and less effective policy.

Step (3): Choose Options Appropriate to Your Community

The specifics of any local alcohol policy are shaped by the goals and principles mentioned above and by the particular circumstances of the local community. These circumstances include the range of facilities and other areas covered by the policy, and the specific uses to which they are subjected. Each must be examined to determine whether alcohol consumption is a relevant issue and, if so, what the associated risks might be. Once sources of risk are identified, committee members must develop creative responses to contain or eliminate risk levels. This function can involve adapting measures which have been implemented elsewhere, or it can involve developing an original response (which occurs with surprising frequency).

Again, a knowledgeable consultant is invaluable at this stage, providing key information about the range of program and regulatory options which can be applied to any policy issue. In addition, strong facilitative and design skills will assist in the development of creative solutions and achieving consensus among committee members.

Step (4): Develop a Draft Policy

The challenge for the initial draft is to articulate the goals and principles in a compelling manner (usually in the form of a preamble), and to present the policy elements in a cohesive and comprehensible way. Readers must first be persuaded that the goals and principles are reasonable and in the best interests of the larger community. Then, they must be persuaded that the policy elements are sensible measures to achieve the desired ends. The elements must be focused, effective, and implementable.

In other words, policy elements must clearly contribute to a reduction in the incidence of illegal drinking (in non-designated sites) and of intoxication (at licensed events) while causing little or no inconvenience to those who wish to play by the rules.

The task of writing the draft policy can fall to those who usually draft municipal by-laws or it can be undertaken by the consultant to the process. Once completed, the draft is usually circulated to committee members for comment and endorsement before moving to Step 5.

Step (5) Circulate the Draft for Public and Legal Review

This step requires careful management. Its sole purpose is to solicit considered and constructive feedback on the draft policy. Accordingly, much hinges upon the questions that are asked of potential respondents. Questions that tend to yield constructive responses include:

"Will the policy elements achieve the desired ends?"

"Will unanticipated or unintended consequences arise from any specific element?" (followed by: "How can it be corrected?")

"Are there alternate policy elements which will better achieve the desired ends?"

Comment should be invited in writing from any interested party, with the understanding that the feedback constitutes a suggestion for the consideration of the planning committee. Setting the stage in this way reduces the likelihood of people claiming that the feedback process is a sham simply because their suggestions were not adopted.

Notice that the draft is available for comment should be widely circulated. Committee members should be asked to generate a list of all individuals and groups to whom notice should be sent. This usually results in an extensive list, with few obvious gaps. In addition, it is advisable to place a public notice in the local newspaper(s) and to post notices on municipal bulletin boards. Allowing a period of one month for feedback is usually adequate.

Finally, the draft should be circulated to the municipal legal department (or equivalent) for review. The review rarely results in significant change, but is a necessary step for any text which will be put forward as a by-law.

Step (6): Modify as Necessary

The fact that responses must be in writing usually cuts down on frivolous or capricious suggestions. Those which are received can be condensed into a report which identifies proposed modifications along with the supplied rationale. This report is then circulated to committee members for their consideration.

In the meantime, committee members can consult directly with stakeholders and the general public. For example, a committee member who represents a sports league might want to talk to other league representatives, or a service club member might want to consult with the executives of other service clubs. This process allows committee members to consider ways to better achieve the desired policy goals.

A final committee meeting is held to conduct a clause-by-clause review of the draft policy. At this time, community feedback, consultation feedback, and thoughtful reconsideration of the issues by committee members is factored into the process. The purpose is refinement - to adjust the initial draft so that it is clearer, more effective, and minimally intrusive for those who comply with the spirit and letter of the policy. Modifications are discussed and adopted, either by vote or by consensus, depending on the preference of committee members. A final draft emerges at the conclusion of this step and, following legal review, is ready for consideration by local elected officials.

Step (7): Present Final Draft for Adoption by Council

The final step is adoption of the alcohol policy by the municipality as a by-law. The council member who sits on the policy committee should have kept elected officials apprised throughout the process, and should introduce the policy for formal consideration. It is then subject to the usual process for the passage of by-laws.

POLICY CONTENT

There are five major content areas usually addressed in a municipal alcohol policy. These include:

Area i: Conditions to Control Alcohol Consumption

A central component of a comprehensive risk management policy consists of a set of conditions to control alcohol consumption. A municipality can be held liable if it or user groups violate the Liquor Licence Act of Ontario by serving someone to intoxication, serving an underage participant, or serving someone who is already intoxicated.

A municipality can reduce such violations by requiring that certain conditions are met when alcohol is served. For example, they can accept only proper identification at the door, and refuse entrance to intoxicated or rowdy individuals.

In addition, serving staff can be required to monitor participants' intoxication levels and be prohibited from consuming alcohol themselves while on duty. A broad range of other conditions can be considered to control the amount of excessive drinking. Collectively, these conditions introduce barriers which make it difficult for patrons to violate the Liquor Licence Act, and thereby lower the potential for liability exposure.

