Brew Street Craft and Kitchen: Permitting an intoxicated person to remain
St. Patrick’s Day is a big source of business for the liquor industry. While all owners and managers hope that the day will run smoothly, and profitably, the failure by staff to comply with the terms of the Liquor Control and Licensing Act, namely by over-service, can put a damper on the festivities. Regrettably, the Brew Street Craft and Kitchen learned this the hard way last year.
The Brew Street Craft and Kitchen is a liquor primary establishment located on St. John’s Street in Port Moody, not far from Brewer’s Row. Brew Street Craft and Kitchen operates under a liquor primary licence, has over 100 beers on tap, and boasts an offering of fresh, local and innovative food.
On St. Patrick’s Day in 2017, Brew Street Craft and Kitchen was the target of a covert inspection conducted by liquor inspectors and Port Moody police officers. The inspectors observed three patrons behaving in a manner that indicated they were intoxicated, but did not observe any staff members taking actions to remove them from the premises. Ultimately uniformed police officers removed one of the patrons. Permitting an intoxicated person to remain in a licensed establishment is contrary to section 61(2)(b)(ii) of the Liquor Control and Licensing Act.
A delegate of the General Manager of the Liquor Control and Licensing Branch conducted a hearing into the alleged contravention over two days in December, 2017 and on January 18, 2018 the Branch confirmed the contravention and ordered that the Brew Street Craft and Kitchen’s licence suspended for a period of six days. The decision can be read in full here.
FACTS
As Alcohol & Advocacy has written previously, British Columbia’s Liquor Control and Licensing Branch targets its investigations at licensees who are the subject of complaints or have had a history of compliance problems. In March of 2017, local liquor inspectors and police were of the view that the Brew Street Craft and Kitchen was receiving a disproportionate number of complaints related to noise, intoxicated customers, and other anti-social behaviour. On the basis of this information, at approximately 7:50 p.m. on March 17, 2017 two plain-clothed police officers from the Port Moody police department, accompanied by two undercover liquor inspectors, entered the establishment and remained there until approximately midnight. Over the next four hours the liquor inspectors and police officers took notes of their observations and communicated the same to a liquor inspector and two uniformed police officers who entered the premises at approximately 11:20 p.m.
The undercover officers observed three patrons that were displaying signs of significant intoxication, but for which staff members took no action to remedy. One plainclothes police officer observed a male purchasing shooters at the bar who was slurring his words and swaying side to side, he shouted “I’m drunk!” several times and even staggered into the police officer.
A liquor inspector noticed a middle-aged man in the washroom who, while attempting to exit a washroom stall, fell backwards into the door. A third patron, a female, was observed by a police officer to have “difficulty controlling her emotions”, and after taking two shots of Crown Royal within fifteen seconds of each other, had difficulty entering the PIN number on her credit card to pay for the same.
Despite the foregoing, the police officer who gave testimony at the hearing confirmed that the majority of the patrons were well behaved, the establishment appeared to be professionally run, and that although it was St. Patrick’s Day it was not a “chaotic situation”. However, the officer went on to say that given the overall behaviour of those in the establishment, in his view the intoxicated individuals identified above should have stood out in this crowd and staff should have responded promptly to the situation.
LICENSEE’S EVIDENCE
Brew Street Craft and Kitchen was not represented by counsel at the hearing, and unfortunately its witnesses were not prepared and did not present well.
Both the bar manager and assistant bar manager of the Brew Street Craft and Kitchen testified. At the outset of her reasons, the General Manager’s Delegate conducting of the hearing, Ms. Poole, questioned whether the titles these witnesses purported to hold were accurate, as the bar manager appeared to have considerably less experience than the assistant bar manager and had worked in the establishment for a shorter period of time. Also, the assistant bar manager initially identified himself as one of the “head managers”.
Exacerbating matters, neither of the managers could remember much about the evening of March 17, 2017. Put simply, despite having uniformed police officers in the establishment who were required to escort an intoxicated patron off the premises, neither manager completed an incident report sheet or took contemporaneous notes documenting the evening. Without notes to refresh their memory, the evidence of the managers at the hearing was severely limited. The licensee, represented by the owner Mr. David James, attempted to lead evidence in support of a due diligence defence. This consisted, in part, by tendering examples of the bar’s policy and procedure forms, as well as descriptions of the establishment’s pre-shift meetings and other staff and management meetings conducted from time-to-time.
Unfortunately for the licensee, the General Manager’s Delegate did not find the bar’s policies and procedures to be satisfactory. On cross-examination it was apparent that neither of the bar’s managers were intimately familiar with the aforementioned policy and procedure documents, nor did they require strict compliance with the same from their staff. On the issue of pre-shift meetings, considered to be a best practice in the industry, the managers did not record what was discussed at these meetings and could not recall if there had been a pre-shift meeting for the St. Patrick’s Day evening of March 17, 2017.
Though the Branch did consider that the Brew Street Craft and Kitchen had retained a liquor consulting firm to assist with policy, and that there had been some post-contravention changes at the establishment, at the time of the contravention adequate training and other systems to prevent the contravention of allowing an intoxicated person to remain had not been implemented.
Ultimately the Branch accepted the liquor inspector’s recommendation that the appropriate penalty for the contravention should be at the higher end of the range, given the severity of the intoxication of the patrons identified, the number of patrons who were identified, and the fact that staff were not taking any action despite the obvious signs of intoxication. The Branch determined a six-day licence suspension was reasonable and appropriate for the circumstances.
CONCLUSION
The reasons in Re Brew Street Craft and Kitchen offer a litany of teachable points for licensees – from the night of the contravention to preparing for the hearing itself. Notes were not made, bartenders and waiters were not interviewed, CCTV footage was not preserved, due diligence type activities were not adequately performed, and witnesses were not prepared.
If your establishment has received a contravention notice, or is facing enforcement action, and you require assistance documenting the allegations or preparing for the hearing, 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.
