Registrar, Alcohol and Gaming Commission of Ontario v. 2113339 Ontario Inc., 2008 CanLII 91823

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 of Ontario Registrar

-and-

2113339 Ontario Inc. O/A The James Joyce Irish Pub Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair Brian J. Ford, Board Member

Decision Date: July 25, 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 ) Phillip Morris, Representative 2113339 Ontario Inc., Licensee ) Jerry Levitan, Representative

Allegations

1A hearing into a Notice of Proposal (“NOP”) number 16149 dated April 3, 2008 to suspend liquor licence number 201449 (the “Licence”) issued to 2113339 Ontario Inc. (the “Licensee”) operating as THE JAMES JOYCE IRISH PUB, 386 Bloor Street West, Toronto, Ontario, M5S 1X4 (the “Premises”), on the basis of alleged violations of subsections 30(2) and 30(4) of the Liquor Licence Act (“LLA”) and subsection 41(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on July 8, 2008 in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board finds the Licensee violated subsections 30(2) and 30(4) of the LLA and subsection 41(1) of the O.Reg with respect to the male patron only. Reasons follow.

Preliminary Matters

3Mr. Levitan raised an objection regarding one of the witnesses, a civilian, to be called by Mr. Morris, on the basis that no notice had been given of the Registrar’s intention to call this individual as a witness and hence no disclosure of the witness’ proposed evidence. This, therefore, caught the Licensee by surprise. Mr. Levitan stated that the need for fairness required the same level of disclosure from both parties to the proceeding.

4In response, Mr. Morris submitted that disclosure of the inspectors’ notes had been provided and that the individual and his statements to the inspector were contained therein. That is the Registrar’s usual practice and is sufficient.

5The Board considered counsel’s submissions and gave an oral ruling that the witness would not, given non-compliance with fair disclosure practices, be permitted to testify. The Board in its ruling stated that it was not sufficient that a licensee or its representative surmise through the inspectors’ disclosure which persons cited therein might be a witness and what they might say. Fairness requires that the disclosure obligations in advance of the hearing be mutual.

Registrar’s Evidence

6Devin Sookdeo, an AGCO inspector, attended at the licensed premises on January 7, 2008, at approximately 1:30 a.m. with Rebecca Sargent, also an AGCO inspector, for a routine inspection. They entered through the front door. There was no security at the door. He conducted a general walk through of the establishment and observed several youthful looking patrons, three females seated at a table at the front and three males in the pool table section at the rear. The males were consuming from pint glasses.

7He approached the males, identified himself, and, in turn, asked each of them for identification. Two were of legal drinking age. The third male produced a driver’s licence (Exhibit 1). His assessment was that the picture did not look like the male. The hair was similar, but the facial features were “off”. This assessment prompted Mr. Sookdeo to ask for further identification. The male said he had none. Mr. Sookdeo then asked the male his date of birth. The male stumbled in his response, giving the month as July. The driver’s licence, however, showed the date of birth as October 12, 1988.

8The male then admitted to being underage and using a friend’s identification. He then produced his own driver’s licence which revealed his birth date as July 27, 1989, an age of 18 ½ years. The male stated he was drinking a pint of Moosehead and had three pints served by a blond server. Mr. Sookdeo spoke to two managers, Alison Barrie and Geordie McLaughlin, advising that the patron was underage, showing them the two pieces of identification.

9He then continued his inspection, returning to the front of the establishment. Three youthful looking females were seated at a table. He asked for identification. Two of the women were of age, the third female produced an Alberta Identification Card (Exhibit 2). While the picture on the card was of the female, Mr. Sookdeo knew from past experience that this was fake identification, available for purchase on Yonge Street.

10Mr. Sookdeo spoke to the female. She identified herself, admitted that it was fake identification and that her date of birth was September 17, 1989. She was, therefore, underage. She indicated that she wanted to be honest, stating that she was not checked for identification, and was served three to four pints of Moosehead. She had one pint of beer in front of her at the time of the inspection.

