BCLiquorBoardCase

The Petition (below)

The Email Record (below)

Petition
No. L051110
Vancouver Registry
In the Supreme Court of British Columbia
Re Judicial Review Procedure Act and
The Liquor Control and Licencing Act
Between
THE SEX PARTY,
Petitioner
and
THE GENERAL MANAGER,
LIQUOR CONTROL AND LICENCING BRANCH,
Respondent

PETITION TO THE COURT

THIS IS THE PETITION OF: The Sex Party
1204A -2050 Nelson St.
Vancouver BC V6G 1N6
ON NOTICE TO: The General Manager
Liquor Control and Licensing Branch
1019 Wharf Street
Victoria, BC V8W 2Y9
AND ON NOTICE TO: Minister of Attorney General
Legal Services Branch
1001 Douglas St.
Victoria, BC V8V 9J7

 Let all persons whose interests may be affected by the order sought TAKE NOTICE that the petitioner applies to court for the relief set out in this petition.
APPEARANCE REQUIRED
IF YOU WISH TO BE NOTIFIED of any further proceedings, YOU MUST GIVE NOTICE of your intention by filing a form entitled "Appearance" in the above registry of this court within the Time for Appearance and YOU MUST ALSO DELIVER a copy of the "Appearance" to the petitioner's address for delivery, which is set out in this petition.
YOU OR YOUR SOLICITOR may file the "Appearance". You may obtain a form of "Appearance" at the registry.
IF YOU FAIL to file the "Appearance" within the proper Time for Appearance, the petitioner may continue this application without further notice.
TIME FOR APPEARANCE
Where this Petition is served on a person in British Columbia, the time for appearance by that person is 7 days from the service (not including the day of service).
Where this petition is served on a person outside British Columbia, the time for appearance by that person after service, is 21 days in the case of a person residing anywhere within Canada, 28 days in the case of a person residing in the United States of America, and 42 days in the case of a person residing elsewhere.
[or, where the time for appearance has been set by order of the court, within that time.]
TIME FOR RESPONSE
IF YOU WISH TO RESPOND to the application, you must, on or before the 8th day after you have entered an appearance,
(a) deliver to the petitioner
(i) 2 copies of a response in Form 124, and
(ii) 2 copies of each affidavit on which you intend to rely at the hearing, and
(b) deliver to every other party of record
(i) one copy of a response in Form 124, and
(ii) one copy of each affidavit on which you intend to rely at the hearing.
(1) The address of the registry is: 800 Smithe St. Vancouver, BC V6Z 2E1
(2) The ADDRESS FOR DELIVERY is:The Sex Party1204A - 2050 Nelson St.Vancouver, BC V6G 1N6
(3) The name and office address of the petitioner's solicitor is: none

 The petitioner applies for:

1. An Order in the nature of certiorari quashing the decisions dated March 30, 2005, April 21, 2005 and April 25, 2005 by the Deputy General Manager Liquor Control and Licencing Branch and the decision dated March 31, 2005 of the General Manager Liquor Control and Licencing Branch that the erotic art installation that the Petitioner proposes to include in a political fundraising event are prohibited activities in areas licenced under the Liquor Control and Licencing Act RSBC 1996 c. 267 (hereinafter referred to as "the Act."). (The aforementioned decisions are hereinafter collectively referred to as "the decisions".)

2. An Order in the nature of a Declaration that the decisions infringe the Petitioner's fundamental freedoms in section 2 (b), (c) and (d) of the Canadian Charter of Rights and Freedoms.

3. An Order in the nature of a Declaration that the erotic performance art installations are not contrary to the "public interest" as set out in section 12 of the Act.

4. An Order in the nature of a Declaration that the erotic performance art installations are not contrary to any valid term of a liquor licence issued under the Act in respect of a licence issued to a primary licencee or a Special Occasion Licence.

5. An Order in the nature of a Declaration that:
a) the provisions pertaining to strippers and exotic dancers on page 17 of the Liquor
Primary Licence: Terms and Conditions, A Guide for Liquor Licensees in British Columbia and
b) section 11.2.4 of the Licensing Policy Manual "Prohibited acts during the performance of an exotic dancer or stripper"
are contrary to the "public interest" as set out in section 12 of the Act and infringes section 2(b) of the Canadian Chart of Rights and Freedoms.

The Petitioner will rely on:

1. Section 2 of the Judicial Review Procedure Act RSBC 1996 c. 241
2. Rules 10, 57 and 63 of the Rules of Court
3. The inherent jurisdiction of the Court
4. Section 2 (b), (c) and (d) of the Canadian Charter of Rights and Freedoms.

At the hearing of this Petition will be read the affidavit of John Ince, copies of which are served herewith, and such further materials as the Petition may advise and the Court may permit.
The Facts upon which this Petition is based are as follows:

1. The Petitioner is a society incorporated under the provisions of the Society Act RSBC 1996 c. 433, and is a political party registered under the provisions of the Election Act RSBC 1996 c. 106.

2. The Petitioner's constitution indicates that its purpose is to develop sex-positive culture and eliminate sex-negativity by functioning as a provincial political party and electing Sex Party candidates to the Legislative Assembly.

3. The Petitioner's constitution indicates that the Petitioner uses the term "sex-positive culture" to describe a society where sexuality is freely celebrated in art and media, where sexual education is encouraged throughout the lifespan, where sexual research is richly funded, and where the principles of liberty and tolerance govern the social regulation of sexual expression to the same extent as they govern the regulation of religious or political expression.

