Ikura Japanese Restaurant: Drinking, Driving and the Fit and Proper Analysis
Ikura, located on Granville Street in Vancouver, holds a food primary liquor licence. At issue in the hearing before the general manager’s delegate was the Liquor & Cannabis Regulation Branch’s allegation that the licensee was in substantial breach of the terms and conditions of its licence by permitting someone to act as “manager” who was expressly prohibited from doing so. The Branch considered this contravention to be so serious that it sought the cancellation of Ikura’s liquor licence.
You can read the enforcement hearing decision in full here on Canlii as part of the British Columbia Liquor & Cannabis Regulation Branch’s new enforcement hearing decision reporting and publishing initiative.
The facts were these: Ikura originally applied for its liquor licence in November, 2012 but the Branch at the time rejected its application on the basis that the owner of the licensee, the restaurant’s manager, was a person the Branch had found to be “not fit and proper to hold a liquor licence” and therefore not a suitable person to “act in the capacity as resident manager, licensee, or third-party operator”. The manager had a criminal history of drinking and driving.
To work around the Branch’s refusal to issue a liquor licence to Ikura, ownership of Ikura was transferred to the manager’s father. Following the transfer of ownership the Branch issued the requested liquor licence. However, the licence was issued on the express term that the owner’s son (the restaurant’s manager with the impaired driving history) must not involve himself in the operations of the establishment or in the ownership of the licensee Ikura Japanese Restaurant Ltd.
Over the better part of the next decade the Branch, in the usual course, conducted inspections of Ikura and no contraventions of the licence were recorded.
Then, in October, 2021 a liquor inspector attending the establishment questioned the individual who appeared to be the manager about his role in the operation. He confirmed that he was the manager (the very manager who was refused a liquor licence back in 2012!). The manager went on to ask the liquor inspector her views about his ability to be part of an organization applying for a liquor licence even though he had an alcohol related criminal record.
The Branch issued Ikura a contravention notice on the basis that it had breached the terms and conditions of its licence by having the restaurant owner’s son act as manager. Apparently Ikura had been in breach of this condition of its licence since it was first issued – the son had always acted as manager.
At the hearing, the licensee’s representative admitted that it had breached the terms and conditions of its licence but explained that the owner of the restaurant does not speak English and therefore his son, the manager, is essential to the operation of the business. The representative went on to submit that the prohibition against the son being involved in the operation of the business was unreasonable, that the son’s criminal charges of concern to the Branch were over a decade old, and that the son has had no further incidents involving drinking and driving. The representative said that the restaurant is a family business and that if the son cannot participate in the business as manager it will be forced to close.
Decision
The general manager’s delegate noted that the contravention having been admitted, he only had to decide the appropriate penalty. Though the delegate observed that he did not condone or excuse the licensee’s conduct, he was prepared to take into account the licensee’s lack of compliance history, its willingness to work with the Branch on a solution to this issue, and that the restaurant supports at least two families and is very much a part of the local community.
The delegate declined to cancel the licence and instead ordered that the liquor licence be suspended until its expiration (a period of approximately two months). Following the expiration the licensee would be at liberty to apply to the Branch for an amendment to its licence terms and conditions – potentially removing the prohibition of the son/manager working in the restaurant.
For licensees Ikura is a useful reminder that different liquor inspectors consider or focus on different compliance issues. Just because one inspector one year (or even over several years) does not notice or comment on a contravention of a term or condition of licence does not mean that down the road that same inspector, or one of his or her colleagues, won’t discover or find fault with the very same conduct.
If you have concerns or frustrations about the terms and conditions on your liquor licence, or wish to discuss a notice of contravention or 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.
