Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2013-10-04
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
DECISION 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, 20, 2013
DECISION AND ORDER
DECISION
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 requested the Tribunal to make a determination of the facts in this matter and to receive written submissions as to the law and any appropriate sanction subsequently. On September 3, 2013 the Tribunal issued its finding of fact and the parties have made submissions as to what law applies and what, if any, sanction is appropriate.
The Tribunal has determined that on the night of February 7/8, 2013 a party of five young men were found in Shoeless Joe’s Brant St. by police. Of the five, three were found to be under the legal drinking age and two of these three were also found to be intoxicated. A fourth man in the party, while of legal drinking age, was intoxicated and became violent and disruptive.
Three members of the staff of Shoeless Joe’s Brant St. had the opportunity to examine the identification of the young men before they were served, or re-served, alcohol. The first of these was the Training Manager, who greeted the party at the door and directed them to the bar. She noticed that the men looked very young and asked the bartender to check their identification. The bartender looked at the identification but only checked the year of birth, not the month or day. The three underage men were underage by a matter of months, not years, and this was not detected by the bartender. The bartender did not check for signs of intoxication prior to serving the young men. The third staff member was another server who served the young men with additional drinks. Like the Training Manager, she noticed that the men looked quite young. Rather than inspect their identification herself prior to serving them, she relied on the bartender’s assurances that he had checked the young mens’ identification.
There are three sections of the Act and the regulations made under it which are relevant. Subsection 30(4) of the Act provides, “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.”
Subsection 41(1) of Ontario Regulation 719/90 under the Act 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.”
Subsection 45(1) of the same Regulation provides, “The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”
On the basis of the facts in this case, Shoeless Joe’s Brant St. was in violation of all three sections of the Act and Regulations as a result of the incident on February 7/8, 2013.
Counsel for Shoeless Joe’s Brant Street argues that the defence of due diligence ought to apply in this case. Due diligence is not available in this case for two reasons. First, subsection 41(1) of Regulation 719/90 sets out what steps an establishment is to take prior to serving someone who appears to be under age. While this is not due diligence, it is analogous to it because the inspection of permissible identification is an answer to the situation where a person appearing to be underage is served liquor. In this case, the identification was not “inspected” by anyone prior to serving the young men. “Inspect” is defined in the Canadian Oxford Dictionary as follows:
Look closely at or into, esp. to assess quality or check for shortcomings
Examine (a document) officially.
The only employee to consider the identification of the five young men was the bartender. Clearly, he did not “inspect” the identification. Anything but the most cursory consideration of the identification would have revealed that three of the young men were months too young to be drinking. The staff at Shoeless Joe’s Brant St. had the day and month of majority posted in the staff area of the bar and this date changed daily. So, the staff would have been aware of the importance of checking not merely the year but the month and day of birth.
Which leads to the second reason that due diligence is not available in this case; that is that due diligence was not practiced by the staff at Shoeless Joe’s Brant St. The defence of due diligence, even if it were available, would have required a consideration of the age of the five young men. It is hard to see how in this case such a consideration could have occurred without an examination of the young mens’ identification. No one in Shoeless Joe’s Brant St. practiced due diligence. The bartender made no serious effort to determine the age of the young men. The Training Manager and the second server both relied on the bartender rather than conduct an independent investigation of the ages of the patrons. The Tribunal understands that bar employees make judgements about whether to risk annoying a patron by repeated requests for identification or whether to rely on another server’s verification. However, the Act is clear that there is a positive onus on the licensee to ensure that the identification of those appearing to be underage is inspected before they are served alcohol.
Counsel for the Registrar argued that due diligence as a defence is not available in administrative proceedings of this nature. In view of the determination above, it is not necessary to decide that point.
Three of the young patrons were intoxicated and one of these became unruly. Counsel for Shoeless Joe’s Brant St. argued that simply being intoxicated in a licenced establishment is not a violation of the Act. The drunkenness must be accompanied by “riotous, quarrelsome, violent or disorderly conduct”, in the submission of Mr. Cawkell. This is a misunderstanding of both the intent and the wording of the Act and the regulations made under it. The purpose of the Act is to maintain public safety. The safety of the public is compromised when patrons are permitted to be intoxicated, regardless of whether the drunkenness is accompanied by unruly behaviour or not. Drunken patrons are a menace to themselves and to others. While some people may go into a bar with the intention of becoming intoxicated, the bar staff may not assist them in this endeavor or turn a blind eye to it. The clear wording of subsection 45(1) of Regulation 719/90 lists drunkenness as a separate category of prohibited behaviour from violence or rioting or disorderly conduct. By the same token, violent behaviour by a sober patron would be equally prohibited.
Thus, in the incident in this case, Shoeless Joe’s Brant St. violated subsection 30(4) of the Act and subsections 41(1) and 45(1) of Ontario Regulation 719/90. The Registrar proposes a 14 day suspension of the licence of Shoeless Joe’s Brant St. beginning within 90 days of the date of this Order. The Registrar submits that any suspension should include the same calendar day as the offenses, in this case Friday. Shoeless Joe’s Brant St. argues that if any suspension is levied, it should be for three days and begin on February 8, 2014. To impose a suspension in the midst of the busy Christmas season, the bar argues, would be unduly punitive. The bar submitted no evidence as to when its seasonal busy period begins or ends.
This offense, while serious, was an isolated event. It has not recurred and it is reasonable to conclude that the actions taken by Shoeless Joe’s Brant St. to avoid a recurrence are responsible for this. The bar has dismissed the delinquent bartender and imposed overall age restrictions for entry into the establishment on weekends. As well, the bar has instituted identification checks at the entrance and changed the policy for mandatory inspection of identification within the premises. Therefore, to impose a suspension now would not have the effect of amending behaviour as this has already occurred. The only purpose served by a suspension at this point would be as a penalty for conduct in clear violation of the Act. In the circumstances of this case, a suspension of five days will be sufficient for this purpose and nothing is gained by a longer period of suspension. The Tribunal agrees with the Registrar that the suspension should include a Friday. The Tribunal also agrees that to impose the sanction over the busy holiday period would be unduly punitive.
ORDER
The Tribunal orders that the liquor licence of Shoeless Joe’s Brant St. be suspended for a period of five days to be served on days that the establishment normally operates. Shoeless Joe’s Brant St. shall submit proposed suspension dates acceptable to the Registrar within seven days of the date of this decision, failing which the Registrar may set the suspension dates without further notice to Shoeless Joe’s Brant St.
LICENCE APPEAL TRIBUNAL
Laurie Sanford, Vice-Chair
Released: October 4, 2013