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.
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\’).
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:
.. a series of Public Health Orders have been made since November 7, 2020 restricting social engagement between British Columbia residents. These orders are posted on the website maintained by the Provincial Health Officer. They have been and continue to be regularly amended, repealed, and replaced. The messaging accompanying these orders, and indeed the language of the orders themselves, is fraught with inconsistency and ambiguity and it is not surprising that reasonable people can reasonably disagree about their interpretation and application in any given circumstance.
Such confusion was graphically demonstrated this past weekend when the Premier of British Columbia himself, relying on advice provided by his Minister of Health, announced his intention of spending Christmas Day at home with his wife, his son, and his daughter-in-law, and was obliged to change his plans when it was pointed out to him that such a gathering was actually a breach of one or more of the PHOs currently in force.