The owners of a nightclub (“Tonic Bar”) sought judicial review of an adjudicator’s decision on penalty relating to admitted contraventions of the “occupant load” requirement imposed on Tonic Bar under the Liquor Control and Licensing Regulations. The court upheld the adjudicator’s decision to impose a suspension 50% longer than the minimum mandated by the Regulations where the evidence established that the Tonic Bar was “seriously in contravention” of the occupant load restrictions on at least three occasions.

Administrative law – Decisions of administrative tribunals – Liquor Licensing Board – Judicial review – Compliance with legislation – Permits and licences – Suspensions

600428 B.C. Ltd. (c.o.b. Tonic Bar) v. British Columbia (Liquor Control and Licensing Branch, General Manager), [2004] B.C.J. No. 2291, British Columbia Supreme Court, November 2, 2004, Hutchison J.

The Liquor Control and Licensing Branch issued a licence to Tonic Bar. Under this licence, one of the requirements was that the licensee enforce a “person capacity” which defined the maximum number of persons permitted in the establishment at any one time. The person capacity of a licence was, by regulation, not to exceed the “occupant load”. The General Manager of the Liquor Control and Licensing Branch held an enforcement hearing to determine whether Tonic Bar had committed alleged contraventions of its licence. Tonic Bar admitted that it had not been in compliance with the occupant load on three occasions between March 1, 2003 and April 26, 2003. Three earlier non-compliance notices had been issued but those three allegations could not, for technical reasons, be proved against Tonic Bar and were dropped by the General Manager.

During the hearing, the adjudicator noted that the Tonic Bar was blatant in its continuing contravention despite earlier contravention notices and meetings with the Branch personnel. The adjudicator imposed an 18-day suspension of the licence as penalty for the admitted infringements. This was 50% higher than the minimum suspensions mandated under the Regulations.

The court reviewed the evidence and found that Tonic Bar was seriously in contravention of the Vancouver fixed occupant load. The court further noted that public safety was at issue, as was the obvious difficulty in obtaining voluntary compliance from Tonic Bar. Based upon these considerations, the court found that the adjudicator’s decision on penalty was not unreasonable in the circumstances and dismissed the petition of Tonic Bar.

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