Re Generator Cabaret: The Importance of Cooperating with Police and Liquor Inspectors
On November 6, 2015 the general manager of the Liquor Control and Licensing Branch issued its decision in re Generator Cabaret case number EH15-017.
The Generator Cabaret is a nightclub located in Prince George, B.C. The Decision relates to contraventions of the Liquor Control and Licensing Act the Branch alleged were committed by the licensee during the early hours of January 18, 2015. The Branch submitted that on that date the licensee failed to cooperate with police, and the actions of its staff put police officers at risk or prevented them from carrying out their duties. Those are serious allegations.
While the facts in Generator Cabaret are both entertaining and unusual, the message to licensees is clear: you and your staff have a statutory obligation to cooperate with liquor inspectors and the police when they are in the performance of their duties on your premises – even if you disagree with their actions.
The facts in re Generator Cabaret are as follows:
Various RCMP members were outside the Generator Cabaret at closing time at approximately 3:00 a.m. on the morning of January 18, 2015. The Generator Cabaret’s bar manager advised an RCMP member that he had been assaulted by a patron, and wished to have them arrested. The RCMP arrested the patron, and a second RCMP member went into the Cabaret to attempt to obtain a statement from the bar manager. The bar manager refused to provide a statement to the second RCMP member, so the first member was forced to enter the establishment to attempt to obtain that information.
When the first member entered the establishment looking to speak with the bar manager, the Cabaret’s head bartender (and boyfriend of the bar manager) provoked an altercation with the member and was arrested after refusing to come out from behind the bar. While the officer was handcuffing the head bartender the bar manager jumped on his back and had to be arrested by another member. Needless to say, a Notice of Enforcement Action followed.
Section 12 of the Liquor Control and Licensing Act allows the General Manager to impose terms that are in the public’s interest in respect of any liquor licence. The terms and conditions set out in the Guide for Liquor Licensees in British Columbia are imposed under s. 12 of the Act. The Guide contains the following obligation:
You and your staff must fully cooperate with liquor inspectors and police, and ensure the actions of you and staff do not put liquor inspectors, minor agents contracted to the Branch, or police at risk or prevent them from carrying out their duties.
At the hearing, before the General Manager’s Delegate, the advocate for the Liquor Control and Licensing Branch submitted that evidence from the night in question established four instances of non-cooperation between the licensee’s staff and police:
- The refusal by the bar manager to give a statement to police about the assault by the patron;
- The refusal by the head bartender to come out from behind the bar when requested to do so;
- The bartender resisting arrest, not cooperating with police, and putting a police officer in a dangerous situation; and
- The bar manager running up to and jumping on the police officer.
The Branch sought a three-day licence suspension and an additional term and condition that the bar manager no longer be permitted to manage or be in the employ of the Generator Cabaret.
The Contravention Notice and Notice of Enforcement Action only alleged one instance of non-cooperation with police: that the bar manager allegedly jumped on the back of a police officer. The licensee submitted that it was only this one allegation that could be examined by the Delegate to determine if there had been a contravention of the Act. The licensee argued that it did not have notice of the Branch’s intention to proceed with the other allegations, so to permit the Branch to call evidence of those allegations would be unfair.
The Delegate determined that Contravention Notices and Notices of Enforcement Action are not intended to be read strictly like the pleadings in a civil action and thus do not necessarily limit the General Manager when making findings at a hearing. However, the Delegate also found that one of the key principles of natural justice is the right to notice of the case to meet. On that basis the Delegate confined herself to determining whether the actions of the bar manager in relation to the police officer attempting to make an arrest constituted a breach of the terms and conditions of the Generator Cabaret’s licence.
The licensee argued that it was unclear if the arrest of the bartender was lawful, and as such the licensee’s requirement to cooperate with the police may have been eliminated or reduced.
The Delegate firmly rejected that line of argument. Holding a liquor licence is a privilege that imposes a different and higher obligation on licensees to cooperate with police than that of an ordinary citizen. The Guide in this respect is clear –licensees and their staff have a positive obligation not only to not interfere with police, but to fully cooperate with the police. In meeting that obligation the licensee does not get to first assess whether, in their opinion, police officers are acting lawfully in carrying out their duties and then decide if they are going to cooperate. To permit a licensee that kind of latitude would not support the overarching goals of the licensing system or the rule of law generally.
The evidence of whether or not the bar manager actually assaulted the police officer arresting the bartender was conflicting, so the Delegate declined to make a factual determination on that point. However the Delegate did find that by physically inserting himself into that situation the bar manager did not behave as a reasonable and responsible bar manager ought to have. Accordingly, the Delegate determined that the actions of the bar manager that night put a police officer at risk while carrying out his duties. On that basis the Delegate found the licensee contravened s. 12 of the Act.
On the issue of appropriate penalty, the Delegate found this breach of s.12 of the Act to be a very serious contravention. She held that the officer could have been harmed carrying out his duties and that the bar manager acted impulsively. She questioned the bar manager’s suitability to manage the licenced premises. Moreover, while this was a first offence, as that term is defined under the Act, the licensee had many other contraventions for serious matters which call into question the responsibility of the licensee.
While the Delegate declined to impose a term prohibiting the bar manager from working in the establishment in the future– as that would place a significant restriction on the bar manager’s ability to earn a living – a serious penalty was warranted, and a $6,000 fine and a four day licence suspension were ordered.
If you own or operate a licensed establishment in British Columbia, the Liquor Control and Licensing Branch’s decision in re Generator Cabaret raises interesting questions:
- How does your staff reconcile the obligations under the Guide to fully cooperate with police, while ensuring they are not compelled to give a statement to a liquor inspector before speaking with counsel?
- If a Contravention Notice or a Notice of Enforcement Action are not construed strictly, how can your establishment know what case it has to meet before the Branch?
If your licensed establishment has received a notice of enforcement action, or you and your staff need assistance understanding 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.
