Incident Logs: To Log or Not To Log Is a Question All Licensees Should Ask Themselves
The OLCC recommends that licensees maintain incident logs, but licensees must be mindful of how they maintain incidents logs or they could be used against them later.
OLCC Recommendations. The OLCC encourages you to keep an Incident Log. Per the OLCC, examples of when you should make an entry in the log include anytime you or your employees intervene to prevent or stop customer conduct such as:
- Refusing someone alcohol service
- Cutting someone off or removing a drink
- Arranging safe transportation home for someone who appears intoxicated
- Stopping an argument, fight, or assault
- Stopping other illegal activities
- Asking a noisy customer to be quiet as they leave or drive away
The OLCC also recommends putting other activities in your log, including whenever an incident is reported to the police or OLCC, whenever you receive a complaint from a neighbor, or any other time you think it necessary. The OLCC argues that the licensee will benefit from keeping an incident log because:
“Sometimes, complaints, investigations, or lawsuits do not surface until weeks, months, or years after the incident occurred. Gathering complete and accurate information immediately after an incident is one of the best ways to document how you and your employees handled the problem.”
Reason for Concern. The OLCC could potentially substantiate a history of serious and persistent problems violation solely based on a licensee’s incident log. In a recent decision, the OLCC made it clear that it considers incident logs to be sufficiently reliable to document a serious incident in a history of serious and persistent problems violation. In other words, entries in a licensee’s log book can be admitted into evidence at an administrative hearing and can be held against the licensee to prove a history of serious and persistent problems violation. The proposed sanction for such a violation is license cancellation.
The OLCC reasoned that the incident logs should be considered reliable because they would not be considered hearsay under the Oregon Evidence Code. Specifically, log entries fall within a hearsay exception as a statement made by a party opponent under ORS 40.450(4)(b) and as business records kept in the ordinary course under ORS 40.460(6). Because incident logs fall within these hearsay exceptions and would be admitted in civil litigation, the Commission concluded that incident logs are reliable under the applicable evidentiary standard set out in ORS 183.450(1).
The OLCC tries to soften this conclusion by pointing out that evidentiary value of incident logs would be reduced to the extent that there was not corroborating evidence or testimony concerning the events in the incident log. Even with that being the case, it’s clear that a poorly kept incident log can cost a licensee their license under certain circumstances.
Best Practices. Keeping an incident log can be very beneficial to operating a successful, profitable and compliant business. The three most important aspects of keeping a log book are:
- Regular review of the log book,
- Documentation of proactive steps taken in response to problems, and
- Training staff regarding how to draft a log entry.
Regular Review. To maximize the benefit and minimize the potential downsides, an owner or manager should regularly review log entries and should take appropriate steps in the light of documented incidents and trends in incidents. The best practice is to review the log books every day. If there is a serious incident, the owner or manager can investigate while the incident is still fresh in the minds of their staff. In addition, if the business has video cameras, the owner or manager can review the applicable video records and preserve copies of the videotape before they are recorded over.
Proactive Steps. If there is a troubling incident or trend in incidents, the business is well advised to take immediate steps to prevent or control the problems. The scope and nature of the proactive steps will depend on the scope and nature of the incidents. Getting ahead of problems can potentially prevent expensive and time consuming issues with the OLCC, law enforcement and the local government.
Drafting Entries. If you do not direct your staff in how and when to prepare a log entry, you should not be surprised if the log entry seems to highlight the severity of a particular incident and fails to mention how it was resolved. Specifying the basic components to an entry is a good first step, such as date, time, staff name, name of involved individuals, police called or involved, description of incident, proactive steps taken, etc. Entries in log books should describe the incident in plain English without undue commentary, i.e. “there was a huge fight on the patio tonight, more like a riot. We totally lost control of the crowd and it looked two people were almost killed …” The log should focus more on how the business quickly identified and resolved the issue.
Take Away. There are many reasons why a bar or restaurant should keep an incident log, but merely keeping an incident log without any regular review or follow up may do more harm than good. Licensees should consider incident logs to be one of many potential tools to run a compliant business, such as regular staff trainings, secret shoppers, video cameras, etc. Using the tool properly can be beneficial, but keeping an incident log just because you think it’s the right thing to do with no further action probably involves more risk than reward.
I regularly help clients review their compliance practices and would appreciate the opportunity to talk to you about your current practices and how to improve them going forward.