Registrar, Alcohol and Gaming Commission of Ontario v. 1699436 Ontario Incorporated, 2010 CanLII 80950

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

1699436 Ontario Incorporated operating as K & S Family Restaurant Licensee

Panel: Beryl Ford, Board Member Brian J. Ford, Board Member

Decision Date: July 22, 2010 Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 1699436 Ontario Incorporated, Licensee ) Jane Li, On her own behalf and on behalf of the Corporate Licensee

Allegations

A hearing into Notice of Proposal number 17834 dated January 20, 2010 to suspend liquor licence number 25582 (the “licence”) issued to 1699436 Ontario Incorporated (the “Licensee”), operating as K & S FAMILY RESTAURANT, 893 Queen Street East, Toronto, Ontario, M4M 1J4, (the “establishment” or the premises”), on the basis of alleged violations of subsection 30(4) of the Liquor Licence Act (the “LLA”) and subsection 41(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on April 20, 2010 in the City of Toronto.

Decision

The Board DISMISSES the allegations of violations of subsection 30(4) of the LLA and subsection 41(1) of the O.Reg. Reasons follow.

Preliminary Matters

Jane Li is a director, officer and shareholder of the Licensee. She appeared on her own behalf and on behalf of the Corporation and waived the right to be represented by a licensed representative.
The Board ORDERED the exclusion of witness on consent of the parties.

Registrar’s Evidence

Sean Rahim is a member of the Toronto Police Service. Constable (“Cst.”) Rahim advised the Board that he attended K & S Family Restaurant on October 13, 2009 after receiving information that a male person known to him was drinking at the establishment. Cst. Rahim stated the male person had been arrested previously by him and was known to be under the age of 19.
Cst. Rahim and his partner Cst. Shutt proceeded to K & S Family Restaurant and on arriving noted the person of interest (“R.A.”) was sitting in front of the large glass window at the front of the establishment. At the time the officers arrived, R.A. was drinking from a glass of beer. It was also noted there was a small jug containing beer on the table in front of him.
Cst.’s Rahim and Shutt entered the establishment at which time Cst. Rahim went to the table and spoke with R.A. Cst. Rahim stated R.A. was eating a hamburger and consuming beer. Cst. Rahim's partner dealt with the owner of the establishment.
Cst. Rahim described R.A. as having no facial hair. His face has a sort of peach fuzz. He stated you can tell that he is a young teenager. R.A. would not appear to be in his twenties.
Under cross-examination, Cst. Rahim stated the male looked like a teenager.
Scott Shutt is a member of the Toronto Police Service. Cst. Shutt corroborated the evidence of Cst. Rahim with regard to the information received on October 13, 2009 about a male person known to the officers drinking at the K & S Family Restaurant.
Cst. Shutt stated he and his partner entered the restaurant and while his partner dealt with the male person known as R.A., he went to speak with the owner. Cst. Shutt noted the male youth continued to drink the beer while speaking to his partner.
Cst. Shutt spoke with Jane Li and she produced identification indicating that her date of birth to be 1955-11-04. She also identified herself as the owner of the establishment. Cst. Shutt noted the liquor licence was visible and the licence number was 25582.
During his conversation with Ms Li, Cst. Shutt advised her that there was an underage male drinking in her establishment. Cst. Shutt stated Ms. Li became upset stating she had not checked his identification on this occasion but that she had checked his identification prior to this night and believed him to be of age.
Ms Li walked around with Cst. Shutt, pointing out patrons in her establishment noting their ages. Ms. Li stated she knows her customers.
Cst. Shutt advised her she would be charged under the LLA for having a person under the age of 19 years consuming alcohol in her establishment. Cst. Shutt noted R.A.’s date of birth was 1991-01-29. Cst. Shutt stated he and his partner then exited the premises.
Under cross-examination, Cst. Shutt was asked if he remembered R.A. apologizing to the owner for using false identification. Cst. Shutt stated he remembered the apology but did not recall what about.
Cst. Shutt also stated that when he first told the owner about the underage male she stated, "No no, it is impossible, every person in the restaurant is of age.”

