The Safety and Licensing Committee met 01/26/2022 and took up Resolution #1-R-22 Intoxicated Bartender Ordinance. If passed as written, the resolution would make it unlawful for a bartender to serve alcohol while intoxicated, and would give police the authority cite/arrest the individual as well as to request they take a breathalyzer test. Refusal to take a requested test could be considered grounds for revocation, suspension, non-issuance, or non-renewal of the person’s operator’s license.
Alderperson Michael Smith (District 10) was the author of the resolution. He was also chairing the committee meeting because Alderperson Katie Van Zeeland (District 5) who is the chairperson of the committee was appearing remotely.
He read the text of the resolution and asked for a motion. Alderperson Sheri Hartzheim (District 13) moved to deny, seconded by Alderperson Van Zeeland.
Alderperson Hartzheim said that the freedom lover in her felt that this resolution was excessively litigious. She didn’t think there was a need for it in the City of Appleton and that the information presented in the memo to the committee affirmed there was no need given that there were only six incidents on record all of which had been resolved.
Alderperson Smith said that this resolution came to him during the discussion of demerit violation issues. The Police Department felt that this was a tool needed for rare occasions. During his discussions with Police Lieutenant Adam Nagel and Police Chief Todd Thomas about the resolution, he had told them he thought it would be a hard sell since there were only six incidents.
Lieutenant Nagel had emailed him about it, and Alderperson Smith now read that email to the committee. “I would understand either way and appreciate the work you’ve put into it. I think having an intoxicated bartender ordinance is important. We currently do not have a way to deal with a bar when a bartender is intoxicated and appears to be making a poor judgement. We have an ordinance addressing overserving, but nothing to address the state of the person serving the alcohol. I would imagine a responsible business owner would want their bartenders to be sober and would want those issues addressed. We should be holding bartenders to a higher standard. We take their application process seriously and should continue taking how they serve alcohol seriously. An intoxicated bartender cannot responsibly serve alcohol. I’m not sure what the Chief will cover, but it might be helpful to talk about an officer needing probable cause to address this issue. We cannot randomly ask a bartender to submit to a PBT.” [PBT stands for Preliminary Breath Test.]
Alderperson Smith said that this tool was not meant to allow police to walk into taverns and perform a search, but rather to allow them to respond to incidents as they are called in.
Chief Thomas said Lieutenant Nagel had done a nice job documenting as best he could the incidents and reports they had in Appleton. “It’s not a huge problem as you can see. The six incidents were the ones we were able to locate.” He did think here were other incidents with intoxicated bartenders that didn’t end up in a report or as a citation.
He reiterated that the police saw this resolution as more of an education tool. If they did get called to an establishment because of a fight or disturbance and the bartender was over the limit, this would give them the ability to call the establishment’s license holder and have them replace the bartender with one who was sober, issue a citation, complete a report, and forward the report to the Safety and Licensing Committee to consider suspending or revoking that person’s liquor license.
He said, “It’s a tool. As noted, we don’t have a lot of incidents. We have a lot of establishments and a lot of calls to those establishments in the city, so it would be nice to have.” Neenah has had a similar ordinance since 2013 and their current city attorney does not recall anyone ever getting cited under it, but it was used by the Neenah Police Department as an educational tool.
Alderperson Van Zeeland pointed out that, in the incidents referenced in the memo, the people involved were issued citations. It was also her understanding that when an establishment had officers respond to incidents that that counted as points for the demerit system.
Assistant City Attorney Nicholas VandeCastle said it depended on if there was a citation. A citation and conviction would need to happen for demerits to be issued, which had not happened in some of the six incidents. Just the mere presence of police was not enough.
Alderperson Van Zeeland said that the number of times police had been called to an establishment was a metric that appeared on license applications that had come before the committee. Overall, she just didn’t see a need for this resolution and thought business owners typically didn’t want their bartenders to be intoxicated. She didn’t see why the police couldn’t call the owner of an establishment and let them know there was a problem they believed the owner needed to intervene in. She didn’t think they needed to breathalyze bartenders.
Alderperson Hartzheim said that all bartenders take responsible beverage licensing classes and know what is expected of them. “I don’t see creating an ordinance for the purpose of having a conversation tool as a wise way to move forward for the city.”
Alderperson Smith asked Chief Thomas what this resolution would offer that current ordinances and statutes didn’t provide.
Chief Thomas answered, “What this really provides us is a tool for that no business—the business that we go to where we’re not gonna get the cooperation from the bartender who’s gonna tell us ‘I’m not gonna give you a PBT’ and clearly they’re intoxicated, but we can’t call the owner to have them replaced with a different bartender. It would give us the opportunity to have that bartender be relieved, contact the owner, and then there would be an opportunity for the committee to take a look at that bartender’s license in the future if they refused a PBT. So, it’s rare. You’re right, it’s not gonna affect any of the responsible business owners which are the vast, vast majority of our establishments. But there’s always those few, that handful, that cause us the most amount of work and it gives us an opportunity to deal with those. It really is the only benefit of the ordinance.”
