Registrar, Alcohol and Gaming Commission of Ontario v. Legendary Red Rooster, 2011 CanLII 45131

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-

Legendary Red Rooster operating as The Legendary Red Rooster Vintage Café (Licensee)

DECISION ON FINDINGS

Panel: Jacqueline Castel, Board Member S. Grace Kerr, Board Member

Decision Date: June 23, 2011 Hearing Location: Hamilton, Ontario

Appearances: Phillip Morris, Representative for the Registrar, Alcohol and Gaming Commission Michael Aaron Rigby, Representative for Legendary Red Rooster Vintage Café Inc. (The), Licensee

Allegations

1A hearing into Notice of Proposal (“NOP”) number 18307, dated September 22, 2010, to suspend liquor licence number 0022267 (the “licence”) issued to Legendary Red Rooster Vintage Café (the “Licensee”) operating as The Legendary Red Rooster Vintage Café (the “establishment” or the “premises”), 484 Plains Road E, Unit 3, Burlington, on the basis of an alleged violations of subsection 30(4) of the Liquor Licence Act (the “LLA”), was held in the City of Hamilton on June 9, 2011.

Decision

2The Board FINDS that the Licensee contravened subsection 30(4) of the LLA. Reasons follow.

Preliminary Matters

3Mr. Michael Rigby is the sole officer, director and shareholder of the corporate Licensee. He appeared on behalf of the corporate Licensee and waived the right to be represented by legal counsel.

4The Board ordered that witnesses be excluded on consent.

Registrar’s Evidence

5Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector John Hesch attended the establishment on May 23, 2010 with AGCO Inspector Giorgoudakis, Constable John Williams and a smoking by-law enforcement officer.

6They arrived at the establishment at 12:23 a.m. There were two security officers checking identifications at the entrance of the establishment, which is primarily a bar. The establishment was not overly crowded.

7Within minutes of arriving he noticed a table of young looking patrons located about 10 feet away from the service bar. The owner of the establishment, Mr. Michael Rigby, and a bartender were behind the bar. The table was about 15 to 20 feet away from the entrance.

8The youthful looking patrons were consuming beer from pint glasses at the table. There were two pitchers of beer on the table.

9He asked the individuals at the table to show their government-issued photo identification. One of the males at the table, who he saw consuming beer (“CA”) showed an Ontario driver’s licence with a date of birth in December 1991. As such, he was 18 years of age and 5 months on the date of the incident.

10CA said that he had presented the same identification to the security officer at the entrance of the establishment and was not prevented from entering the establishment.

11CA told him he was drinking Budd Lite, and his glass was about three quarters full. In addition, CA informed him that his friends had purchased the pitcher of beer and brought it to the table.

12He did not make a note of CL’s appearance.

13All of the other individuals at CA’s table were 19 or 20 years of age.

14There were about five or six security officers working that evening. He did not recall the exact number of non-security staff on duty that night but he did recall seeing waiters and servers.

15He advised Mr. Rigby of the infraction. He does not recall Mr. Rigby’s response.

16He departed the establishment at 12:42 p.m.

17Mr. Rigby declined to cross-examine Inspector Hesch.

18In response to a question from the Board, Inspector Hesch stated that CA was escorted off the premises after Mr. Rigby was informed of the infraction.

19CA is currently 19 years of age. He was born in December of 1991.

20He attended the establishment on May 23, 2010 with five male friends. He does not recall at what time they arrived at the establishment.

21A security employee at the entrance of the establishment checked his identification before he entered. He showed his G2 driver’s licence. The date of birth on the identification would have made him 18 years and 5 months on the date in question. Nevertheless, he was permitted to enter the establishment.

22After entering the establishment, he and his friends sat down at table. He doesn’t recall whether his friends ordered drinks at the table or whether they went to the bar to order the drinks. In any case, CA did not order or purchase the beer himself. CA poured himself a glass of beer from one of two pitchers of beer on the table. He consumed about ¼ of the glass of beer. He was not trying to hide the fact that he was drinking beer. He was talking to his friends while he was drinking.