4. The Petitioner's constitution indicates that the Petitioner uses the term "sex-negativity" to refer to attitudes that perceive human sexuality as shameful or unworthy of the same respect, legitimacy, freedom or tolerance accorded other dimensions of human experience.

5. The Petitioner intends to field candidates in the May 17, 2005 general election in British Columbia.

6. Key to the Petitioner's political activities is an event it calls a SAVY, an acronym for the words Sex Art Vote Yes.

7. The SAVY event has the following purposes:
a) to foster a sense of community amongst supporters of The Sex Party
b) to communicate ideas, information and experiences about sexuality and politics
c) to raise funds to finance the Petitioner's political activities.

8. The fee to enter a SAVY event is $40 to $50, depending on the time of purchase. Only adults are allowed entry. Every adult entering the event must sign a statement indicating that they are aware of the activities at the event.

9. The activities at a SAVY event include:
a) political speeches
b) displays of erotic paintings, sculpture and photography
c) erotic poetry and other spoken word
d) structured and organized interactive dialogues between audience members
e) structured and organized interactive exchanges between audience members such as kissing, hugging, holding hands
f) screening of videos and DVDs
g) audience drawings and painting
g) erotic performance art installations

10. Officials of the Petitioner looked for suitable locations for this event and discovered that venues with liquor licences would be optimal because:
a) they were much more affordable than locations that could not sell liquor; the revenues from alcohol sales allowed the bar owner to charge much less for the rental than venues of a similar size and with similar audio-visual equipment, which were not permitted to sell liquor
b) such bars tended to be near major transportation routes
c) young adults, who are an important constituency of the Petitioner, are comfortable in bars
d) the availability of alcohol in modest and measured amounts, is especially desirable for SAVY events, because a key part of the discourse involves the discussion of sexual issues that many people have difficulty talking about; modest amounts of alcohol can loosen the unnecessary and unhealthy inhibitions on such discourse.

11. The Petitioner contracted with a liquor licencee in Vancouver, British Columbia, to rent premises subject to liquor officials deciding that the event was consistent with the regulations applying to the licence.

12. On March 18, 2005 the Petitioner's president, John Ince, sent an email to the Liquor Branch describing the event and requesting a written decision that the event did not offend the liquor regulations. The email described the event and included the following detail in respect of two erotic art installations:

"dirty laundry" art installation designed by credentialed artist: artist smears pairs of hands in paint which are applied to underwear worn by male and female models, these pieces of clothing will then be mounted into an installation art piece.

"eye, voyeur" art installation designed by credentialed artist: a naked couple makes love in a concealed area visible only by peering in one of several cutouts in the walls; while a person peers in, a camera inside the space photographs their eyes. The artist will later assemble the photos of the eyes into a work of visual art. Explicit sex may be occasionally visible by individuals who choose to peer in the cutouts, this fact will be included in the consent signed at the door.

13. On March 30, 2005 Ms. Cheryl Caldwell, The Deputy General Manager replied and made the following decision:
a) "We consider the types of events described to be analogous to adult entertainment and the rules pertaining to performances by strippers or exotic dancers therefore apply."
b) "With respect to "eye, voyeur" art installation designed by credentialed artist, a naked couple making love is prohibited as it involves a live sex act. As well, an artist would not be permitted to smear pairs of hands in paint and then apply them to underwear worn by male and female models as audience participation and performers touching each other are also not permitted.

14. Ms. Cladwell's letter refers to page 17 of the Liquor Primary Licence: Terms and Conditions, A Guide for Liquor Licensees in British Columbia for details. Sections of that document state:
You [primary licencees] may also:
o Offer adult-oriented presentations, provided you post a sign to that effect at your entrance and identify when a cover charge is in effect (see additional rules for exotic dancers and strippers below). .

Performances by Strippers or Exotic Dancers
A stripper is an entertainer who strips off clothing during a performance; an exotic dancer is a performer who does not necessarily strip clothing during a performance. (Belly dancers are not considered strippers or exotic dancers.)
Exotic dancers/strippers may not:
o engage in live, realistic or simulated sex acts, or in any acts
involving coercion or violence, either simulated or real
o insert any object into, or extract any object from, the vagina or anus

15. On March 30, 2005 the Petitioner's president John Ince wrote to Ms. Mary Freeman, General Manager of the Liquor Branch asking her to overrule the Deputy's decision, on the grounds that:
a) the regulations governing strippers are not applicable to art installations before a carefully screened audience at a fundraising event of a political party during an election campaign and
b) a prohibition against such installations would be contrary to the public interest.
On March 31, 2005 the General Manager refused to change The Deputy's decision.

16. The Petitioner decided to investigate the possibility of holding the SAVY event at an unlicenced hall and to serve alcohol pursuant to a Special Occasion Licence (SOL) issued under the Act. The Petitioner regards such a location as less preferable than a licenced bar because:
a) halls are more costly to rent than licenced bars
b) halls are often owned by non-profit societies that have a lengthy approval process for political events
c) the procedure to obtain a SOL is cumbersome and time consuming: it requires that a person first rent a hall for a specific date and then submit an application for the SOL to the Liquor Branch, to the local police and to municipal officials.
d) there are significant legal liabilities attached to a SOL.