Alderperson Smith asked for clarification from the attorney. If an officer observed an intoxicated bartender, could they call the bar owner and tell them their employee was in a bad state and ask them to come take care of it, or would police officers be prohibited from doing that?
Attorney VandeCastle said his understanding was that they wouldn’t be prohibited from doing that, but the owner might not be able to be contacted or may not be willing to do anything and, in those cases, there would be no options to take care of the situation.
Alderperson Smith said, having served on the Safety and Licensing Committee, for a number of years, he knew how responsible a majority of the servers in Appleton were. But the need for this resolution was illustrated by several incidents as laid out in the memo. He reiterated that Neenah had a similar ordinance on their books since 2013 and hadn’t used it, but it was a tool. If the Council and committee didn’t feel the police department should have that tool, then that was how the vote would go, but he brought the resolution forward because he thought there was a case to be made and he wanted to make sure it was aired.
Alderperson Matt Reed (District 8) appreciated both sides of the argument. He generally leaned toward less being better for ordinances and enforcement mechanisms, but the fact that the Police Department felt this was a necessarily, albeit rarely used tool, also carried some weight with him. He referenced the portion of the resolution that stated, “The result of the preliminary breath screening may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of this section,” and he wanted to know what exactly if there was a violation of the ordinance. Would it always result in arrest or would there be other options?
Attorney VandeCastle said that if a police officer believed it was necessary, there could be an arrest. If an owner could be contacted and said he was sending another bartender, then the bar could be closed down for the time period until the new bartender arrived. In this situation there would be no arrest and the ordinance would be used just as a tool to have a discussion. However, an arrest could be made in a situation where an owner couldn’t be contacted and the bartender continued to serve.
Alderperson Reed clarified that this would be a tool to use if there was non-cooperation with law enforcement instructions, and the attorney confirmed that was correct.
Chief Thomas said the police would take more of an informal educational approach initially. If they went into a tavern o a call and saw a bartender they believed was intoxicated, they would ask them to submit to a PBT. If they didn’t that was fine and the police would send that information to the committee to deal with the license however the committee felt they wanted to deal with it.
If the bartender submitted to the PBT and they were over .08 then the policy, were this resolution to be passed, would be to call the bartender’s employer and notify them that the bartender was over the limit and needed to be replaced. They would also decide whether to give a warning or issue a citation.
He noted that when they used the term “arrest” it didn’t mean being handcuffed and going to jail. Instead, it was like getting a speeding or seatbelt ticket. They would issue a citation with a court date on it. He expected that that would only be needed if they were dealing with habitual offenders such as in situations where they get called to the same bar two or three times in a row for the same bartender.
Alderperson Alex Schultz (District 9) was still trying to understand what would happen, even with that explanation from the police chief. He wanted to know those six violations would have gone if this tool had been available. He also wondered if six violations in a year was typical.
Chief Thomas said that they were not able to dig up any data from prior to 2021 due to those records being in a different system that would have required a lot of manual checking and pulling of records. His perception was that there seemed to be more problems in 2021 than in previous years.
As far as trying to boil down what the ordinance would actually do, it would allow the police to deal with known people who refuse to give a PBT. Without the ordinance, if they have a highly intoxicated bartender who tells the police to leave their establishment, they’ll be able to continue to serve.
Alderperson Schultz agreed with giving the police department more tools to manage situations that might come up. He had the sense that this would not change much as far as the behavior of bartenders or establishment owners, but it was a tool there for the really belligerent individuals who otherwise might be challenging to get under control. Although less might typically be better, “this is a situation where maybe having that tool is a good thing because we have had to deal with some establishments that we find repetitive behaviors with, and we have been dealing with situations where we don’t have much control as a committee to try to bring those establishments under control. So, having an extra tool in hand to maybe mitigate some of those I think is probably fine by me provided it’s not really causing any additional work or harm to the people who are actually doing the good stuff and abiding by the law.”
Alderperson Van Zeeland wondered why, in situations like Chief Thomas described, the police could deal with a bartender by utilizing disorderly conduct or public intoxication ordinances. She didn’t understand why they needed an ordinance specific to the bartenders’ occupation.
Chief Thomas answered that just because the police may go into a business and do something, if the police don’t have the legal grounds or standing to enforce that request, the business doesn’t have to do it. This ordinance would give the police legal standing to say that an intoxicated bartender must be replaced with a different one.
Alderperson Van Zeeland asked the attorney to answer that question as well.
Attorney VandeCastle answered that intoxication within a private business would not precisely fit the public intoxication ordinance. For disorderly conduct charges, the conduct would need to rise to the level of causing a disturbance. If it the police officers weren’t able to see that or it didn’t rise to that level then they would not be able to do anything. If it were just a situation in which a highly intoxicated bartender was serving other patrons or just acting in a drunken manner of some sort, there would be nothing for the police to cite them with.
