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-
Lake Affect Patio Bar & Grill Inc.
Licensee
DECISION
Panel: S. Grace Kerr, Board Member
Decision Date: April 21, 2008
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 Toll Free In Ontario: 1-800-522-2876
Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Dan Alakas, Representative
Lake Affect Patio Bar & Grill Inc., Licensee ) Bruce Forth, Representative
Allegations
- A hearing into a Notice of Proposal number 15840 dated December 6, 2007 to suspend liquor licence number 28322 (the “Licence”) issued to Lake Affect Patio Bar & Grill Inc. (the “Licensee”), operating as LAKE AFFECT PATIO BAR & GRILL INC., (the “establishment”), 1 Port St. E., Mississauga, Ontario, L5G 4N1, on the basis of alleged violations of subsection 30(4) of the Liquor Licence Act (LLA), and subsection 41(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA was held on March 27, 2008 in Toronto, Ontario.
Decision
- The Board FINDS the Licensee breached subsection 30(4) of the LLA and subsection 41(1) of the O.Reg. Reasons follow.
Preliminary Matters
- An order to exclude witnesses was made on consent.
Registrar’s Evidence
The Registrar’s first witness, Brad Foster, has been employed by the Alcohol and Gaming Commission of Ontario (AGCO) as a liquor licence inspector for four years and attended the establishment on June 18, 2007. When he arrived at 8:43 p.m. that evening, he advised the lone employee he saw there, Ana Argarvio, who was also acting as a bartender, both who he was and why he was there.
Inspector Foster observed Ms. Argarvio serve two glasses of wine to two women seated at a table on the patio and also saw each of them drink some of the wine before he moved towards them. One of them appeared youthful to Inspector Foster, so he approached the women, identified himself to them, and requested identification to prove their age(s). The youthful woman, who was Erika Alexander, appeared nervous and looked away from the Inspector. She produced a driver’s licence which, if accurate, showed her to be 19 years of age. Inspector Foster immediately decided the photo on the driver’s licence did not resemble Ms. Alexander and he told her that he did not believe it was her identification. Almost immediately, she told him that the identification given to the Inspector was not hers, but belonged to a friend. He then requested and she produced another driver’s licence which indicated her date of birth as 1988/09/27, making her 18 years old. Ms. Alexander’s friend was of age.
After the Inspector documented Ms. Alexander’s identification, he questioned her as to how she obtained the alcohol. She said the server had checked her identification and that she had only been to the establishment a couple of times before.
When Inspector Foster told Ms. Argarvio that the female patron was a minor, she told him she had checked the patron’s identification, that is, a driver’s licence. The Inspector left the establishment at 9:04 p.m.
In cross-examination, Inspector Foster indicated that he had not made any notes regarding the first driver’s licence Ms. Alexander produced. He suspected that she might be underage based on her looks. From looking at the first driver’s licence she produced, Inspector Foster decided almost immediately there was a problem: the picture did not look like Ms. Alexander at all. He did not ask her specific questions about the identification (e.g. address). He believed Ms. Alexander when she told him this was the identification she had shown Ms. Argarvio.
In re-examination, Inspector Foster clarified that he had not felt it necessary to ask Ms. Alexander further questions about the first identification produced because he believed the second licence she produced was valid.
Erika Alexander testified that she attended the establishment on June 18, 2007. On that date, she was 18 years old. She went to the establishment around 6:00 p.m. with a friend and when she asked for a glass of wine with dinner she was not “carded” (that is, she was “not asked for identification”) by the server. She consumed this glass of wine. After dinner, Ms. Alexander and her friend decided to stay for, and ordered another glass of wine. The same server served her a second glass of wine and she “had about 2 sips” from it when the AGCO Inspector came into the establishment and asked her to produce identification. She gave him the driver’s licence of a friend who was of legal drinking age (i.e. “she was 19”). Inspector Foster recognized the photo in the driver’s licence was “not her”, and asked her for her real identification as well as her birth date and her street address.
When Inspector Foster asked Ms. Alexander if the server had asked her for identification, she told him that she had, explaining that she “did not want to get the waitress in trouble” and that she was worried the server would “get fired”. She was worried that the Inspector was “with the police”, but he said not.
Ms. Alexander testified that, after having consulted a lawyer who told her to tell the truth at and having sworn an oath to do so at the hearing, in fact, she had not been asked for identification by the server on the night in question. She has no personal relationship with the server and has had no contact with the staff or management of the establishment since the date in question.
After the Inspector left, the manager of the establishment came to speak with Ms. Alexander who assured her the server had “i.d.’d her”. Ms. Alexander gave the manager her contact information at work.
Ms. Alexander said that her friend’s photo resembled her enough that “it had worked in the past”.
