Court of Appeal Rules Maximum Penalty for Breach of Liquor Licence Reasonable

Posted on: January 5, 2014

The B.C. Court of Appeal released its decision on New Year’s Eve regarding the 3 day liquor licence suspension imposed on Kelowna’s Liquid Zoo night club for breach of the terms of its liquor licence. All three Judges who heard the appeal agreed that the suspension was reasonable and that the penalty fell within the range of possible and acceptable penalties.

The range of suspension for a first contravention of the type imposed upon the Liquid Zoo is 1 – 3 days (Schedule 4, Liquor Control and Licensing Regulation). However, under the Act, a longer suspension may be imposed if it is in the public interest.

Liquid Zoo’s liquor licence contained some additional provisions that were added because of the club’s previous history which included gang activity and business dealings with gang members. These provisions include a requirement that no customers/employees enter the club if they have any gang affiliated items and, if such items are later revealed after entry, that person be immediately removed from the club.

Liquid Zoo’s contravention and subsequent suspension arose from the presence of a customer in the club who was wearing a cap which stated “Kingpin Crew MC” which is a motorcycle gang with ties to the Hells Angels.

In reaching its decision, the Court of Appeal confirmed that the decision of the hearing adjudicator who imposed the suspension was reasonable and should be given deference unless the adjudicator’s reasoning was seriously flawed. In this case, the adjudicator found Liquid Zoo’s contravention to be serious and at the heart of the LCLB’s concern regarding gang affiliation with the club. As the findings of adjudicator were not seriously flawed and the suspension imposed was within the range of acceptable penalties, the Court of Appeal ruled that the suspension was reasonable and properly imposed.

In a judicial review of a contravention such as this, the findings of the adjudicator regarding the seriousness of the contravention, threat to public safety and well-being of the community will be given deference. If a liquor licence holder is issued a suspension due to a contravention, a judicial review of the adjudicator’s decision is not a second “kick at the can” such that the Judge who hears the review can simply substitute what they believe is fair in place of the decision of the arbitrator. The question for the judge is not “how should I impose what I believe the appropriate penalty to be”, but whether the penalty imposed by the adjudicator falls within the range of possible and acceptable outcomes based upon the facts and applicable law.

-Denese Espeut-Post (January 5, 2013)

Protect your Income – the case for Creditor Proofing

Posted on: June 25, 2013

What is the best corporate structure for your business? There are many factors to consider when determining the best corporate structure. Asset protection is one factor, but it is a very important factor, especially when a business in new and vulnerable; however, tax, financing and operational factors are also important considerations.  

To read my complete article on this topic, you can view it here.

Welcome 2013 Wine Bloggers’ Conference

Posted on: June 6, 2013

Welcome to Penticton for the 2013 Wine Bloggers’ Conference.  We, at Avery Law Office, wanted to show our interest in this conference and to speak to you, the wine blogging community. Our office uniquely specializes in wine law, with a focus on wine industry agreements which assist those in the wine industry with legal matters. We are proud to support small and medium business throughout the Okanagan including vineyards and wineries. We hope you will check out some of our past blogs and our regular column with Orchard and Vine magazine. If you are in need of legal services relating to the industry, do not hesitate to contact us. 

Holman Farms Foreclosure

Posted on: March 15, 2013

Imagine going from owning 22 properties throughout the South Okanagan, 7 wineries and a distillery to receivership, liquidation and a financial loss of all your equity and then some.  That is the unfortunate fate of the Holmans, the former owners of the Holman Farms, Lang Vineyards and other associated wineries.  According to a March 14, 2013 article in the Penticton Herald, Battle continues over controversial foreclosure, a bank foreclosure resulted in a significant financial loss given the appraised value of various business assets that were sold to pay outstanding debt.  They lost their businesses, they lost their financial growth, they lost their home.

This, of course, is a sad state of affairs that business owners do not anticipate when they nourish and grow their entrepreneurial dreams and start their business.  However, the reality is that many businesses fail for various reasons.  Those who own a business can learn from those who have failed despite considerable effort and planning. Keith Holman is quoted as stating “You’d better realize if you start getting the bank on you, you’d better get to [the] lawyers and be very careful about what you sign.”  I would take this one step further and say that you should not wait until the bank is on you.  Develop a relationship with a lawyer you trust who can act as your advisor throughout the life of your business.  It may cost you some time and some of your start up funds, but these will far outweigh the potential costs you will experience if you become involved in a contractual dispute or court battle.