11Again, he spoke to the managers. He advised them to exercise more due diligence in checking identification of youthful looking patrons. Mr. Sookdeo stated that he was not advised by staff that the female had just come in 15 or 20 minutes before the inspection. He and Ms. Sargent left the premises at 2:04 a.m.

12On cross-examination, Mr. Sookdeo could not remember specifically what was “off” about the male, compared to the photo on the driver’s licence, simply that the picture did not look like him. The male had blond hair as did the male in the photograph. His practice is to look at the eyes and nose of the person versus that depicted in the photo. He conceded that there was nothing in his notes about the male’s features or differences from the identification. Regarding the female, she was not nervous and seemed honest. He believes that he told her that she was not in any trouble with him and indicated that he was an inspector, not a police officer. The staff were cooperative during the inspection.

13Rebecca Sargent has been a liquor licence inspector since June, 2007. She attended at the Premises with Inspector Sookdeo on January 7, 2008. When she entered, she did a general walk through and then headed to the back of the establishment where three youthful looking males were playing pool. By youthful, she indicated they looked under the age of 25.

14She identified herself to the males and asked to see their identification. When she looked at the identification of one of the males she concluded that it did not look like him. Upon questioning, the male could not, at first, give his correct date of birth. Inspector Sookdeo stayed with the male while she went to the bar area to speak to the managers, Ms. Barrie and Mr. McLaughlin, to advise them of the situation regarding the minor. When she returned to the back of the bar with them, Inspector Sookdeo stated that the male admitted to being under 19 and had produced his proper identification after first denying that he had other identification.

15Ms. Barrie told her that staff had checked the male’s identification and served him four beers.

16Ms. Sargent then approached three youthful looking females seated at a table. There was a pitcher of beer and three glasses on their table. One of the women produced identification that was fake (Exhibit 2) to Mr. Sookdeo. Ms. Sargent was advised by Mr. Sookdeo that the woman admitted that she was under the age of 19. Ms. Sargent took note of some details of her appearance; the female appeared under the age of 25.

17Before departing at 2:04 a.m., they advised Ms. Barrie and Mr. McLaughlin of the infractions noted and that they would be submitting a report to their supervisors for disposition. She did not recall either manager saying that the female was not served and had only been there 15 to 20 minutes.

18On cross-examination, Ms. Sargent stated that staff was cooperative. In her view, though the male was blond as was the male depicted in the photo identification, the face did not resemble him. Questions were asked of him because they were not sure whether this was false identification or not.

19When questioned by the Board, Ms. Sargent stated that she was not told by either Ms. Barrie or Mr. McLaughlin whether the female’s identification had been checked.

Licensee’s Evidence

20Alison Barrie was one of two staff working at the licensed premises on January 7, 2008. She has been a bartender there for about one year and an assistant manager for four months. She was approached by Ms. Sargent and told that a male had produced two pieces of identification and was underage. Geordie McLaughlin was present that night, as a patron, not a manager. He no longer works at the bar. Both of them spoke to Ms. Sargent.

21She recalled that it was “last call”. She stopped what she was doing and went to the back of the bar with the inspector. She stood back while the male inspector spoke to the male patron. She was shown the two conflicting pieces of identification. Both showed a blond, blue-eyed male. When she compared the two pieces of identification, she could tell which was false and which was correct.

22Another bartender was working with her that evening and confirmed that she had checked the male’s identification. It is their policy to check the identification of anyone under 30 years of age. Ms. Barrie did state that the female’s identification was not checked that night. By way of explanation, she said the female came in at last call and was not served.

23On cross-examination, Ms. Barrie said that she did not see the female come in; the other bartender was busy at the bar and she was at the back of the Premises with the inspectors. The female’s identification was not checked. She did not serve her and the other bartender told her that she did not serve the female. The other two females had been there 1 ½ to 2 hours and were having a pitcher of beer. She did serve them as she was working the floor.

