Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-06-01

FILE:

9118/LLA

CASE NAME:

9118 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

1443614 Ontario Inc., o/a Tequila Jack’s Ottawa/Dodge City

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

ADJUDICATOR:

Geneviève Blais, Member

APPEARANCES:

For the Appellant:

Randall Barrs, Counsel

For the Respondent:

Joyce Taylor, Counsel

Heard in Ottawa:

May 6 & 7, 2015

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, dated September 11, 2014, which proposed to suspend the liquor licence of 1443614 Ontario Inc., o/a Tequila Jack’s Ottawa/Dodge City (the "Appellant") for 14 days. The Appellant appealed this Proposal to the Licence Appeal Tribunal.

FACTS

The allegations in support of the Registrar’s Notice of Proposal state the following:

(a) contrary to subsection 30(4) of the Liquor Licence Act, the licensee or the licensee’s employee or agent permitted a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises.

(b) contrary to subsection 41(1) of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder 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.

The particulars allege that on June 28, 2014, inspectors and police officers visited the licensed establishment and found that a fifteen (15) year old girl and a thirteen (13) year old girl were both served liquor without being asked for identification.

Ms. Taylor, Counsel for the Registrar, requested an order excluding witnesses. Mr. Barrs, Counsel for the Appellants, objected in part and requested that one of his witnesses, Shawn Mahmoud, operations manager for the Licensee, be allowed to remain in the hearing room. He advised that he was instrumental in advising and instructing him during the proceedings and he would call him as his first witness. Ms. Taylor raised no objections to the request. The Tribunal ordered the witnesses excluded with the exception of Mr. Mahmoud.

Registrar’s Evidence

The Registrar’s evidence consisted of oral testimony from three witnesses, the 15 year old female and two Alcohol and Gaming Commission of Ontario (AGCO) inspectors. The 13 year old female did not testify as she has moved out of province. In the decision, the females are referred to as Patron A and Patron B.

The police officer who investigated the alleged violations the night of June 28, 2014 and who had the most direct interaction with Patron A and Patron B was subpoenaed as a witness by the Registrar, but he did not attend the proceedings to testify. The Tribunal was informed by Ms. Taylor that, due to an administrative error in the Registrar’s office, the subpoena was issued only two days prior to the start of the hearing. Ms. Taylor indicated the police officer is off duty and she had not been successful in contacting him.

Patron A was 15 years old when she and her friend, Patron B, went to Tequila Jack’s Ottawa/Dodge City on June 27-28, 2014. She remembered it was a Saturday evening, but could not remember what time they arrived. Later testimony established it was a Friday evening and early Saturday morning. The evening started with Patron A going to Patron B’s house to sleep over and perhaps take in a movie. They decided to take a bus from the west end of the city into the downtown market and wandered around the area. Although they had nothing specifically planned, Patron A indicated she wore a black and grey dress and Patron B wore a “romper” type black dress.

Patron A stated they knew of Tequila Jack’s/Dodge City through friends and decided to stand in line to get in. When they reached the front of the line, the security guard asked them for identification. They told him they had no identification with them and the security guard said “OK and let them in:” A few feet from the front door, there was a stop for a cover-charge of $12.00. Patron A stated they did not have any money and ”the person in the booth let them in without paying”. They walked to the bar to get a drink and Patron B asked the bartender what drink he recommended. Patron A stated the bartender recommended a tequila shot. She did not remember how much the drinks cost, but remembered they were served in a shot glass with salt and lime on top. She did not drink the shot. She stated Patron B tried a bit of the drink.

Shortly after being served, an AGCO inspector approached them and asked them to step outside. Once outside the premises, the inspector asked their ages. She recalled telling him she was 15 years and believes Patron B stated she was 13 or 14 years. A police officer asked them about their school and where they lived. He subsequently called her mother and the police later drove them to their respective homes.

On cross-examination, Patron A admitted that although she and Patron B had nothing fully planned for the evening, they decided to dress for a nightclub. She provided more detail and stated she wore a strapless fitted dress and high heels, while Patron B wore a fitted dress but not strapless. The dresses belonged to Patron B. She did not remember if the dresses were low cut. Her hair was ordinary, brushed and straight, nothing different to what she normally wears. At the time, she stood at about 5’ 9” tall and with heels she was probably six feet tall. She acknowledged she is a tall girl in comparison to her friends. Patron B wore heels and was slightly shorter. She admitted they wore extra eye shadow and makeup as they were “going out”.

On further questioning, Patron A stated it was the first time she and her friend had tried to enter a licensed nightclub establishment. She maintained they did not fully plan their evening, but conceded they had dressed to look as ‘sexy’ as possible, hoping that their appearance and their height would get them entry in a bar. Neither one had brought identification. Tequila Jack’s Ottawa/Dodge City was busy and the young college group appealed to them.

