Contravention Notice: Failing to promptly produce and submit a record
A licensee in British Columbia may receive a Contravention Notice from the Liquor Control and Licensing Branch for a variety of reasons; serving minors and over-serving patrons are two of the most common. However, another issue arises with more frequency than most managers and owners probably realize: failing to promptly produce a record or thing for inspection.
On February 7, 2017 the General Manager of the Liquor Control and Licensing Branch released its reasons in Re Liquid Zoo Show Lounge EH16-095. In Re Liquid Zoo the Branch fined the licensee $10,000 for its failure to promptly produce requested information.
The Liquid Zoo is a strip club and lounge in Kelowna that operates under a liquor primary licence. The Liquid Zoo’s licence contains a number of unique “special” terms and conditions that include onerous requirements concerning the mandated use of video surveillance throughout the establishment, and providing liquor inspectors and police with unhindered access to the same.
On July 14, 2016 a liquor inspector issued the Liquid Zoo a Notice to Provide Records that required the licensee produce employee records and certain days’ worth of video surveillance footage. The licensee failed to produce the requested information promptly and the liquor inspector issued a contravention notice.
Section 73 of the old Liquor Control and Licensing Act, and section 42 of the new Act, give the Liquor Control and Licensing Branch broad powers to demand from licensees records that the licensee is required to keep under the Act as well as any other “record, thing or sample.” Put simply, to further an investigation into a suspected violation of the Act, or a term or condition of licence, a liquor inspector can ask the management of a bar, restaurant or manufacturer to produce just about anything.
Section 34 of the old Regulation, now section section 80 of the new Regulation, sets out the type of record-keeping licensees are required to maintain for a period of at least 6 years. These records include: liquor purchase and sale records, food sale records, contacts with other licensees, management contracts, employee records (including name, salary, addresses, shift schedules) and records of incidents.
Licensees should note that in Re Liquid Zoo the liquor inspector declined to state the specific nature of the alleged contravention of the Act being investigated. In his reasons the General Manager’s delegate held that “ the fact that the [ contravention notice ] did not identify the specific nature of a possible contravention does not affect the reasonableness of the timeline or the validity of the request.” He went on to find that “the [ contravention notice ] is clear on its face as to what was required” and that “it is the licensee’s responsibility to ensure that he provides all the records required by the branch.”
Alcohol & Advocacy has written about the importance of complying with a liquor inspector’s demands for documents promptly and thoroughly before. It is a subject the Branch takes very seriously. The Branch deems a failure by a licensee to provide records a “serious contravention that undermines the regulatory compliance and enforcement regime.” Without access to records associated with the operation of a licensed establishment, the Branch considers itself unable to identify serious contraventions that pose an unacceptable risk to public safety.
If a liquor inspector asked your manager or bookkeeper to produce employee records, sales information, or an incident report from six years ago could they? If the answer is “no” you should revisit with your staff how your licensed establishment is managed and operated. If you have questions about how to avoid receiving a contravention notice, or complying with the Liquor Control and Licensing Act 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.