Lawsuits are as much a part of the hospitality industry as food and beverage programs. Any operator who hasn’t faced a lawsuit stemming from an incident that occurred at their venue is either brand new or the luckiest person in the industry.
Fortunately, there are steps any operator can take to protect themselves, their teams and their business from crippling settlements or judgments. Manny Marquez, vice president of Nightlife Security Consultants (formerly Nightclub Security Consultants), explained his 7 smart “must-knows” at the 2019 Nightclub & Bar Show in Las Vegas. These must-knows focus on security personnel, avoiding unwanted lawsuits, and “closing the window” on liability.
Marquez has more than 20 years of industry experience. He started in this business in Fresno as a bar back. Just two days into that role he was asked if he’d like to be a bartender. Marquez said yes and received bartender training. Seven years later, he rose to the rank of manager and held that position for multiple venues located mostly in San Diego.
His love for the hospitality business and providing people with a good, safe time led him to the Nightclub & Bar Show in 2000, and he has been attending ever since to obtain information he can implement at different venues. Some operators who employed him as a manager would make him a deal: they would pay for his badge, hotel and expenses in exchange for him providing a schedule of sessions he would attend, taking notes, and providing the operator with a report on what he learned. As far as was concerned, he was receiving a valuable continued education.
Now a speaker, Marquez wants to teach operators as much he can about security, lawsuits and liability. During his 2019 session, he provided an overview of the lawsuit lifecycle; the 5 major mitigating factors of a lawsuit, including an understanding of industry standards and what that term means in terms of security; and what operators can do right now to improve their security programs.
Lifecycle of a Lawsuit
As Marquez says and many operators would agree, things are getting more litigious these days. Cell phones are recording everything, and people seem to love delivering criticism more than offering praise. Operators and managers are working in an environment under “hyper-scrutiny.”
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Unfortunately, cell phones often come out and people start recording or photographing incidents well after the moments leading up to the starting point. This can make lawsuits even more difficult to defend against. As far as the types of lawsuits most operators will face during their careers, the most common are Slip & Fall and Assault & Battery/Use of Force.
As Marquez explains it, the lifecycle of a lawsuit is as follows:
- Incident occurs.
- Subject/victim/plaintiff retains an attorney.
- Attorney usually sits on the case for two years because most states have a two-year statute of limitations for such cases. Florida’s statute of limitations is four years.
- 4 Lawsuit is filed and owner/manager is served.
Attorneys wait to file in the hopes that information about the incident will be lost or forgotten; the employees who were working at the time of the incident will no longer be employed by the bar, nightclub or restaurant and won’t be found; and witnesses will be long gone, their information and statements never taken. They also hope that video evidence won’t exist, assuming that most operators use video systems that operate on 14- or 30-day loops. Some operators may have large amounts of storage and keep 12 months of footage, but that’s still well under the 24-month statute of limitations in most states.
All of the above leaves a business less equipped to defend itself. That puts the plaintiff in a stronger position to land a larger settlement amount. However, an operator can defend themselves against plaintiff tactics with Marquez and Nightlife Security Consulting’s 7 must-knows.
5 Mitigating Factors of a Lawsuit
The first 5 must-knows are mitigating factors, defined as circumstances or facts that lessen the severity or culpability of a defendant. Also known as extenuating circumstances, in a civil case these are circumstances that may result in a reduced settlement or judgment. Operators should ask themselves what is something they do or don’t do that can help their situation?
An aggravating factor is the opposite of a mitigating factor. This is a circumstance that increases the culpability of the defendant and can result in a higher settlement or judgment. Operators should also ask what’s something they do or don’t do that makes the situation worse?
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Nightlife Security Consultants has a lot of experience providing expert witness testimony in trial cases. This experience has given Marquez and others inside knowledge of how lawsuits work, their lifecycle, how they develop, and how their clients can protect themselves.
Unfortunately, security is often the last role to be addressed by owners, operators and managers. Many leave this to the last minute and turn to other employees for referrals so they can fill security positions. The reality of security personnel is that all too often someone is hired the day of a shift, given a shirt that reads “SECURITY,” and posted at a door without onboarding and training.
Read this: Navigating Nightclub Security in Today's Litigation-Driven Society
The following are the first 5 must-knows for operators and managers regarding security personnel and mitigating factors:
- Hiring Practices
- Standards. What are the standards an operator is willing to accept to hire an employee for a security position?
- Job description. Is there a reasonable understanding and expectation by the employee of what the operator expects them to do?
- Qualifications. Is an operator just filling roles? Does an operator have a list of qualifications written down or in their heads?
- Interview process. Marquez would regularly take longer than an hour to interview potential hires to really get to know who that person was and what they were about.
- Background checks. For about $20 an operator can learn more about a potential employee and find out if they meet their standards.
- Formal onboarding. Do people go through an orientation? Do they receive an employee manual? Does a manager bring them into the business?
- Policies & Procedures
- Security-specific policies and procedures. A policy and procedures manual is, as Marquez says, an operator’s bible or handbook.
- Should match the training provided.
- Comprehensive but not restrictive. A manual doesn’t help a defendant if it’s so long that it’s not possible security personnel know and understand everything in it.
- Distribute
- Receipt acknowledged, with acknowledgments in employee files.
