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)