ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
1340305 Ontario Limited operating as All Star Tap & Grill House Licensee
DECISION ON FINDINGS
Panel: David C. Gavsie, Chair, AGCO Beryl Ford, Board Member
Decision Date: January 11, 2011 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 ) Dan Alakas, Representative 1340305 Ontario Limited, Licensee ) Patrick Little, Representative
Authorities
2113339 Ontario Inc. (c.o.b. James Joyce Irish Pub) (Re) [2008] O.A.G.C.D. No.214
Allegations
- A hearing into Notice of Proposal number 18186 dated July 5, 2010 to suspend liquor licence number 201510 (the "licence") issued to 1340305 Ontario Limited (the "Licensee") operating as ALL STAR TAP & GRILL HOUSE, 115 Highway 20 East, Fonthill, Ontario, L0S 1E0 (the "establishment" or the premises"), on the basis of alleged violations of subsections 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 September 27, 2010 in the City of Niagara Falls.
Decision
- The Board FINDS the Licensee contravened subsections 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. Reasons follow.
Preliminary Matters
- A motion was approved to exclude witnesses.
Registrar's Evidence
GB, a 22-year-old male who lives in Niagara Falls, testified that he was with JH on August 4, 2009.
He had met JH through friends about four months earlier. She was 17 years old and, about 5 feet tall with a 'mulish' hair cut. She sometimes wore glasses and had several tattoos.
On the night in question, he was dropped off at JH's house about half an hour before they left to walk together to the establishment at approximately 11:00 p.m. They had been to the establishment three times previously. This was their fourth visit to the bar over the previous few weeks.
On arrival, they walked into the premises and sat at the bar. There was no doorman or security on duty at the entrance. He observed it was relatively quiet in the premises. About 12 other patrons were present.
He ordered a pitcher of beer from a female bartender and paid for it. JH was sitting at the bar beside him. Neither he nor JH were asked for identification. The pitcher of beer was served by the bartender. GB poured it into glasses and they proceeded to drink it at the bar.
GB ordered two shots of "liquid cocaine" which consists of half Jagermister and half Goldschlager. He and JH consumed the shots.
JH then ordered two more shots of "liquid cocaine" and paid for them herself which they consumed.
JH ordered a pitcher of beer and a third round of two shots of "liquid cocaine". GB testified that he paid for one pitcher of beer and two rounds of 'shots' while JH paid for one pitcher of beer and one round of 'shots.'
At no time were they asked for identification by the bartender who was the only person GB saw serving at the bar that evening.
Approximately 1:30 a.m. the female bartender started turning off the lights. They thought the bartender was going to close up for the evening. GB and JH decided to leave the premises and walk back to JH's home.
GB described the condition of JH and himself at their time of departure as a "little intoxicated, not extremely, a little buzzed."
GB testified that this was the first time in their visits to the establishment that JH had not been asked for identification. They were there the previous evening, and the two previous weeks before August 4th. GB recalled a different bartender at that time. JH had been asked for identification and produced a friend's driver's licence as identification which was accepted.
In cross-examination, GB confirmed that he had met JH about four months earlier. They were not in a relationship but were just friends. He was aware that she was l7-years-old.
GB stated that he had not been drinking prior to his arrival at the home of JH. It was his opinion that JH had not been drinking prior to his arrival either.
They had a ten minute walk from JH's home to the establishment. They had not stopped or had drinks on their way.
GB testified that he did not recall the bartender Meghan Archambault who served them on August 4th serving them on their previous visits to the premises. JH was asked for her identification by another bartender on those occasions.
GB did not look at the identification that JH produced on the previous occasions but she had told him that it belonged to a person she identified only as Emily, who he thought was about 20 years old. JH had commented to him that she looked similar to Emily in the picture as Emily had worn glasses.
GB was not aware how long JH had possession of the fake identification, but he stated that he didn't believe JH had it with her on August 4, 2009. JH thought that as she had been in the premises the evening before and produced the identification, they would remember her.
On previous occasions he had been asked for his identification and had produced his own driver's licence.
GB stated that they left the premises before the last call on August 4, 2009.
In response to questions from Mr. Little, GB stated that at no time were they advised they would not be served again by the bartender, or told to take a taxi home and not drive.