17. To avoid the public and private expense of making such an application only to have the art installations rejected as prohibited as the Liquor Licence officials had already determined in respect of licenced bars, the Petitioner's president sent an email on April 6, 2005 to the General Manager to determine whether the SAVY event would be allowed under a SOL.

18. On April 21, 2005 Ms. Cheryl Caldwell, Deputy Manager replied:
"If you were to submit an application to me for a Special Occasion Licence for an event that was exactly the same as you had proposed for a licensed establishment in your email of March 18, 2005, I would impose terms and conditions prohibiting any live sex act and any activity that involved contact between members of the audience or between members of the audience and the performer."

19. On April 25, 2005 Ms. Caldwell added:
"In reply to the specific question in your email of April 22, 2005, this is to confirm that I would not permit "performers touching each other" under the terms and conditions I would impose on a Special Occasion Licence for the activities you described in your email of March 18, 2005."

20. The Petitioner also asked Ms. Caldwell about the regulations pertaining to an installation involving martial arts or wrestling. In her email of April 25, 2005 Ms. Caldwell advised that there was no automatic prohibition of "contact sports", and that such could be approved subject to certain criteria.

21. Under the the LiquorPrimary Licence: Terms and Conditions, A Guide for Liquor Licensees in British Columbia and section 11.1.4 of the Licensing Policy Manual patron participation sports are generally permitted in licenced premises and prize-fighting and kick-boxing may be approved.

22. The Petitioner's president has made inquiries of the Liquor Control and Licencing Branch to determine if there are any policy documents that explain why the LiquorPrimary Licence: Terms and Conditions, A Guide for Liquor Licensees in British Columbia and the Licensing Policy Manual prohibit in licenced establishments all erotic contact by strippers or exotic dancers yet allow contact sports and the violent contact in prize fighting or kick-boxing. As of the date of the filing of the Petition, no such documents have been produced.

23. Under the Act the General Manager is authorized to administer the Act (s.3), issue written directives to liquor licencing officials (s.4), issue liquor licences (s. 6(a)), and specify which regulations apply to licences (s. 6(b)).

The Petitioner estimates that the application will take one day.

Dated: May 4, 2005 at Vancouver, British Columbia

Per ___________________________
John G. Ince
President and Leader, The Sex Party

The Affidavit
No. L051110
Vancouver Registry
In the Supreme Court of British Columbia
Between
THE SEX PARTY,
Petitioner
and
THE GENERAL MANAGER, LIQUOR CONTROL AND LICENCING BRANCH,
Respondent

AFFIDAVIT OF JOHN G. INCE

 I, John G. Ince, of Vancouver, British Columbia, MAKE OATH AND SAY AS FOLLOWS:

1. I am the president of the petitioner and its leader, and accordingly I have direct knowledge of the information deposed to in this affidavit.

2. I have read the facts in the unfiled Petition in the within matter dated May 4, 2005.

3. The facts in the unfiled Petition are true.

4. Attached to this my Affidavit as Exhibit A is the record of email correspondence between officials of the Liquor Control and Licencing Branch and me.

5. Attached to this my Affidavit as Exhibit B is section 11.2 of the Liquor Licensing Policy Manual re "Live Stage Performances".

6. Attached to this my Affidavit as Exhibit C is an excerpt from the Liquor Primary Licence Terms And Conditions: A Guide for Liquor Licencees in British Columbia.

7. I swear this Affidavit in support of an application for judicial review of decision of the General Manager, Liquor Control and Licensing Branch dated March 31, 2005 and the decisions of the Deputy General Manager, Liquor Control and Licencing Branch, dated March 30, 2005, April 21, 2005 and April 25, 2005, and for other relief stated in the unfiled Petition of May 4, 2005.

SWORN BEFORE ME at the City of )
Vancouver, British Columbia, )
this day of May, 2005 ) ______________________
) John G. Ince
)
_________________________ )
A Commissioner for taking )
Affidavits For British Columbia )

Exhibit A

 Email Record:
The Sex Party to/from BC Liquor Branch officials
(in chronological order)

1) Ince initiates issue with email to Pat Sarsfield; Director of Licensing
From: John Ince [mailto:johnince@telus.net]
Sent: March 18, 2005 1:09 PM
To: pat.sarsfield@gems7.gov.bc.ca
Cc: gm
Subject: Political party fundraising event - in licenced premises

Dear Ms. Sarsfield:

I write as the leader of a political party newly registered with Elections BC. Our party will be fielding candidates in the next provincial election.
Our name is The Sex Party and our mandate is to raise serious issues about sexuality and politics. Our website will launch soon which will show the full range of our platform and activities.

We would like to begin our fundraising activities. The most important of these is a public event we call a SAVY, an acronym for SexArtVoteYes! We would like to hold these events in one or more licensed bars in downtown Vancouver. As you may now, hosting events in a bar can be very economical for a non-profit society such as ours, as the bar charges no fee for the use of its premises - earning its money off the sale of beverages. Any non-licensed venue that has the space and audio-visual equipment we require, along with security and staff, would charge us a fee - approximating $1000-1500 per night. Such costs would render the fundraiser uneconomic. So key to holding our fundraising events is to be able to do them in bars where the space is free to us.

