ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The : Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
B E T W E E N:
Registrar, Alcohol and Gaming Commission Ontario Registrar
-and-
1572724 Ontario Limited O/A Mick E Fynn’s Licensee
DECISION
Panel: Eleanor Meslin, Board Member
Decision Date: June 22, 2007
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone (416) 326-0366 Fax (416) 326-5566 Website:www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Sujin Chan, Representative 1572724 Ontario Limited, Licensee ) Jerry Levitan, Representative
Allegations
- A hearing into a Notice of Proposal (“NOP”) dated March 22, 2007 to suspend the liquor license of 1572724 Ontario Limited (the “Licensee”) operating as MICK E FYNN’S, 45 Carlton Street, Toronto, Ontario, M5B 2H9 (the “Premises”), licence number 23966, on the basis of an alleged violation of subsection 30(4) of the Liquor Licence Act (“LLA”), was held on June 8, 2007 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board finds the Licensee violated subsection 30(4) of the LLA. Reasons follow.
Preliminary Matters
- At the request of Registrar’s representative the Board ordered that witnesses be excluded.
Registrar’s Evidence
Adam Strongman is a Liquor Inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”). He attended the Premises on January 25, 2007 at 12:15 a.m., with Inspectors Amy Glen and Ka Ng.
He advised the doorman that they would be doing an inspection, entered and did a walk-through of the Premises.
Inspector Strongman went to the service bar and told the manager, Adrian Cabin, about the inspection.
The Inspector observed a blonde female, who appeared to be under age, at a table with other patrons. Inspector Strongman asked her for proof of age and she gave him a Saskatchewan driver’s licence. He told her the picture on the licence did not match her appearance and she agreed that the licence was not hers. The age on the licence was 22 years old and she said she was 18. Her name was Katie Nicholson and her date of birth was May 24, 1988. She also indicated that her friend had purchased beer for her.
Inspector Strongman advised the manager, who was at the table with him, of the violation and the manager had security escort the female out of the establishment. The manager told the inspector that he had security at the door checking identification and apologized for the incident.
The Inspector observed that most of the patrons were very youthful looking and it was a fairly busy night with between 100-150 patrons.
In response to Mr. Levitan’s questions, Inspector Strongman replied that he could not remember what the female wore and did not write any description in his notes. He did not confiscate the Saskatchewan identification but did see student identification, which he believed was hers. He indicated that he had also checked the identifications of 2 or 3 other patrons and found none were under age.
Regarding questions of “permit” consumption the Inspector responded that, in his view, if she drank the beer then she was “permitted”. He also stated that she had been given a second beer by her friend and staff did no stop her from drinking the alcohol.
Ka Ing is a Liquor Inspector with the AGCO. He testified that he had attended on January 25, 2007 and saw the doorman checking identifications. He then separated from the other Inspectors to do his own inspection.
Inspector Strongman told him about the minor female with false identification. Inspector Ng also spoke with her and saw her Ryerson identification with a May 24, 1988 date of birth. He believed the photo on that identification was hers. She also admitted to him that she had used a false identification which she showed him. He indicated that the photo was not of her.
She also told him that her friend had bought her beer. Inspector Ng then spoke to the friend who admitted she had done so. He also testified that he had not seen her drinking.
Inspector Ng spoke to the doorman advising him to make sure the photos on the identifications were the same as the person. If in any doubt he should ask additional questions such as;
when did you get the licence
what is your postal code on the licence and see if the person hesitated in responding.
In response to Mr. Levitan’s questions, Inspector Ng admitted that he had not asked the doorman what he said to Ms. Nicholson and had nothing in his notes on this because he only put matters he considered relevant in his notes. He also indicated the reason he did not confiscate the false identification was he did not have authority to do so.
Mr. Ng also stated that he did not ask staff if they had served Ms. Nicholson, he accepted the word of her friend. He did not see Ms. Nicholson consuming the beer.
Licensee’s Evidence
Peter Dyett has been a bouncer for 15 years, worked at Mick E Fynn’s for 11 years and had his Smart Serve card.
The establishment had a majority of students as patrons and problems with many minors trying to enter. The policy was therefore very strict regarding identification. No minors were allowed entry after 9:00 p.m. He confiscated between 10-40 false identifications each night. He only accepted passports, driver’s licenses or LCBO identification and, if he was suspicious, he would ask questions to trip them up.
He was at the door on January 25, 2007. He recalled Ms. Nicholson arriving with a large group. She showed him a driver’s licence which he was satisfied looked like her. She was a brunette.
Later he saw Ms. Nicholson and another girl run out the door. The manager told him she had 2 identifications, one was false and that she was a minor and should not be allowed into the establishment again.
A few minutes later he saw her running past the bar 2 or 3 times, making faces and laughing.
Mr. Dyett testified that there were 2 doormen on duty on January 25, 2007 and he saw the 3 Inspectors enter, but none of them spoke to him that night.