They walked back to JH"s house together and did not have anything further to drink when they arrived at her home that evening.
In re-direct, GB confirmed that he was present at the bar with JH when she ordered and consumed drinks from the pitcher of beer and consumed the 'shots' they ordered. She was not asked for identification at any time during the evening.
Officer Mike Langlais is a police officer with the Niagara Police Services Board.
On August 4,2009, he was assigned to duties that involved follow-up on reports from uniformed police officers.
Officer Langlais testified that he and Detective Sergeant Smith were called to a home on August 5, 2009 at 7:00 a.m. to 7:30 a.m. on Merritt Street, Pelham, Ontario regarding a sudden death.
On entering the home he was taken to a room where he observed a young girl who was deceased. She was wearing jeans and a shirt. She had brown hair. He established her identification as JH from her next of kin. Although he was told that she was 17 years old, she looked younger. Her time of death had been placed as after 2:00 a.m. on August 5, 2009.
With permission from her parents, Officer Langlais reviewed the decease's computer and scanned her cell phone for text messages. These were placed into evidence as Exhibit # 1. The text messages from JH to her friends dated August 4 and 5, 2009 indicated that she was at All Star's bar drinking and that she was drunk.
The witness stated that he had done a follow up and spoke to the people she had corresponded with by text regarding the night in question.
Officer Langlais testified that he left the home of JH where her father lived with his girlfriend.
Officer Langlais contacted and spoke to GB who told him that he was with JH the night before. They had gone to All Star Tap and Grill at around 11:30 p.m.
No identification was asked from either GB or JH prior to them being served two pitchers of beer and three shots each of 'hard liquor', which they consumed and left the bar around 2:00 a.m.
On August 6, 2009, Officer Langlais went to the establishment to do a follow up. He spoke to the Licensee's wife, who he described as the 'owner' Mrs. Strankovic. Officer Langlais advised her that a young, underage person was drinking at the bar the previous night and had 'passed away'.
Mrs. Strankovic said "No not here, we would have asked for ID."
She told him that Meghan Archambault was the bartender working on the evening of August 4, 2009.
In cross-examination, Officer Langlais stated that prior to the night of August 4th he had never seen the deceased previously. He did observe that she had tattoos and piercings.
He did not find any identification on her body. She was identified by her parents.
Brad Foster has been a Liquor Inspector with the Alcohol and Gaming Commission for the past seven years and is familiar with All Star Tap and Grill House.
Inspector Foster testified that he and Inspector Passmore did a follow up to the police report of the August 4, 2009 incident. They were investigating a possible violation of the LLA regarding a minor consuming alcohol in the licensed premises.
Inspector Foster testified that GB was contacted by Inspector Passmore and a meeting was set up with him in the Niagara Falls office on August 11, 2009 regarding the police report.
On August 11, 2009, Inspector Foster and Inspector Passmore met with GB. He explained to GB the reason for the meeting which started at 4:00 p.m. and terminated at 4:40 p.m.
GB gave an account of what had happened on the night of August 4,2009. This information was similar to evidence provided by GB to the Board and is contained in a report filed as Exhibit # 2.
JH ordered the first pitcher. GB ordered the second pitcher. They had three shots of liquid cocaine each. Identification was not requested by the bartender.
GB told the Inspector that JH had used fake ID in the past at All Star's. A friend had left it at the bar one night and JH had used it.
On January 13, 2010, Inspector Foster met with the Licensee and reviewed the report that a minor had been served. Inspector Foster discussed some issues with him regarding process and identification requirements.
Inspector Foster testified that the Licensee did not dispute that a minor was served. He identified Meghan Archambault as the server, and informed the Inspector that Ms Archambault was still employed at the establishment.
Further, the Licensee told the Inspector that Ms Archambault had told him that no identification was requested that night as previous nights the bartender had accepted identification from JH.
In cross-examination, Inspector Foster stated that he did not interview Ms Archambault as the OPP were involved and his supervisor had not given him direction to interview her.
He had not gone to the establishment regarding this incident prior to January 13, 2010.
