Bars and restaurants lost a lot to gain a little in new liquor license regulations – and many of them won’t even collect
While seating capacity may be an issue for bar and restaurant owners, the municipality, and the provincial Liquor Control and Licensing Board (LCLB), there were plenty of empty seats in council chambers on May 16 for an open house on that very subject.
Six Whistler drinking establishments are applying to have either their interior seating capacities increased to match their building’s occupancy or for patio seating capacities that are independent from their interior capacities.
As part of the new liquor licensing regulations that the province adopted two years ago, the municipality is in a position to recommend that the LCLB accept or reject the applications based – among other things – on public input. Aside from the regular complaints received during the high season, there wasn’t any public input.
With the exception of this reporter, a grand total of four stakeholders showed up to the open house: Lee Murphy, the new liquor license inspector for the region; Mike Kirkegaard, a Planning Department representative for the municipality; Staff Sergeant Hilton Haider of the Whistler RCMP detachment; and Dick Gibbons, the owner and operator of The Longhorn Saloon and Buffalo Bill’s.
While a lot of the discussion was off-topic and off-the-record, the general feeling was that the Liquor License Advisory Committee would support the applications when they come before council on June 4, but applicants had better be ready to answer some tough questions.
There are some concerns that the additional capacity will add to the noise and general ruckus in the village at closing time. There are also concerns that the village already has too many licensed seats.
According to Gibbons, those concerns, while valid, have little to do with the applications to increase capacities – nobody is increasing anything except on paper.
"I don’t think people understand what the process was (leading up to the province adopting the Liquor Policy Review in May 1999), but it was give and take on everyone’s behalf," says Gibbons. "The provincial government got universal enforcement and codified penalties. The municipality has more power than ever before over licensees. We were given a few powers, mainly the right to apply for capacity increases."
Liquor establishments routinely exceed the capacities outlined in their liquor licenses in order to capitalize on those times when business is good – "For years we’ve been allowing over-capacity on nights that are busy," Gibbons said. "Because of over-licensing in this town and this province, the government has put us in a position where we rely on the fact that we are that busy a couple of days a week."
Everybody up the chain of command understood the reality of the situation well enough that in the past few decades there have been very few cases where bars and restaurants were busted for overcrowding. In Liquor License Advisory Committee documents, this overcrowding is referred to as "historic operating capacities."
"Given that background, people have to realize that none of the places are getting additional seats," says Gibbons. "There will be no more people than before. We are just recognizing and legitimizing the practice as it has been for the last 20 years."
In other words, more official seating won’t create any more noise or ruckus than there has been in the past.
When consultant Jo Surich submitted his comprehensive review of the dated liquor license laws and regulations – the famous Surich report – his goal for the LCLB and provincial government was to modernize and streamline the regulations governing liquor licenses to reflect the times and make life easier for the government and license holders to go about their business. He also recognized that there were too many liquor licenses awarded in the past, and that this situation was putting too much pressure on bars to compete.
Seeing an opportunity to bring some order back to the licensing systems, various powers were given to provincial licence inspectors acting on behalf of the government, and to municipalities acting on behalf of their constituents.
Compliance and enforcement measures under the new regulations include predetermined penalties in the form of fines for first time offenders starting at $5,000 for overcrowding and licence suspensions of up to 20 days for repeat offenders.
In return for accepting these strict enforcement measures, pubs lounges and cabarets were allowed to apply to increase their licensed capacity by up to 50 per cent, or to a building’s fire code capacity, whichever was less. Restaurants were also allowed to set aside 10 per cent of their seats – to a maximum of 20 seats – where customers could consume alcohol without purchasing food.
The amendments to the Liquor Licensing Act and new, streamlined licence regulations began to be implemented in October of 2000. Licence holders were given an adjustment period, and enforcement was to begin on Jan. 15, "thinking that all this stuff would happen by then," says Gibbons.
The enforcement did start on Jan. 15, but before bars and restaurants could get what they wanted out of the deal – seating capacities that were closer to the actual building capacities as spelled out in the fire code.
