Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-11-21

FILE:

8658/LLA

CASE NAME:

8658 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.

UFO KTV INC. o/a UFO KTV

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

DECISION AND ORDER

ADJUDICATOR:

Laurie Sanford, Vice-Chair

APPEARANCES:

For the Appellant:

Peter Zaduk, Counsel

For the Respondent:

Rena Khan, Counsel

Heard in Toronto:

July 3, September 26, 2014

DECISION AND ORDER

The Appellant, UFO KTV INC. o/a UFO KTV (“UFO”), has appealed to this Tribunal from a Notice of Proposal issued by the Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) dated January 27, 2014, which proposed to suspend UFO’s liquor licence for 14 days.

FACTS

On June 28, 2013, several Constables of the Ontario Provincial Police (“OPP”) inspected the bar and karaoke establishment run by UFO. There were a series of small rooms in the establishment. The officers went room by room to check for overcrowding, smoking and underage drinking. Constable Goodfellow, who identified himself as the lead Constable for the inspection, testified that he entered one of the rooms at UFO and saw some karaoke equipment and a long table with benches on either side. There were “numerous” beer bottles on the table. There were about seven or eight people in the room and Constable Goodfellow checked the identification of all of them except for a female who will be referred to as “LV”. She did not produce identification and at some point she said she did not have any. LV identified herself and gave a birthday that made her of legal drinking age. She appeared young to Constable Goodfellow and she was fidgeting, so he asked her out into the hallway.

A second Constable, Dominique Lee, was with Constable Goodfellow. Constable Lee speaks Cantonese and English and acted as a translator for Constable Goodfellow during the questioning. Constable Lee does not recall if LV spoke English but believes that she did not speak it well or fluently. Her Cantonese was broken. Constable Lee does not recall if she spoke Mandarin, which Constable Lee does not speak. Constable Lee testified that he might have misunderstood some of the things she was saying but he does not believe he misunderstood the date of birth she eventually admitted to, a birth date that made her under the legal drinking age. He testified that the two of them would have been able to understand each other “eventually.” He does not recall what questions he asked her about anything other than her date of birth. When she corrected her date of birth, she gave the same month and day of birth as she had previously, but she changed her birth year to a later one.

Constable Goodfellow testified that LV told him, presumably through Constable Lee, that she had had a couple of beer, or at least one beer, and had been “hanging out” and listening to karaoke. Constable Goodfellow did not testify as to whether he spoke directly to LV in English or not. He did not see LV either drinking beer or with a beer bottle in her hand. He did not ask LV where she had consumed the beer, whether she had bought it herself or when she had drunk it. Constable Goodfellow gave LV a ticket for underage drinking. The ticket identifies the establishment, not by name but by municipal address. LV paid the ticket.

The Registrar proposes to suspend the liquor licence of UFO for 14 days on two grounds. First, the Registrar asserts that UFO 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, contrary to subsection 41(1) of Ontario Regulation 719/90 (the “Regulation”) under the Act. Second, the Registrar asserts that UFO, its employees or agents, permitted a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises, contrary to subsection 30(4) of the Act.

DECISION

The first issue is whether or not the Registrar has proved, on a balance of probabilities that UFO failed to inspect the identification of LV. Ms. Khan, Counsel for the Registrar, submits that the Tribunal is entitled to infer that the bar failed to inspect the identification of LV because LV told the police she had none. Therefore, in the Registrar’s submission, it would have been impossible for UFO to inspect it. The Tribunal does not accept this argument. We know very little about LV. She did not testify, and UFO had no opportunity to cross-examine her. We know she spoke little English and that her Cantonese was broken. We know that the OPP officer who translated for her concedes that he may have misunderstood some of the things she said. We also know that she lied to the police about her age, initially identifying herself as being 19. Interestingly, she gave her correct month and day of birth but lied about the year. This suggests that she had given previous thought to what birth year she needed to have to be of legal drinking age. It also suggests that LV was prepared to lie to avoid trouble with the police. It is possible that she did not have identification. It is equally possible that she was carrying false identification and chose not to show it to avoid a possible ticket for carrying it. It cannot be inferred from her statements that she in fact had no identification. She was not asked if she had shown identification to anyone at UFO. The Registrar has not demonstrated that UFO failed to check her identification.

The second issue is whether LV consumed liquor on the premises. Mr. Zaduk, Counsel for UFO, notes that the OPP did not ask LV where she had consumed the beer or when she drank it. Mr. Zakuk submits that it is possible that LV had consumed the beer earlier, at another bar. While this is possible, it is not probable. In all the circumstances, including the fact that she was found in a room with beer on the table and that she said she had consumed at least one beer, it is more probable than not that the beer she drank, she drank at UFO. Ms. Khan submitted that the fact that LV paid the ticket for underage drinking at UFO is proof that she did consume the beer there. In view of the finding above, it is not necessary to decide this issue. However, it should be noted that UFO was not given an opportunity to question LV about the fine, to contest the ticket or to play any other role in the decision to pay the fine. In the absence of the clearest legal authority, the Tribunal would be reluctant to accept LV’s decision to pay her fine as non-rebuttable evidence against a third party, in this case UFO.

It does not follow from the finding that LV drank beer at UFO that the bar permitted LV to have or consume the beer, which is the third issue to be determined. We do not know how LV came to have or consume the beer. Neither OPP constable testified that they asked LV directly whether she bought the beer or how she obtained it. If she had been at the bar alone, then the chance that she purchased the beer would have been greater. However, we do not know if she was alone. She left alone but that is not conclusive. She may have wished to avoid implicating her friends. She did not have a beer bottle in her hand at the time the officers inspected the room. Constable Goodfellow noticed “numerous” bottles of beer on the table, but only seven or eight people in the room. That opens the possibility that there were abandoned bottles on the table. It is possible that LV drank from a bottle left on the table or that someone else bought the beer and left it for her. We simply do not know. There is no evidence that UFO or any of its employees permitted LV to have or consume the beer. The Registrar has not met his burden of proof to demonstrate, on a balance of probabilities, that UFO violated subsection 30(4) of the Act. . Accordingly, the Tribunal cannot find that UFO either failed to inspect LV’s identification or that the bar or its staff permitted LV to have or consume alcohol.

ORDER

The Tribunal directs the Registrar to not to carry out the proposal to suspend the liquor licence of UFO.

LICENCE APPEAL TRIBUNAL

Laurie Sanford, Vice-Chair

Released: November 21, 2014