23No one from the establishment asked to see his identification after he entered. However, the liquor inspectors and police did ask to see his identification. He showed them the same G2 license he had shown the security officer at the entrance of the establishment.

24On cross-examination, he admitted that he had not been at the establishment for a long time before he was approached by the liquor inspectors and police. He estimated that he was at the establishment about ten minutes prior to being approached by them.

25Police Constable (“P.C.”) John Williams is a member of the District Response Unit of the Halton Regional Police Service.

26On May 23, 2010 he attended the establishment in plain clothes with AGCO Inspectors Hesch and Giorgoudakis, as well as a smoking by-law enforcement officer. As is his practice, he allowed the liquor inspectors to take the lead inside the establishment.

27He observed two or three security officers at the entrance of the establishment.

28Shortly after entering, he observed a table of six youthful looking people consuming draft beer from pint glasses. One male at the table, who he observed drinking from a glass of draft beer, looked particularly young. He approached him and asked to see his identification.

29The male produced an Ontario G2 driver’s licence with the name CA and a birth date in December 1991.

30CA told him he showed the same identification to one of the security officers at the front door and they allowed him to enter. CA also told him that his friend purchased a jug of beer at the bar and brought it to the table. The glass of beer CA was drinking, when he was detected by the police and inspectors, was the only thing he had to drink at the establishment.

31CA consumed less than half a glass of beer before the inspectors and police officer asked for his identification.

32The establishment was not especially busy that night.

33He arranged for CA to be taken home by the father of a friend who was at the bar.

34P.C. Williams told Mr. Rigby he would be laying charges in respect of the minor. The AGCO inspectors had a more lengthy conversation with Mr. Rigby.

35Mr. Rigby declined to cross-examine P.C. Williams.

36AGCO Inspector Helen Giorgoudakis arrived at the establishment at 12:23 a.m. on May 23, 2010 with AGCO Inspector Hesch, P.C. Williams and a smoking by-law enforcement officer.

37They entered through the main entrance. She identified herself to security at the main entrance.

38Three or four minutes after entering the establishment, she noticed five or six individuals who looked young sitting at a table about 10 feet from the bar. There was nothing obstructing the view, of staff working behind the bar, of the individuals at this table.

39She approached the table because the patrons appeared young and were consuming draft beer. She asked a male, with red hair, a baby face, and wearing shorts and a striped t-shirt, for his identification. He showed an Ontario driver’s licence with the name CA and a date of birth in December 1991. Although he was only 18 years of age, she had observed him consuming beer from the pint size glass of beer in front of him.

40CA told her he was drinking Budd Lite beer and that his friend purchased the jugs of beer from the waitress at the bar.

41Inspector Hesch and P.C. Williams informed Mr. Rigby of the infraction before they departed at 12:42 a.m.

42Mr. Rigby declined to cross-examine Inspector Giorgoudakis.

Licensee’s Evidence

43Mr. Michael Rigby gave evidence under oath. He indicated that he would like to read from four pages of type written notes he had prepared. After Mr. Morris was given an opportunity to review the notes, they were filed and the Board entered them as Exhibit 1.

44Mr. Rigby stated that on the night in question, the beer was purchased at the bar from someone who was 19 years of age or over. As such, the Licensee or its staff did not sell beer to anyone under 19.

45The Licensee or its staff had no reason to assume that the individual who lawfully purchased the beer was going to supply it to a minor. The Licensee did not permit this.

46It is the establishment’s policy not to allow minors to enter after 10 p.m. on weekends, but in some cases, if it is not busy, this policy is waived. On the night in question, the policy was waived.

47The multi-agency inspection team actually impeded him from policing the establishment. This team arrived about five minutes after the minor and his friends.