We propose to sell advance tickets to our event for $40 and $50 at the door. A significant portion of the ticket price would be considered a political donation and a tax receipt would be issued pursuant to the Elections Act. Only persons 19 and over will be admitted. Every attendee will sign a document at the door that describes in detail the event they are about to attend and acknowledging their consent to attend.

Due to the unconventional nature of our events and to ensure that they are conducted in conformity with liquor licensing regulations, we would like to obtain a letter from you indicating that the event as described conforms to the regulations. We would then like to show that to the bars we approach so that they know that there will be no licensing issues as long the event occurs as described.

The event will consist of:
6.30-8.00 pm a facilitated discussion of sexual politics and sexuality
8.00-midnight - and erotic arts show:
1) explicit erotic paintings and photography from local artists on the walls
2) erotic poetry and comedy by stand-up performers
3) demo of an nude photo shoot by credentialed art photographers from Vancouver
4) "colour your coochie" contest - stylized drawings by the audience of human genital organs - to be posted on the walls
5) erotic portraits of audience by credentialed caricaturist
6) "dirty laundry" art installation designed by credentialed artist: artist smears pairs of hands in paint which are applied to underwear worn by male and female models, these pieces of clothing will then be mounted into an installation art piece.
7) "eye, voyeur" art installation designed by credentialed artist: a naked couple makes love in a concealed area visible only by peering in one of several cutouts in the walls; while a person peers in, a camera inside the space photographs their eyes. The artist will later assemble the photos of the eyes into a work of visual art. Explicit sex may be occasionally visible by individuals who choose to peer in the cutouts, this fact will be included in the consent signed at the door.

I have reviewed the liquor regulations and can see no prohibition of such an event. We do not consider our art installations "entertainment". I note that the regulations
explicitly say that licensees may offer adult-orientated "presentations". They give specific guidelines only in relation to strippers or exotic dancers. We are not having strippers or exotic dancers.

The regs below (in blue) are extracted from p16 and 17: http://www.pssg.gov.bc.ca/lclb/publications/guides-licensee/LiquorPrimary.pdf

Our position is that our events are a legitimate form of political and artistic expression, make an important contribution to community, and are consistent with provincial regulations. We hope you agree and can give us written confirmation of same. If you do not agree, could kindly specify exactly what we would need to change in order to comply.

As we just received registered political status and as the election is less than 2 months away, we need to begin holding our fundraising events soon. I hope that you can process this request expeditiously.

Thank you very much for your attention to this matter.

Sincerely,
John Ince
Leader, The Sex Party
www.thesexparty.ca

From the Regulations:
You may also: o Offer adult-oriented presentations, provided you post a sign to that effect at your entrance and identify when a cover charge is in effect (see additional rules for exotic dancers and strippers below). .

Performances by Strippers or Exotic Dancers
A stripper is an entertainer who strips off clothing during a
performance; an exotic dancer is a performer who does not necessarily
strip clothing during a performance. (Belly dancers are not considered
strippers or exotic dancers.)
If you are offering performances by exotic dancers/strippers:
o The entertainers must be at least nineteen years of age and must
wear appropriate clothing while walking through the audience, both
before and after performances. This clothing must not be part of their
stage costume.
o Performances must be confined to the stage or other approved areas
(these areas will be noted on your liquor licence). No performing is
allowed in the audience area.
o Animals may not form part of a performance, and are not permitted as
entertainment except as approved by the general manager.
o The exotic dancers/strippers may not act as servers or hold any
other employment position in your establishment while they are also
working for you as entertainers.

Exotic dancers/strippers may not:
o engage in live, realistic or simulated sex acts, or in any acts
involving coercion or violence, either simulated or real
o insert any object into, or extract any object from, the vagina or anus
o urinate or defecate while performing
o touch, share food and beverages, or pass objects to members of the audience
o touch or share food and beverages with other performers
o consume liquor immediately prior to a performance, during a
performance or between performances
o dance/perform on table tops or other areas outside the approved areas

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2) Reply from Cheryl Caldwell Deputy Manager
From: LCLB SG:EX [mailto:lclb.lclb@gems4.gov.bc.ca]
Sent: March 30, 2005 1:27 PM
To: 'johnince@telus.net'
Subject: Your email of March 18, 2005
Attached is the response to your email of March 18, 2005, to Ms. Pat Sarsfield.

Ministry of Public Safety
and Solicitor General
Liquor Control and
Licensing Branch
Mailing Address:
PO Box 9292 Stn Prov Govt
Victoria BC V8W 9J8
Telephone: 250 387-1254
Facsimile: 250 387-9184
Location:
Second Floor, 1019 Wharf Street
Victoria BC
http:// www.pssg.gov.bc.ca/lclb

March 29, 2005

Mr. John Ince
Leader, The Sex Party
johnince@telus.net

Dear Mr. Ince:

I am responding to your email of March 18, 2005 to Ms. Pat Sarsfield.

Any events held within a licensed establishment must comply with the requirements of the
Liquor Control and Licensing Act, regulations, and terms and conditions contained in the
licensee's guide. Events of an adult nature can only be held within liquor primary
establishments and signs must be posted at the entrance advising patrons of that fact.

You listed seven specific events in your email. We consider the types of events described
to be analogous to adult entertainment and the rules pertaining to performances by
strippers or exotic dancers therefore apply. I would refer you to page 17 of the Liquor
Primary Licence: Terms and Conditions, A Guide for Liquor Licensees in British Columbia
for details. The guide is available on our website at www.pssg.gov.bc.ca/lclb.