Licensee’s Evidence

Jane Li is an owner and director of 1699436 Ontario Incorporated operating as K & S Family Restaurant and she stated she served R.A. beer on the 13th of October 2009.
Ms Li stated when the officers came in she was busy and Cst. Shut came over to her and told her she was serving a person under the age of 19. She stated she said "No no, I have checked his identification.” When the officer stated that it must have been a false I.D., she replied, “I don't believe you.”
Ms Li stated the reason she reacted the way she did was because she always makes sure that she follows the law and checks identification of persons who look young.
Ms Li stated she checked R.A.’s identification the first time he came to the establishment. At the time he produced a British Columbia identification with his picture and date of birth of 1990. Ms Li questioned him about the out-of-province identification and he stated that he just moved from B.C. and that he lived with his parents who lived close by.
Ms Li also stated that in addition to checking the identification, she met the parents of the young man and they bought beer for him when they were in the establishment. She took this as an added sign that the young man was over 19.
Ms Li stated that she did not believe that she needed to check the young man's identification every time he came into the bar.
Ms Li reiterated that she tries to run her business in a trouble-free manner and even closes at 10:00 p.m. due to the fact that the previous owner told her that unruly crowds come after 10:30 at night.
Under cross-examination, Ms Li stated that she was shocked to learn that R.A. was under the age of 19. She also stated that after being told his identification was false,she did a check on the internet and found that there are 1.5 million fake identifications in Canada.
When asked if she asked for other identification she stated that young man said he only had the one piece of identification. She further stated the identification looked valid and that she accepted it as valid.

Registrar’s Submissions

Mr. Kulis noted the evidence is that the young man was in the establishment and that he was drinking beer and that he was at the time under the age of 19 and his identification was not checked. It is his contention that the acceptance of the British Columbia identification does not meet the requirements of the regulations.
Mr. Kulis asked the Board to make a finding under subsection 30(4) of the LLA and subsection 41(1) of the O.Reg.

Licensee’s Submissions

Ms Li stated that she would not jeopardize her business by serving a person under the age of 19 for a few extra dollars.
Ms Li stated she checked the identification of the young man and that the “B.C. photo identification looked valid to her and she had no way of knowing it was false.” She stated she had no reason to question the validity of the document.
Ms Li also noted that the parents of the young man are customers of her establishment and have been there when the young man had a beer.

Reasons and Decision

The Board heard evidence that two Toronto Police officers entered the establishment and found a young male seated near the front window drinking beer. The officers knew this person to be under the age of 19 years of age. They knew this as a result of a previous contact with this young man. The officers advised the owner of the premises and filed their report.
The owner of the premises was shocked when told she was serving a person under the age of 19. She advised the officer that she had checked this person’s identification on a previous occasion and it showed he was 19.
The Board found the evidence of the two police officers to be credible and trustworthy. The Board also found the evidence of the Licensee to be credible and trustworthy.
The Board notes subsection 30(4) of the LLA states, “No licensee or employee or agent of a licensee shall permit a person who appears to be under nineteen years of age to have or consume liquor in the licensee’s licensed premises.”
The Board also notes that subsection 41(1) of the O.Reg states, “The licence holder shall ensure that, before liquor is sold or served to a person apparently under the age of nineteen years, an item of identification of the person is inspected.” The regulation further goes on to state in subsection 41(3), “The item of identification must include a photograph of the person and state his or her date of birth and must reasonably appear to have been issued by a government.”
The evidence before the Board is that a young man was served alcohol. This fact is not denied by the Licensee. However, the Licensee gave evidence that she did check the identification of the young man in question as required by the regulations.
It is clear that the Licensee was deceived by fake identification that in her belief was a valid piece of government identification from British Columbia. The Licensee is a new Canadian and cannot be expected to know the minute differences of the various fake identifications. The Licensee also believed that the young man's mother and father would not allow their son if he was under the age of 19 to drink in her establishment.
In view of the above, though R.A. was a young man, who appeared young, given the testimony of Ms Li, which the Board finds credible and trustworthy, the Board finds that, having checked his identification, and observing him consume beer in the presence of his parents, she did not “permit” a person who appears to be under 19 years of age to have or consume in the premises.

Conclusion

Therefore, the Board DISMISSES the allegations of violations of subsection 30(4) of the LLA and subsection 41(1) of the O.Reg.

DATED AT TORONTO THIS 22nd DAY OF July , 2010

BERYL FORD, BOARD MEMBER BRIAN J. FORD, BOARD MEMBER