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-
Great Farini Restaurant and Bar Ltd. (The) O/A Great Farini (The)
Licensee
DECISION
Panel: Beryl Ford, Board Member Joan Lougheed, Board Member
Decision Date: July 28, 2009
Hearing Location: Oshawa, 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 ) Richard Kulis, Representative Great Farini Restaurant and Bar Ltd., Licensee ) Sascha Alesander Lutz, ) on behalf of the corporate ) Licensee
Allegations
- A hearing into a Notice of Proposal number 17151 dated March 26, 2009 to suspend liquor licence number 807356 (the “Licence”) issued to Great Farini Restaurant and Bar Ltd. (The) (the “Licensee”) operating as GREAT FARINI (THE), 22 Ontario Street, Port Hope, Ontario, L1A 2Z2 (the “establishment” or “premises”), 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 (“O.Reg”) made pursuant to the LLA, was held on June 29, 2009 in the City of Oshawa.
Decision
- After considering all the evidence and submissions the Board DISMISSES the allegation of a violation of subsection 30(4) of the LLA, and consents to the withdrawal of subsection 41(1) of the O.Reg. Reasons follow.
Preliminary Matters
- Sascha Alesander Lutz is an officer of the corporate Licensee. He appeared on behalf of the Licensee and waived the right to be represented by a barrister and solicitor or a licensed representative.
Registrar’s Evidence
Stacy Guymer has been employed by the Alcohol and Gaming Commission of Ontario (“AGCO”) as an inspector since 2003.
Inspector Guymer testified that she attended the Great Farini on October 18th, 2008, arriving at the establishment at 12:14 a.m.
On entering the establishment Inspector Guymer observed two males seated at the bar. As they appeared to be young she approached them and asked for identification.
There was no issue with male #1 as his identification proved he was of legal age. Male #2 produced an Ontario Health card as identification. The Health card was issued to A.L.K. showing his date of birth to be January 25, 1989.
Inspector Guymer thought the photograph on the health card was not that of male #2 whom she was questioning. She advised him that she did not believe the identification he had produced belonged to him.
Male #2 readily admitted the card was not his but belonged to his friend, A.L.K., who was also seated at the bar. Male #2 identified himself as D.S., and provided his address and date of birth which confirmed he was a minor.
When asked by the inspector what he had had to drink, male #2 stated that he had one whiskey and ginger ale.
In response to a question from the Inspector, D.S. informed her that he had not been asked for identification at the door prior to entering the establishment.
While Inspector Guymer was speaking to D.S. the Licensee, Mr. Lutz, approached them and asked what was going on.
Inspector Guymer told the Licensee that the male had identified himself as being under 19 years of age and had admitted that the health card did not belong to him.
The Licensee became angry and started yelling at D.S., and said to him “you had nothing to drink”.
The Licensee then yelled at the bartender who said that he had not served the male.
The Licensee asked the doorman if he had asked for identification from the male, but Inspector Guymer did not hear the response to the question.
The Inspector asked to see the video tape recordings which were located on the security video equipment in the basement. The Licensee became angrier and said “you are trying to kill me”. The Inspector was concerned with the anger the Licensee was demonstrating and called the Port Hope police department for her own security.
Three police officers arrived at the establishment. The Inspector apprised the officers of the situation. Two officers, which included Police Officer Terry Teno, escorted the Inspector and the Licensee to the basement to inspect the video tapes.
The Licensee had difficulty retrieving the recording. The system had split screens. Video recordings were taken with two cameras and he could not locate the tape showing the male patrons.
The only tapes available were from October 8th 2008, some ten days earlier. The Licensee was confused by the discrepancy and said that the tapes should be recording for the last 40 hours. There was no recording for the evening of the October 18th, 2008.
The Licensee told the police that the Inspector was picking on him and harassing him as she was in the bar every weekend.
Inspector Guymer reminded the Licensee that the establishment was identified as a ‘risk based management establishment’, meaning the premises had a high rate of infractions. The inspector testified that, in fact, the establishment had the highest infractions in the area she covered over the previous two years.
Inspector Guymer stated that each time she visited the premises there were infractions. The Licensee denied this assertion.
However, Inspector Guymer acknowledged that the charges laid were other Provincial violations. Warnings had been issued by the AGCO but no charges were laid.
Inspector Guymer told the Licensee before leaving that she was visiting the premises on that particular evening to give the Licensee an information pamphlet issued by the Ontario Provincial Police (“OPP”) of a web site that had been launched on the Security Act and had decided to question the males because of their young appearance.
Inspector Guymer advised the Licensee of the infractions that evening and departed the premises at 12:52 a.m.
Inspector Guymer testified that she interviewed D.S. on March 13th, 2009 regarding the incident. He had told her on the evening of October 18th, 2008 that he had consumed a whiskey and ginger ale beverage. On March 13th, 2009 he changed his earlier statement and said that he had not had the beverage at the Great Farini (Exhibit #1).
Inspector Guymer was advised by D.S. that he had spoken to the Licensee since the incident. The Licensee contacted him to ask if he would sign off on a statement.
Licensee’s Evidence
D.S. is a high school student, and stated his date of birth is October 1991.
D.S. testified that on October 18th, 2008, he and two friends had been at the friend’s house where they consumed alcoholic beverages.
D.S. consumed two whiskey and ginger ale before leaving the house. His friends had told him he looked older than he actually was and together they decided to visit the Great Farini bar.
D.S. testified that he had not been in the bar previously and this was the first time he had tried to gain entrance to any licensed premises under these circumstances.