With respect to "eye, voyeur" art installation designed by credentialed artist, a naked couple
making love is prohibited as it involves a live sex act. As well, an artist would not be
permitted to smear pairs of hands in paint and then apply them to underwear worn by male
and female models as audience participation and performers touching each other are also
not permitted. The licensee would be responsible for ensuring that all events are
conducted in such a way as to comply with the requirements of the Act, with specific
attention paid to section 50, and the terms and conditions of the liquor primary licence.

In closing, the onus remains on licensees to ensure that any events held in their
establishments are carried out in strict adherence to the act, regulations, and terms and
conditions of their licence.

Yours sincerely,
Cheryl Y. Caldwell
Deputy General Manager
Licensing and Local Government Liaison
cc: Doug Dyck, Acting Regional Manager

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3) Email from Ince to Caldwell's boss, Mary Freeman, Manager of the Liquor Branch
From: John Ince [mailto:john@thesexparty.ca]
Sent: March 30, 2005 3:36 PM
To: Mary.Freeman@gems8.gov.bc.ca
Subject: provincial election event in licensed premises
Dear Ms Freeman:
On March 18, 2005 I wrote to Pat Sarsfield requesting the BCLB's view on a fundraising event our registered political party is planning to hold in a licensed premises in downtown Vancouver. My email is appended below.

Today I received the BCLB reply from Cheryl Caldwell. As you can see she equates artistic installations as part of a fundraising event by a registered political party during a provincial election campaign with "adult entertainment". She then applies regulations aimed at strippers and exotic dancers to our event. The result is that key aspects of our event are prohibited.

I am writing to request that you overturn that decision. I believe it is wrong legally and frustrates legitimate political and artistic expression.

The adult entertainment regulations are designed to regulate routine adult events taking place in licensed premises. At such routine events there is customarily no special fee to enter the premises, no access restriction other than age, no special warning as to the nature of the entertainment, and no special occasion involved.

Our event is entirely different. Attendees must pay $40-50 (depending on the time the ticket is purchased) to enter. At the door they will sign a special consent form indicating that they know the nature of the event they will be attending. The event is entirely non-routine: being sponsored by a political party and being part of an election campaign. The art presented has been carefully selected to express political themes. It is part and parcel of our political discourse.

Ms. Caldwell mentions none of these distinguishing features. Clearly, our program does not amount to "stripping or exotic dancing" and hence the regulations she cites cannot apply.

We believe we have a legal right to do what we intend. We would rather resolve this matter without litigation and so request your immediate attention.

Aside from the legal issues, we think that allowing such an event is good public policy. The stock of available public meeting areas is limited at the best of times and especially so during an election campaign. Licensed premises are uniquely able to accommodate political discourse, especially for small political parties with limited budgets. Licensed premises tend to be located near public transportation networks. Their staff have experience managing assemblies. Their premises are well set up in terms of disability access, restrooms and of course providing beverages and often food. They often have the audio-visual equipment that a political gathering requires. Because bars earn an income from the sale of alcohol to attendees, they can rent their premises far cheaper than other venues. We have searched for alternatives to bars and cannot find any that have the necessary space, facilities, audio-visual equipment, and security personnel to conduct our event for the very limited budget we have.

The availability of alcohol in modest and measured amounts, is especially desirable for political meetings such as ours. A key part of our discourse involves the discussion of sexual issues. Many people have difficulty talking about that subject. Modest amounts of alcohol can loosen the unnecessary and unhealthy inhibitions on such discourse.

In my opinion good public policy requires government agencies to facilitate public assembly and discourse about political issues during election times. A decision that denies legitimate political and artistic expression in a licensed premises, offends such public policy. I therefore urge you to overrule it.

As time is of the essence I trust that you will give immediate attention to this matter.

Yours sincerely,
John Ince
Leader, the sex party
www.thesexparty.ca
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4) Reply to Ince by Mary Freeman General Manager
From: LCLB SG:EX [mailto:lclb.lclb@gems4.gov.bc.ca]
Sent: March 31, 2005 4:16 PM
To: 'johnince@telus.net'
Subject: Letter from General Manager
Ministry of Public Safety
and Solicitor General
Liquor Control and
Licensing Branch
Mailing Address:
PO Box 9292 Stn Prov Govt
Victoria BC V8W 9J8
Telephone: 250 387-1254
Facsimile: 250 387-9184
Location:
Second Floor, 1019 Wharf Street
Victoria BC
http:// www.pssg.gov.bc.ca/lclb

March 31, 2005

Mr. John Ince
Leader, The Sex Party
Via email: johnince@telus.net

Dear Mr. Ince:
I am replying to your voice mail message of March 30, 2005 regarding the letter you
received from the Deputy General Manager of Licensing and Local Government Liaison.
You expressed concern that Ms. Caldwell has somehow denied your political rights by
attaching general terms and conditions on liquor licences which regulate live sex acts or
contact between patrons and performers such as you proposed in your email of
March 18, 2005.

We are not denying your political rights. The Liquor Control and Licensing Branch does
not control your ability to have any performance you choose in unlicensed premises.
Our responsibility extends only to events held within licensed establishments.