Without that extra capacity, it was a controversial winter in Whistler’s bars. The RCMP and a new liquor inspector issued contravention notices every weekend, the majority of which were for exceeding capacity.
There were complaints of RCMP officers asking customers to see their bills at restaurants to make sure they ordered food with their apres ski drinks, and complaints that patrons were forced to wait in line outside of empty bars because a bar had already reached licensed capacity on the patio.
Bar owners objected to this level of scrutiny and enforcement because in their view, without the extra seating capacity, the other parties were jumping the gun. They took their complaint to the provincial government, and cabinet upheld their side of the argument.
"They basically said that the law says they must issue these contravention orders, but if you’re going to increase your capacity, we won’t follow through," says Gibbons. "In the system we were given to work with, it was the only thing we could do."
Of the 29 Whistler establishments that were considering capacity increases and received packages from the LCLB, only eight establishments were in the end actually eligible to apply for increases. Two decided not to bother.
"Both decided not to pursue the process further," says Kirkegaard. "They reviewed their floor plans and occupancy and in one case decided they wanted to stick with their existing numbers, and in the other case there were very few seats and they didn’t feel that it was to their benefit to go through the process, providing an up-to-date set of drawings stamped by an architect."
Two establishments also missed the process deadline. "We contacted the province to see if we could include them and they said no because they didn’t want to slow down the whole project," Kirkegaard said.
All eligible establishments can apply for capacity increases in the future, but they will have to comply with the new regulations once the first batch of applicants is dealt with.
As it stands:
The Longhorn Saloon & Grill is applying for a patio capacity of 170 seats, not to be deducted from the Longhorn’s interior capacity.
Buffalo Bill’s Bar & Grill is applying for an interior capacity increase to building occupancy, from 225 seats to 325 seats.
Hoz’s Pub is applying for a patio capacity of 22 seats, not to be deducted from the interior capacity, and for an interior capacity increase to building occupancy, from 88 seats to 95 seats.
The Dubh Linn Gate Old Irish Pub is applying for a patio capacity of 37 seats, not to be deducted from the establishment’s interior capacity.
Milestone’s Palamino Bar is applying for a patio capacity of 22 seats, not to be deducted from the interior capacity. However, since only Class "A" licence holders were eligible, the Palamino application is problematic – it’s licence was downgraded from an "A" bar license to a "B" neighbourhood pub license when the Delta Whistler Suites was stratified.
For their part, Haider says the RCMP won’t oppose the applications for increased capacity. Their main concern is finding funding to hire the additional officers for weekend patrols and maintaining a constant presence at regular trouble spots in the village.
"We’ve done research to see how other resort communities handle the noise complaints, and in many cases, like Daytona Beach, it’s extreme enforcement," says Haider. "It’s expensive, but a lot of the local policing costs are absorbed by local businesses."
He believes that a similar type of arrangement could work in Whistler, where local bars, restaurants, hotels and any businesses that profit from the tourist trade could chip in to maintain a police presence. Other businesses, such as taxi and bus companies, also have to work harder on crowd dispersal.
To reduce the number of noise complaints, it was suggested companies that book hotels and condos in the village should do a better job of warning guests in advance that it can get noisy at closing time – anyone opposed can stay in a quieter area of the village.
"Most people who come to Whistler don’t complain, and given the choice, most people would probably choose to stay in the village," says Gibbons. "Sure, it can be noisy at times, but people want to be close to all the action. They come here to act like they’re back in college.
"It’s important not to lose sight of the fact that we’ve done such a lousy job running this place that we’re now the number one resort in the world. We know what it takes to succeed."
Murphy, who will serve as the liquor inspector for Whistler and the rest of the corridor until the province decides whether or not it wants to post somebody in Squamish, says that aside from the Milestone’s application, the number of new licensed seats is a drop in the bucket for a town that already has over 28,000 licensed seats and more planned, with developments in Creekside and at least four new hotels going in.
However, the bars have to be ready to play by the rules.
"The licensing branch is getting out of the licensing and into the enforcement," says Murphy. "It’s all we do now. All the liquor inspectors are freed up to participate in compliance and enforcement programs."