It was a busy evening; D.S. entered the premises with his two friends who were regulars at the establishment. He was not asked to produce identification by the security staff at the door.
D.S. stated that the bar was quite full; they went over to the bar and sat down. His two friends ordered a rye and ginger ale for themselves. As D.S. had already consumed two alcoholic beverages before arriving he decided he would wait a while before he ordered a drink.
Approximately 10 minutes after their arrival, the AGCO inspector arrived. She approached him and asked for his identification. He responded “got me” and handed her the health card from his pocket that belonged to one of his two friends (Exhibit #2). He realized later that it was a stupid mistake on his part. He carried it in the event he was be ‘carded’ at the door.
The inspector asked what he had to drink. He told her he had a whisky and ginger ale. He assumed that she meant what had he had to drink in total, D.S. realized later that she obviously assumed he had the drink in the establishment which he had not.
The Licensee came over and placed his hand on D.S’s shoulder in a calm manner. The Licensee asked him if he had a drink, he responded that he had not had anything to drink in the establishment.
He left the premises in a cab with his friends.
It was some time after that the Licensee contacted him. He was unsure of the date but recalled snow on the ground. They met at the Bistro and the Licensee showed him a statement he had prepared regarding the incident. He asked D.S. to read the statement through and, if correct, to sign it.
D.S. confirmed the information was accurate and signed the statement for the Licensee.
D.S. informed the Board that during the second semester of the school year, he was assigned a co-op education placement with a local employer. This placement would enable him to earn secondary school credit towards his graduation.
On March 13th, 2009, Inspector Guymer and OPP Officer Scott Williams went to the place of his employment. They asked to see him. He was taken to the front area of the business where clients and staff are present.
He was told that the Inspector and OPP officer were there to investigate a situation that occurred at the Great Farini on October 18th, 2008 which involved him.
A long statement (Exhibit #1) was taken from him by Inspector Stacy Guymer in the presence of OPP Officer Scott Taylor.
D.S. expressed his frustration to the Board on the method used to obtain a statement, namely, going to his place of work. He was embarrassed, and his employer was upset that this was done in front of clients. As a result, his employment was terminated resulting in him not gaining the secondary school credits which he stated ‘finished my school year’.
Registrar’s Submissions
Mr. Kulis acknowledged that the case for the Registrar was weak. The case was based on information provided by an experienced Inspector with the AGCO.
According to the evidence, D.S. had told the Inspector on October 18th, 2008 that he had an alcoholic beverage. Counsel submitted that the statement from D.S. in the bar on that night carried more weight than his statement of March 13th, 2009.
Mr. Kulis advised the Board that he wished to withdraw the allegation of a violation of subsection 41(1) of the O.Reg.
Mr. Kulis maintained there was a violation of subsection 30(4) of the LLA based on the information and evidence provided.
The Board consented to the withdrawal of subsection 41(1) of the O.Reg.
Licensee’s Submissions
The Licensee submitted that he contacted D.S. after speaking to a staff member of the AGCO who had advised him to provide any information that he had regarding the incident prior to February 17th, 2009.
The Licensee said that he was not angry on the evening in question, and there was no reason for the inspector to feel unsafe. The music was loud, he spoke loudly, and he acknowledged that he could have sounded angry because he was speaking above the music.
It is possible that the Inspector did not clearly hear what was said when she questioned D.S. He had told her he had a whiskey and ginger ale, he did not tell her he had been served a whisky and ginger ale at the bar. He had not been served any alcohol while he was in the premises.
Reasons and Analysis
The Board considered the evidence and submission presented by both parties.
It is the opinion of the Board that there is a lack of evidence to make a finding under subsection 30(4) of the LLA.
D.S. entered the bar despite the fact he was underage. He admitted he was prepared to use false identification. There is no evidence that D.S. ordered a drink. There is no evidence of him having been served an alcoholic beverage. He told Inspector Guymer that he had a whisky and ginger ale, but it was not clear where he had consumed the beverage.
The inspector understood, from the response D.S. gave her, that he had a whisky and ginger ale at the establishment. D.S. testified that when she asked the question of him, he interpreted it to mean what had he been drinking at anytime that evening. It is clear to the Board that there was a miscommunication.
Inspector Guymer did not see D.S. order alcohol nor was he consuming alcohol when she arrived. In fact, he did not have a drink visible to her while she was speaking to him.
The Board finds that D.S. demonstrated extremely poor judgment in his efforts to deceive the inspector by producing false identification on the night in question.
The Board understands the importance of obtaining evidence from witnesses when investigating a possible violation. However, the Board finds that the manner in which the statement was taken from D.S. by Inspector Guymer on March 13th, 2008 to be insensitive.
There was no explanation advanced regarding why a statement could not have been taken from D.S. at his home or other location rather than his place of work. D.S. is a secondary school student, who was working on a co-op work experience placement for educational credits.
The Inspector and an OPP officer visited the work place of D.S., questioning him while taking a lengthy statement, in a public place witnessed by other staff and clients. The employer was upset and terminated the work placement for D.S., which impacted his ability to complete his school year.
The evidence does not support that D.S. had or consumed liquor in the licensed premises, or that the Licensee permitted him to do so.
Conclusion
- Therefore the Board DISMISSES the allegation of a violation of subsection 30(4) of the LLA, and consents to the withdrawal of subsection 41(1) of the O.Reg..
DATED AT TORONTO THIS 28th DAY OF JULY, 2009.
BERYL FORD, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER