Vancouver –
The British Columbia Supreme Court reinstated a business license and ordered the city of Kelowna to pay the business owner’s legal fees after finding the city to act illegally in revoking the license last year.
In his reasons for his decision, Judge Gordon C. Weatherill wrote that Greg Wise, the city’s business license manager, had exceeded his legal powers by choosing not to renew the license without first consulting the city council.
In the present case, it was M. Weiss Masonry, Inc., which has been run as a home operation by a farm in the Agricultural Land Reserve since 1995. The business owner Martin Weiss also cultivates the land.
The city regulations allow home operations on ALR-bounded properties, but only if the commercial use of the property is subordinate to the residential use of the property and – in the case of the white concession class applied for – is not “externally verifiable”.
In November 2015, City Council inspectors made “numerous vehicles, equipment, materials, wooden pallets and other items, all of which indicated commercial activity on the property,” according to Weatherill’s decision.
The city granted Weiss statutory violations the following year, which he refused until November 2017, when they came with a cover letter from the city stating that his business license was being reviewed.
Weiss met with city officials in May 2018 to discuss the statute violations, and reports against him have been “put on hold,” Weatherill said.
“Between May 2018 and December 2020, city officials met with representatives of the (Agriculture Commission) and observed from a distance whether (Weiss) had taken appropriate steps to remedy the situation on the property,” the judge wrote in his decision .
“However, the city had no further conversations or communications with (Weiss or his company) of any kind until December 2020.”
At that time, the city informed him in a letter to Weiss that his business license would not be extended for 2021.
“The letter Mr. Wise signed was sent before the petitioner submitted an application, document, application or fee to renew his existing license,” Weatherill wrote.
While the wise man’s role has “delegated authority” to decide whether to issue an initial business license, Weatherill says the position does not have the power to revoke or not renew a license. This requires the consent of the city council.
Under Kelowna’s Business Licensing Regulations, a company renews its license annually by filing its $ 25 renewal fee prior to a specified renewal date. In the case of M. Weiss Masonry, the city had used this procedure to renew the company’s license annually since 1995, i.e. between 2015 and 2020, after the start of the alleged administrative offenses.
In its decision, Weatherill wrote that the city is “very aware” of the due process for revoking a commercial license, as indicated in its 2017 letter to Weiss, which in part read:
“Your business license 29868 is now being reviewed by the Business License Manager, Greg Wise, and without full cooperation and compliance, your business license is being reviewed by the city council and requested that it be canceled.”
The judge added that the question of whether the masonry business was really against the city’s statutes – although not material to his decision on the matter – was an open question.
Weatherill wrote that the city’s rationale for wanting to revoke the license was “extreme speculation.”
“They have not presented any evidence contradicting (Weiss’) evidence regarding the business use of the property and have attempted to justify the appropriateness of their actions by nothing but assumptions, speculations and inadmissible hearsay,” he wrote.
“If Mr. Wise had taken the time to communicate with (Weiss) about the (business) use of the property in 2020 instead of relying on information from the past few years and acting out of frustration, it could well be a basis for a Have given a decision that a revocation of the … trade license was reasonable. “
Weatherill awarded Weiss legal fees and ordered that his business license be renewed in accordance with the normal process.
However, the judge found that his decision did not seize the power of the city to revoke the business license in the future for any legitimate reason under its statutes.