Inspector Foster confirmed his evidence in chief that the Licensee had agreed that a minor had been served and no identification was requested that night from her. This was contained in his notes which were filed as Exhibit # 3.
Inspector Foster stated that he was familiar with the establishment. He had visited there on previous occasions over the past three years on routine inspections. He was not aware of any previous incidents at the establishment prior to August 4, 2009.
Joseph Passmore is a Gaming Inspector with the AGCO. Prior to his current role, Mr. Passmore was a Liquor Inspector with the AGCO.
Inspector Passmore testified that he had received a call from OPP Staff Sargeant Chris Swift. He was asked to attend All Star Tap and Grill to obtain information regarding an incident which involved a police report of a minor consuming alcohol at the establishment who had later committed suicide.
He attended the bar at 4:36 p.m. on August 6, 2009. The Licensee was not present at the time. Inspector Passmore spoke to a server Megan Flintoft, who was not working on the night of August 4th.
He was advised by Ms Flintoft that the establishment did not have video surveillance.
The Inspector was given a cell number and address of the Licensee by the Manager Mark Liszak. After leaving a telephone message for the Licensee, he went to his home in an attempt to reach him; however, he was unavailable at that time.
Inspector Passmore eventually contacted the Licensee at 7:45 a.m. on August 7, 2009. He advised the Licensee of the police report and that AGCO would be conducting a follow up of the incident.
Inspector Passmore called GB on August 7, 2009 regarding the incident of August 4,2009 at All Star Tap and Grill and arranged that he attend the Niagara Falls Regional office of the AGCO for an interview on August 11, 2009.
Brian Sharpe has been an Inspector with the AGCO for almost four years. He is currently assigned to the Niagara Falls Regional office.
Inspector Sharpe testified that he visited the All Star Tap and Grill with Inspector Foster on January 13, 2010 with regards to an ongoing investigation regarding serving a minor.
Inspector Foster spoke to the Licensee about an incident which involved a minor drinking in the establishment and a following matter regarding the death of the minor.
Meghan Archambault was identified as the server who provided the alcohol to the minor.
The Licensee stated at that time that Ms Archambault had advised him that she had not checked the minor's identification.
Inspector Foster advised the Licensee that a report would be submitted and an investigation would be done.
In cross-examination, Inspector Sharpe stated that he did not interview the server Meghan Archambault.
He further stated that he did not get a statement from Meghan Archambault because it was not his investigation. He was only there making notes.
Inspector Sharpe confirmed in cross-examination that he was positive that the Licensee Mr. Stronkovic stated that Meghan Archambault had told him that she had not asked for identification on the night of August 4, 2009.
Licensee's Evidence
Meghan Archambault is a 21-year-old female who lives with her father in Welland. She graduated from high school in 2007. Prior to starting work in 2008 at All Star Tap and Grill, she worked as a server/waitress at Swiss Chalet.
Ms Archambault described her job at All Star Tap and Grill as 'almost full-time'. She is Smart Serve trained and works 30 to 40 hours per week. She mostly starts work at 5:00 or 7:00 p.m. and stays until she finishes work at 3:00 a.m.
Ms Archambault is aware of the policies of the establishment and testified that when she started at the establishment, she was taken through the policies by the Licensee.
She gave an example of what she does if a person looks under 25 years old and requests alcohol. She checks a piece of photo identification and checks date of birth. If the photograph doesn't match the person presenting it, she asks for a second piece of identification.
She has refused to serve patrons if she has doubts.
Ms Archambault described the clientele of the establishment as families, sports fans, people looking for entertainment and mostly young people at night.
On August 4, 2009, she started work at 7:00 p.m. Business was 'steady but not crazy'. The premises has a bar area, a dining area that is described as upstairs, it is three steps up from the main floor with an outside patio area.
On the night in question, she was responsible for the whole area. As it was a Wednesday night, no security was on duty. Usually when security is working, they ask for identification at the door so the servers do not request identification.
On August 4, 2009, it would have been her responsibility to ask for identification when necessary.
Ms Archambault testified that she did not know the female JH personally. Sshe had seen her four or five times at All Star's previously.
She came in August 4, 2009 and asked for a pitcher of beer. Ms Archambault asked both her and GB for their identification. It seemed to be ok. She served them two pitchers of beer and three shots of liquor each.