As Ms. Caldwell stated in her letter, a licensee must ensure that any event held within a
licensed establishment complies with the Liquor Control and Licensing Act, regulations,
and terms and conditions of the licence. Two of the specific events you proposed
appear to be prohibited in a licensed establishment. Licensees who are considering
hosting your proposed event will need to ensure they are in compliance with both their
terms and conditions of the licence and with the relevant municipal bylaws regarding
entertainment.

Yours sincerely,
Mary Freeman
General Manager
cc: D. Dyck, A/Regional Manager

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5) Ince responds to Mary Freeman
From: John Ince [mailto:johnince@telus.net]
Sent: March 31, 2005 4:46 PM
To: LCLB SG:EX
Cc: Mary.Freeman@gems8.gov.bc.ca
Subject: RE: Letter from General Manager

Dear Ms Freeman:
I want to exhaust all administrative remedies before initiating litigation.
Kindly advise the name of the person or board who has authority to overturn your decision.
Sincerely,
John Ince
Leader, The Sex Party
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6) Freeman responds to Ince
From: Freeman, Mary SG:EX [mailto:Mary.Freeman@gems8.gov.bc.ca]
Sent: April 05, 2005 2:30 PM
To: 'John Ince'
Subject: RE: Letter from General Manager

Dear Mr. Ince:
As a decision of the General Manager is specific to Licensees, my letter to you does not constitute a decision. The letter was intended to clarify the terms and conditions that apply to Licensees.
Regards, Mary Freeman
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7) Ince responds to Freeman
From: John Ince [mailto:johnince@telus.net]
Sent: April 05, 2005 3:08 PM
To: Freeman, Mary SG:EX
Subject: RE: Letter from General Manager

Dear Ms. Freeman:

Whether or not your "clarification" of the terms of the licenses is a "decision," my question to you remains unanswered. I seek to determine if there is a more senior official than you who has authority to "clarify" the licenses and who's clarification would supercede yours. If you are the ultimate authority in the Ministry who can "clarify" the terms and conditions of a license, then I need to know that and I will abandon any attempt to make further representations to the Ministry. But if there is a more senior official - a Deputy Minister? the Minister? - with authority on this matter, please identify them.
Time is of the essence here. My question is not complex. I trust you can give me an immediate response.
Sincerely,
John Ince
Leader, The Sex Party

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8) Freeman responds to Ince
From: Freeman, Mary SG:EX [mailto:Mary.Freeman@gems8.gov.bc.ca]
Sent: April 06, 2005 9:14 AM
To: 'John Ince'
Subject: RE: Letter from General Manager

Dear Mr. Ince:

I am the statutory decision maker responsible for the administration of the Liquor Control and Licensing Act (the Act) and for imposing terms and conditions on licences which may include approving, prohibiting or restricting entertainment in an liquor licensed establishment (s. 12 of the Act) and I may take action against a licensee for failure to comply with a term or condition of licence (s. 20(1) of the Act). There is no provision in the Act for an appeal of my decisions.

Regards, Mary Freeman

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9) Ince responds to Freeman
From: John Ince [mailto:johnince@telus.net]
Sent: April 06, 2005 1:15 PM
To: Freeman, Mary SG:EX
Subject: RE: Letter from General Manager

Dear Ms Freeman:
Thank for your prompt reply.
I will make no further representations to you or anyone in the Ministry to try to alter your determination that our art installations are prohibited in licensed bars in BC in the context in which we seek to do them.

I have 3 further questions:

1) Special Occasion License
We are considering a special occasion license for a non-licensed premises such as a hall.
a) Does the prohibition on our art installation apply to such a license? I note that the regulations pertaining to adult entertainment are contained in the Guide to Primary licenses. Do those regulations apply to a SOL? Where is the authority for that?
b) If the prohibition applies, then is there a way to configure the hall such that the SOL applies only to a portion of the hall, leaving an area which is unlicensed, where no alcohol could be taken and where the prohibition on our art installations would not apply? If so what division between the two areas do you require? Is a "red line" on the floor sufficient? A rope at waist level? Are their specific published regulations on these SOL area designation issues?

2) Non-licensed areas in bars
Out of an abundance of caution I seek confirmation that there is no way to designate a portion of the licensed premises of a bar as "nonlicensed" where no alcohol can go, but where our art installations would be allowed. I presume the answer is no, but I do not want to leave this issue unclear.

3) The Guide for Primary Licenses states this (at p26): "Judicial Review If you are dissatisfied with a decision or order made by the branch, you may apply to the B.C. Supreme Court for a judicial review of the decision or order." Where is the authority for that statement?

Thanks for your help.

John Ince
Leader, The Sex Party

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10) Ince receives verbal response from Rebecca Villa-Arce responsible for Special Occasion Licenses, and seeks confirmation in writing
From: John Ince [mailto:johnince@telus.net]
Sent: April 08, 2005 5:26 PM
To: Rebecca.VillaArce@gems3.gov.bc.ca
Subject: Special Occasion License and Adult entertainment prohibitions

Dear Ms. Villa-Arce:
Thank you for contacting me today.

Please confirm that you advised me today:
That an event licensed under a SOL must comply with adult entertainment regulations which prohibit contact between strippers and the audience; and that this prohibition applies even if the prohibited conduct occurs in an area of the event physically separated from other areas, and where no alcohol is permitted.

