Covid Regulatory Rabbit Holes: What is an Event?
- Details
- Written by Mark Hicken Mark Hicken
- Category: Latest News Latest News
- Published: 22 February 2021 22 February 2021
A revised BC Public Health Order related to “Gatherings and Events” was issued on February 10th by the Provincial Health Officer. In respect of the hospitality sector, the Gathering and Events Order supplements an earlier Food and Liquor Serving Premises Order which was issued on December 30, 2020. Along with another earlier order on Workplace Safety, these three orders constitute the framework for the operating restrictions which currently apply to restaurants, bars, hotels, liquor retailers and liquor manufacturers (including wineries).
The earlier orders have been described here previously (see 2021 BC Liquor & Hospitality Industry Health Order Update). Generally, the latter two Orders impose either objective standards relating to compliance (e.g. maximum of 6 people at a table) or require that a business create a viable safety plan based on certain guidelines. However, the Events Order imposes additional complications because it is considerably more subjective and imparts significant ambiguity into what is permissible. It prevents any of the businesses covered by the earlier Food & Liquor Serving Premises Order from permitting their premises to be “used for an event, including a private event” and prevents these businesses from organizing or hosting “an event”. As such, hospitality businesses are effectively banned from allowing “events” in their facilities.
Since there are significant fines and other penalties (including possible closure orders) for violating the Order, businesses should be able to determine what constitutes an “event” relatively easily. Unfortunately, it is not clear from the Order or from the accompanying guidance what is a prohibited event and what is not. The Order seeks to define “event” but it does so by stating that an “event” is any gathering of people in any “private or public place”, “inside or outside”, “organized or not” and which is held on a “one time, regular or irregular basis”. This is a very sweeping definition of event – a meeting with a single friend (or even your spouse) for lunch could conceivably be an event under this interpretation.
The first problem is that this approach fails to recognize that whether or not something is an “event” is likely to be defined by the subjective experience of the participants and, perhaps, the organizer. If you look at the dictionary definition, it includes reference to whether or not the occasion is viewed as being “important”. I may not consider it to be an “event” if I go out for dinner with a few friends … but I might think that the same dinner is an “event” if it is done to celebrate my birthday or graduation.
The second obvious level of uncertainty is that the Order’s definition does not specify a number for a “gathering” that constitutes an “event” … so theoretically, it might include gatherings of small numbers.
Further uncertainty is created by an extensive example list of “events” which people may agree with or not, depending upon their subjective intentions. For example, “meetings” are listed … but how many people do you need for a meeting to become an “event”? Or how important does the meeting have to be for it to turn into an event? The same problems arise for the inclusion of “party”, “celebration”, a “musical performance” or “a gathering in vacation accommodation”. For nearly every example, it is unclear when, how or why the example occasion would turn into an “event”.
The commentary that was issued along with the Order does not help things appreciably. For example, the commentary says that you can’t meet anyone outside your household in your backyard but it is permissible to go for “a walk or hike” with others so long as the walk or hike does not turn into “a group of people meeting outside” … which makes no sense since it is obvious that a walk or hike with other people is a group of people meeting outside.
The problems are magnified when you try to read this Order in conjunction with the earlier Food & Liquor Serving Premises Order which contained a clearer set of operating guidelines based on more objective standards such as allowing 6 people per table and imposing certain physical distance requirements. If the business follows these clearer guidelines, is it on-side? Most in the hospitality sector are taking the position (understandably) that they do not have to go beyond the more objective rules. Incidentally, and as mentioned in an earlier post, the Orders do not prevent individuals from different households from eating or drinking together unless that can somehow be determined to be an "event". There may be some situations (e.g. a large party trying to sit in multiple tables of 6) where the business can reasonably determine that there is an impermissible "event" ... but there may be many other situations where it is not clear.
The introduction of regulation through subjective terms such as “event” will pose significant challenges for hospitality businesses and may end up creating enforcement problems. I am not convinced that these Orders will be enforceable in any situation where there is ambiguity. These issues certainly illustrate the difficulties of trying to regulate public behaviour.
On the positive side, BC’s hospitality businesses have been permitted to remain open during a time when many jurisdictions have either mandated absolute closures, imposed significant capacity restrictions, or permitted only take-out or outdoor dining. As such, and despite the uncertainty, if the choice is between subjective regulation and clearer but more restrictive rules, BC’s hospitality businesses may prefer the more ambiguous approach.
2021 Canadian Wine & Liquor Law Conference February 25th
- Details
- Written by Mark Hicken Mark Hicken
- Category: Latest News Latest News
- Published: 02 February 2021 02 February 2021
The 2021 Canadian Wine & Liquor Law Conference will be held online on February 25th. This conference is the successor to the annual BC Wine & Liquor Law conference which was originally launched in Vancouver in 2009 and subsequently held in association with the Vancouver International Wine Festival. The conference is now sponsored by AIDV which is the French acronym for the International Wine Law Association.