- Updated. Marquez suggests that operators revisit their security policies and procedures every 6 months.
- Referred to often.
- Disciplinary action taken if not followed.
- Training
- Does an operator have a training program? Marquez warns that not having one places operators “behind the 8 ball.”
- Are there legal requirements? There are in California, Florida, Louisiana, Philadelphia, and Providence, Rhode Island, as examples.
- Standardized and consistent.
- Both on-the-job and documente
- Ongoing and refresher training sessions. Operators should give security personnel the opportunity to reset and learn new things to keep them sharp and engaged.
- Conflict resolution. How to deal with a conflict, defuse it, and keep anything bad from happening.
- Use of force. What can security personnel do and not do in compliance with the law when going hands on?
- Powers to arrest. What are security personnel’s powers to detain somebody if they’ve committed a crime?
- Management
- PMK: “Person most knowledgeable” at the time of an incident.
- Hiring process.
- Training process.
- Experience an operator seeks when hiring a manager.
- Decisions made and/or not mad
- Factors surrounding at time of incident. What were management and staff doing and not doing at the time of the incident?
- Actions before and after the incident.
- Number of Guards on Duty
- Industry standards. For example, one guard for every 50 guests. Marquez points out that this is a rough number dependent on the type of venue, and it’s not a legal requirement.
- Are there state or municipal laws in place?
- Conditional use permits at the city/municipal level that list a requirement for the amount guards that must be present.
- Size of venue.
- Number of entrances and exits.
- Number of separate spaces and rooms.
- Types of guests. An operator may want to post more guards during Spring Break, for example.
- Type of entertainment.
Marquez explains that he slides up and down number 5 and makes adjustment per venue, event and guest type. He states that if he has 10 highly skilled security staff members, he can likely operate with that size team. If, however, the security team is just mediocre, he’ll need to increase the number of guards posted. He’s also not a fan of hiring third-party security companies unless they’ve been vetted, and he thinks off-duty police officers are pricey and don’t always have hospitality in mind, which can impact the guest experience.
Industry Standards
What the plaintiff’s attorney will attempt to do is argue that an operator’s (defendant’s) commitment to security personnel and the management of their venue fell below the “industry standard” at the time of the incident. Following Marquez’s advice on standards will help an operator to establish that they operated within or above industry standards at the time of an incident.
The problem with the industry standard argument is that it’s nebulous. Industry standards for bars, nightclubs and restaurants are essentially undefinable. Marquez explains that industry standards are argued and set per specific case. During lawsuits, all sides are expected to use their “best judgment” to determine industry standards.
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An example that Marquez uses to illustrate that a venue is below industry standards is an operator who simply throws a “SECURITY” shirt on someone without specific training. Conversely, if security personnel receive documented, updated security training and the business pays for any legally required licensing, that would place them above industry standards.
Improve Security
This all leads to must-knows number 6 and seven. These have the potential to improve security drastically and can help an operation rise above perceived industry standards.
Know that without must-know 6—documentation—an operator can’t truly defend themselves. Out of the gate, they’re at a huge disadvantage legally.
- Documentation
- Operators should be documenting: injuries, violent crimes, felony crimes, and anything that “raises the hairs on the back of their necks.” That is, anything that makes an operator say to themselves that something isn’t right. An interesting example given by Marquez is overhearing a guest say that their mother or father is an attorney, then telling another guest or an employee they’ll hear from them.
- At the very minimum, those who should document incidents include primary and secondary responders, and the manager on duty.
- Take third-party witness statements. This is beneficial because in many cases, a third-party witness will be considered unbiased. At the minimum, operators should take down the name and phone number of witnesses so they can be contacted if a statement is needed. A statement taken immediately, however, is best.
- Preserve video evidence.
- Preserve other forms of evidence (photos, etc.).
- Package and save or otherwise store evidence through the statute of limitations.
- Create Systems & Implement Must-Knows 1 through 6
- The key to success is replicating and streamlining.
- Delegate.
- 18 Successful completions form a habit. If a venue doesn’t experience many incidents (how lucky!), operators should have security personnel practice documenting different types of incidents.
- Operators must surround themselves with a team that buys in.
Along with these 7 must-knows, Marquez wants operators to understand that they’re always liable. His partner Robert Smith always answers “yes” whenever any operator or manager asks, “Am I liable?” He doesn’t wait to hear about the particular situation or qualifiers, his answer is “yes” immediately.
“The answer is always ‘yes.’ You’re always liable. The mere fact that you open your doors, you have a sign on the building, and you do some sort of business, you’re liable,” says Marquez.” You can be sued for anything for any reason at any time. It doesn’t mean you’re going to win, it doesn’t mean you’re going to lose, but that’s just the fact of what we do.”
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Marquez likes to look at liability like a window and ask, “How open is that window?” He believes that a goal of every operator should be to close that window little by little. The result all operators should work to achieve is that an incident occurs and instead of insurance settling and paying out $200,000, the window is shut so tightly that the settlement is only $2,000 (or less, or nothing, ideally).
Have security questions? Looking to train your security personnel? Contact Nightlife Security Consultants via their website, Nightclubsecurity.com, or reach out to them over Facebook, Twitter or Instagram. They also have a podcast available through iTunes or their website.