Friday, February 28, 2014

Changing the Culture of Fear & Paranoia: The Recommendation That Could Change How Liquor Policy is Enforced

For as long as I can remember there has been a dark cloud of paranoia that has hung over many BC liquor manufacturers & licensees who fear that their livelihoods, namely their liquor-related businesses and the licenses associated with them, are in jeopardy if they question provincial liquor policy and the decisions made the Liquor Control and Licensing Branch (LCLB), the Liquor Distribution Branch (LDB) and their employees.

But all this may be about to change as a result of one of the 73 recommendations made by John Yap in his BC Liquor Policy Review Final Report. In his report, Yap is recommending the BC Liberals allow for,
 "applicants and licensees seeking a review of LCLB decisions should have access to a new and separate decision-making body outside the licensing branch. The Ministry of Justice should review current processes and determine how best to provide independent decision-making for those seeking appeal."
This recommendation, which is getting no press coverage or water cooler time, is the recommendation that could drag our liquor policies, and how they are implemented and enforced, into the 21st Century. This could also be the recommendation that allows liquor related business owners do what they want to do, namely run their businesses without undue interference and inconsistent application of BC liquor policy from alcohol related government agencies.

By creating an affordable, independent system for licensees and liquor licensee applicants to appeal LCLB & LDB rulings, inspectors & upper echelon bureaucrats will be held accountable for their decisions which may cause some of the less scrupulous and less knowledgeable types to think twice before acting. Those seemingly arbitrary and illogical rulings and decisions we all hear about will now be examined by someone who, in theory, will have a completely objective viewpoint. Licensees will no longer have to fear retribution as much as they will have an avenue for lodging complaints when they feel they have been done wrong.

It may also provide some consistency to how the policies and laws are applied and create case examples of rulings that could work similar to case law in the courts, setting precedents that can be used in the future when similar situations arise and there is conflict between licensees and the powers that be enforcing and implementing liquor policies.

By having rulings for specific issues on the record the ability to interpret and manipulate policies could be eliminated or at least decreased. And if a particular inspector or bureaucrat keeps having their actions and decisions hauled into and overturned by this appeal process, maybe, just maybe, problems will identified and actions taken to correct the problems like supplying proper support and education to those who are abusing their power or making questionable rulings. And if the problems continue to persist, maybe, just maybe, those not doing their job in an ethical and equitable manner, will be disciplined and possibly removed from those positions of power.

I know when I met with Yap, as a part of the CAMRA BC presentation during the review, he was very interested in the idea of an independent appeal process and he did acknowledge that he had heard from several sources that many licensees fear speaking out even when they believe they are 100% in the right. We had quite a long discussion about this and I got the distinct impression that Yap wanted to ensure that there were checks and balances in place in regards to enforcement of liquor policies. He also mentioned he would like to see liquor inspectors get more education about the policies they are enforcing and the mandate they are carrying out.

I get a regular flow of emails and telephone calls from liquor license holders and people trying to obtain liquor licenses, who ask me to look into questionable and at times seemingly arbitrary decisions made by our province's liquor bureaucrats and their minions, but almost all end their requests with the following stipulation, "Please don't use my name or anything I have told you because I don't want any trouble (from the LCLB or LBD)."

At the moment, licensees know they have little-to-no recourse if they find themselves on the wrong side of their local liquor inspectors or the bureaucrats who work in the LCLB & LDB head offices as currently there is no appeal process built into the system. Once a decision has been made and/or a penalty imposed, that is it, end of story, no matter how nonsensical or unjust. Licensees often feel helpless in this very unbalanced system and those enforcing and implementing policy know it.

Currently, front line LCLB liquor inspectors, if they are so inclined, have been free to make rulings as they see fit, interpreting the often poorly and vaguely worded policies and laws to their advantage, making rulings and decisions that cost licensees crippling amounts of money, with little fear of being held accountable and at times with little working knowledge of the policies and laws they are enforcing. I am not saying all liquor inspectors are like this, but it seems like licensees from all corners of the province have had negative experiences.

Those higher up the bureaucratic food chain are free to direct these liquor inspectors as they see fit. In the cases of those in positions of power, they, in certain instances, have the ability to write liquor policy on the fly, basically unchecked as the politicians who are supposed to be responsible have little-to-no interest or knowledge of what is going on and only pay attention when the shit hits the fan. Politicians rely heavily on the advice of the top bureaucrats and the top bureaucrats have a vested interest in making things as easy on themselves as they can, pushing their own private agendas knowing they have little chance of having to answer for their decisions unless something goes wrong and the media get onto a story that reflects negatively on the government's policies.

Laws are often enforced arbitrarily and inconsistently. Both the LCLB & LDB hide behind the often outdated and nonsensical liquor policies when it suits them to enforce them and ignore those same policies and laws when doing so suits their needs.

I know some of you out there think I am just being dramatic and trying to cause trouble here but trust me, I have sat down with liquor inspectors who have no idea what they are talking about, who make bizarre decisions based on their interpretation of the liquor policies or have an unwillingness to try to address problems without being unnecessarily heavy-handed. I have also seen cases where the LCLB & LDB have seemed to rule or act for no other reason than to put people who complain or question policy in their place. If you want some specific examples check out here, here, here and here.

Having said that, I know that there are many who work in the alcohol bureaucrat arms of government who are very honest, helpful and try to do what they can to be fair and equitable to licensees and liquor-related businesses but they are overshadowed by those others I have been talking about.

I hope the government looks hard at creating a system or appeal that will help create a far and equitable process for everyone involved in the BC liquor industry. Liquor inspectors, the LCLB & those who issue liquor licenses  and enforce the laws have a job to do, which is enforce liquor policy, but this enforcement needs to be consistent, predictable and both those abusing the policies and breaking the law and those enforcing the policies and laws need to be held equally accountable.


  1. A key question here is what level of review such an independent tribunal could offer. For example, if under the applicable law the LCLB continues to enjoy complete and unfettered power to develop and enforce rules and policy as it sees fit, a tribunal might only be able to rule whether "the LCLB properly exercised the powers they were given" - and the answer will always be "yes," since their power is nearly total. A tribunal won't have a basis for objecting to the content of LCLB decisions where the LCBC, by definition, has been given the power to do "whatever it wants."

    In addition to your statement, "Laws are often enforced arbitrarily and inconsistently" I would add "arbitrary and inconsistent laws and policy are often enforced enthusiastically," which is what I'm more worried about. We can have all the enforcement and avenues of appeal we want, but if the rules don't properly define and limit what the LCLB can do, it's all for naught. In other words, if the LCLB doesn't have to follow its own rules, and with respect to licensing isn't required to follow any firm guidelines or rules laid down by the government (it can make them up itself), then appeals or strict enforcement will be unable to change the LCLB's behaviour.

  2. I agree with all your points 100% Chad. The one hope I have is that the recommendation states "The Ministry of Justice should review current processes and determine how best to provide independent decision-making for those seeking appeal."
    You know the LCLB & LDB will give huge push back to any changes tot he process that diminishes their current power status and if the government allows them to draw up the policy for an appeal process it will be toothless and ineffective. Bureaucrats, like politicians, are all about survival and you can be sure the LCLB & LDB brass will be doing all they can to influence the way this plays out.
    When we met with Yap, it seemed clear to me that his intention was to right the current power imbalance and implement some accountability for decisions being made in regards to enforcement and implementation of the liquor policies. Lets hope Anton and her gang actually capture the spirit of the recommendation and put in place an appeal board who have teeth, whose mandate is to ensure fair treatment for all under liquor policies and whose rulings are legally binding.