When asked how they managed to enter the establishment without showing identification, she changed her initial testimony about the security guard saying “it is ok”. Rather she said, “he nodded his head, stepped aside, waved them in and told them to bring it next time”. There was no offer of a money bribe as they had no money.

Patron A stated one person handled the cover-charge, not two persons. She insisted they were let in without paying the $12.00 and alleged being told to “bring money next time”. Although she recalled seeing other patrons who paid the cover-charge get stamped on the hand, she does not remember being stamped.

Mr. Barrs suggested to Patron A that she and her friend did not gain entry through the front door. He alleged they snuck through an exit door when it was left open and unattended for a few minutes. Patron A insisted they were in a line up and entered through the front door.

When questioned as to how they paid for the drinks, Patron A initially stated she did not remember. She then repeated they did not have any money, but suddenly remembered her friend had a debit card. When Mr. Barrs informed her that the establishment did not accept debit cards, and without any money they could not have purchased any alcohol, she had no response.

Patron A had no recall of being asked their ages inside the establishment by a uniformed police officer. She did not remember her friend telling the police officer they were 19 and 21 years of age. Patron A stated “my friend would did not lie to the police officer”. She insisted it was an inspector who asked them to step outside and not a police officer.

When asked by the Tribunal as to how they intended to return home without any money she stated they had some bus change/ tickets but no money per se.

AGCO Inspectors Norman Marcotte and Stephane Godard testified they have been inspectors with the AGCO since 1989 and 1994 respectively.

On June 28, 2014, at 1:10 a.m., the inspectors entered Tequila Jack’s Ottawa/Dodge City located in the downtown market area. Inspector Godard has been assigned the market area for ten years and is very familiar with the establishment. He has a positive relationship with the licensee, management and staff. It was a routine inspection and the inspectors were accompanied by two uniformed police officers. Although the club was busy, there was no line up when they entered the establishment. Inspector Godard estimated there were 400 to 450 persons in the premises.

The two inspectors and the two uniformed police officers initially walked through as a group to observe the patrons. Inspector Marcotte stated they split up once inside the entertainment and dance area. Inspector Godard stated while he was on an elevated portion of the floor with the two police officers, Inspector Marcotte was close, but one step down at a lower level.

Inspector Marcotte testified he observed two young females standing alone, away from the crowd and hanging in front of the bar. While other young patrons were dancing and having a good time, they kept to themselves, not sure what was going on and their behaviour attracted his attention. He saw the female patrons approach the service bar with money in their hand. He did not see identification shown to the bartender and alleged they were both served tequila.

As Inspector Marcotte was in the service bar area, away from Inspector Godard and the two police officers, he stated in cross-examination that he had to walk toward Inspector Godard who was standing elsewhere in the bar. He pointed out the two females who were served liquor and subsequently, Inspector Godard requested assistance from the police officer to check their identification and age.

Inspector Godard stated the uniformed police officer took the lead and asked Patrons A and B for their identification. They told him they had no identification and stated they were 19 and 21 years of age. As the bar was noisy with loud music, the police officer asked the females to step outside for further questioning. Inspector Godard stated that only when pressed with more questions by the police, did Patron A and B reveal their ages as 13 and 15 years of age. Inspector Marcotte stated Patron B did all the talking and stated they were served drinks of tequila.

Both inspectors described the two females as young looking and dressed for a night club evening. Inspector Marcotte stated they wore short dresses, cut just below their buttocks, black stiletto type heels and their hair was done up. Inspector Godard stated he did not take notes as to what exactly they were wearing, but recalled others in the club wore similar clothing. Although he testified they looked like 16 or 17 years of age, in cross-examination, he conceded he did not write this comment in his notes. In further cross examination, Inspector Marcotte agreed the girls were quite tall. Their dress made them look older.Their appearance was deceptive.

Inspector Godard testified that Patron A and B were nervous when they were approached by the police. However, Inspector Marcotte described them as calm and not nervous. They were not crying or hysterical. Patron B was unfazed about the incident and Patron A did not speak. They showed no signs of being frightened and no signs of intoxication.

Inspector Marcotte testified he saw Patron A and B served tequila. Although he did not see the brand of tequila, he is familiar with the shape of a Jose Cuervo tequila bottle. He is certain they were served this liquor. He saw the bartender pour two shots of a clear liquid into a shooter glass and decorate the top with a slice of lime. At no time did he see Patron A or Patron B drink the shooters. Inspector Godard described each female holding a shot glass with a slice of lemon across the top. He conceded it may have been a plastic rock glass but insisted it was a clear liquid consistent with a shot a tequila. He admitted that the drinks were not seized for testing.