Ms Arhambault testified that she became aware of the death of JH a couple of days after it had happened.
The owner's wife had called her and asked her were there any under-age minors in the bar. She told her no, she had checked ID of everyone.
She said she "remembers the two patrons, just because she does."
She thought that they had had a few drinks before they had arrived at the bar; she stated that "they were talking about having drinks."
The witness said she could tell that JH had had a few drinks but was "not bad" so she served her.
Ms Archambault testified that she looked at JH's identification, specifically her date of birth and picture. She accepted it. She had no reason not to accept it.
She stated that JH looked different every time she came in. She changed her hair colour; she wore a lot of make-up and thought she had glasses on. She could not recall if the identification she was shown if the person was wearing glasses.
She asked GB for his identification. He gave her a licence, she was satisfied with it.
In response to questions by Licensee's Counsel, Ms Archambault disputed testimony provided by GB in exhibit # 2, who had stated that identification was not requested by her on August 4, 2009.
She disputed that she had told the Licensee that she had not checked for identification on the night in question.
Ms Archambault testified that GB and JH had drunk two pitchers of beer, some was left in the second pitcher, and she told them it was time to go and that she would call a cab for them. They told her they were walking. She poured what was left in the jug of beer out.
She recalled asking JH to leave once before on another occasion because she did not have identification with her. At that time JH was sitting on the patio with her boyfriend.
Ms Archambault testified that she was never interviewed by the AGCO Inspectors.
In cross-examination Ms Archambault confirmed that she would not have served her without identification. She looked young; she always doubted that she was of age.
She said that she had seen JH about 4 to 5 times in the establishment; she had only interacted with her about a week earlier when she was on the patio.
The other times JH was in the establishment, the security staff at the door would have checked her identification.
Ms Archambault stated that she checks every identification for anyone that appears under 25 years old, unless it is a Wednesday when the security is on duty at the door.
Ms Archambault had seen JH drinking in the bar previously when the 'bouncers' had checked her identification.
In responding to questions from Registrar's Counsel, Ms. Archambault said that she was made aware of the problem when the 'owner' called and said there was a minor in the bar under age and there had been an incident.
She further stated that GB was not sober, but not intoxicated, he was 'warm.' JH changed her appearance whenever she came in – her hair colour, her makeup.
Ms Archambault confirmed "they" drank slowly; she was "pretty drunk, she was chatty, they got drunk in the bar."
In response to a Board member's question, Ms Archambault stated that the August 4, 2009 was a Tuesday night when no security staff is on duty. She had previously asked for her ID on a Wednesday night when JH was on the patio because the bouncers come in at 9:00 p.m. and she was checking identities on the patio prior to 9:00 p.m.
It is not the 'policy' of the establishment to ask for identification from everyone under 25. She believes that's 'everyone's policy really.'
Licensee Jovica John Stankovic lives in Fonthill with his wife who is a principal in the business. Mr. Stankovic also owns two other establishments in St. Catherines known as The Host Pub and Grill and Mikado Bar and Lounge.
Mr. Stankovic told the Board that his wife works during the day time at the establishment, while he is there most nights. He works between his other establishments and spends time each day at them all.
Mr. Stankovic purchased All Star Tap and Grill twelve years ago. He is the sole owner of the business and land.
He has been in business as a licensee for 17 years and has never appeared before the AGCO prior to now.
He employs seven persons at the All Star establishment. Ms Archambault is one of his employees.
He has strict policies for his establishments and wants a good relationship with the AGCO and the police.
Mr. Stankovic outlined his policies for the Board as three main areas:
Issues with minors seeking service
Clean-up
Serving times
Mr. Stankovic first heard of the service of alcohol to a minor on August 6, 2009. Mr. Stankovic testified that the police had gone into the establishment on August 6, 2009 and had spoken to his wife about the incident. She informed him. He then received a telephone call on his cell phone from the police. They reported to him that a minor had been in the premises and served alcohol. They informed him of the incident that followed.