In cross-examination, Ms. Alexander thought she had been at the establishment for about 45 minutes before the AGCO Inspector arrived, but remembered that “it was light out” when she was there so that it was possible she had been there longer over dinner. She was served by the same server the whole evening in question.
The 19-year old person whose identification Ms. Alexander produced has blond hair, blue eyes and similar features to her; their heights and weights are similar too. She knew her birth date then, but not her astrological sign; she also knew the friend’s address at the time. In other words, in case she was questioned on them, Ms. Alexander knew the details.
Ms. Alexander agreed that she had lied to the Inspector and also to the manager. She agreed that if she had been asked for identification by the server, she would have produced the false identification, although she completely disagreed that she had been asked.
Ms. Alexander stated that she came to the hearing with every intention to tell the truth as to what happened and that, a year ago, she was younger and scared.
Licensee’s Evidence
Ana Algarvio, who has been employed by the Licensee for the past year and two months, has 15-18 years of experience in the business as a server, bartender, manager and owner. She was the server/bartender on duty at the establishment on June 18, 2007. Ms. Algarvio testified that she asked Ms. Alexander for identification before serving a glass of wine to Ms. Alexander with her dinner. She only served her the one glass. Ms. Algarvio had never seen Ms. Alexander before the night in question and asked for identification because Ms. Alexander “look(ed) under 25”. According to Ms. Algarvio, the picture on the identification produced looked like Ms. Alexander, except for her hairstyle which Ms. Alexander said she had changed. She also asked Ms. Alexander the year and month of her birth as well as her horoscope sign, which Ms. Alexander answered correctly. Ms. Algarvio did not think that Ms. Alexander looked nervous.
The AGCO Inspector told Ms. Algarvio that Ms. Alexander’s identification was false. After he left, Ms. Algarvio took the glass of wine away from Ms. Alexander as she “was told”.
In cross-examination, Ms. Algarvio said that the establishment’s policy is not to serve persons who are under 19 years of age, but because it is a family restaurant, identification is not asked for automatically. The night in question, two other staff was working with her: someone was preparing the meals in the kitchen and the manager, Virginia Edgar, had stepped out for about an hour when Inspector Foster attended.
According to Ms. Algarvio, Ms. Alexander ordered a glass of wine mid-way through her meal. She had started to drink it when Inspector Foster arrived.
Ms. Algarvio said she knows all of the horoscope signs, although she wrongly answered that November 19^th^ is the sign of Sagittarius when in fact it is that of Scorpio.
Following the AGCO inspection, Ms. Algarvio told Ms. Edgar that “the bar’s been charged”. She also asked her if she could check Ms. Alexander’s identification and see “if I was wrong”, but Ms. Edgar concurred with her. Ms. Algarvio said she would be worried about the Licensee’s exposure on the subject charges if she had not inspected the identification properly.
Ms. Algarvio told Ms. Alexander that the bar would be charged and that Ms. Alexander was going to be charged as well because of what transpired the night in question. Ms. Alexander told Ms. Algarvio she was “really sorry”, she did not mean to do it, she was almost 19, and she had produced the false identification before in other places and had never had a problem.
There was only one other table occupied, with 2-3 people, in the establishment that night. Ms. Algarvio was the only server, working a 4:30 p.m. – 11:00 p.m. shift.
Virginia Edgar, who has been in the food and beverage industry for 20 years, testified that she was working at the establishment on June 18, 2007, but had left it for about one hour “or less” and returned around 8:15 p.m., after the AGCO inspection had taken place. Ms. Algarvio immediately told her about the outcome of the inspection and that she had “carded” Ms. Alexander. To Ms. Edgar, Ms. Algarvio seemed “upset”.
Ms. Algarvio pointed out Ms. Alexander to Ms. Edgar, who asked Ms. Alexander and her companion, Lindsay, to explain what had happened. Ms. Edgar asked Ms. Alexander the same questions (i.e. date of birth, address, etc.) about the false identification as had Ms. Algarvio. As there was a remarkable resemblance between Ms. Alexander and the person whose false identification she was using, Ms. Edgar would not have questioned the identification herself. Ms. Edgar then gave Ms. Alexander and her friend “a lecture” about the ramifications of what Ms. Alexander had done and said that both women agreed to do everything possible to help out the establishment and were very apologetic.
Ms. Edgar asked to take a photocopy of Ms. Alexander’s real identification, but Ms. Alexander refused.
In cross-examination, Ms. Edgar agreed that she has no idea if Ms. Alexander was asked for identification as at no time did Ms. Alexander or her friend say so specifically. Rather, they implied they had been asked, by saying things like “don’t get your staff in trouble”, and “your staff did their job”. At no time did she ask them for their version of what happened. She acknowledged taking a “disciplinary tone” with Ms. Alexander and her friend so they would know of the possible severe consequences of their actions. She thought it was possible they were covering for her server; she could see that Ms. Alexander was scared about getting anyone in trouble. She admitted that the only evidence she has as to whether Ms. Alexander was asked for identification is what Ms. Algarvio told her.
In re-examination, Ms. Edgar said that she needed Ms. Alexander to understand the ramifications to Ms. Edgar and the restaurant due to the false identification and that, as a minor, there could also be consequences to her.
No disciplinary action was taken by the Licensee against either Ms. Edgar or Ms. Algarvio. Ms. Algarvio showed her the glass of wine she had served, and later taken away from Ms. Alexander.
Registrar’s Submissions
Mr. Alakas submits it has been established beyond question that Ms. Alexander, who was then a minor, consumed liquor in the establishment on the night in question: Inspector Foster saw it, Ms. Algarvio admits serving Ms. Alexander, and Ms. Alexander, in turn, admits to consuming it. To Mr. Alakas, the extent of the consumption and any ‘due diligence’ defence the establishment might raise in that regard, should go to sanction in respect of a finding under ss. 30(4) of the LLA.
According to Inspector Foster, the picture on the identification produced did not resemble Ms. Alexander. She quickly admitted to her deceit. While Ms. Alexander told the Inspector she had shown identification, she now testifies she was never asked for it. Ms. Alexander is telling the truth to the Board because she has been advised to do so and realizes that it is the right thing to do. She has nothing to gain by changing her story now. She ordered a glass of wine and was not carded. On the night in question, she lied to the Inspector and to Ms. Edgar because she did not want to get anyone into trouble.
Conversely, Ms. Algarvio has a vested interest (i.e. job-related sanctions) in stating that she asked Ms. Alexander for identification before serving her an alcoholic beverage. Ms. Algarvio is an experienced server and was dealing with a minor who “folded” immediately under questioning by the AGCO Inspector. Had Ms. Alexander been questioned on her identification to the extent Ms. Algarvio has testified, she would not have “held up”.
Ms. Edgar cannot provide direct evidence as to whether Ms. Algarvio asked Ms. Alexander for identification. Ms. Edgar’s and Ms. Alexander’s evidence are consistent in showing that Ms. Alexander knew the possible consequences to the server and the bar, given the stern approach she took with Ms. Alexander.
As Inspector Foster had told Ms. Algarvio before Ms. Edgar’s return that Ms. Alexander’s identification was false, this gave her the wherewithal to first, tell Ms. Alexander that both Ms. Alexander and the bar would be “charged” and later, take the position with Ms. Edgar that she had checked Ms. Alexander’s identification.
Ms. Algarvio failed in her duty to inspect the identification of a person apparently under the age of 19 years prior to selling and serving liquor to that person.
Licensee’s Submissions
On examination, Inspector Foster did not indicate that Ms. Alexander did not look of age; rather, she was “potentially” someone he should ask for identification.
Ms. Alexander is a difficult person to believe one way or the other. She now says she was not asked for identification and, when asked by the Inspector, she provided false identification. No one knows whether or not she will suffer any consequences to her actions on the night in question. Another inconsistency going to credibility relates to ‘when’ and ‘how long’ Ms. Alexander was at the establishment. She should not be believed when she says she was not asked to produce identification that night.
Both Ms. Algarvio and Ms. Edgar looked at the identification Ms. Alexander produced and both thought it resembled her. Ms. Alexander testified she thinks she looks like the picture in the (false) identification.
The Registrar has put significant focus on the potential consequences to Ms. Algarvio for failing to inspect Ms. Alexander’s identification or to determine that it was false, but failed to ask whether there were any such consequences.
The staff did their jobs and exercised proper due diligence. They were the victims of a dishonest person who was barely under age 19.
Registrar’s Reply
Ms. Alexander appeared to be under age 19 to Inspector Foster, which should not be hard to believe given the Board has had the benefit of seeing Ms. Alexander at the hearing about nine months’ later. There was no resemblance between Ms. Alexander and the person pictured in her false identification; Inspector Foster immediately recognized it was not her.
In determining credibility, the telling feature is motivation. Before the Board, there are no consequences to Ms. Alexander; any consequences will flow to the Licensee.
Analysis and Findings
Having carefully considered all of the evidence and submissions, the Board finds that the licensee’s employee permitted a person, Ms. Alexander, who was and who appeared to be under the age of 19 to have or consume liquor in its establishment and failed to inspect a piece of identification for her prior to selling or serving liquor to her. The Board has had the benefit of Ms. Alexander’s viva voce evidence. The Board has assessed that evidence, particularly in view of the valid concern about the answers she admittedly gave Inspector Foster which completely conflict with her evidence before the Board. In other words, if she lied to the AGCO Inspector on June 17, 2007, can and should the Board believe her now?