Further, can you point to the pertinent statutory provisions and regulations that regulate adult entertainment at SOL events? The only regulations that I could find issued by the General Manager or anyone else applying to adult entertainment in licensed premises are set out in the Liquor Primary License Terms and Conditions, and that document says it applies only to Primary licensees. SOLs would not appear to be covered by that document. I can see nothing in the SOL application forms and license itself that incorporate any adult entertainment regulations. There appears to be a missing link here. Please explain.

Thanks for your help.

John Ince
Leader, The Sex Party

 

 

11) Ince receives reply from Cheryl Caldwell
From: LCLB SG:EX [mailto:lclb.lclb@gems4.gov.bc.ca]
Sent: April 19, 2005 10:22 AM
To: 'johnince@telus.net'
Subject: Special Occasion Licence and Adult entertainment prohibitions
Mr. Ince:
I am responding to your email enquiry to Ms. Villa-Arce of April 8, 2005 regarding the regulations around entertainment and special occasion licences (SOLs).
The event that you have described in your previous emails is a unique situation. You are correct that adult entertainment is not specifically addressed in the Liquor Control and Licensing Act or regulations with regard to Special Occasion Licences. Given the unique nature of your event, however, I would want to review your application to ensure that approving it would not be contrary to the public interest. Under section 12 of the Liquor Control and Licensing Act, the general manager may attach terms and conditons having regard for the public interest. If you wish to proceed with an SOL application, you will need to obtain an application form from a government liquor store and submit it to me.
As for all public Special Occasion Licences, such as the one you are proposing, you will also need to have written prior approval from your local government and local police authority. In accordance with section 15(4) of the regulations, you need to obtain police approval before submitting your application to me. Local government approval is required under our policies and should also be received before submitting your application to me. Your first point of contact should be with the Emergency and Operational Planning Section within the Vancouver Police Department (VPD) at 604-717-3076 to obtain the VPD application form.
Cheryl Caldwell
Deputy General Manager
Licensing and Local Government Liaison
Tel. 387-3638

12) Ince replies to Cheryl Caldwell
From: John Ince [mailto:johnince@telus.net]
Sent: Tuesday, April 19, 2005 2:17 PM
To: LCLB SG:EX
Subject: RE: Special Occasion Licence and Adult entertainment prohibitions
Dear Ms. Caldwell:

Thank you for advising that adult entertainment is not specifically addressed with respect to SOLs. I trust that you will be advising your employees of that fact. Three employees of the Branch have advised us to the contrary, saying that the adult regulations do apply to SOLs. We were told this in writing by Margaret Fligg (email below) and again verbally by Adrian Leslie and the Manager of the Licensing Administration Rebecca Ville-Arce. Such incorrect information has caused us harm.

Before we hold an event involving alcohol outside a primary establishment, we will of course make the proper application for an SOL. You have indicated you want us to make such an application before you rule on the whether a prohibition is required on the issue of specific conduct at our event.

As you must be aware, such an application requires that we first secure a location. That often requires a non-refundable deposit. We must then approach the local authorities. Then you consider the matter. If you decide that the conduct we propose is prohibited then the event will not take place and we have wasted the time of many people: the owners of the venue, the local authorities, your staff, and our own time.

The event we propose in a SOL is exactly as we described to Pat Sarsfield in our email of March 18 in respect of primary establishments. The only difference is that it would be in an unlicensed area, although one that had been approved for SOLs in the past. At present we have no such location selected.

You have already considered our proposal with respect to primary licensed locations. In your letter of March 29 you indicated that our event involved what you called a "live sex act", and that it was prohibited in primary establishments. You also indicated that "audience participation and performers touching each other are also not permitted." The legislation only gives you the power to prohibit conduct in a primary establishment based on "the public interest". So you have already expressed your view that the type of conduct we propose is contrary to the public interest in primary establishments.

You have all the information you need to determine whether there are terms required in "the public interest" that would prohibit the conduct we propose in a SOL. If you need further information to make that determination I would be happy to provide it.

As you said, this is a unique situation. It therefore requires a unique administrative response. In our view requiring that we go through the formalities of the license application with its attendant costs and drain on public and private resources, is contrary to the public interest and to our fundamental freedoms guaranteed by the Canadian Charter of Rights. We can see no reason why you cannot first consider the matter on the basis of the information we have given you, as you already have with respect to primacy establishments, and then if you decide that the conduct we propose is not prohibited, we can apply for an SOL under the standard process. Such a process would quickly resolve the only contentious issue, that of the content of our event. We believe that this solution is especially appropriate given the incorrect information given to us by your officials.

Please advise whether you will proceed on this basis.

Sincerely,
John Ince
Leader, The Sex Party

---------- Forwarded message ----------
From: Fligg, Margaret SG:EX <Margaret.Fligg@gems2.gov.bc.ca>
Date: Mar 30, 2005 4:25 PM
Subject: RE: Questions re special events lisence
To: Jessie Wright

Hello Jessie. Yes, the same rules would apply as for Liquor Primary
Establishments.

Margaret Fligg
Administrative Assistant
Liquor Control and Licensing Branch
Phone: 250 387-9140
Fax: 250 387-9184

-----Original Message-----
From: Jessie Wright
Sent: Wednesday, March 30, 2005 4:22 PM
To: Fligg, Margaret SG:EX
Subject: Questions re special events lisence

Hi Margaret,

We are holding a private licensed special event and we would like to
have adult entertainment at it. Do the same rules apply to erotic
performers as those for liquor primary establishments?
(http://www.pssg.gov.bc.ca/lclb/publications/guides-licensee/LiquorPrimary.pdf
pgs 16/17) Thank you for your prompt attention to this matter.

