Too Drunk To Drink Any More --- Says Who?

Because of an incident that claimed three lives this past summer and has now resulted in 16 staff members, managers and executives of an Ontario golf club being charged with serving the victims too much alcohol, not just golf clubs, but owners of all clubs with liquor licenses and patrons throughout Canada will be watching closely when this case goes to court later this month.

Who is responsible for determining the condition of a patron when it comes to consuming alcohol . . . the customer paying the bill or the employee taking the order?

This is not entirely a new situation but the number of defendants together with the severity of the charges and their potential penalties make this a compelling case.

That's why BC Golf News would like to share the following articles.

By JOSH WINGROVE and TIMOTHY APPLEBY
The Globe and Mail

The fallout from an infamous Muskoka crash last summer that killed three young men and prompted sweeping changes to provincial driving laws continued yesterday as 16 staff members, managers and executives of a golf club were charged with serving the victims too much alcohol.

On July 3, Tyler Mulcahy, 20, his two friends and girlfriend left Water's Edge restaurant at Muskoka's posh Lake Joseph Club golf course. Mr. Mulcahy's father, citing police information, has said the group had 31 drinks in a few hours.

Soon after leaving, the young man's Audi lost control and flew off a winding road, landing in the Joseph River. Mr. Mulcahy and two others died. Police said speed and alcohol were factors.

The deaths prompted changes to Ontario's laws for young drivers. Now, ClubLink Corp., which runs the Lake Joseph club, and many of its staff and directors each face two charges.

"The take-home message is that we take these types of breaches seriously," said Ontario Provincial Police Inspector Ed Medved, who heads the Bracebridge detachment investigating the crash. "You can't just go out and sell drinks to people without consequences, the law is quite clear on that."

Toronto Liquor licensing lawyer J. Randall Barr said such cases are serious, but not uncommon, and rest upon whether the golf club knowingly overserved the group, and allowed them to drive away.

"Basically, what [the defendants] have to do is establish that there's no negligence, and that's going to be something difficult for these people," Mr. Barr said.

The King City-based ClubLink Corp. and the 16 accused will now each face both an Alcohol and Gaming Commission of Ontario review and provincial court proceedings.

The 16 accused - just three of whom were working at the restaurant that day - are due in court in Bracebridge later this month. They're charged with supplying liquor to people who are apparently intoxicated and permitting drunkenness on a licensed premises, a lesser charge.

"The provincial prosecutor ... wanted to make sure no one was missed," Insp. Medved said. The AGCO can now choose to suspend the liquor licence of the Lake Joseph Club immediately pending an upcoming hearing.

Scott Davidson, ClubLink's vice-president of corporate relations, who is among the 16 accused, said yesterday that on the advice of its lawyers, the company would make no comment.

Police and the AGCO have access to toxicology reports on Mr. Mulcahy and the two other men, Cory Mintz, 20, and Kourosh Totonchian, 19, including blood-alcohol levels that have never been made public. Evidence may also include testimony from the lone survivor, 19-year-old Inez Elzinga.

Beyond saying that "there were quite a few drinks consumed," Insp. Medved would not comment yesterday on how much alcohol was involved.

Mr. Barr, an expert who has not been retained by any of the parties in this case, said the club could be held responsible if it's proved that its staff willingly continued to serve the young people despite possible signs that they were becoming intoxicated.

"They [the defendants] may have a very tough case here, because there may be some very strong forensic evidence in play, that you often don't have," he said. "Once they do an autopsy, basically the alcohol in the blood of these boys is frozen in time."

Although the Liquor Licence Act charges are not criminal in nature, they can result in hefty penalties.

In this instance, ClubLink faces fines of up to $250,000 on each of its two counts, if convicted, while the 16 individuals could be fined up to $100,000 each, and/or receive sentences of 12 months in jail.

More important to the company is the prospect of the AGCO applying to suspend or revoke the club's liquor licence, Mr. Barr said. Set amid thick forest and granite rock, the Lake Joseph Club was hailed in 1997 as the best new golf course of the year.

After the crash, Tim Mulcahy, Tyler's father, campaigned to persuade the Ontario government to tighten laws for young people around speeding and drunk driving. He said publicly that he didn't know his son had previously received speeding tickets, and that had he been more severely punished for them, he wouldn't have been driving that July day.

Mr. Mulcahy set up a website in his son's name, and paid tens of thousands of dollars to take out advertisements.

Late last fall, Mr. McGuinty pointed to the crash in introducing the tougher legislation. Among other things, Ontario's proposed changes will impose zero-tolerance rules for alcohol on any driver aged 21 or under, and under a new graduated licensing scheme would also increase the time it would take to obtain a full licence.

Tim Mulcahy, reacting to the charges last night, said liquor licence laws are just "asking other people to enforce laws ... who are not police," and that "it looks like the OPP want to set a precedent."

