A B.C. Appeal Court judge has order that a Surrey business’s liquor licences be renewed on conditions after the Liquor Control and Licensing Branch denied them based on a sex crime one of its owners pleaded guilty to in 2014.
Justice Mary Newbury decided on Dec. 27 to overturn the branch’s refusal after Thomas Cooper and Dell Lanes Ltd. launched an appeal heard in Vancouver on Nov. 20.
Appeal Court Justices David Harris and Barbara Fisher concurred.
The court heard Cooper holds just under 25 per cent of shares in Dell Lanes Ltd., which owns and operates a bowling alley, lounge and restaurant business in Whalley at 10576 King George Blvd. The business has been owned by the Cooper family for 15 years and members of the family work there.
The judges heard that in early 2013 Cooper was alone at the bowling alley with a 15-year-old girl and touched her breasts. A third person interupted this encounter, Cooper was charged, and he pleaded guilty to touching the body of a child under the age of 16 years for a sexual purpose. He was sentenced in August 2014 to 90 days in jail, served intermittently to permit him to continue working as a general manager of the business.
It was Cooper’s first criminal offence and a publication ban prohibits the publication of any evidence that could identify the victim.
Surrey provincial court Judge Andrea Brownstone in 2014 received a psychiatric report on Cooper indicating him to be at a “very low risk to reoffend” and she found his crime appeared to be “out of character.”
Brownstone also ordered two years probation, which later was shortened by six weeks, during which Cooper was required to undergo counselling and not be in the presence of anyone under age 16 unless another adult is present, not to be in the presence of any Dell employee under 18 without another adult present, and not to communicate electronically or by text with anyone under 18 except for his daughter, if consenting.
He was also ordered not to attend certain public places where people under 18 might be, with the exception of the bowling alley “if one or more specified family members were present.” Cooper was also registered under the Sex Offence Information and Registration Act for a minimum of 10 years.
When the Dell’s liquor licence was up for renewal in 2014, Cooper ticked “yes” to the question, “Have you or any partner, shareholder or director of this establishment been convicted of a criminal offence within the past 12 months?”
The Liquor branch made further inquiries with Cooper on the matter and notified him in a letter that effective Oct. 6, 2016 that “because of the egregious nature of your offence, and your role in an establishment which makes young people vulnerable and accessible, the General Manager believes that you, as the sole shareholder in your company, are not fit and proper to hold a liquor licence.”
In response, Cooper and Dell filed a petition in B.C. Supreme for a judicial review of the liquor branch’s decision to cancel the licences, and the decision was stayed pending the outcome of this appeal.
Justice Newbury found the liquor branch’s assertion that Cooper is the sole shareholder of the business to be incorrect and noted that as a 25 per cent shareholder “he is not in a position of control.”
Moreover, she noted that the cancellation of the liquor licences also bore consequences for “other members of his family, Dell’s employees, and the community generally. Mr. Cooper deposed that without liquor sales — which constitute about 52 per cent of the licensee’s revenue — the business cannot survive.”
Cooper told the appeal court in an unchallenged affidavit that “it is a simple fact that without this revenue, Dell will not be able to pay its rent and payroll, let alone its other expenses. Accordingly, if the liquor licences are cancelled, the business cannot survive.
“Without a stay of the decision,” Cooper told the court, “all of the above-mentioned employees will be laid off. Several of them are older and have worked at Dell Lanes most of their adult lives…
“The business cannot be sold unless the liquor licences can be transferred to a potential purchaser. This cannot happen as the licences are cancelled.”
Newbury found that the liquor branch’s “misapprehension of the likelihood of Mr. Cooper’s reoffending” led to a conclusion it would have realized was “punitive” had “contextual factors, including the real-life consequences for Mr. Cooper and his family” been considered.
“The risk could have been effectively addressed by adding a term to the licences that would prohibit Dell from hiring any female workers to work in or about the establishment. Mr. Cooper’s compliance with this condition could be easily monitored.”
Newbury found the branch’s order “was a heavy weight resting on the too slender reed of the slight risk of recidivism — a risk that, as already suggested, could have been addressed satisfactorily in terms of public interest by a more nuanced approach that took all relevant factors into account.
“I would allow the appeal,” the judge concluded, “and order that Dell’s licences be renewed on the conditions on which they would otherwise have been renewed, with the addition of a provison that no female person under the age of 19 shall be employed in or about the licenced premises or business establishment as long as Mr. Cooper is employed in any capacity relating to Dell’s business” or until the branch determines “the proviso is no longer necessary.”