Each year the conference has always been a must-attend event for anyone interested in or working in the area of wine and liquor law or policy. This year is no different with an impressive line-up of speakers. There is a national regulatory update, sessions on geographic indicators, various panels on international trade and a discussion of counterfeiting and wine fraud (featuring Maureen Downey who appeared in the Sour Grapes movie which dealt with the Kurniawan case!).
The full conference agenda including registration information is here: AIDV Canada Wine & Liquor Law Conference. Membership in AIDV is not required to attend the conference.
Covid Relief Order Update for Wineries
- Details
- Written by Mark Hicken Mark Hicken
- Category: Latest News Latest News
- Published: 27 January 2021 27 January 2021
This article provides a quick update on the status of the main Covid relief orders that have been issued by the BC Government over the last year as they apply to wineries and the hospitality industry.
| Relief Order Description | Expiry Date | Link to Order |
| Extends retail liquor store operating hours including manufacturer on-site stores to permit sales between 7 am to 11 pm. | March 31, 2021 | 21-01 |
| Permits liquor manufacturers to produce alcohol-based sanitizer products | June 30, 2021 | 20-28 |
| Permits food primary and liquor primary licensees to sell alcohol for take-out with a meal | March 31, 2021 | 20-27 |
| Permits expanded service areas in order to accommodate health orders related to physical distancing and capacity | October 31, 2021 | 20-26 |
| Permitted delivery for DTC sales from registered off-site storage locations. Note that this order has now expired | October 31, 2020 | 20-21 |
| Permits hospitality licensees (bars/restaurants/hotels) to purchase liquor at the same wholesale prices as retailers. Note that this order is subject to review as of March 31, 2021. | March 31, 2021 | LDB Policy Change |
Many of these orders have already been extended previously. It seems likely that many may be extended further beyond the current expiration dates listed above. It is also possible that some of these temporary orders may eventually be made permanent.
2021 BC Liquor & Hospitality Industry Health Order Update
- Details
- Written by Mark Hicken Mark Hicken
- Category: Latest News Latest News
- Published: 06 January 2021 06 January 2021
Unfortunately, the Public Health Orders (PHOs) that have been issued in BC in response to the Covid19 pandemic continue to cause confusion for the general public and for affected industries including the liquor and hospitality industry. The following discussion provides an updated analysis for the BC wine and hospitality industry by reviewing the orders and related guidelines.
Restaurants/Bars/Lounges (including Tasting Bars)
The governing Public Health Order for restaurants, bars and lounges (including winery tasting bars) is now the Food and Liquor Serving Premises and Retail Establishments Which Sell Liquor Order which was issued on December 30, 2020. This Order largely re-stated a previous order but also prohibited the sale of liquor after 8 pm on New Year's Eve (the latter change came barely 24 hours before the effective time, causing significant financial loss for affected businesses). This PHO previously required and still requires that nightclubs must close. There are various rules for continued operation for all other premises including:
- Customers must be seated and remain seated except to use the washroom or for initial seating. An exception is made for liquor manufacturers so winery tasting rooms can have customers who are standing at the tasting bar.
- Appropriate separation (generally 2m) of customers or customer groups must be made. Alternatively, can use physical barriers.
- Maximum of 6 people per group at a table or counter. No movement between tables.
- Liquor service must end at 10 pm.
- No dancing, singing, etc ...
- Contract tracing info for customers is required.
- Workplace Covid Safety plan required.
There is now a requirement for mandatory masks in all indoor public spaces with some limited exceptions including for the consumption of food and drinks. This requirement was issued under this Ministerial Mask Mandate Order rather than a PHO. As a result, masks are now required for staff and customers unless the customer is seated at a table or counter for the purpose of eating or drinking (i.e. a customer must wear a mask during initial seating or going to the washroom).
In respect of events, a revised Gathering and Events Order was issued on December 24th, 2020. This prohibits a restaurant/bar/lounge from holding any "events" until at least February 5, 2021. This would likely prevent any type of special event outside the restaurant's normal business such as a winemaker's dinner or winery sponsored tasting. I note that this order is confusing and does not adequately define many of the terms used. In addition, much of the guidance related to the order (see Province Wide Restrictions page) is not consistent with the order. The definition of "event" is problematic because it seems to encompass any "gathering" of individuals for "private or public" purposes either "inside or outside". This is a sweeping definition that goes far beyond the normal definition of an event. To make things more confusing, the guidance then lists many types of "gatherings" which are supposedly permissible but which may fall literally within the definition (for example, "going for a walk" with others is supposedly permissible as long as it does not turn into a "group of people meeting outside" - which does not make sense).
Particularly, I note that in this regard and for the purpose of seating customers, restaurants/bars/lounges are not required to determine whether patrons reside in the same household or bubble. Indeed, the Orders do not prohibit customers from different households from sitting together unless that could somehow be characterized as an "event".