He's hopeful the changes he fought for will save lives.

"I haven't pushed for [charges] in any way, shape or form. I'm not looking for blood," he said. "I never really felt that anyone was responsible except Tyler."

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By IAN HUTCHINSON
Golf News Now

Whatever happens with the allegations made against ClubLink Corporation, directors and employees earlier this week, it would be prudent to contemplate what effects this incident and others could have on the entire Canadian golf industry.

ClubLink and 16 individuals face two charges each - supplying liquor to people who are apparently intoxicated and permitting drunkenness on licensed premises - after a car accident claimed the lives of three young people who were allegedly drinking at the Lake Joseph Club near Port Carling, Ont., last summer.

Another passenger was injured.

If convicted, ClubLink could receive fines of up to $250,000 for each count and the individuals could be fined up to $100,000 and receive 12-month jail sentences.

The accused are to appear in court on Jan. 27, but there have been other incidents before the ClubLink charges that suggest the golf facilities need to rethink policies on alcohol abuse on their premises.

"It certainly looks like somebody in Ontario has decided to step up the enforcement. This is the first time that we've seen charges against all those individuals," said Jim Hylands, vice president of Simmlands Insurance Brokers, which insures hundreds of golf clubs across Canada.

"We have certainly seen fines levied against a golf club that over-served. We've seen licence suspensions against a golf course that over-served," he added.

"We insure somewhere between 500 and 600 golf clubs in Canada right now and we see a minimum of four or five lawsuits a year, directly resulting from alcohol service at golf clubs and that's over and above those situations that don't result in enough injury to result in a lawsuit."

One ramification of such cases is that insurance rates could soar in the near future, according to Hylands.

"The typical golf course is not located on a bus or subway route, so the only way they're getting home is to drive. The lawsuits don't necessarily involve driving either," said Hylands. "All it takes is an impaired patron to fall down the stairs on the way out and you are responsible for their injury, according to the law."

"Golf clubs have not been a target yet of the authorities and the lawsuits per se, so the impact on the insurance hasn't really been there yet, but it will unless the industry gets control of it. It will start to impact certainly, both in rates and in coverage," he said, adding insurance in Canada could reach American levels.

"Certainly, in the U.S., purchasing host liquor liability insurance is much more difficult and at about 10 times the price," he said.

Hylands adds that responsible serving programs such as Smart Serve in Ontario, where the charges against ClubLink were laid, are well worth the investment for both employees and employers, whether or not they are mandatory depending on which province the golf club is located.

However, employees also need the backing of the club in order to benefit from such programs.

"One of the problems that the Smart Serve people tell us is that they can train the waiters and waitresses in the golf club bars, but these people tend to be young people - 20, 21, 22, 23 years of age. It's a summer job. They're going to university," said Hylands.

"They find themselves in situations where they are being required by law to refuse liquor service to senior members at the club, sometimes board members, sometimes the club president," he added.

"Remember, the person that they are dealing with is already impaired, so even if normally they are reasonable people, they're not necessarily reasonable when impaired."
"There is no way that that waiter or waitress can enforce no-service liquor policies and rules unless they know, without a doubt, that they will be backed up and supported 100 per cent by the management, the owners, the directors and the members of the club.

"If they don't have that assurance and know that that's the way it is and know that it's required that they say no, they will automatically buckle under and serve the loud, obnoxious member who's demanding a drink."

The charges against ClubLink and the individuals have not been proven in court yet and Hylands emphasizes that many golf facilities are responsible, while others would prefer not to serve alcohol at all.

"They have to respond to what their consumers are demanding," he said. "Even to the small golf club owner who may feel that it's more trouble than it's worth, that it's creates more issues than it's worth, if he doesn't provide a liquor permit then, quite frankly, his patrons go elsewhere."

That can create several challenges, including a patron who consumes several drinks on the golf course, then heads to the bar for more.

Hylands says there is now software that can transmit information from the beverage cart back to the bar about how much is consumed by each patron, but there is also the possibility that the golfer has hidden alcohol in his golf bag.

The best solution, he says, is for golf clubs to adopt a zero tolerance policy on excessive drinking and he says he knows several across the country that have done just that.

"We know of a number of golf clubs that have very, very strict policies regarding alcohol consumption on the premises," he said. "Their position largely is that drinking to the point of impairment will not be tolerated, it is not acceptable at their clubs.

"The board of directors issue clear, written instructions to their staff that they are to impose the liquor act rules, they are to cut people off, they are to ask for car keys, they are to provide taxi service to get these people home.

"If a member refuses to turn over their car keys and leaves the club with the apparent intent of driving home, the staff is required to call the provincial or local municipal police immediately and report the vehicle.

