BC Liquor Law: Serving after hours and drinking on the job

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.

The Facts

Contravention 1 – Serving after hours

On Saturday April 14, 2018 two liquor inspectors attend the Oak & Carriage around midnight. They sat at a table directly across from the service bar. They did not identify themselves as liquor inspectors.

At approximately 1:09 am the liquor inspectors observed a female bartender pour “an amber coloured liquid” from a pitcher located behind the bar into the glass of a patron who was seated at the bar. Liquor inspector 1 believed the pitcher may have been a “foam” or “overflow” pitcher used to catch excess beer, and that the bartender was now giving it away at the end of the night.

Significantly, the liquor inspectors did not have any evidence of when or if the pitcher had been purchased by a patron or patrons. Liquor inspector 1 conceded under cross-examination that if the pitcher had been purchased before 1:00, it would not “typically” be treated as a contravention for a staff member to pour it for a customer provided that occurred within 30 minutes of last call.  The liquor inspector stressed that a pitcher of beer must be sold to more than one customer, but again did not have any evidence of whether or not such a sale had occurred.

The licensee’s evidence, provided by the manager Mr. Morrisson, was that his establishment does not maintain a foam or overflow bucket, and that this is an old practice no longer followed in most establishments. He went on to say that his establishment is also not in the habit of keeping “random jugs of beer” and offering them for free to customers.

Mr. Morrison’s explanation for a pitcher of beer being kept by staff on or behind the service bar was that it was common for barstaff  to watch a customer’s drink, when requested, if they stepped out for a smoke or went to the washroom.

Contravention 2 – Consuming alcohol while working

The Branch’s second allegation related to the liquor inspectors’ observation that a bartender took a bottle of Black Cellar wine from behind the bar and pour it into a mug that Mr. Morrison was drinking from while working. Although there was some collateral evidence of Mr. Morrison exhibiting signs of intoxication that evening, the primary thrust of the Branch’s case rested on this single observation.

Mr. Morrison agreed that he was working on the evening in question, and that after midnight he transitions to “socialization mode” whereby he focuses on customer interactions, and less on the routine tasks involved in managing the establishment. During this time he drinks de-alcoholized wine, which is stocked by the Oak & Carriage and is featured on its menu. His evidence was that if he is going to drink something to be social, he’d rather drink de-alcoholized wine than fruit juice. Put simply, he admitted to drinking wine – but not wine that meets the definition of “liquor” under the Act.

For their part the liquor inspectors testified to seeing a bartender reach for Black Cellar wine from behind the bar, which does not come in a de-alcoholized version, and pour some into Mr. Morrison’s mug. However the liquor inspector’s line of sight at the point the wine was poured into a glass or mug was at least partially obscured by a patron and a backpack. Given the close proximity of another customer, and the presence of other customers in the establishment, it was possible that the Black Cellar wine was poured into a glass destined for a paying customer.

Conclusion

The Branch found neither of the contraventions alleged to have been proven on a balance of probabilities and the notice of enforcement action was dismissed. In sum the evidence of the liquor inspectors was less than compelling.

As a footnote, the General Manager’s Delegate Ms. Poole found Mr. Morrison’s testimony about what he was drinking on the night in question, being de-alcoholized wine,“persuasive.” Mr. Morrison described himself as a “sommelier and a wine connoisseur” and further that if he was going to drink alcohol wine it would not be Black Cellar which he described as “cheap plonk.” Evidently Mr. Morrison does not mince his words.

Re Oak & Carriage is another recent example of licensees successfully challenging notices of enforcement action where the evidence gathered and presented by the Branch and its inspectors simply did not support the contravention alleged. While the outcome here was positive for the licensee, and it was afforded the benefit of the doubt, licensees should keep in mind that this is not always the case.

If your establishment has been served with a contravention notice, or a notice of enforcement action, 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.

Dan Coles
Retired bartender. Young lawyer. From the East, living in the West. Interested in British Columbia's producers and purveyors of wine, beer and spirits.