Court quashes liquor board

After two years and two court cases, Ken Achtymichuk still doesn't know if he's allowed to sell offsales from his Porter Creek convenience store. "I'm back to step one," the Heather's Snack Haven owner said.

After two years and two court cases, Ken Achtymichuk still doesn’t know if he’s allowed to sell offsales from his Porter Creek convenience store.

“I’m back to step one,” the Heather’s Snack Haven owner said. “Thousands of dollars in legal fees and I’m no farther ahead then when I started.”

In November 2009, Achtymichuk applied for two licences from the Yukon Liquor Board. One, called a “Food Primary” licence, allows him to sell alcohol to people eating at the small restaurant at the back of the store. The second allows him to sell offsales.

In January, 2010, the board approved the food primary licence, but not the one for offsales.

Achtymichuk filed a petition over the denial in Yukon Supreme Court in February 2010.

Eventually, out of court, the board agreed to an offsales licence, but pegged its hours to that of the food primary licence.

“I’ve got to keep my restaurant open until 11 o’clock at night,” said Achtymichuk. “I have to pay for a whole extra shift, like for a cook. It’s costing me money. You think I’m making money off these offsales? Absolutely not.

“I’m at their mercy. They get to dictate my hours and tell me how to run my business.”

Achtymichuk brought the case back to court, arguing that he had a right for his offsales licence to be set to different hours than the restaurant’s licence.

Yukon Justice Rene Foisy agreed.

On Nov. 30 – just over two years after Achtymichuk initially applied for the licences – Foisy issued his decision, giving no legal force to the board’s attempt to tie the hours of the two licenses.

“I have found the board erred in law,” the decision reads. “While the board is under no requirement to allow different hours, and indeed in the vast majority of cases may choose to require parallel hours, its failure to acknowledge that it has the discretion to differently regulate the petitioner’s offsales hours requires that this decision be quashed.”

Achtymichuk believes the board has it out for him.

Ever since a dispute with the Yukon Lottery Commission in 2009, the small businessowner said he’s been treated like a second-class citizen.

The two government companies share the same minister and, Achtymichuk would argue, the same playbook as well.

“They’re using the same tactics,” he said.

Achtymichuk raised charges of bad faith and discrimination during his court case, both of which Foisy said could not be proven.

But the judge could only make that call on the evidence provided to him, said Achtymichuk, pointing out the board’s lack of transparency and inconsistent and abbreviated publication of decisions on their website.

“He’s not looking at it all,” said Achtymichuk.

The small businessowner points out inconsistent conditions from the board’s decision on his primary food liquor licence and the printed licence it gave him to display on the premises.

He also notes that the board had three lawyers while he could barely afford one.

He accuses the board of stalling, forcing litigation and then “lawyering him to death.”

And the discrimination is clear, he said, mentioning Bailey’s Pub & Steakhouse that recently opened in the same Porter Creek strip mall.

Achtymichuk filed an objection to its liquor board application, just as the Kopper King and Casa Loma did when he applied.

But unlike Achtymichuk’s experience with the board, which has been going on for more than two years, his new competitor had its licences, including one for offsales,

approved within two months, he said.

“This is good-old-boys’ turf,” said Achtymichuk. “Obviously, the good old boys don’t want me to compete with them on their turf. It’s as simple and straightforward as that.”

And the saga isn’t over for Achtymichuk just yet.

The liquor board still has until Dec. 30 to appeal Foisy’s decision.

“I don’t know what type of Christmas present they’re going to drop off,” he said. “I’ve got thousands of dollars invested … I bought a brand new cooler. This is stressful.”

Contact Roxanne Stasyszyn at

roxannes@yukon-news.com

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