The Philadelphia Bouncer Code requires that bars and restaurants in Philadelphia ensure their bouncers receive proper safety training and certification. This helps to protect the public. When bars and restaurants follow this law it helps guarantee that bouncers in the City receive sufficient training so they can safely do their jobs without unnecessarily endangering customers. Unfortunately, many bars and restaurants fail to follow this law. Negligent bars and restaurants hire and employ untrained bouncers that do not have the necessary safety training. As a result, this failure to properly train bouncers increases the risk of injury to the public. The risk includes the improper use of excessive force.
The requirements of the Philadelphia Bouncer Code can be useful in proving a negligent security claim against a bar or restaurant in Philadelphia. For example, assume a bouncer at a covered establishment uses excessive force against a patron. Any failure by the bar to ensure that bouncer was previously trained and certified is powerful evidence of negligence. A violation of the code helps prove that the defendant bar or restaurant is in violation of a statute. Violation of a statute is negligence per se. See Pennsylvania Standard Civil Jury Instruction 13.100. In the alternative, it can be used to show the defendant was negligent for violating a standard or governmental regulation. See Pennsylvania Standard Civil Jury Instruction 13.110.
Also, a violation of this Code may subject the bar or restaurant to a monetary fine for each day the code is violated. If a bar consistently employed an untrained bouncer who was not trained, registered or certified, the fines can be significant.
Important Sections of the Philadelphia Bouncer Code
The City of Philadelphia enacted the Philadelphia Bouncer Code in 2012. Under this Chapter, bars and taverns in Philadelphia are not permitted to hire bouncers unless the bouncer is registered as a bouncer with the City of Philadelphia. The Code states:
§ 9-3703. Prohibition Against Employing Unregistered or Untrained Bouncers.
(1) No person shall employ a bouncer at a covered establishment if that bouncer is not registered as a bouncer with the Administrative Agency and, in the case of an independent contractor, if that bouncer does not possess a valid business privilege license.
(2) No person shall employ a bouncer at a covered establishment unless that person, within forty-five days after that bouncer’s hire, has received and retains on file a copy of a certificate evidencing the successful completion by the bouncer of a program of third-party training covering the areas set forth in Section 9-3705.
The code also requires bouncers to obtain specific training. Furthermore, the Code requires bouncers to register with the City of Philadelphia. Bars are required to conduct an interview, perform a criminal background check, and take other actions prior to employing the bouncer. See § 9-3702. Registration of Bouncers; § 9-3705. Third-Party Training of Bouncers; and § 9-3704. Review of Criminal History Required.
The Code Does Not Apply to All Bars and Restaurants
However, the Code does not apply to all bars and restaurants. A bar or restaurant must qualify as a “covered establishment” under the code’s definitions. Important definitions include:
§ 9-3701. Definitions.
(1) “Bouncer” shall mean any person primarily performing duties related to security, maintaining order and safety in a covered establishment;
(2) “Covered Establishment” shall mean any drinking establishment or Special Assembly Occupancy;
(3) “Drinking Establishment” shall mean any establishment which gives or offers for sale food or drink to the public, guests, or employees whether for consumption on or off the premises whose on-site sales of food for consumption on the premises comprises no more than 20% of gross sales of both food, non-alcoholic and alcoholic beverages on an annual basis, or on such other basis as the Administrative Agency shall by regulation provide with respect to such establishments that have been open for less than one full year.
(5) “Special Assembly Occupancy” shall have the same meaning as in Section 9-703 of the Code.
Section 9-703 of the Code defines “Special Assembly Occupancy” as follows:
§ 9-703. Special Assembly Occupancies.
(a) “Special Assembly Occupancy” shall mean the following types of establishments, provided that 50 or more people congregate at such establishment primarily for social entertainment purposes at one or more times during the course of any year:
(.1) nightclubs, discotheques and cabarets;
(.2) taverns and bars;
(.4) private clubs;
(.5) banquet halls; and
(.6) similar places of assembly without primarily fixed seating.
(b) “Social entertainment” shall mean provision for dancing by patrons, entertainment by live or recorded music (whether or not also presented with video content) or a disc jockey, a theatrical or other performance act or similar activities. The phrase shall not include the consumption of food and beverages, listening to a speaker or lecture, watching television programming, watching or participating in athletic events, or other similar activities.
Philadelphia Code § 9-703 (Emphasis added).
Determining Whether A Defendant is a “Drinking Establishment”
Examine the percentage of food sales compared to the sale of food, non-alcoholic, and alcoholic beverages on an annual basis to determine if a defendant is a “drinking establishment.” It is necessary to explore this issue in discovery. A defendant may wait until after discovery is over and then claim that the bar or restaurant doesn’t qualify as a “drinking establishment” because more than 20% of its gross sales are generated by the on-site consumption of food. Thorough discovery on this point is absolutely necessary. Discovery should include document requests for sales ledgers, receipts, invoices, and other documentation. Do this at the earliest opportunity. Utilize interrogatories and requests for admissions to help settle this point.
If you cannot show that a bar qualifies as a “drinking establishment” you must determine if the bar qualifies as a “special assembly occupancy.”
Using the “Special Assembly Occupancy” Definition
In a recent case handled by John Mattiacci and Gabriel Levin, a defendant did not follow the requirements of the Philadelphia Bouncer Code. John brought suit on behalf of an injured customer. The defendant’s untrained bouncer used excessive force against the customer that caused injury. The defendant tavern argued that it did not qualify as a “drinking establishment” under the Philadelphia Bouncer Code. The defendant argued that its percentage of food sales exceeded 20% of its annual combined sales. Accordingly, the defendant argued that the Code did not apply to the bar. The defendant argued the Code did not require the defendant to train and certify the bouncer.
In discovery, the evidence did not easily prove the defendant qualified as a “drinking establishment” under the Code. Despite this issue, John was able to show that the defendant qualified as a “special assembly occupancy” under the Code’s definitions. This required extensive research to show that the defendant 1) had an occupancy of greater than 50 persons; 2) qualified as a tavern or bar; 3) and had live music at least two times per year.
John and Gabe obtained a photo of the posted occupancy limit in discovery. This clearly proved the occupancy was greater than 50 persons. John searched for and utilized Facebook posts and YouTube videos posted by the defendant to prove that it live music events at least once or twice a year at its location. There was no question the defendant was a tavern.
At trial, the trial judge in the Court of Common Pleas of Philadelphia found as a matter of law that the defendant qualified as a “special assembly occupancy” under the Philadelphia Bouncer Code. As the defendant had never had its bouncers trained or certified, it was in direct violation of the Code’s requirements. The defendant’s entire defense collapsed. The result thrilled the client. A thorough understanding and utilization of the Philadelphia Bouncer Code helped obtain this victory.
Knowledge of the Philadelphia Bouncer Code is Essential for Victory
The Philadelphia Bouncer Code is an important law that helps protect the public. Following the law can also help shield restaurants and bars from liability. More importantly, following the law protects customers and employees. Failing to abide by the Code’s requirements can lead to liability. Any attorney that has a case involving a bouncer in Philadelphia should be familiar with the Philadelphia Bouncer Code and its requirements. This can help prove liability against a defendant and maximize your client’s recovery.