He called Ms Archambault about the call from police informing him that a minor had been in the premises the night of August 4, 2009 and had been served alcohol. Ms Archambault had told him that she had checked the identification of the person he identified as a minor. Ms Archambault told him that she did not know the person in question was a minor.
Mr. Stankovic testified that he had no further contact with the police or the AGCO regarding the incident after August 6, 2009 until January 13, 2010.
Mr. Stankovic went to the regional office of the AGCO in Niagara Falls at the request of the AGCO Inspectors. Inspector Foster and Inspector Sharpe were present at the meeting.
He did not know why he was being summoned to an interview. Inspector Foster conducted the questions. Inspector Sharpe was present.
Mr. Little referred to the notes being Exhibit # 3, which stated that Mr. Stankovic agreed that the minor was served by Ms Archambault and that she consumed alcohol.
Further, the notes indicated that Mr. Stankovic stated that Ms Archambault did not request ID of the minor on the night in question. She had checked the ID of this person on 'other nights.' Mr. Stankovic agreed it was fake ID shown.
Mr. Stankovic was reminded by the Inspector of his responsibility as a Licensee to ensure that fake ID is not accepted by an employee.
Mr. Stankovic stated that he had said he knew that the person identified as a minor was indeed a minor, because the police had told him.
However, Mr. Stankovic refuted that he ever stated that the server did not request ID on the night in question. She was asked for ID by the server and "if she was using fake ID what can I do?" Ms Archambault had not told him she did not check the minor's ID.
Mr. Stankovic stated that he did not think the inspectors would make false statements, but he doesn't believe they understood him.
In response to a question, Mr. Stankovic said that he was unaware until the Hearing that a server does not check ID if the bouncers are on duty.
In cross-examination the Licensee confirmed he visits his three licensed establishments every day, sometimes twice a day. He also stated that he has three principles for staff to follow.
Staff are Smart Serve trained;
Staff follow the 'sheet' with regulations;
Staff attends monthly meetings with the Licensee to review procedures.
In cross-examination, Mr. Stankovic confirmed that they have 'strong policies.' He has regular meetings with his staff to remind staff of the responsibilities.
When new staff starts in his employ, they are required to sign a form which outlines their responsibilities which include checking ID, etc.
The Licensee expects staff to follow the policies he has laid out. If they do not follow the policies and procedures, they receive a warning from the Licensee or their employment is terminated.
Mr. Stankovic stated that Ms Archambault did not receive any specific training from him as the Licensee other than her signing the form when she started her employment. She was Smart Serve trained which was accepted by the Licensee.
Mr. Stankovic reiterated his earlier statement that when someone produces fake ID "you try, but if you are given fake ID what can you do?"
Registrar's Submissions
- Registrar's Counsel requested that the Board make findings under:
Subsection 30(4) of the LLA that the Licensee or the employee of the Licensee permitted a person under the age of 19 to have or consume liquor in the licensed premises; and
Subsection 41 (1) of O.Reg under the LLA that the Licensee failed to inspect a piece of identification of a person apparently under the age of 19 years old prior to selling or serving alcohol.
Registrar's Counsel submitted that the evidence that was presented by witnesses for the Registrar was consistent and credible.
GB went through a very tragic incident. He presented his testimony in a candid, well spoken manner.
GB has no interest in the Hearing. There are no consequences for him in the outcome. His testimony was very credible.
GB testified that he had known JH for four months; he described her appearance which included her tattoos, her hair cut and the fact that she sometimes wore glasses.
He had attended All Star Tap and Grill on three previous occasions with JH prior to August 4, 2009.
He clearly stated that they had not been drinking prior to arriving at the establishment. He recalled there were about a dozen patrons already there, it was relatively quiet. There were no doormen or security present at the door, they entered the premises, sat at the bar and proceeded to order drinks.
He did not recognize the server. He and JH ordered and consumed alcohol at the bar. No identification was requested from either him or JH at any time.
They placed orders for two pitchers of beer and three each of an alcoholic beverage called 'liquid cocaine shots.'
There is no dispute from the Licensee that JH consumed alcohol at the bar. JH had been candid with GB on other occasions that she used fake identification, but ID was not requested or produced on the night in question.
GB testified that while drinking at the bar they became a little intoxicated but were not "heavily intoxicated."
