On November 26, 2018 the General Manager of the Liquor and Cannabis Regulation Branch released reasons for the decision in Re Oak & Carriage EH18-041. That decision can be read in full here. The Oak & Carriage is licensed as a liquor primary establishment in Duncan, BC and is operated by a third party.
In Re Oak & Carriage the Branch alleged that the licensee contravened the Liquor Control and Licensing Act by selling liquor outside the hours of service specified on the licence (being after 1:00 am) and failing to ensure that an employee did not consume alcohol while working.
When you or your establishment has been served with a Notice of Enforcement Action, it can feel like the full weight of British Columbia’s Liquor Control and Licensing regime, and its endless resources, are bearing down on you. Exacerbating matters, you may learn that police officers will be giving evidence for the prosecution. Despite your convictions, and your firm belief that the contravention alleged by the Branch did not occur, you may be tempted to sign a waiver notice – just to get the unpleasant process behind you. Resist this urge!
As the recent decision of the General Manager of the (then) Liquor Control and Licensing Branch in Re Days Inn, EH18-006 exemplifies, liquor inspectors and police officers do not always make good witnesses. Sometimes their evidence can be inconsistent and incomplete, forcing the Delegate hearing the matter to favour the evidence of the licensee and conclude that the alleged contravention has not been established. The decision in Re Days Inn can be read in full here.
On December 4, 2017 two on-duty RCMP officers sat in their patrol car near a Licensee Retail Store, the Days Inn (Inn of the West) in Terrace, BC.
“Officer 2” (as he is identified in the Branch’s reasons) observed a male cross the intersection and enter the LRS. Both officers then exited the police vehicle and observed the customer, through the LRS windows, purchase a 15 pack of Wildcat beer. When the customer exited the store, the police spoke with the customer and observed a high degree of intoxication.The officers concluded that the customer was intoxicated.
“Officer 1” subsequently entered the LRS, spoke with the clerk who sold the customer the beer, and asked that she refund the purchase. The clerk did, and the customer was allowed to continue home on his own accord. The clerk advised police she thought the customer merely had something wrong with his leg, and was not staggering from alcohol consumption.
Officer 2 wrote his report immediately after the incident. Officer 1 did not produce a written report of the incident until the following day. The local liquor inspector learned of the incident from Officer 1 at a hockey game later that same day. The liquor inspector attended the LRS on December 8 (four days after the incident) to speak with the LRS supervisor. On December 11 the liquor inspector, having now received the RCMP reports interviewed the LRS clerk, and issued a contravention notice to the licensee for selling liquor to an intoxicated person.
At first blush the facts in Re Days Inn are not particularly remarkable: the LRS employee denied selling alcohol to an intoxicated person, two police officers filed reports saying otherwise. However, upon closer examination, the Branch’s case against the licensee was plagued by the police officer’s poor note taking, contradictory evidence at the hearing, and tainted by the liquor inspector’s request that Officer 1 provide a supplemental report on December 27th.
The evidence of the police was as follows:
In dismissing the contravention, the General Manager’s Delegate Nerys Poole set out her concerns with the Branch’s evidence as follows:
While each of inconsistencies outlined above may not individually have been sufficient to undermine the Branch’s case against the LRS, the totality of the contradictions in the Branch’s evidence caused concern for Delegate Poole. When contrasted with the compelling evidence of the LRS store clerk on her training, and established practice of not serving intoxicated individuals, the General Manager’s Delegate had little choice but to dismiss the contravention allegations.
Liquor Control and Licensing Act contraventions related to intoxication turn significantly on the observations made by liquor inspectors, police officers, and sometimes other witnesses. When the reliability of those observations are in doubt, as they were in Re Days Inn, it is difficult for the General Manager’s Delegate to be satisfied that a contravention in fact occurred.
Re Days Inn is an important reminder to licensees to be cautious before signing a waiver notice – resist the urge to “plead guilty” before all the facts are known, and the Branch has made proper and fulsome disclosure of the case against you.
Being served with a Contravention Notice or Notice of Enforcement Action can be intimating especially when the police have been involved. Retaining counsel familiar with British Columbia’s liquor laws and the enforcement process can go a long way to ensuring your business makes an informed decision about signing a waiver notice, or proceeding to a hearing. If you have questions about this process please contact Dan Coles at Owen Bird.
*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.