Overcrowded Bars and the Importance of Due Diligence

On October 20, 2016 the Liquor Control and Licensing Branch suspended the food primary liquor licence of Johnnie Fox’s Irish Snug for a period of ten days. The reasons for the Branch’s decision in Re 641486 B.C. Ltd. dba Johnnie Fox’s Irish Snug can be read here.

Johnnie Fox’s is a small Irish pub style restaurant on Granville Street in Vancouver. It has a licensed capacity of 59 persons, and regrettably has a history of overcrowding. The licensee’s compliance history with the Branch shows two contraventions for overcrowding: one on April 6, 2013, and one on March 17, 2015. The licensee received a $5000 monetary penalty for each of these as “first” contraventions.

In Re 641486 B.C. Ltd. dba Johnnie Fox’s Irish Snug Johnnie Fox’s was again facing enforcement action for an alleged contravention of Section 6(4) of the Liquor Control and Licensing Regulation for overcrowding beyond the licensed person capacity, and more than the occupant load.

The Facts

The evidence before the Branch was not complex, and was not contested by Johnnie Fox’s.

On March 12, 2016 two liquor inspectors attended Johnnie Fox’s to perform a routine inspection. The restaurant was very crowded – something visible from the front of the restaurant given its long and narrow shape. Both liquor inspectors had mechanical counters on their person, and after speaking with a staff member near the door, who advised that by his count the number of occupants was 57 (or maybe 59) the inspectors each performed their own count. The liquor inspectors counted 82 and 81 persons respectively – numbers well in excess of the 59 patrons permitted under Johnnie Fox’s licence.

After the liquor inspectors approached the bar manager about this issue a second round of counts were carried out, one by the bar manager and one by an inspector.  Those counts showed 66 and 70 persons present. The liquor inspectors testified before the Branch that because patrons frequently leave establishments during the course of an inspection (after paying a bill, or to step out for a smoke) such discrepancies are not unusual between counts.

Understanding Due Diligence

At the hearing Johnnie Fox’s accepted the person count recorded by the liquor inspectors on the notice of enforcement action, thereby confirming that a contravention of Section 6(4) of the Regulation occurred.

With the facts admitted, the Branch had to consider the defence of due diligence raised by Johnnie Fox’s. A licensee is entitled to such a defence if it can show that it was duly diligent in taking reasonable steps to prevent the contravention from occurring.

Johnnie Fox’s typically has a doorman assigned to stand at the door to maintain appropriate numbers in the restaurant between 6 pm and 2:00 am at the weekend. On the night in question the doorman left at 9:00 pm. The reason why he left was not entirely clear; there was some evidence that he left as a result of an “emergency”, but the balance of the evidence indicated that he was directed by a supervisor to work the door at a different bar that was short-staffed.

Johnnie Fox’s operations manager gave evidence that he had recently updated the employee contract, introduced some other policy documents, and that he provided training to the weekend doormen. One of the policies required that doormen record head counts in the restaurant logbook every hour. Though the Branch was largely impressed with the policies and training in place at Johnnie Fox’s the policy did not satisfactory address situations when the assigned doorman has to unexpectedly leave, which was the case on the night of the contravention. Importantly, the Branch found it problematic that the evidence surrounding why the doorman left part way through his shift was confused and inconsistent.

It is interesting to note that the licensee’s witnesses and its submissions made much of the fact that the Rugby Sevens tournament was going on at the time, and that this unexpected event contributed to the overcrowding in the restaurant.  On this issue the Branch found that as part of its responsibility to ensure compliance with the relevant liquor laws Johnnie Fox’s ought to have been aware of, and prepared for, the event.

Conclusion

Re 641486 B.C. Ltd. dba Johnnie Fox’s Irish Snug is an important decision of the Liquor Control and Licensing Branch for two significant reasons:

  1. It reminds owners and operators of licensed establishments that policy statements and training manuals must be comprehensive documents that consider the unexpected. Put simply, it is not sufficient to merely have a policy at your establishment that requires a doorman be on site on the weekends – it must go further to consider situations where the doorman is unable to complete his shift. Moreover, management and staff must be aware of these policies so that when they need to react to the unexpected they know the process to follow; and
  2. It underlines the importance of successfully defending every enforcement proceeding brought by the Branch. In this case, Johnnie Fox’s had been penalized $5000 almost exactly one year earlier for the same contravention (overcrowding). While the threat of the $5000 penalty for the earlier infraction may not have seemed significant at the time, the effect of the ten day licence suspension the restaurant and its staff are now dealing with (as a result of a second contravention of the same nature within a one year period) is no doubt dramatic.

The Branch considers overcrowding to be a very serious public safety issue and one not to be taken lightly, given the related hazards with respect to fire and potential for injury. The risk of death or serious injury is greater when a building is overcrowded.

Alcohol & Advocacy reminds readers that the cost and time involved in training staff, drafting internal policies, and thoroughly investigating and documenting incidents is negligible compared to the significant costs and disruptions that licence suspensions inflict. If you or your company have questions about the law of due diligence, or require representation at a hearing before the Branch, 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.

 

 

Dan Coles
Retired bartender. Young lawyer. From the East, living in the West. Interested in British Columbia's producers and purveyors of wine, beer and spirits.