Cactus Club Café and the law of Wining & Dining

Imagine this: you and a date visit a restaurant and order a bottle of wine while you catch-up, consider the menus, and enjoy the ambience. After the better part of two hours, but before ordering and consuming any food, you order a second bottle of wine.

Is this an entirely innocuous and unremarkable event? Or is it a contravention of the Terms and Conditions that are attached to all Food Primary Liquor Licences in British Columbia, and warrants the licensee suffering a monetary penalty in the amount of $1,000 or a licence suspension of one day?

Unless you are a first time reader of Alcohol & Advocacy, you probably already know where this is going….

The Facts

In Re Cactus Club Café (Byrne Road), the Liquor and Cannabis Regulation Branch alleged that on November 19, 2021, the Cactus Club located at 7320 Market Crossing in Burnaby failed to comply with the Terms and Conditions of its Food Primary Licence by “providing a customer with a single drink serving larger than the maximum size specified in the Terms and Conditions”. More specifically, the Branch alleged that two patrons were served two standard bottles of wine (750ml each) without also being served food, as required. There was no suggestion of over-service or intoxication.

The Terms and Conditions, conveniently set out in a handbook that can be found here, apply to all Food Primary Liquor Licences in British Columbia and prescribe maximum drink sizes for the purpose of encouraging “moderate consumption” at all times. The maximum serving for wine is the standard 750ml bottle, “as long as it is consumed by at least two persons and with food”.

Cactus Club disputed the charge.  At the hearing held in May 2022, Cactus Club led evidence that the patrons in question did in fact order and were served food and therefore there was no contravention of the Terms and Conditions.

As the decision of the General Manager’s Delegate reveals, liquor law (like life itself) is all about timing….

The evidence accepted by the decision maker was as follows. On the evening of November 19, 2021 (a Friday no less) at 7 pm, two female patrons entered the Cactus Club and ordered and received a standard bottle of wine. The patrons were provided with menus in the usual course but did not order any food at that time. Between 7 and 8:40 pm, the server returned to the table from time-to-time to inquire about the patrons’ food order, but the patrons deferred ordering food while indicating their future intention to do so.

At about 8:40 pm, the patrons ordered a second bottle of wine but still did not order any food. Their server continued to enquire about food. The decision maker accepted that the server believed the patrons’ statements that they intended to order food.

At 10:15pm, two liquor inspectors conducted a routine inspection of the establishment. They observed the patrons seated at a table with a bottle of wine but no sign of any food having been served to them. The inspectors conferred with the manager on duty and obtained a copy of the patrons’ bill which confirmed that over a timeframe of approximately 3 hours and 19 minutes, the guests had been served two bottles of wine but no food.

The inspectors were of the opinion that food should have been served with the first bottle of wine but that in any event the second bottle of wine should not have been served without food being ordered. The inspectors advised the manager that because food had not yet been served to the patrons the maximum drink size set out in the Terms and Conditions had been exceeded. The manager’s position was that the patrons’ dining experience had not yet ended so the alleged contravention could not have crystallized.

Subsequent to the inspectors leaving the premises, the patrons ordered food (one order of spicy chicken) and left the establishment at approximately 12:50 am.

Issues

The Branch asserted that Cactus Club, by serving two bottles of wine before serving food, contravened the requirements set out in the Terms and Conditions to both encourage moderation and to not exceed the maximum drink size. Its position was that food needs to be served with the bottle of wine. Though the ordering and consuming of the food may happen at any point during the consumption of the wine – it must nevertheless happen during this window of time, and at a minimum before the second bottle of wine is served.

Cactus Club’s position was that because the Terms and Conditions do not specify when the food must be ordered, so long as the food is ordered at some point during the service, the maximum drink size is not exceeded. In this case at all times the server understood that the patrons intended to order food, and they did in fact order food. On this basis, neither the service of the first nor the second bottle of wine exceed the maximum drink size.

Decision

The General Manager’s Delegate acknowledged that the Terms and Conditions do not set out an express time within which food must accompany the service of a bottle of wine, but the language is clear that the wine must be consumed with food.

Taking into consideration the principles of statutory interpretation, and more specifically how a reasonable and informed licensee is expected to interpret and apply the Terms and Conditions, the Delegate concluded that one bottle of wine may be ordered and served to two patrons prior to food being ordered by them, but the patrons’ intention to order food must be ascertained and timely inquiries made for that to occur. This happened with respect to service of the first bottle of wine. However, prior to service of a second bottle of wine the patrons must actually order food so that it is available to be consumed with the wine.

The stated intent of the patrons that food will eventually be ordered, and the subjective belief of their server, is not sufficient. The decision maker held that to find otherwise would, in effect, ignore the requirement for a bottle of wine to be consumed with food and render the restriction meaningless.

The decision maker found the contravention as alleged to have been proven and ordered a $1,000 monetary penalty to be payable by Cactus Club and that it post in a prominent location within the establishment signage indicating that a monetary penalty has been imposed.

Re Cactus Club is an important one for licensees and managers to review with their staff. Not only was Cactus Club fined for a contravention of its licence, but it also failed to succesfully advance a due diligence defence. Could this have happened in your establishment?

Dan Coles and the other lawyers at Owen Bird have significant experience in the liquor law and hospitality sector. Please give us a call if we can be of assistance to your or your operations.

*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