Liquor Control Act Enforcement: What do I do after receiving a Contravention Notice?
After receiving a Contravention Notice for the alleged breach of the Liquor Control and Licensing Act or a term of your licence, the Liquor Control and Licensing Branch may follow-up by issuing a Notice of Enforcement Action. This document should contain two crucial pieces of information: sufficient particulars of the Branch’s allegations, so that you are able to understand the Branch’s case against you, and the Branch’s proposed penalty.
The type of penalty sought by the Branch, or ultimately imposed after a hearing, will depend on a number of factors including the nature and circumstances of the contravention as well as the licensee’s compliance history.
When in receipt of the Notice of Enforcement Action a licensee has three broad options, each of which needs to be considered in detail:
- Admit that the contravention occurred and accept the proposed penalty
- Admit that the contravention occurred but dispute the proposed penalty
- Dispute that the contravention occurred
The Notice of Enforcement Action will not be issued immediately after the alleged contravention. The Branch will need time to write the report, and consider its position on a penalty. This means that as a business owner in receipt of a Contravention Notice, all of the facts may not be immediately known to you. Liquor inspectors often attend establishments when they are busiest, which could mean during the “dinner rush” or in the early hours of the morning depending on the nature of the club or restaurant.
This makes the steps taken by management immediately after a Contravention Notice has been served extremely important. If the manager in receipt of the contravention notice does not inform the general manager or owner of the alleged contravention until the following business day it may be too late to gather the evidence necessary to defeat or reduce the severity of the enforcement action.
The Act is what is known as “strict liability” legislation. This means that licensees are responsible for all contraventions, regardless of whether or not there was actual intent to commit the contravention. For example at an enforcement hearing the Branch does not need to demonstrate that your staff intended to sell liquor to a minor. This means it is not a valid defence that the staff member or members involved in a contravention “forgot” to ask for identification.
However, at an enforcement hearing licensees are able to raise a defence of “due diligence”. Mitigating factors can also be raised at this time, and although this information will not be considered by the Branch in determining liability, the Branch may consider them when determining the appropriate penalty.
Ideally a licensee will present evidence will in the form of witness statements, contemporaneous notes, documents from third parties, and CCTV footage. The Branch has noted that at enforcement hearings it is seeing “more sophisticated and thorough presentations” on due diligence at hearings on alleged non-compliance with the Act.
This means that in addition to the existing protocols your establishment has in place to ensure compliance with the Act, management needs to have a process in place for the aftermath of an alleged-contravention:
- If your establishment has a CCTV system, do your managers or shift supervisors know how to preserve the footage to ensure it won’t be written over? It could prove to be vital evidence.
- Does your establishment employ security personal? Are they familiar with your establishment’s licensed capacity? Do they routinely patrol the establishment and keep notes of their observations?
- Do you conduct in-house training or seminars on liquor sales and service?
- Do your managers know the right questions to ask a witness after a contravention has occurred?
Remember that a successful due diligence defence can only be raised if your management understands the concept, and has the right systems in place before a contravention occurs.
*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.
