Wolf in the Fog caught in Minors as Agent Program Investigation
Recently the Liquor Control and Licensing Branch released its reasons in Re Wolf in the Fog EH16-096, confirming that even high-end restaurants will be targeted by British Columbia’s liquor inspectors conducting minors as agent program (MAP) investigations.
The Wolf in the Fog is a fine dining establishment located in the popular surf and tourism town of Tofino, British Columbia. In 2014 it was the recipient of the “best new restaurant in Canada” award and in 2015 it was ranked 38th in the country. In the words of its management, the establishment is not “a dive bar, diner or casual family restaurant.”
The Wolf in the Fog operates under a food primary licence.
On February 23, 2017 the Liquor Control and Licensing Branch’s delegate conducted a hearing into the allegation that on July 6, 2016 an employee of the Wolf served alcohol to a 16 year-old, who at the time was acting as an agent of the Branch as part of the Branch’s ongoing MAP inspection. Supplying liquor to a minor is a contravention of the Liquor Control and Licensing Act that under the old Act carried a minimum monetary penalty of $7,500.
At the hearing the representatives of the Wolf did not dispute that its employee served a minor. Rather, they submitted that the establishment had taken all necessary steps possible to prevent the contravention from occurring. In legal parlance this is known as a due diligence defence.
The Wolf outlined for the Branch the following steps it takes to prevent its staff from serving minors:
- All new hires are required to have Serving-It-Right training
- The employee manual contains information dealing with the need to identify minors
- A whiteboard that contains the day’s food special contains a reminder of the date on which anyone being served alcohol must be born before
- Management-led meetings held at the start of each shift confirm the importance of not serving minors
- Shift managers supervise staff to ensure they ask patrons for identification
However, on cross-examination the Wolf’s representatives conceded that:
- Management does not go through the employee manual with new employees, instead the new employees merely sign a form verifying their review of the same
- Employees are in fact hired without Serving-It-Right; those without SIR act as hosts
- There are no testing protocols or written policies with respect to testing staff on their knowledge about liquor law
- No signage around the establishment warns against serving minors – as those signs would disrupt the fine dining aesthetic
- The employee who served the minor was suspended rather than being fired
The Branch concluded that the Wolf’s training regime fell short of being adequate. The Branch highlighted the licensee’s concession that there were “no written policies regarding training standards or processes.” Overall the Branch found the licensee’s training regime to be largely ad hoc and therefore not duly diligent. The Branch’s delegate ordered that the Wolf pay a $7,500 penalty.
The Branch’s decision in Re the Wolf in the Fog is a reminder to all licensees that liquor inspectors can and do investigate licensed establishments of all stripes: from nightclubs to high-end restaurants in remote locations.
At the hearing a liquor inspector advised the Branch that the reason for the minors as agent program inspection was because at an earlier inspection conducted in April of that year the liquor inspector was concerned about the number of young people being served alcohol without being asked for identification. MAP inspections are usually conducted in response to complaints or perceived risk.
Licensed establishments that are consistently operated in accordance with the terms of licence and the Act are unlikely to be subject to significant attention from liquor inspectors. On the other hand, as evidence by the liquor inspector’s comments in Re Wolf in the Fog, if your establishment is perceived as being casual about its obligations it will invite greater scrutiny from liquor inspectors.
If your bar or restaurant is facing enforcement action by the Branch, or has recently received a notice of contravention, 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.