Sincerely,
Jessie Wright

--
Jessie Wright

13) Cheryl Caldwell replies to Ince
From: LCLB SG:EX [mailto:lclb.lclb@gems4.gov.bc.ca]
Sent: April 21, 2005 1:43 PM
To: 'John Ince'
Subject: RE: Special Occasion Licence and Adult entertainment prohibitions

Dear Mr. Ince:
My email of April 19, 2005 was sent in response to your specific question as to the "pertinent statutory provisions and regulations that regulate adult entertainment at SOL events". As I indicated, there is no specific reference in the act and regulations relating to adult entertainment at SOL events. Under Section 12 of the Liquor Control and Licensing Act, however, the general manager may impose terms and conditions on any licence, including Special Occasion Licences.
If you were to submit an application to me for a Special Occasion Licence for an event that was exactly the same as you had proposed for a licensed establishment in your email of March 18, 2005, I would impose terms and conditions prohibiting any live sex act and any activity that involved contact between members of the audience or between members of the audience and the performer.
All public special occasion events also require the prior written approval from the local government and local police as indicated in my email of April 19, 2005.
Cheryl Caldwell
Deputy General Manager
Licensing and Local Government Liaison
Tel. 387-3638

14) Ince replies to Cheryl Caldwell
From: John Ince [mailto:johnince@telus.net]
Sent: Friday, April 22, 2005 12:48 AM
To: LCLB SG:EX
Subject: RE: Special Occasion Licence and Adult entertainment prohibitions
Dear Ms. Caldwell:
Thank you for your prompt reply.

You have made it clear that two of the installations we proposed are prohibited. We will not attempt to apply for an SOL for an event involving such installations.

There is only one issue that must be determined. You say below that also prohibited is "any activity that involved contact between members of the audience or between members of the audience and the performer." We need clarification of that statement. It varies somewhat from your statement involving primary licensees, which reads as follows: "As well, an artist would not be permitted to smear pairs of hands in paint and then apply them to underwear worn by male and female models as audience participation and performers touching each other are also not permitted." (My underlining.)
I presume the last quoted statement also applies to SOLs. Please confirm that.
One installation we propose that is not sexual involves a non-nude martial arts display with the martial artists clothed in martial arts gear. They will touch each other as part of the martial arts interaction. Please confirm that such contact is allowed. We also propose to have a non-nude wrestling display; the wrestlers will be wearing traditional wrestlers gear. They will be touching during the display. Please confirm that such contact is allowed.
Thanks for your assistance,
John Ince
Leader, The Sex Party

15) Cheryl Caldwell replies to Ince
From: LCLB SG:EX [mailto:lclb.lclb@gems4.gov.bc.ca]
Sent: April 25, 2005 8:56 AM
To: 'John Ince'
Subject: RE: Special Occasion Licence and Adult entertainment prohibitions

Dear Mr. Ince:

In reply to the specific question in your email of April 22, 2005, this is to confirm that I would not permit "performers touching each other" under the terms and conditions I would impose on a Special Occasion Licence for the activities you described in your email of March 18, 2005.

With respect to the other installations you are considering, from the description you provided these appear to be contact sports.

The Liquor Licensing Policy Manual states:
"entertainment decisions must also consider the extent to which the entertainment may affect the licensee's ability to maintain effective management and control of the establishment. For example, if the entertainment uses part of the licensed area, the licensee is responsible for ensuring that patrons will not be so crowded together that staff will be unable to observe and control their conduct.
The physical safety of staff, performers and patrons is another factor. Activities that might be considered safe in other settings are not considered safe in an environment where alcohol is being consumed because of the effects of alcohol on mental acuity, physical dexterity and judgment. For this reason, then, entertainment such as contact sports may be permitted only when there is no patron participation; and then only if the licensee can demonstrate that there are adequate safety measures in place to protect anyone playing, watching, or otherwise present during the sports presentation."
Subject to the general manager's discretion, contact sports may be approved when there is no patron participation, and where the licensee can demonstrate that adequate safeguards are in place to protect patrons, staff and the public.

In your application for the Special Occasion Licence, you would need to provide the following details for the consideration of the general manager:
· date and time of the event
· a detailed letter of intent outlining the proposed event which includes the "Who, What, Where & When" details of the event, such as:
- the number of people involved
- specifically what persons in the act will be doing and where they will be doing it, eg. on a stage or in a ring
· distance of the performers from the spectators (for example, a buffer zone of 7 to 10 feet from the ring or stage to the nearest spectator)
· the security arrangements in place (number of security guards, crowd control barriers between the seated spectators and the perimeter of the ring or stage)
Your application should be submitted to us at least two weeks prior to the event.

The proposed entertainment would be subject to any local government bylaws restricting or prohibiting the type of entertainment, and the public event Special Occasion Licence will require the prior written approval of the local government and the local police.

Thank you.

Cheryl Caldwell
Deputy General Manager
Licensing and Local Government Liaison
Tel. 387-3638

Exhibit B
The Policy Manual: Hardcopy filed in Court. No digital copy available to post on web.

Exhibit C
The Guide for Licencees: pdf copy available online here:
http://www.pssg.gov.bc.ca/lclb/publications/guides-licensee/LiquorPrimary.pdf