Licence Appeal Tribunal
FILE: 8069/LLA
CASE NAME: 8069 v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Suspend a Licence.
2332385 Ontario Inc. o/a Shoeless Joe’s Brant St. Applicant
-and-
Registrar of Alcohol and Gaming Respondent
FINDINGS OF FACT AND ORDER
ADJUDICATOR: Laurie Sanford, Vice-Chair
APPEARANCES:
For the Applicant: Corbin Cawkell, Counsel
For the Respondent: Aviva Harari, Counsel Peter Muto, Student-at-Law
Heard in Toronto: August 19 and 20, 2013
FINDINGS OF FACT AND ORDER
The Applicant, 2332385 Ontario Inc. o/a Shoeless Joe’s Brant St. (“Shoeless Joe’s Brant St.”), has appealed to this Tribunal from a Notice of Proposal issued by the Deputy Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) dated April 30, 2013, which proposed to suspend the liquor licence of Shoeless Joe’s Brant St. for 14 days.
The parties have requested the Tribunal to make a determination of the facts in this matter and to receive written submissions as to the law and the appropriate sanction subsequently. Following the review of these submissions, the Tribunal will issue a decision as to what law applies and what, if any, sanction is appropriate.
FACTS
The Shoeless Joe’s brand operates about 35 sports bars and restaurants in Ontario, both as corporate and franchise operations. Shoeless Joe’s Brant St. opened on February 3, 2013 as a corporate enterprise. It is a flagship operation with approximately twice the floor space of the average Shoeless Joe’s. According to the Training Manager, who has worked for a number of brand name bars and restaurants, the staff training that employees of Shoeless Joe’s Brant St. received prior to the opening was equivalent to that of other large brand name operations. The Training Manager reviewed the training procedures but acknowledged that the training handbook given to the employees did not address how to inspect the identification of patrons who appeared under age. The module relating to reviewing the liquor licence laws was only two hours long and consisted of a power point presentation. Following the opening, the Training Manager remained on the premises to provide hands-on training for the staff. On an on-going basis, there is a bulletin board in the staff area on which is a notice, changed daily, that specifies the latest date of birth required to meet the legal drinking age.
On the evening of February 7/8, 2013, five young men entered Shoeless Joe’s Brant St. They were greeted at the door by the Training Manager who had a brief conversation with two of them from a distance of about 10 feet. She detected no signs of intoxication but she was concerned that the men appeared under the legal drinking age of 19. She let the five men go to the bar but she approached the bartender and asked him to check their identification. Her understanding was that the bar tender was experienced and had completed the Smart Serve training which is required by the Alcohol and Gaming Commission of Ontario (“AGCO”). He told her that “of course” he would check the identification before serving them and she was reassured by the confidence of his answer. She watched from a distance as he took each young man’s identification and appeared to inspect it, including turning it over to look at the back. When he was finished, the Training Manager followed up and asked him whether the young men were of legal age. He answered that they were, but that some of them were just of age. Satisfied, she moved on.
There was some conflicting evidence as to when the five young men came into the bar. The bar tender’s statement was that they entered before midnight and a second bar tender told one of the police officers that the young men had been there since around midnight. However, both the Training Manager and another manager on the premises that night gave testimony that placed the young men’s entry shortly before 1:00 am. The statements of the two bar tenders were not subject to cross examination while the testimony of the two mangers was. Accordingly, the Tribunal prefers the testimony of the two managers and finds that the young men entered the bar sometime between 12:30 am and 1:00 am.
The five young men were served two pitchers of beer, each of which contained approximately three glasses. A second bar tender was asked to serve the young men five shots glasses of tequila. She too noticed the youthful appearance of the young men and she asked the original bar tender whether he had checked their identification. Satisfied with his answer, she served the drinks. The Training Manager did observe the young men and did not notice them to be drinking quickly or with any obvious attempt to intoxicate themselves.
At approximately 1:18 am, Inspector John Meissner, an inspector with the AGCO, accompanied by three officers of the Halton Regional Police, entered Shoeless Joe’s Brant St. to conduct a routine inspection. The bar was not crowded. Various estimates place the number of patrons between 15 and 20. There was staff of eight, including the General Manager, on duty that night.
Inspector Meissner noticed the five males at the bar. These men looked very young to the Inspector so he approached them to ask for their identification. Four of the five men produced their identification without issue. One of the men had identification showing him to be of legal drinking age. He did not appear to be intoxicated. One of the young men showed identification which showed him to be under the legal drinking age of 19. He told Inspector Meissner that he had been drinking. The Inspector saw no signs that this young man was intoxicated. Two of the young men also had identification showing that they were under the legal age to drink and they did appear to be intoxicated, according to the Inspector. It was Inspector Meissner’s evidence that one of the young men, “HH”, had slurred speech, a strong smell of alcohol on his breath and was making nonsensical comments. The second of these men, “MR” smelled strongly of marijuana and alcohol, had slurred speech and unfocussed eyes, according to Inspector Meissner.
Officer Sawatzky of the Halton Regional Police testified that he drew HH aside from the group and questioned him. HH smelt strongly of alcohol, slurred his speech and was not forming rational sentences, according to Officer Sawatzky.
The fifth man, “CS”, objected strongly to being questioned about his identification, particularly when he was asked for a second piece of identification. He challenged the right of the police to question his age. According to the evidence