GB's evidence was consistent throughout with evidence he had provided to the police after the incident and again on August 11, 2009 when interviewed by the AGCO.
The investigating police officer said that JH looked very young. The Licensee's witness said JH looked very young.
Inspector Foster's evidence was consistent with that of GB. When Inspector Foster spoke to the Licensee at their meeting, the Licensee stated that JH was not asked for ID on the night in question.
He further stated that JH had been at the establishment previously and ID had been requested, but on the night of August 4,2009 it was not requested by the server.
Inspector Sharpe testified that he was present for the interview with Inspector Foster and the Licensee. He was not involved in the questioning but did take notes. He was clear in his evidence that he wrote down in the statement from the Licensee that, "She was not asked for ID."
Registrar's Counsel submitted that Ms Archambault did not demonstrate that she fulfilled her role under the LLA. She did not verify JH's identification and clearly does not understand the expectations of her role under the LLA.
She testified that she always checks identifications but did not check them when security staff was on duty at the entrance.
She provided shifting and conflicting evidence during her testimony.
Ms Archambault made comments about JH's changing appearance but didn't know her.
Ms Archambault testified that the night was quiet in the bar. She said JH and GB were not sober when they came into the bar. She admitted that they become drunk while in the bar.
Ms Archambault is clearly covering up a mistake that was made that evening. She was not in the habit of asking for identification. She didn't understand the rules around checking identification.
The Licensee, Mr. Stankovic, clearly cares and wants to be compliant, but staff is not trained correctly in correct procedures to ensure compliance with the LLA.
Counsel for the Registrar submitted that even if the Board finds that Ms Archambault checked the ID provided, she did not go far enough in the verification of the identification and therefore permitted a person who appeared to be under the age of 19 to have consumed liquor on a licensed premises.
Licensee's Submissions
- Mr. Little submitted that there are several factual issues that need to be addressed:
a) The number of contradictions
b) Inconsistencies in evidence
c) Factual issues
d) Did JH appear underage?
Further, Licensee's counsel reiterated a considerable amount of the evidence that was produced throughout the Hearing. He raised questions for the Board to consider which follows in his submissions.
It is agreed that the customer was under the age of 19 years old. Several witnesses said she appeared young.
It is agreed the issue of age is only resolved by identification.
Counsel referred to documents that can be produced as identification i.e. - driver's licence with a photograph, or a passport are two pieces of identification which are acceptable identification.
Was documentation requested and produced? If this was not the case, and the customer appeared under l9 years of age, there would be a breach of the LLA.
Counsel submitted that it would be appropriate to find that the customer appeared to be under l9 years of age, in keeping with the evidence of witnesses who had come into contact with her.
Assuming Ms Archambault requested and received identification from the person - was there a critical appraisal of the identification?
GB testified that on three previous occasions ID was requested from JH. She had produced fake ID on those occasions. She could have produced the same fake ID on August 4, 2009.
On one previous occasion when JH was at the establishment with another friend, Ms Archambault had asked her to leave because she could not produce identification.
Ms Archambault had checked JH's ID previously. The ID produced looked similar enough for Ms Archambault to accept it on previous occasions. The hypothetical question remains, "did Ms Archambault show due diligence in checking the ID provided by JH" on previous occasions or the night in question?
Counsel submitted that one can be consistent in the practices they are familiar with and still make an error. Did Ms Archambault check JH's ID on the night in question? She said she did.
Counsel stated the failure for anyone, police or AGCO inspectors to interview Ms Archambault regarding the incident was concerning to him.
The evidence of GB was inconsistent. In Exhibit # 2, he stated that JH bought the first round of drinks. At the Hearing he testified that he had bought the first round of drinks.
GB said that no identification was checked. Ms Archambault said that she did check identification.
Counsel submitted that GB is either wrong or covering-up.
Counsel submitted that it is dangerous to rely on evidence of someone who is neither trained nor sober.
GB and JH knew that JH would need identification. They went to the establishment at 11:00 p.m. without her having identification. Counsel questioned if that decision made sense to anyone.
The fact that there was an unwillingness by investigators to speak to Ms Archambault. After the incident.
