BCAB #1793 - Determination of Subsidiary or Major Occupancy

February 16, 2017

BCAB #1793

Re: Determination of Subsidiary or Major Occupancy

Project Description

The project is an existing brewery, located in a sprinklered multi-tenant industrial complex. The brewery is proposing to expand their operation to include additional storage space as well as a brewery lounge and sales area. The brewery lounge and sales area would be approximately 110 m² and would comprise approximately 25% of the total area of the brewery. The intended number of patrons in the brewery lounge is 40 persons.

The brewery lounge and sales area would primarily be used for product tasting/consumption and sales. The beer served and sold would be brewed on premise under the manufacturer’s licence. Special Event Areas could allow the brewery lounge to be used for events such as “…music events, special meals/dinners or wedding receptions, however this is not the intent of the operator. The appellant has indicated they would apply for one special events license per annum to celebrate their opening date.

Applicable Code Requirements

1.4.1.2. (Division A) Defined Terms

Major occupancy means the principal occupancy for which a building or part thereof is used or intended to be used, and shall be deemed to include the subsidiary occupancies that are an integral part of the principal occupancy.

Decision Being Appealed (Local Authority’s Position)

The local authority has decided the brewery lounge is classified as a Group A, Division 2 major occupancy and cannot be considered subsidiary to the Group F major occupancy (brewery).

The local authority has issued a building permit for only 30 persons in order to apply the permitted provisions of a low occupant load A2 occupancy.

The local authority considers the brewery lounge as being separate and distinct from the brewery. The term ‘subsidiary’, except for any meaning implicit in the use of the word ‘integral’, is not defined within the Code. The local authority does not consider the brewery lounge to be an integral part of the principle occupancy.

The local authority is also concerned about Liquor Control and Licensing Branch Policy Directive No: 13-02 which provides endorsements for Special Event Areas which would allow the brewery lounge to be used for events such as “…music events, special meals/dinners or wedding receptions.” While special event endorsements are event driven, such events would constitute a major occupancy.

Appellant's Position

The appellant considers the brewing lounge and sales area to be a subsidiary occupancy to brewery operation and should not be considered to be a separate major occupancy (A2).  The appellant maintains that the brewery lounge and sales area would not exist if not for the major occupancy and are integral to [business viability of] the major occupancy. The brewery lounge and sales area are for the sole purpose of promoting and selling the product that is manufactured on site.

Appeal Board Decision #1793

It is the determination of the Board that the brewery lounge and sales area in this circumstance is not a separate major occupancy.

Reason for Decision

• The brewery lounge and sales area will be used primarily for buying and tasting of product that is manufactured on site.
• The brewery lounge is not intended to be used for uses that are not integral to the brewery such as space rental for meetings, weddings or receptions.
• The Board notes that where the occupant load is less than that required by Table 3.1.17.1., signage identifying the occupant load must be posted in accordance with Sentence 3.1.17.1.(2).

Lyle Kuhnert
Chair, Building Code Appeal Board