"The other side of that is that the board of directors issues very clear warnings to members that failure to comply with the rules and arguing or creating a problem for the staff when you're told no more are grounds for cancellation of membership," he said.

Whatever happens with the charges against ClubLink, the golf industry should have already gotten the message from the potential severity of those charges.

"The good that may come out of it is that it rings the alarm bells and it may be a wake-up call for everybody else to realize that you could be next," said Hylands.

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By SHANNON KAR
National Post

Analysis: Bar owners and their responsibility for our drunkenness

The liquor license charges stemming from a high-profile fatal crash in Ontario cottage country have raised questions about the obligations imposed on bar owners and employees. Simply put, how drunk is too drunk?

Put another way, sellers of alcohol are engaged in a legal activity when they provide drinks to patrons. But somewhere in the course of an evening, that legal action can become illegal. Determing the tipping point can be an uncertain business.

The Ontario Liquor Licence Act, which is similar to the provisions in other provinces, is awash with rules for bar owners, such as a minimum price for beer or rules on serving food. There was even a special regulation included to permit beer service for spectators at the recent World Junior Hockey Championships in Ottawa, because most of the hockey players in the tournament were under the age of 19.

The regulatory scheme is increasingly trying to turn bar owners into "babysitters" for their customers, suggested Toronto defence lawyer Todd White, who successfully defended a bar owner who was charged criminally in 1999 when an alcoholic customer fell down and died.

"In this politically correct society we have got now, what is never on the table is a voluntary assumption of risk. It is the government pointing fingers at people," said Mr. White.

Not only are bars not permitted to serve drunk customers, the regulations impose a positive duty to remove the patrons if they are intoxicated, with a reasonable amount of force, he noted. They could also be liable for a civil lawsuit if the customer does not get home safely.

And while there is an accepted level of alcohol in the blood that detemines whether someone is "impaired" for the purposes of operating a vehicle under the law, there is no such standard for "intoxicated."

"Intoxicated is not simply impaired," said Toronto defence lawyer Greg Lafontaine. "Intoxication requires you to be in a state where you are unable to care for yourself," he said.

The definition of intoxicated became pertinent again when Ontario Provincial Police announced on Monday that 16 individuals and ClubLink, the company that owns the Lake Joseph Golf club, have been charged under the Liquor Licence Act.

Three employees and each of the company's officers and directors have been charged with permitting "drunkenness" on a licensed premise and also of

violating a section that makes it an offence to serve someone who is intoxicated or appears to be intoxicated.

The charges were announced nearly six months after three Toronto men died when their car flipped over on the highway and ended up in the Joseph River.

An Ontario judge noted that to be legally intoxicated, someone must be "very drunk", in a 2004 decision that referred to principles explained by an Alberta court.

The Ontario Divisional Court noted last year that intoxicated and "drunkenness" are similar concepts.

If the Crown proves that the customers were legally intoxicated, a bar has a "positive obligation to ensure it is not serving drunk people," said Mr. Lafontaine, who is not acting in the ClubLink case.

The courts have conceded that the legal test is not easily defined, which may make it harder for bars to comply with the law.

"What constitutes drunkenness is very much a subjective assessment," the Ontario Divisional Court said in another case last year involving liquor licence charges against a bar.

While it is not uncommon for the Alcohol and Gaming Commission of Ontario to issue a complaint that could lead to a fine or suspension of a liquor license at a bar, the Lake Joseph Club case is unusual in that it is rare for police to lay charges against so many individuals in a company for alleged liquor act infractions on a single day.

It is also one of the most high-profile liquor act prosecutions in Ontario, in an area where offences normally result in a quiet plea bargain in provincial court, usually resulting in a fine.

"It is unusual," conceded Constable Maureen Tilson, a spokeswoman for the OPP detachment in Bracebridge. "It is because the accident was horrendous.

Three young people were killed," said Const. Tilson.

The charges are not criminal, but provincial offences. They still carry a maximum penalty of fines of up to $250,000 or a jail term of 12 months.

As a result, the provincial Crown must first prove beyond a reasonable doubt that the three men and their female friend were either intoxicated or appeared to be intoxicated.

Mr. White suggested the Club Link charges, especially those against the directors of the company, was an example of "over-reaching" by police.

"It is about disorderly conduct," said Mr. White, who explained that the relevant section of the liquor act also requires bars to prevent "riotous" and "quarrelsome" conduct, as well as drunkenness.

A spokeswoman for the Alcohol and Gaming commission said yesterday there is an "ongoing" investigation of the events at the Lake Joseph club last summer and it could lead to a licensing hearing.

"We are doing an investigation for what we do," said Lisa Murray, who added that the club has not faced any previous sanction by the commission.

The ClubLink defendants make their first appearance in court on Jan. 27.