The OLCC dismissed two “permitting” violations in Bradley’s Bar & Grill. In doing so, the case provides some useful guidance to existing licensees.
The Law. “Permitting” violations requires that the OLCC show two elements. The first element is a showing that the licensee had knowledge of the proscribed activity. The second element is a showing that the licensee failed to take reasonable steps to prevent or control the proscribed activity.
The proscribed activity may be unlawful activity, disorderly conduct, or having a minor in an area in which minors are prohibited. Knowledge may be shown in a number of ways: actual, constructive, or imputed. Constructive knowledge is where the nature of the proscribed activity was such that it would have been evident to persons working in the establishment. The knowledge can also be imputed to the licensee from one of the licensee’s agents or employees.
First Alleged Violation. The first alleged violation was that the licensee permitted unlawful activity when a patron sold drugs to a confidential reliable informant (a “CRI”). It was undisputed that the employee on duty had no actual knowledge that a CRI was attempting to buy drugs in the bar. In addition, it was not evident to persons working at the bar that the two patrons talking privately near the bar were negotiating a drug sale.
OLCC staff contended that licensee’s employees should have monitored the private conversation between the patrons and thus should have been aware of the drug sale. The Commission determined that that was not a reasonable expectation. Even if the employee in question had stopped performing their duties and focused entirely on drug transaction, the Commission determined that it would have not been evident to a reasonable person that a drug transaction was occurring.
Take Away Point. Licensees are responsible for taking reasonable steps to prevent drug activity at or adjacent to the licensed premises. If their employees become aware that such drug transactions are occurring or such activity becomes conspicuous, a licensee is responsible to taking reasonable steps to prevent such drug activity. That being said, if the drug activity is “surreptitious and subtle” and the licensee does not have actual or constructive knowledge of it, a licensee will not be sanctioned by the OLCC. The take away is that licensees should take care to train their staff to be observant of their surroundings and to report any criminal or suspicious activity to the manager or owner. Communication between staff and management is essential and there are a number of tools that licensees can put into place to mitigate risk here.
Second Alleged Violation. The second alleged violation was that the licensee permitted a minor to be on the licensed premises where minors were prohibited. For this type of violation, the knowledge element can be met either by showing that the licensee had (1) actual knowledge that the minor was on the licensed premises or (2) sufficient time and opportunity to detect and determine the minor’s presence at the premises.
In this case, it was undisputed that the licensee’s employee was unaware of the minor’s presence at the bar. As a result, the case turned on whether the licensee’s employee had “sufficient time or opportunity” to discover the minor.
The Commission has determined that 10 or 15 minutes is “sufficient time and opportunity” exists when a premises is busy. Here, the minor was in the bar for a little over 9 minutes and the bar was busy. The unique fact presented was that two other patrons that were sitting at the table where the minor was seated caused a disturbance for much of the 9 minutes. Accordingly, the server’s attention was rightfully focused on resolving the immediate situation. In this case, the Commission found that the server did not have sufficient opportunity to detect the minor’s presence because of the disruptive behavior of the other patrons. The disruptive behavior constituted an immediate public safety concern and required the immediate attention of the server.