There was evidence that the wife of the Licensee was informed of the incident and her reaction was "no, not here, we always ask for ID." Why was Ms Archambault not interviewed at that time? Counsel's point throughout his submission was that nobody had interviewed Ms Archambault about the incident.
Counsel submitted that during the interview with Mr. Stankovic, Inspector Sharpe and Inspector Foster, both Inspectors testified that Mr. Stankovic said that JH was not asked for ID according to Ms Archambault.
The inspectors met with Mr. Stankovic five months after the incident. They could have made a mistake. Maybe there was a language barrier that caused a misunderstanding.
Counsel submitted that on the balance of probabilities, identification was requested on the evening in question from JH. Therefore there was not a breach of subsection 41(1) of O.Reg 719/90.
While a person might have appeared to be served alcohol, they were not "permitted," as required by subsection 30(4) of LLA.
Counsel submitted that Ms Archambault was sadly deficient in some things that were required on the night in question. She did inspect the identification produced by JH appropriately. She did a preliminary check.
She was given ID in a prescribed format, a driver's licence. Ms Archambault accepted that ID as satisfactory.
The Registrar has failed to prove beyond a balance of probabilities that the Licensee breached Section 30(4) of the LLA and Subsection 41(1) of O. Reg 719/90.
Registrar – Reply Submissions
Counsel for the Registrar, in response to Licensee's counsel, submitted that Ms Archambault had seen JH at the establishment on a previous occasion. She stated that she had asked for her identification previously and was provided with it. However, Ms Archambault did not comply with the LLA in ensuring that the ID was in fact that of the person presenting it.
Ms Archambault admitted in her evidence that she thought JH looked young and doubted her age in the past, yet she did not use the prescribed methods of ensuring that the identification presented was indeed authentic. Ms Archambault accepted the false identification provided by JH because it looked similar enough to the person presenting it.
Licensee's Counsel submitted that the evidence of GB was consistent. He testified that JH ordered the first beer and he had paid for it. The text messages recovered from JH's cell phone at 11:41p.m. on August 4, 2009 indicated she was not drunk. It was the text message at 12.01, when JH texted of being drunk. Licensee's Counsel argued that JH got drunk in the bar under the watch of Ms Archambault.
Decision
It is the decision of the Board that the Licensee breached subsection 30(4) of the LLA. The Licensee or Licensee's employee or agent permitted a person who appeared to be under the age of 19 years to have or consume liquor in the licensed premises.
Also, the Licensee breached subsection 41(1) of the O. Reg 719/90 of the LLA.
The licence holder or employee or agent failed to inspect a piece of identification of a person apparently under the age of nineteen years prior to selling or serving liquor to that person.
Reasons and Analysis
The Board carefully reviewed all of the evidence and testimony presented at the Hearing.
The Board concluded that the evidence of the Registrar's witnesses was consistent and credible.
Witness for the Registrar, GB, had no vested interest in the outcome of the Hearing. He had nothing to gain by not accurately describing what transpired on the evening of August 4, 2009.
GB described how he had met JH at her home and walked to the establishment. He testified that neither had consumed any alcohol prior to leaving her home.
They walked into the All Star Tap and Grill House and sat at the bar without any intervention from staff. Ms Archambault was the server at the bar that evening.
GB described how they had ordered the alcohol. JH ordering the first pitcher of beer, while he paid for it. There was a second pitcher of beer ordered and paid for by JH, three rounds of shots of liquid cocaine were ordered, served and consumed by them, and these were paid for by both GB and JH alternately.
GB testified that at no time during the time they were at bar on August 4th, did the bartender Ms Arhambault question their identity or request identification. They left the bar of their own fruition at approximately 1:30 a.m. He stated that the bartender started turning lights off which they thought was an indication the bar was about to close.
They walked back to JH's home. GB described their condition leaving the premises as 'a little intoxicated' not extremely intoxicated but a little 'buzzed'.
GB admitted that he knew that JH had used false identification at the premises in the previous weeks. However, he didn't believe that she had it with her that evening. It had belonged to her friend Emily and speculated that it had been returned to the owner.
GB was positive that neither he nor JH were asked for identification on August 4, 2009 by the bartender who served them or anyone else in the establishment.