48He personally served the group their first round and took their food order. This was the last order he was able to ring in before being pulled away from the bar by the smoking by-law enforcement officer, who asked for a tour of the kitchen and that no smoking stickers be placed on the staff washroom doors.

49When the inspectors and police arrived, there were only two security officers on duty, as two others had been allowed to leave early, and Mr. Rigby and one bartender were working the bar.

50Therefore, when the multi-agency task force arrived, he was asked to accompany the smoking by-law enforcement officer to the back-of-the-house, and his head of security was speaking to Inspector Hesch and P.C. Williams. This left one bartender serving all other patrons and one security officer checking identifications at the door. In these circumstances, it would have been impossible for staff to know that a minor was consuming alcohol in the premises.

51On cross-examination, Mr. Rigby stated that he has been a bar owner for five years and that he has worked in bar/restaurant business for 19 years.

52He acknowledged that one of the challenges of the industry is to ensure that minors do not consume alcohol, as many young people try to drink before they are 19.

53He also acknowledged that on a Saturday night, the clientele tends to be younger, depending on the type of band they hire. On the night in question, they were playing music which would appeal to a younger crowd.

54The capacity of the establishment is 240, but on the night in question there were 70 patrons in the establishment.

55The establishment is open from 11 a.m. to 2 a.m. seven days a week. Security is present from 10 p.m. on. He acknowledged that later in the evening there is a higher risk of young people slipping in and consuming alcohol. By midnight, the establishment tends to serve more liquor than food.

56He did not see the minor enter on the night in question, and security did not alert him to the fact that a minor was in the establishment.

57Four of the individuals sitting at the table came to the bar to place an order and he asked all of them for identification. All of them were 19 or over. They purchased two pitchers of beer, a couple of pops, one bottle of water, two platters of nachos and a quesadilla order. He has a bill to substantiate this order, but he would have to find it. He doesn’t know who gave them five glasses.

58There is a distance of about 15 feet between the bar and the doors where security is posted.

59He had already gone to the back-of-the-house with the smoking by-law enforcement officer by the time that the inspectors and police approached the table and detected the minor.

Registrar’s Submissions

60The definition of permit from the Court of Appeal’s decision in Sin City applies to the interpretation of subsection 30(4) of the LLA. Therefore, to permit means the Licensee or the Licensee’s employee or agent knew or ought to have known that a person who appeared under the age of 19 had or consumed liquor in the licensed establishment.

61CA, even when he attended the hearing a year later, appeared under 19 years of age.

62The establishment caters to a younger crowd on Saturday night and early into Sunday morning. In addition, the liquor portion of the establishment’s sales increases later in the evening, and the food portion decreases. The Licensee also agreed that it has security at the doors after 10 p.m., as the risk of persons under 19 entering the premises and attempting to consume liquor increases later in the evening.

63CA showed a G2 drivers licence which belonged to him. The date of birth on the licence made him 18 years of age on the date of the incident. The Licensee chose to let him in, even though it has a house policy of not allowing minors in after 10 p.m. on weekends, for financial reasons since the establishment was not too busy. Security failed to alert Mr. Rigby or the bar staff that CA was a minor. CA sat 10 feet away from the bar and openly consumed at least ¼ of a pint size glass of beer which he poured for himself from a pitcher on the table. Staff did not try to stop him.

64Mr. Rigby ought to have been aware that CA, a minor, was seated at a table to which he served two pitchers of beer. Mr. Rigby admitted to knowing that there is a general risk of minors consuming alcohol which their friends buy for them.

65Mr. Morris submitted that it is a red herring that the police, liquor inspectors and smoking by-law enforcement officers distracted staff from policing for minors. Staff were not paying attention or sharing information before the inspectors and police arrived.

