By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business
This is the fourth article in a six-part series on the particulars of club hospitality management.
(Note: For the purpose of this series, the word “club” should also be interpreted to include both “nightclubs” and “day clubs” (venues typically in and around a pool area and often referred to as “beach clubs”), both of which typically entail many of the same management particulars. Where differences exist, they will be distinguished for the reader.)
In the previous part, we talked about club liability issues including identification fraud and underage drinking. But in addition to alcohol concerns, clubs frequently encounter controlled and/or illegal substances in their venues.
Patrons commonly indulge in drugs for the purposes of amplifying their experiences. Some guests knowingly bring either illegal or controlled substances without a valid prescription into a club with the intent to use and/or sell them.
Handling these situations involves an intimate knowledge of criminal laws pertaining to substance possession, use and distribution. Appropriate action by club operators is determined by the severity of a crime (misdemeanor, gross misdemeanor, felony and so forth). This in turn depends on a variety of circumstances, including the type and amount of the substance involved and the intent of the possessor for such substances.
Illegal Substances of Less than 3 Ounces Are Usually Presumed to Be for Personal Use
For example, in Clark County, Nevada, where Las Vegas is located, amounts of an illegal substance less than three ounces are usually presumed to be for personal use. That is a gross misdemeanor that typically results in confiscation and permanent barring from the nightclub.
However, amounts in excess of three ounces constitute the presumption of trafficking and distribution, a felony warranting arrest and formal prosecution. The specifics of these laws will vary from jurisdiction to jurisdiction. That notwithstanding, it is essential for nightclubs to handle these issues properly to avoid allegations of obstruction of justice.
Some Drugs Brought into Clubs Are Legal; Should Clubs Forbid Their Use?
Another type of substance concern is arguably less villainous. Some patrons may enter a club with medications and valid prescriptions. These medications may be harmless, but others may present risks and are accompanied with published warnings not to consume them with alcohol or other substances.
Surely a club cannot force the users of such medications to heed these warnings. But if they don’t, should a club refuse them entry — or remove a guest after the fact — in the interest of the safety of all involved?
Such actions would presumably be legal, provided that the medications are not associated with a protected class, such as a disability recognized by the Americans with Disabilities Act. However, even asking about such disabilities has been proscribed at state and federal levels, so how do nightclubs navigate these concerns?
To add an additional complication, states don’t always agree on the legality of each substance. Some states permit marijuana for medical or even for recreational use. Others do not.
So simply crossing state lines with such substances may be an illegal act, and ignorance of the law is of course no excuse. But do guests who may be innocently unaware of a difference in the laws deserve the same unsympathetic treatment as hardened drug offenders?
Should a club adopt a policy of trespass or prosecuting all persons caught with illegal substances, regardless of the circumstances? There are clearly too many variables here to articulate a single recipe for response, but these are all factors worthy of profound thought and deliberation by club operators in crafting a policy that closely evaluates the details of each individual incident.
Should Firearms Also Be Banned from Clubs?
Substances aside, another issue is that of firearms and other weapons. Countless tragedies have befallen American society in recent years resulting from crazed killers who’ve opened fire on crowds of people in schools, movie theaters, and other venues.
In Las Vegas in 2013, Drai’s After Hours Nightclub was victimized by a lone gunman who wished to commit such a heinous act. Fortunately, the gunman was stopped short, but the incident was not without tragedy. One brave security officer who tackled the man on his way into the club was shot and killed by the gunman before he was subdued.
Then there was the Pulse Nightclub shooting in Orlando in June of 2016, which ended the lives of 49 patrons.
And in the worst mass shooting in U.S. history, 58 people were killed and about 850 others were injured while more than 22,000 people were attending an October 1, 2017, outdoor show when a gunman opened fire from the 32nd floor of the Mandalay Bay Resort.
Most Clubs Have Banned Firearms and Other Weapons from Their Facilities
As a result of these atrocities, most clubs have banned firearms and other weapons from their facilities because the combination of deadly weapons and alcohol is far too great a risk. Most clubs also prohibit non-lethal weapons including pepper spray and Tasers.
In order to avoid many of the above-described issues, clubs typically position clearly posted signs regarding age of admission, banned medications, drugs, firearms and the like. They also enforce ID and bag checks at the door which include pockets and sub-compartments within bags. Drugs such as pills and powders in consumption quantities are usually small enough to fit in the tiniest of areas.
However, it’s important to note that, as with other liability deterrence strategies, bag checks are not foolproof. Experienced substance traffickers can install hidden compartments in bags that will go virtually unnoticed by inexperienced security officers.
And then, of course, there is concealment on or in the body. And it is most certainly viewed as beyond the bounds of reasonableness to conduct cavity searches, despite the fact that drugs and paraphernalia can easily be concealed in this way.
In a consensual search — as is the case with patrons who pay admission to a club — privacy concerns for bags and clothing are generally implied to be waived, and metal detectors or wands are commonly used for detecting concealed metallic items like weapons in or on the body. But these searches still operate within the confines of what is deemed to be reasonable.
Notwithstanding the legal liability associated with these issues, there are also important business operations concerns to be addressed. We’ll discuss some of those in the next part.