Retail Stores (e.g. On-Site Store, Liquor Stores)
The governing PHO for retail stores including on-site stores in a winery or manufacturer is the Workplace Safety Plans Order which was issued on May 14, 2020. This was supplemented by an additional Workplace Safety Order issued on December 16, 2020. Generally, these orders require the following:
- Workplace Covid Safety plan required.
- Daily health checks required.
- Encouragement of working from home, whenever possible.
- Appropriate capacity planning, protective barriers and customer control measures.
As mentioned above, the requirement for masks is now mandatory in retail stores for both customers and employees under the Ministerial Order.
Events
The revised Gathering and Events Order (above) prohibits all events of any size until at least February 5, 2021. As noted above, the definition of events is problematic but it likely means that all the types of special events that a winery or manufacturer would normally hold are canceled until at least February 5, 2021. For example, weddings, celebrations, parties, auctions, fundraisers, wine tasting seminars, etc... must all be canceled. The previous 50 person limit for events has been suspended (at least temporarily) and the allowable number reduced to zero (the limit for weddings is 10 people which would eliminate most if not all 'winery weddings').
Court Commentary
There has already been some judicial commentary dealing with the confusion associated with these Orders. In a recent case that analyzed the effect of these Orders and family custody arrangements, Mr. Justice Kent of the BC Supreme Court noted that the Orders were confusing and hard to understand. The Justice stated:
BC Wine & Hospitality Industry: Public Health Order Update
- Details
- Written by Mark Hicken Mark Hicken
- Category: Latest News Latest News
- Published: 23 November 2020 23 November 2020
There has been some confusion recently on the content and effects of the recent Public Health Orders (PHOs) that have been issued in response to the Covid19 pandemic. The following discussion attempts to alleviate some of that confusion for the BC wine and hospitality industry by setting out the contents of the actual orders and related guidance and recommendations.
Restaurants/Bars/Lounges (including Tasting Bars)
The governing Public Health Order for restaurants, bars and lounges (including winery tasting bars) is the Food and Liquor Serving Premises Order which was issued on October 9, 2020. This PHO mandates that nightclubs must close. There are various rules for continued operation for all other premises including:
- Customers must be seated and remain seated except to use the washroom or for initial seating. An exception is made for liquor manufacturers so winery tasting rooms can have customers who are standing at the tasting bar.
- Appropriate separation (generally 2m) of customers or customer groups must be made. Alternatively, can use physical barriers.
- Maximum of 6 people per group at a table or counter. No movement between tables.
- Liquor service must end at 10 pm.
- No dancing, singing, etc ...
- Contract tracing info for customers is required.
- Workplace Covid Safety plan required.
The recent verbal PHO (November 19, 2020) has not significantly changed the rules for restaurants/bars/lounges. There is now a requirement for mandatory masks. See Province-Wide Restrictions page.
- Masks required for staff and customers unless customer is seated at a table or counter (i.e. for initial seating or going to the washroom).
In respect of events, the reissued Gathering and Events Order (see discussion below) prohibits a restaurant/bar/lounge from holding any events until at least January 8, 2021. This would prevent any type of special event outside the restaurant's normal business such as a winemaker's dinner or winery sponsored tasting. I note that for the purpose of seating customers, restaurants/bars/lounges are not required to determine whether patrons reside in the same household or bubble. Indeed, the Order does not prohibit customers from different households from sitting together (although the spirit of the guidance would not encourage this except in certain cases, such as where people live alone or where they are meeting for non-social purposes such as business).
Retail Stores (e.g. On-Site Store, Liquor Stores)
The governing PHO for retail stores including on-site stores in a winery or manufacturer is the Workplace Safety Plans Order which was issued on May 14, 2020. Generally, this requires the following:
- Workplace Covid Safety plan required.
- Appropriate capacity planning, protective barriers and customer control measures.
The recent verbal PHO (November 19, 2020) has not changed the rules for retail stores, other than that the requirement for masks is now mandatory. See Province-Wide Restrictions page.
- Masks required for staff and customers in all indoor areas.
Events
The recent verbal PHO (November 19, 2020) ordered that all events of any size are prohibited until at least December 7, 2020 (now extended until January 8, 2021). The definition of events is contained in the Gathering and Events Order which was revised and reissued on December 2, 2020 to reflect the verbal order. This Order effectively means that all the types of special events that a winery or manufacturer would hold are canceled until January 8, 2021. For example, weddings, celebrations, parties, auctions, fundraisers, wine tasting seminars, etc... must all be canceled. The previous 50 person limit for events has been suspended (at least temporarily) and the allowable number reduced to zero (the limit for weddings is 10 people which would eliminate most if not all 'winery weddings'). See Province-Wide Restrictions page.