In response to Ms. Chan’s questions, Mr. Dyett stated that since Ms. Nicholson was giggling while he looked at her identification he asked her for her postal code and birth date to which she responded, “don’t you believe I’m 19”. Mr. Dyett answered that he checked every one’s identification.
He testified that the photo identification he saw was of a Caucasian brunette that he believed looked like Ms. Nicholson. The driver’s licence was not from Ontario and he did not ask for back-up identification.
Mr. Dyett stated that, although he and the other doorman check the identification of each person, staff is also responsible for checking when they are unsure of the age of the patron.
Adrian Cabin has been the manager for 7 years and has his Smart Serve card.
The policy of the establishment is that no minors are allowed in the bar after 9:00 p.m. The staff is to request identification of anyone who looks under 30 years old.
On January 25, 2007 the patrons were mainly students and it was not very busy, about 170-190 patrons. There were 2 doormen at the entrance when the Inspectors arrived. They advised him of their inspection, which he encouraged.
Inspector Strongman informed him of the female’s false identification and showed him both the Saskatchewan licence and her Ryerson identification. Mr. Cabin stated he believed the Saskatchewan licence did look like the patron.
When she was told to leave she acted panicky and ran out with her friend. Mr. Cabin then told the doorman to never let her return.
He testified that no staff had served her and that her friend had purchased the beer for her.
Mr. Cabin indicated that, because of the number of students attending, they treated the matter of minors very seriously and stopped many students from entering.
In response to Ms. Chan’s questions, Mr. Cabin stated that false identifications today were difficult to spot, but he trusted Mr. Dyett and his staff to be extra cautious. He does not believe he has the authority to confiscate identifications, although the doormen often confiscate them.
The Licensee’s policy was that, if staff were unsure of age, they would check identification themselves. Ms. Nicholson was not re-checked by staff, her friend was purchasing drinks for her. Mr. Cabin did not see Ms. Nicholson consuming.
He indicated that since the incident there is more double checking of identifications by staff and, where there is no identification, the person is turned away, even if they look older.
Registrar’s Submissions
The Registrar asks for a finding under subsection 30(4) of the LLA pointing out that the term “permitted” also includes the meaning “allowed”.
In this case a minor was allowed to consume alcohol in the Premises, since no staff stopped her.
Both witnesses for the Registrar were consistent in stating that the photo identification did not match the female, that she looked under 19, and was a blonde.
Her admission that she had been drinking was not contradicted.
Although the identification was from Saskatchewan, no back-up identification was requested.
Mr. Dyett recollected the female as a brunette, although both Registrar’s witnesses stated she was blonde. He claimed he regularly confiscated identifications although Mr. Cabin said they had no authority to do so.
The Licensee’s evidence does not dispute that a minor had been consuming alcohol.
Due diligence is not a defence in these proceedings. However, the employees that night were not duly diligent. The Licensee should have policies to safeguard against friends purchasing alcohol for minors.
Licensee’s Submissions
The standard for Licensees is the reasonable and prudent observation of the LLA. The system is one of fairness. Inspector’s evidence must be precise and accurate and Licensees must be given the opportunity to meet the case against them.
The Licensee is a good operator with a system in place that works well. That night, two of the inspectors checked a number of identifications and found only one infraction.
The issue is that the Licensee permitted a minor to have alcohol. There was no evidence that staff saw her drink and the Inspectors do not remember asking staff this.
If the test is “allowed”, there should be some active involvement. There should be some evidence that the staff had knowledge of the drinking and there is none.
Mr. Dyett was very forthright in his evidence. He outlined the process he follows and his evidence was consistent with Inspector Ng.
It is common for establishments to confiscate false identification. The Licensee has policies that work, but are only as good as their security staff. The law does not require double-checking of identification.
The onus should be on the Registrar and the Inspectors to give as much particularity as they can on the substance of the allegations.
This Licensee is a good operator with a good system. On this occasion someone snuck through. There is no evidence that the Licensee permitted the minor to drink.
Reasons
The Board accepts the evidence of Inspectors Strongman and Ng that an underage person had consumed beer purchased for her by a friend in the establishment.
Subsection 30(4) of the LLA reads in part, “…permit a person who appears to be under nineteen years of age to have or consume liquor in the licensed premises.” That was the issue in this case, based on the evidence. Although the Licensee maintained that no staff saw the minor consuming, that is not enough. It is the Licensee, or its employees’ responsibility to make sure no one under legal age has or consumes alcohol in the Premises.
The fact that the Licensee was diligent in its efforts to stop minors from entering the Premises is commendable. However, in an establishment where students are in the majority, extra caution on the part of the Licensee and staff is required, both on entry and inside the Premises.
Conclusion
Therefore, the Board FINDS that there was a violation of subsection 30(4) of the LLA at the Premises on January 25, 2007.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file her written submissions within fourteen (14) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file his written response. Registrar’s Representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 22nd DAY OF JUNE, 2007.
ELEANOR MESLIN, BOAD MEMBER
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