In cross-examination, Inspector Marcotte acknowledged he was about 10 to 15 feet from the service bar when he observed the two females. He stated both females had paper bills in their hand but he did not see who paid for the drinks. Inspector Godard testified he did not see any money in the females’ hands and did not see anyone paying for the drinks.

Inspector Marcotte conceded he could not see the label on the bottle of liquor as the bartender was positioned in front of the females. He maintained the liquor was tequila from the shape of the bottle. When Mr. Barrs stated that the establishment only sold dark golden yellow tequila and not Jose Cuervo clear tequila, Inspector Marcotte stated he was unaware of this information. He further conceded that Patron B told him she was served tequila. Although he returned to ask the bartender for his name, he did not seize the alleged bottle of tequila. Nor did he seize the shooter glasses left on a wall ledge by the two females and therefore the liquid content was not tested or verified.

Inspector Godard testified when Patron A and B were questioned by the police as to how they got inside the club, they stated that when asked for identification at the door they said they had none and told the security guard they were 19 and 21 years of age. They also stated they had no money for the cover-charge and were permitted entry without paying.

Inspector Godard testified when the police completed their investigation, he spoke to the security guard at the front door. Although the security guard first stated he had checked the females’ identification, he then recalled the females entered the premises and left to use a bank machine to pay for the cover-charge. When they returned, he assumed they had previously been checked for identification and therefore let them in without checking identification a second time. Inspector Godard further stated that Patron A and B told him that they had left the establishment to go to a bank machine.

In cross-examination, Inspector Godard conceded the alleged use of the bank machine by the two females, was not accounted for in the notes he completed on the evening’s incident. Nevertheless, he insisted that the two females mentioned the issue of the bank machine when they were questioned. He agreed his notes state the females told him they did not pay the cover-charge and they had no money.

Inspector Godard confirmed that prior to leaving the premises at 1:52 a.m. he related the full details of the incident to Shawn Mahmoud, the general manager. Mr. Mahmoud was concerned about the incident and stated he would review the video footage of the front door and investigate the matter with the employees assigned to the area. Inspector Godard left with the understanding that, if Mr. Mahmoud found anything of significance in the review of the videotape, he would let him know.

Inspector Marcotte confirmed his written notes state Inspector Godard was to follow up with the establishment on the following Monday to further discuss the review of video footage. However, Inspector Godard did not recall he made the commitment to follow up on the Monday.

On July 9, 2014, Inspector Godard returned to the establishment and advised Mr. Mahmoud the incident was under review. He alleged Mr. Mahmoud assigned the task of reviewing the video to the doorman. However, in further questioning, he could not find this information in his notes. He acknowledged that Mr. Mahmoud offered him the video footage but he saw no need to get a copy. He asserted that, if the video showed mitigating factors relevant to the incident, the Licensee ought to have provided a copy to the AGCO.

Appellant’s Evidence

The Appellant’s evidence consisted of five witnesses- three manager/partners and two employees of the establishment.

Shawn Mahmoud, Alain Marchand and Ryan Pratt are managing partners and have financial interests of 5 to 15 % in Tequila Jack’s Ottawa/Dodge City. All three managers are college and university graduates and have seven to twelve years of work experience with the Licensee’s establishments. The principal of the Licensee is Mr. Mahmoud’s uncle and he has held a licence with the AGCO since 2001.

The establishment is a music entertainment and dance club frequented by 19 to 21 year old college and university students. It operates on Thursday, Friday and Saturday nights from 10 p.m. to 2:30 a.m. At minimum, one partner is present and quite often, two of the partners are on duty. They closely supervise the operations and employees. They assist in monitoring the front door and line-ups. They have a financial interest to ensure the establishment maintains a high level of security and operates effectively.

On the evening of June 27/28, 2014, fourteen security personnel were on duty. Mr. Mahmoud stated the security personnel are paid higher wages than other clubs to ensure they are trusted and to discourage potential bribes by patrons.

Mr. Mahmoud stated all patrons must present two pieces of identification to a licensed security guard at the front door before entering the establishment. Once the identification is verified, they are immediately directed to another employee who collects a cover-charge or verifies the name on a pre-registered guest list. Once this second checkpoint is cleared, a second security guard stamps the patron’s hand prior to allowing the patron to enter the bar/dance area. The date stamp allows patrons to leave and re-enter the premises during the evening. Drinks are paid by cash only or an approved credit card. Debit cards are not accepted.