24The males ordered from the bar. She did not serve them. The bartender, Courtney, served them and checked identification.

25Ms. Barrie could not recall telling the inspectors that the female had just arrived.

Reasons and Analysis

26The Registrar is seeking, with respect to each of the two underage patrons, findings of violations of subsection 30(2), subsection 30(4) of the LLA and subsection 41(1) of the O.Reg.

27Dealing first with the male patron, on the evidence, there is no dispute that he was served and consumed four beers. Ms. Barrie was quite forthright on this point and the Board notes that there is also no issue that staff were anything but cooperative with the inspectors on January 7, 2008. The question is whether he appeared to be under 19 years of age. The male was described as youthful looking by the inspectors. Exhibit 1 shows a picture of a youthful looking male. Ms. Barrie indicated that his identification was checked, as it would be for those under 30.

28It was easily ascertained by Mr. Sookdeo that the male had produced a false identification. A comparison of the picture to the person prompted a query about the birth date. A simple query. The male stumbled and then owned up to the false identification. Ms. Barrie, again, forthright, stated that though she did not check the identification or serve these patrons she could tell which was the false identification when asked that night to compare the two, though stating they were similar looking. The differences, this suggests, were not too hard to detect.

29The Board does not doubt that the identification was asked for, produced and looked at, and while, as Mr. Levitan submits, the Act does not require a standard of perfection, subsection 41(1) does require an item of identification to be inspected before liquor is sold or served to a person apparently under the age of 19 years. This is not a cursory glance, rather, to inspect suggests a close and critical appraisal. Assessing the evidence from each of the three witnesses, and their ready note of disparity between the photo on the identification and the male, this was not done. There is a significant onus on a licensee to ensure that persons under the age of 19 are not served liquor nor permitted to consume it.

30The Board, therefore, FINDS a violation of subsection 30(2) and 30(4) of the LLA in respect of the sale to and consumption by the male and subsection 41(1) of the O.Reg, the failure to inspect the identification.

31Regarding the female, the evidence is less clear in terms of the allegations. She was seated at a table with two other women, on which there was a pitcher of beer (at least on the evidence of Ms. Sargent and Ms. Barrie) and at least one pint of beer. Her identification was not checked. Ms. Barrie had an explanation for that: the female had recently arrived, about the same time as the inspectors and had not been attended to. Mr. Sookdeo’s notes reflect a conversation with her wherein she stated she was not checked for identification and was served three to four pints of Moosehead. That information was not noted by Ms. Sargent, though she had noted what the male consumed. A factual finding that the female was served and/or consumed liquor is required for a finding under subsection 30(2) and/or 30(4) of the LLA. While the Board is permitted to receive and consider hearsay testimony, the Board was not advised why the relevant direct evidence was not available. Further, though Ms. Barrie was asked on the night in question what the male was served, she was not, on the evidence asked any such question about the female. In terms of the reliability of the hearsay evidence, the Board agrees that there is no reason to think that the female was not honest, however when such a statement is offered for its truth, the inability to “test” that evidence does undermine its reliability.

32Ms. Barrie did give testimony, was cross-examined and the Board has concluded that there was no reason to suggest she was not being honest. Indeed her responses regarding the male patron, when viewed with the whole of the evidence, supported the Board’s findings. She acknowledged that the female’s identification was not checked and gave a credible reason for that. In the absence of further factual information recorded by the inspectors, and the absence of the female to give evidence supportive of the hearsay statements, the Board declines to find a violation of subsections 30(2), 30(4) of the LLA and subsection 41(1) of the O.Reg.

Conclusion

33For the reasons given, the Board FINDS the Licensee violated subsections 30(2) and 30(4) of the LLA and subsection 41(1) of the O.Reg in respect of the male patron.

34The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his written submissions within seven (7) 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 25th DAY OF JULY, 2008.