Beginning this July, California bars and nightclubs must now keep “drug testing devices” in stock. If you own a bar or nightclub, you likely have a Type 48 liquor license. It is one of the most highly sought after, most expensive, and difficult liquor licenses to obtain. As a result, it is no surprise that California is now imposing yet another requirement on these licensees. Any licensee that is applying for a new Type 48 liquor license or currently holds an existing Type 48 liquor license is required to offer for sale (or provide for free) a drug testing device. If the licensee charges a fee for the drug testing device, the price must not exceed a reasonable price based on the wholesale cost.

What is considered a drug testing device? Well, drug testing devices come in various forms and can include test strips, stickers, straws, or any other device that is used to detect the presence of certain controlled substances in a drink. For example there are certain test strips that allow a customer to drop a small amount of his or her drink on the test strip which will turn a specific color if a controlled substance is detected. Of course, the process of testing drinks prior to consumption is a great way to prevent date rapes and other crimes.

The new law specifically states that licensees “shall not be held liable for a defective test or inaccurate test result.” In addition, the new law further states that failure to provide the drug test kits would not be considered a crime. In other words, the licensees will not be held criminally liable for failing to provide these kits. However, this new law will likely be used to open bar and nightclub owners up to new claims of negligence.

Arguably, the new law creates a new standard of care, namely that these licensees should advertise these test kits in a prominent and conspicuous location, have an adequate amount of test kits in stock at a reasonable and fair price, and the test kits should not be expired. Clearly, these requirements can undoubtedly lead bars and nightclub owners to a pragmatic dilemma that may require more planning and new procedures. Gone are the days when bars and nightclub owners simply kept their liquor in stock. Now, they must anticipate how many people will need a test kit, what would be a fair price for such kits, and ensure that the test kits are not expired. One could foresee that failing to do any of the above may open up bar and nightclub owners to allegations of negligence, especially where the managers of the bars and nightclubs fail to plan accordingly, ie. in the event of an abnormally large group of bar and nightclub patrons during a holiday or special event.

Another issue is whether or not bars and nightclub owners open themselves up to a litany of litigation for negligence for simply being careless. Have you ever sat at a bar and watched drinks that may have sat on a bar for too long or were passed along through several people before reaching its intended consumer? Remember, these test kits only identify whether or not the controlled substance is present- not who put it there. Is the new law leading us down a path that will create a standard of care that requires bar and nightclub staff to actively prevent others from placing controlled substances in drinks?

The negative repercussions of requiring bars and nightclubs to make such test kits available to its patrons may be more than we bargained for. After all, these test kits have been easily accessible via amazon at a click of a button for some time now, but few people voluntarily bring them to bars.