The Board finds that Ms. Alexander has told it the truth. It has also given weight to her evidence because of its objectivity.
First, Ms. Alexander has no interest, financial or otherwise, in the outcome of this hearing.
Age of testimony is also to be taken into account. From June 17, 2007 to March 27, 2008 is about 9 and a half months and Ms. Alexander made no notes about the night in question. However, ‘getting caught’ by the AGCO Inspector was obviously a traumatic event to Ms. Alexander which may have made details harder to forget than just recalling a run-of-the-mill evening out. The Board accepts that Ms. Alexander has an accurate recollection of the events that took place at the establishment on the night in question, specifically, that she was not asked for identification by Ms. Algarvio, the Licensee’s bartender/server, before being served liquor by Ms. Algarvio, that is, a glass of wine which she consumed, followed by a second glass of wine which she partially consumed.
Having had the opportunity to see Ms. Alexander, the Board also notes that Ms. Alexander is very youthful-looking and concludes that to a reasonable and prudent licence holder (and its employees or agents) Ms. Alexander would or should have appeared to be under the age of 19. As such, she should have been asked to produce identification and it should have been carefully checked. Inspector Foster did all of these things and immediately suspected that the person in the photo-identification produced was not one and the same person as Ms. Alexander. He then quickly and easily determined that she was in fact an underage patron who had served and consumed liquor in the establishment. The Board does not believe that Ms. Algarvio asked for or checked Ms. Alexander’s identification. Her inability to correctly identify astrological signs when asked by the Registrar raises questions as to how familiar she truly is with horoscopes (and whether this is even an accurate or acceptable way of verifying dates of birth).
Furthermore, Ms. Algarvio became aware of Ms. Alexander’s lie to Inspector Foster, that is, that Ms. Algarvio had checked her identification, because he told her this upon leaving the establishment. Ms. Algarvio needed that lie to continue at the hearing. It did not. The Board certainly does not condone Ms. Alexander’s deceitfulness with Inspector Foster; however, her dishonest behaviour must be assessed and placed in its context and in contrast to that of Ms. Algarvio, as follows.
Ms. Alexander is young, had broken the law and been found out by an authority figure, was concerned about ‘getting the server in trouble’ and was very remorseful about that possibility. In these circumstances, it is understandable that Ms. Alexander might lie. Ms. Algarvio, an experienced server/bartender, had not inspected Ms. Alexander’s identification (or if she did, which the Board does not accept, certainly had not done so carefully enough). She had also served alcohol to a minor contrary to the liquor licence laws and been caught having done so, thereby putting her employment as well as her employer, the Licensee, in jeopardy. In these circumstances, it is understandable that Ms. Algarve’s recounting of events might be motivated by self-preservation. Her actions after Inspector Foster left the establishment support that conclusion. In telling Ms. Alexander that because of her the establishment as well as Ms. Alexander herself might be charged, Ms. Algarvio acted in a manner intended to ensure that Ms. Alexander would maintain the deceit she had started with Inspector Foster. Ms. Algarvio’s testimony is self-serving; the Board does not accept it.
Exhibit 1, which is a letter Ms. Edgar sent to A. Karim Karsan of the AGCO on or about November 13, 2007, states in part: “(Ms. Alexander) had indicated at the time of the occurrence that she would be willing to cooperate in any way to ensure that my server as well as the restaurant would not be held responsible for her dishonest behaviour.” Again, this is a self-serving statement made by someone who does not directly know whether Ms. Algarvio asked Ms. Alexander for identification. No doubt Ms. Edgar believed that statement to be true when she wrote it, and Ms. Alexander may have in fact said this (or something very similar) to Ms. Edgar on the night at issue. However, Ms. Edgar’s “investigation” of the incident in question leaves a great deal to be desired in terms of both technique and process: it yielded information to which the Board affords no weight. Using a stern and reproachful tone towards Ms. Alexander and her companion, Ms. Edgar basically ‘told’ rather than asked them what had happened. Like Ms. Algarvio, her motivation and focus was towards mitigating the potential dire consequences to the establishment and, in result, she did not obtain the truth.
Conclusion
For these reasons, the Board FINDS a breach of subsection 30(4) of the LLA occurred on June 18, 2007. As well, the Board FINDS that a breach of subsection 41(1) of the O. Reg occurred on the same date.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within twenty-one (21) days of the date of this decision. The Licensee’s representative shall have fourteen (14) days to serve a file a written response. Registrar’s representative may serve and file any reply within ten (10) 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 Rule of Practice.
DATED AT TORONTO THIS 21^st^ DAY OF APRIL, 2008
S. GRACE KERR, BOARD MEMBER
SGK/sm