66Mr. Morris drew the Board’s attention to the endorsement of Southey J., in 977610 Ontario Inc. (Heart & Crown Pub & Restaurant) v. Registrar of Alcohol and Gaming: “It is well settled that the defence of due diligence is not available.” Mr. Morris also highlighted the facts of the case and the Board’s decision. Specifically, a minor who was wearing makeup and a wig, having just come from an Irish dance performance, consumed beer, which had been purchased for her by a member of her dance troupe who was over 19, in the establishment. The Board found the Licensee contravened subsection 30(4) among other things. The Divisional Court dismissed the appeal of the Board’s decision, and leave to appeal to the Court of Appeal was dismissed.

67Mr. Morris argued that the facts of the present case are even more compelling than those of the Heart & Crown Pub & Restaurant case, as in the present case there was no debate over the fact that staff knew CA was a minor.

Licensee’s Submissions

68In the Heart & Crown Pub & Restaurant case, the minor was in the establishment for half an hour. In this case, it was for a matter of minutes.

69The police and inspectors arrived minutes after the minor entered the establishment, and Mr. Rigby had to accompany the smoking by-law officer to the back-of-the-house, precluding him from ensuring that the minor did not consume alcohol.

70Given the presence of the police and inspectors, it was not possible for the limited number of staff on duty to focus on monitoring one minor in the establishment.

71In the circumstances, it would have been impossible for the Licensee or its staff to have known that the minor took two or three sips of beer in which his friend, who was 19 or over, purchased.

Reply Submissions

72The evidence was not that CA took 2 or 3 sips of beer. Rather, the evidence was that he consumed ¼ to ½ of a pint size glass of beer. One quarter of a pint size glass is the equivalent of a regular size glass of beer.

73Security staff let CA enter the establishment and failed to alert Mr. Rigby or the bar staff that a minor was in the premises before the inspectors and police arrived. It is too easy to say that the Licensee missed detecting CA consume alcohol because of the presence of the inspectors and the police. The Licensee did not detect CA consume alcohol because no one was monitoring him in the premises.

Reasons and Analysis

74For a finding under subsection 30(4) of the LLA there is a three part inquiry. First, it must be established that the individual in question appeared under the age of 19. Second, it must be established that this individual had or consumed liquor in the licensee’s premises. Third, it must be established that the licensee or an employee or agent of the licensee permitted the individual, who appeared under the age of 19, to have or consume liquor in the premises. To permit, the licensee must have known or ought to have known that the individual who appeared under the age of 19 had or consumed liquor. Each part of the inquiry is considered below.

75Inspectors Hesch and Giorgoudakis, as well as P.C. Williams, each testified that all of the individuals at the table, including CA, looked like they could be under 19. P.C. Williams testified that the male, who he discovered to be CA, looked particularly young. Inspector Giorgoudakis testified that CA had a “baby face”. Even at the hearing over a year later, the Panel believed that CA appeared under the age of 19.

76The Licensee did not dispute or contest that CA appeared under 19. (Rather, it was the Licensee’s position that it was unreasonable, in the circumstances, for it to have known that CA was going to consume some of the alcohol that his friends, who were 19 or over, purchased.) A security employee of the Licensee asked CA for identification at the entrance, and from this the Board can infer that this employee believed he appeared under 19. Further, like the inspectors and police officer, Mr. Rigby believed that four of the individuals seated with CA, who came to the bar to place an order, appeared under 19, as he asked them for identification.

77Therefore, based on the uncontested evidence of the inspectors and police officer, as well as CA’s appearance at the hearing, over a year after the incident, the Board is satisfied that when CA attended the premises on the date in question, he appeared under 19.

78Turning to the second part of the inquiry under subsection 30(4) of the LLA, CA admitted at the hearing that he consumed about ¼ of a glass of beer while seated at a table with his friends in the establishment. The two AGCO inspectors and P.C. Williams testified that they observed CA consume beer from a pint size glass in front of him on the table. CA also admitted to the AGCO inspectors and P.C. Williams, on the night in question, that he had been drinking beer which one of his friends had purchased.

