Should I sign a Liquor Control and Licensing Branch waiver notice?
If a liquor inspector or police officer observes a contravention of the Liquor Control and Licensing Act, Regulation or the terms and conditions of your establishment’s licence, they will issue a contravention notice. If the contravention is a recurring problem or a threat to public safety, the inspector may recommend enforcement action. At that point you as licensee will be given the option of signing a waiver notice or proceeding to an enforcement hearing. Licensees should discuss this important election with counsel at the earliest opportunity.
If you elect to sign a waiver notice you:
- agree that you (likely your staff) committed the contravention;
- accept the enforcement action proposed in the notice of enforcement action (likely a monetary penalty or a period of licence suspension);
- waive the opportunity for an enforcement hearing on the matter; and
- agree that this will form part of your compliance history.
If a notice of enforcement action contains more than one alleged contravention, you may sign a waiver for one of the contraventions and dispute the others.
Signing a waiver may be the prudent course of action if you acknowledge that the contravention occurred as alleged, and that a defence of due diligence cannot be made out. Importantly, signing a waiver will save you the cost and inconvenience of preparing for and attending an enforcement hearing, and it provides you with certainty of outcome – you know exactly what penalty will be applied against your establishment. If you proceed to an enforcement hearing and are unsuccessful, there is the risk that the General Manager’s Delegate may order a penalty greater than the one set out in the notice of enforcement action.
However, as the recent decision of the General Manager of the Liquor Control and Licensing Branch in Re Kin Kao Thai Kitchen EH17-043 highlights, occasionally the General Manager’s Delegate may exercise his or her discretion in favour of not awarding a penalty against an establishment, even when the contravention is not disputed. The decision can be read in full here.
The Kin Kao Thai Kitchen is a small (licensed for 25 seats) food primary establishment located on Commercial Drive in Vancouver (“KKT”). KKT is licensed to sell all types of liquor, and like all restaurants with a food primary liquor licence the restaurant must operate with its focus being on the sale of food rather than the sale of alcohol.
In Re Kin Kao Thai Kitchen the Liquor Control and Licensing Branch alleged that on May 5, 2017 the KKT was overcrowded in excess of both its occupant load and its person capacity. The Branch proceeded by way of enforcement action and sought a four-day licence suspension, which is the minimum licence suspension penalty for a first contravention of this nature.
At the hearing KKT did not dispute that it was over capacity when it was inspected on May 5, 2017, instead it advanced a defence of due diligence.
The KKT’s person capacity (maximum number of people in the licensed service area of the restaurant, including staff, as determined by the Liquor Control and Licensing Branch) and its occupant load (as determined by local government) were both fixed at 25. For some establishments these figures may be different.
The liquor inspector was performing a routine inspection of the KKT when he determined that there were 30 patrons (not including servers or kitchen staff) in the premises. The liquor inspector advised an employee of KKT that overcrowding constitutes a safety hazard.
One of KKT’s owner’s, Mr. Feng, gave evidence at the hearing on behalf of KKT. He explained that KKT trains its staff to “stagger” seating, and monitor patron numbers, to ensure that the restaurant is at all times compliant with its capacity restrictions. Mr. Feng also testified that KKT is in the process of obtaining an increased occupant load from the City – however at the time of the hearing that process remained in the formative stage pending approval of the plans to add a second bathroom.
The General Manager’s Delegate was not satisfied that the licensee acted with due diligence in respect of the overcrowding contravention.
Having found that KKT contravened the Regulation by way of overcrowding, the General Manager’s Delegate was entitled to make any of the following orders:
- Take no enforcement action;
- Impose terms or conditions on the licence, or rescind existing terms and conditions;
- Impose a monetary penalty on the licensee;
- Suspend all or any part of the licence;
- Cancel all or any part of the licence; or
- Order the licensee to transfer the licence.
The General Manager’s Delegate is not bound to order the penalty proposed in the notice of enforcement action, however if the Delegate determines that a monetary penalty or a suspension is warranted he is bound by the minimums set out in Schedule 2 of the Regulation.
When considering what penalty, if any, was warranted in these circumstances the Delegate observed that the primary goal of the Branch in bringing enforcement action and imposing penalties is to achieve voluntary compliance with the Liquor Control and Licensing Act. The factors that are considered in determining the appropriate penalty include whether there is a proven history of compliance, a past history of warnings by the Branch and/or police, the seriousness of the contravention, the threat to public safety, and the well being of the community
Here there was no contravention history or record of warnings. The Delegate found that the circumstances of this contravention were unique: the hands-on owner Mr. Feng was unexpectedly called away from the restaurant on the evening of the contravention, and but-for the addition of a second bathroom the restaurant has sufficient exits to qualify for an increased occupant load of 34 individuals without significant physical alterations.
For these reasons the Delegate held that a suspension of the licence was not necessary to bring the licensee into compliance. Accordingly no enforcement action was required and no penalty was ordered against the licensee.
Penalties are determined on a case-by-case basis, taking the surrounding circumstances into account.
Though it is rare that the General Manager’s Delegate will choose to exercise his or her discretion in favour of not ordering a penalty against a licensee once a contravention has been proven,occasionally this is the case. For this reason licensees considering agreeing to a waiver notice should first obtain legal advice from counsel familiar with British Columbia’s liquor laws.
If you have questions or concerns about agreeing to a waiver notice, or enforcement action being taken by the Branch against your establishment, 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.