Although there was some inconsistencies in the testimony of GB of the order of which the drinks were served, who ordered the first drink and who paid for the drinks as they were served to JH and GB, there was no disputing the number of drinks that were served by the bartender to the two individuals.
The evidence of two inspectors was clear and consistent. During an interview by the inspectors with the Licensee, he did not dispute that a minor was served. He went on to identify Ms Archambault as the server on duty who had served both GB and JH on August 4, 2009. She had told him that she had not checked the identification of JH that night as she had checked it on a previous night.
A second inspector present at the interview and taking notes for the record also testified that he was positive that the Licensee had acknowledged that the bartender had told him that she had not checked the identification of JH on the night in question as she had checked it previously.
During the Hearing, Ms Archambault testified that she is aware of the policies and procedures to be followed at the establishment. She is Smart Serve trained. Yet she told the Board that she does not check identification of patrons if the security staff is on duty on Wednesday evenings, as it is their responsibility to do that. On the night in question, a Tuesday, security staff were not on duty.
Ms Archambault testified that on August 4, 2009, she recalled JH and GB coming into the bar. She stated that she asked both of them for the identification. It appeared to be ok, and so she served them. She had seen JH at the establishment a few times previously and had checked her identification at that time.
JH looked young; she looked different every time she came in to the premises. She wore a lot of make-up and changed her hair colour often.
Ms Archambault had asked her to leave the patio on one occasion when she was with a boyfriend, not GB, because she did not have identification with her.
Ms Archambault stated that she remembers them "just because she does." She thought they had been drinking before arriving at the bar as they were talking about 'having drinks.'
She could tell JH had had a few drinks, but she was 'not bad' so she continued to serve her.
Ms Archambault testified that 'they drank slowly', she was 'pretty drunk', she was 'chatty,' they 'got drunk in the bar.'
GB was not sober, neither was he intoxicated. He said he was 'warm.'
It was evident to the Board that Ms Archambault was making up her testimony as she went along. She acknowledged that JH got drunk in the bar, yet failed to stop serving her. Her evidence was not credible and it was obvious she was covering up for an error made on her part.
It is the belief of the Board that Ms Archambault did not check the identification of either GB or JH on the evening of August 4, 2009. She admitted that she thought JH looked young for her age. She had removed her from the premises on one previous occasion for not having identification with her, yet, on August 4, 2009, although she testified that she thought she had been drinking before she arrived, watched her get progressively more intoxicated and continued to serve her without once questioning her condition or checking her identification.
The Board believes that the Licensee does truly care about rules and regulations at his establishment being followed. However, staff is not properly trained to ensure full compliance with the LLA.
The Licensee operates three licensed premises and had not been in violation of the LLA in the past. He has policies in place which he shares with his staff; however, he relies on their knowledge of the Smart Serve Training in determining their responsibilities.
The Board believes that the statement the Licensee made to the Inspectors (exhibit # 3) is accurate. The Licensee was truthful in making the statement that Ms Archambault had told him that she had served a minor and not checked identification.
However, on reflection, he changed his evidence during the Hearing when he denied that he had been told by Ms Archambault that she did not check the identification of a minor. He told the Board that he thought the Inspectors had misunderstood him during the interview. It was even suggested that a language barrier could have been the cause of the misunderstanding.
Two Inspectors noted the comments. One Inspector was there for the sole purpose of making notes. He was adamant that the Licensee made the statement that he had been told by the bartender she did not check the minor's identification on the night in question.
Ms Archambault denied that she had told the Licensee that she had not checked the identification of the minor on August 4,2009. The Licensee, in his testimony at the Hearing mirrored that of the bartender on duty that evening.
Conclusion
For the above reasons, the Board FINDS the Licensee contravened the allegations of violations of subsection 30(4) of the LLA and subsection 41(1) of the O.Reg 719/90 of the LLA.
The Board invites written submissions on sanction from the respective parties. The Registrar's representative shall serve and file 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 a written response. The Registrar's representative may serve and file a reply within three (3) days of the 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 11th DAY OF JANUARY , 2011
DAVID C. GAVSIE, CHAIR, AGCO BERLY FORD, BOARD MEMBER