Alderperson Schultz said that, decades ago, he had been a bartender and there were nights when he probably drank more than he should have a served people. He could see situations where bartenders would maybe overserve people or serve to minors and not be conscious of what they were doing. If there was not a way to remove that bartender, that kind of behavior would continue and become repetitive. He thought the ordinance would be a useful to have a discussion with a bartender and help them see that there would be more serious ramifications if they continued their behavior.
Alderperson Hartzheim said that if an intoxicated bartender was serving others in excess or serving underaged patrons that was a violation and this ordinance would be unnecessary to deal with that.
Attorney VandeCastle agreed and said he should have clarified that if there was a separate citation or offense that would be an offense in and of itself.
Alderperson Hartzheim felt this resolution was trying to solve a problem which, if it exists at all, exists very rarely. “I don’t have a heart for that.” She didn’t think they needed to be doing that in Appleton.
Alderperson Van Zeeland said, “What concerns me is the fact that somebody could maybe have had, you know, a beer or two more than they should have but they are doing their job, they’re not doing anything illegal, and that they could be breathalyzed and charged with a crime, and that concerns me. I just think in a private business that having that ability to just breathalyze anyone for really no reason is not something I think that we should be handing over when we have other tools to deal with the actual criminal activity that could come from that.”
Alderperson Smith responded, “There is no intent with this resolution or with the PD to go into an establishment and breathalyze everybody that’s there and look for somebody that’s above .08.” The resolution started because of the incidents in the memo, all of which originated in phone calls to the police that the police then responded to. This ordinance would give the police department the tool to go in and assess a situation. If a bartender is obviously not fully functioning then this would allow them do a breathalyzer and see where they were at. He didn’t think that someone who blew a .09 would be written up and have their boss called, but the police might tell them to look at their level and start drinking coffee.
Alderperson Reed said that the language in the resolution was not a concern for him because it clearly stated “if a law enforcement officer has probable cause that a violation of this section has occurred.” It was not a witch hunt and they would not be going to look for people. Rather, it was based on specific criteria that had to be met. He didn’t think it was an open door for the police to start tapping people on the shoulder and asking them to take breathalyzer tests
Alderperson Van Zeeland responded that she had been a bartender for several years and did not drink on the job; however, she had been pulled over on the way home from work and asked to take a breathalyzer as a sober person. So, a person either refuses to take it or they take it, “and that’s what concerns me here is that once you hand those rights away that is, that’s something that you can’t get back.”
Alderperson Brad Firkus (District 3) was not a member of the committee but he was in attendance. He said the discussion had been helpful. When he first read the resolution, he could see both sides, and the feedback he had gotten from his constituents had mostly been against it. The conversation had been helpful at highlighting the exact scenario in which it would be helpful.
The way the resolution was currently written, the bartender was the primary recipient of the punishment, and the establishment was only secondarily impacted. He wondered if it the resolution would be more palatable if the primary receiver of the punishment was the establishment or the person in charge of the business rather than the bartender who received the citation.
Alderperson Hartzheim thought that would be a poor idea because she didn’t think the city should be micromanaging how local businesses were run.
Alderperson Van Zeeland said she would be open to making intoxicated serving a license violation for the operator’s license. She much preferred to address the issue through the operator’s license as opposed to criminalizing it. Part of her professional background was in the trucking industry, and when truck drivers came to work with alcohol, they were put in an employee assistance program. There is no such safety net for bartenders, and she thought there were ways that they could address this issue outside of the means offered in the resolution. “I’d like to work toward something like that as opposed to moving forward with this.”
Chief Thomas said “I’d like to say it’s a brilliant idea and I came up with it.” The joke went over well and received quite a bit of laughter.
He did really like the idea and said they would have to have some more discussions with the Council and the City Attorney’s office about what exactly it might look like. He was envisioning that if the police went to an establishment were the bartender was intoxicated and refused to turn things over to another bartender, the police would just complete a report and document it (they would also have bodycam footage) and then submit that report to the Safety and Licensing Committee which could then determine what they wanted to do with that person’s license be it to suspend it for 30 days or revoke it.
Alderperson Smith said each great idea starts with a kernel. The resolution had been the kernel and now they were getting the bloom of the flower. If the alderpersons who moved and seconded the denial were willing to pull that motion back, he wanted to entertain a motion to hold in order to give time for the Police Department and the Attorney’s Office to review and retool the resolution.
Alderpersons Hartzheim and Van Zeeland did this and a new motion was made to hold the item until February 23rd to allow for additional revisions. This motion to hold passed 5-0.
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=896514&GUID=0F4B22DA-99BC-404F-A823-155954EAE4E3
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