Area ii: Conditions for the Sale of Alcohol

As noted earlier, the most harmful drinking practice in licensed events is drinking to intoxication. A risk management policy should introduce measures to reduce this practice, by placing controls on the sale and serving of alcohol. For example, limiting the number of tickets or alcoholic drinks participants can purchase at one time provides the ticket sellers, monitors, bartenders and servers with increased opportunity to observe participants for signs of intoxication. Participants can be limited to four tickets at one time rather than strips of twenty or an "all you can drink" admission ticket. Also participants can be informed that unused tickets will be refunded, thereby discouraging the tendency to consume end-of-event drinks rather than waste the tickets.

Several other measures can be adopted to discourage participants from becoming intoxicated. Serving practices such as selling beer in pitchers, offering double shots or spirits, and serving oversize drinks all promote over-consumption and should be eliminated. Policy committees should review these and other measures to reduce the incidence of intoxication, and select those which will be most effective in their local facilities.

Area iii: Low and Non-Alcoholic Options

Low alcohol beverages help prevent intoxication by providing drinkers with an opportunity to consume less alcohol while having the same number of "drinks". Low alcohol drinks also provide the servers with a substitute for those participants who may be nearing intoxication. A patron consuming two regular beers (at 5% alcohol) could drink three "very light" beers at 3.2% alcohol to ingest roughly the same amount of alcohol. Similarly, "light" beer (at 4% alcohol) represents a 20% reduction in actual alcohol intake. A municipality can encourage such substitution by requiring that a specific percentage of the alcohol available at the event consists of low alcohol options, and that it be actively marketed.

Providing non-alcoholic beverages such as coffee, soft drinks, and .5% beer offers the municipality another option for preventing problems. These beverages should be available and actively publicized throughout the event. A municipality can stipulate that a sign identifying available non-alcoholic and low alcoholic beverages be posted.

In addition to offering low alcohol and non-alcoholic alternatives, a municipality can require that they be priced to encourage use. For example, the price of a non-alcoholic drink can be set at half the cost of an alcohol beverage. Similarly, a low alcohol beverage can be priced lower than a regular alcoholic beverage. This strategy introduces financial incentives to further encourage reduced alcohol consumption.

Area iv: Accountability for Users

While the local authorities and Liquor License Inspectors are informed of the date and place of a special occasion function, they seldom have an opportunity to drop in and check on the operation of the event. Yet, the municipality and the user groups can be held liable if an individual is injured during organized events. Accordingly, a municipality should encourage user groups to become more accountable when alcohol is served under a Special Occasion Permit, and when the alcohol is consumed in a non-designated areas or non-licensed activities.

One option to reduce the potential impact of a liability action is to insist that a Special Occasion Permit holder obtain a minimum of one million dollars liability insurance. In so doing, the municipality is clearly communicating to event organizers that risks are involved in operating events where alcohol is consumed, and is protecting itself from substantial payout should the worst happen.

Posting signs stating the law on serving to intoxication and advising people where to lodge complaints can be a further reminder to user groups of their responsibility. Signs on serving to intoxication not only communicate the law to servers and bartenders, but also reinforce their authority to cut off over-indulgent consumers.

Finally, municipalities should consider posting signs in areas where alcohol cannot be consumed such as locker rooms, swimming pools, ice rinks, and baseball diamonds. Such signage further reinforces the municipality's commitment to ensuring alcohol is not consumed in non-designated areas and without a liquor licence.

Area v: Safe Transportation

The municipality and the user groups are most vulnerable to liability action when participants injure themselves or others. Developing safe transportation options is an adjunctive strategy to reduce the risk of injury. Municipalities can request that Special Occasion Permit holders provide safe transportation options for all drinking participants, including a designated driver program, a taxi service, or a chartered bus service. Safe transportation options should be promoted throughout the evening so that all participants are informed of the alternatives. They should not be viewed as a substitute for prevention, but rather a final line of defense when best preventive efforts have not succeeded.

POLICY STRATEGIES

The development of an alcohol risk management policy usually entails six principal tasks, as follows:

WHERE TO GO FROM HERE

The development of an alcohol risk management policy begins with the awareness of its benefits and the will to protect the interests of both the municipality and its residents. The decision to proceed often originates within the parks and recreation department, and is brought to municipal council for authorization to proceed.

There are many beneficiaries of an alcohol risk management policy. Municipal staff (including police) benefit from having clear guidelines on alcohol use and specific enforcement procedures. Facility users experience increased enjoyment without undue concern for disruption or injury from intoxicated people. Elected officials reduce liability risk, complaints, damage, and police involvement arising from drinking incidents. The benefits are tangible and worthwhile, and involve little or no intrusion into the activities of the overwhelming majority of facility users.

ENDNOTES

[1] A drink is 12 oz. beer (5% alcohol); 5 oz. wine (12% alcohol); 3 oz. fortified wine (e.g. sherry); or 1« oz. spirits (e.g. rye, gin, rum); all of which contain the same amount of alcohol.

COMMUNITY ALCOHOL RESOURCE GUIDELINES FOR RESPONSIBLE DRINKING

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Date: February 13, 1996
Prepared for: The Alcohol Policy Network
By: Jeff Cameron
Homewood Health Services
150 Delhi St.,
Guelph, ON, Canada, N1E 6K9
Tel.: (519)824-1010
Fax: (519)824-1827