79The Licensee did not contest or dispute that CA consumed beer on the night in question. The Licensee only disputed that it permitted CA to consume the beer.

80Accordingly, based on the uncontested evidence of the inspectors, P.C. Williams and CA, the Board is satisfied that CA consumed liquor (beer), on the night in question, in the premises.

81The case therefore turns on the third part of the inquiry under subsection 30(4): whether the Licensee or an employee or agent of the Licensee knew or ought to have known that CA consumed the beer in question in the premises.

82CA provided uncontested evidence at the hearing that he showed his G2 drivers licence to a security officer at the entrance of the establishment, and that the date of birth on the drivers licence was a date in December 1991, making him 18 years of age on the date of the incident. Therefore, at least one employee of the Licensee knew that CA was under 19.

83Mr. Rigby also admitted on cross-examination that he knows that later in the evening on the weekend, there is an increased risk of minors entering the establishment and attempting to purchase and/or consume liquor. It is precisely for this reason that the Licensee has a policy of checking identification at the entrance and only letting in persons who are 19 or over after 10 p.m. on the weekend. The Licensee waived the policy of not permitting minors into the premises after 10 p.m. on the Saturday night of the incident because the establishment was not very busy.

84In these circumstances, given the Licensee’s responsibilities under the legislation, it should have been vigilant in monitoring for minors consuming alcohol, particularly given that at least one employee knew CA, who was under 19, was in the premises.

85Mr. Rigby testified that security did not alert him to the fact that CA was under 19. When CA’s friends ordered, among other things, two pitchers of beer, Mr. Rigby or the bartender did not take any steps to ensure that all of the individuals who would be consuming from the pitchers of beer, which are intended for sharing (as opposed to a single serving drink), were 19 years of age or over. Rather, Mr. Rigby merely checked the identification of the individuals placing the order.

86The Panel does not accept the Licensee’s argument that the arrival of the police, AGCO inspectors and smoking by-law enforcement officers impeded it from monitoring for minors and from detecting CA consuming beverage alcohol. First of all, CA entered the establishment before the inspectors and police officer arrived, and the security officer at the entrance who knew he was under 19 did not bother to communicate to any other staff in the premises that he was under 19 (and therefore should be under increased scrutiny). In addition, CA’s friends purchased two pitchers of beer for the table, and they were also provided with five glasses, prior to the arrival of the inspectors and police officer. Despite the fact that pitchers of beer are meant for sharing, the Licensee took no steps to ensure (either directly or through another staff member) that all of the individuals who would be consuming from these pitchers were 19 or over.

87The inspectors testified that the table where CA and his friends were seated, and consuming beer, was about 10 feet from the bar, and there was nothing obstructing the view from behind the bar of the people seated at the table in question. Given the proximity of the bar to the table where CA was seated, Mr. Rigby and/or the bartender should have observed him consuming beer.

88Mr. Rigby stated he was no longer behind the bar when CA and his friends were being asked for identification by the inspectors and police. However, CA began consuming beer before they asked him for identification. He had already consumed about one quarter of a pint size glass of beer when the inspectors and police approached him. Inspector Hesch also testified that Mr. Rigby and a bartender were behind the bar at this time.

89Therefore, Mr. Rigby and/or the bartender should have noticed that CA, who appeared under 19, was consuming beer, given the proximity of the bar to the table where CA was seated, the fact that there were two pitchers of beer and five glasses on the table, and CA did not try to conceal that he was consuming alcohol.

90Accordingly, in the circumstances, the Panel is satisfied, on a balance of probabilities, that the Licensee, or an employee of the Licensee, knew or ought to have known that CA, who appeared under 19, consumed liquor in the premises.

Conclusion

91For the above reasons, the Panel FINDS that the Licensee permitted a person who appeared under 19 to consume liquor in the premises, in contravention of subsection 30(4) of the LLA.

92The Board invites written submissions on penalty 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 23rd DAY OF June, 2011