Mr. Mahmoud and Mr. Pratt were on duty on the night of June 27/28, 2014. For most of the night, Mr. Mahmoud was at the front door with security. He recalled the AGCO inspectors entered with police officers around 1:10 a.m. About twenty minutes later, the Licensee advised him of the incident involving the two females. He attended outside to speak to the inspectors and police and made the following observations of the two females. They wore high heels shoes with short, sexy looking, fitted low cut dresses. They were dolled up, dressed for a night club. He noticed they did not have a stamp on their hands.

Mr. Pratt testified he also attended outside where he saw the females questioned by the police officer. They looked older than their stated age. He first testified they wore very short revealing dresses, considerable makeup and three to four inch high heels. He estimated they were tall, between 5’ 10” to six feet. In cross-examination, he agreed his disclosure statement described the two females as wearing nice boots, tight skirts and low cut shirts. Nevertheless, he stated that whatever the two females were wearing, they blended in with other female patrons who often wear revealing clothing.

Mr. Mahmoud testified that when Inspector Godard provided him the details of the incident, he interviewed the security guards at the front door and the cover-charge area. Both employees were unable to specifically remember the two females as they had processed 400 to 500 patrons that evening. However, they were adamant no patron was allowed into the establishment without proof of identification at the door and a hand stamp at the cover-charge area.

Mr. Mahmoud later met with the security person posted at the exit door and the bartender who allegedly served alcohol to Patrons A and B. Neither remembered the females in question. The security guard recalled that late in the evening, he once left the exit door for a few minutes to investigate a commotion in the hallway. Mr. Mahmoud stated the exit door opens from the inside and patrons use this exit to step out to smoke. It is possible for someone near the exit door to sneak in as someone is leaving.

Mr. Mahmoud stated patrons cannot be served alcohol without paying. The establishment maintains a strict control on inventory. Liquor bottles are weighed and measured daily. The establishment sells dark yellow gold tequila. They do not sell Jose Cuervo clear tequila.

Mr. Pratt stated tequila is served in a shot glass and garnished with lemon. The bar serves two types of tequila, both are dark yellow gold. Water is served from a bottle with a spout on top in plastic type shot glasses that are clear or blue in colour. In a clear glass, the dark yellow gold tequila is visible. He did not recall if the bartender reported a shortage at the end of the night. The inventory procedures are thorough and the bartender is responsible for balancing the sales with the inventory. He agreed that small shortages through spillage can occur on busy nights. He reiterated drinks are paid by cash or an approved credit card. Managers walk the floor and keep a close eye on the service bar and all patrons are required to pay for alcoholic drinks.

Prior to Inspector Godard’s departure that evening, Mr. Mahmoud told him he would review the video footage of the front door to see if any patrons matched the description of the two females. Mr. Mahmoud and Mr. Pratt both reviewed the evening’s video footage and found no evidence of the two females entering the establishment. From his conversation with Inspector Godard, Mr. Mahmoud understood that the inspector would follow up with him on Monday morning. He did not hear from the inspector and Mr. Mahmoud did not call him.

When Inspector Godard returned to the establishment on July 8, 2014 and advised the incident report would be sent to the AGCO for review, Mr. Mahmoud told him that his review of the video showed no evidence of the two females entering the establishment through the front door. He speculated they snuck in through the exit door. The video system operates on a 10 day recording cycle and the evening’s footage was still available for the AGCO investigation. Inspector Godard was offered a copy and he stated he did not need it. In the end, the inspector did not see the video footage and the establishment did not make a copy.

In cross-examination, Mr. Mahmoud reiterated the establishment has a rigorous security system at the door to verify identification. The establishment has a very good record with the AGCO and the police. Managers and employees are fully aware of regular inspections. Police officers regularly walk through the premises two to three times a night. The establishment meets with Inspector Godard every three weeks. The meetings foster a good working relationship and procedures and improvements are regularly discussed.

Mr. Marchand testified he was not working at the establishment on the night in question and has no personal observations of the incident. He learned of the incident through the other managers. His evidence on the door security identification and cover-charge procedures was similar to that of Mr. Mahmoud and Mr. Pratt.

Josh Waterman is a licensed security guard who was responsible for part of the cover-charge procedure on the night of June 27/28, 2014. Another employee worked next to him and collected the money for the cover-charge and checked the guest list. He stamped every patron’s hand before they entered the premises. It was a busy Friday evening and Mr. Waterman had no recollection of the two females in question.

In cross-examination, Mr. Waterman conceded that, on occasion, patrons will come in to use the debit machine in order to pay for the cover-charge. In such cases, the patron leaves a piece of identification. He insisted that patrons do not get stamped until the cover-charge is paid. Mr. Waterman stated that the club is particularly busy on Saturday nights and ten minute line-ups can occur around 11:30 p.m. On the Friday evening in question, he did not recall a line up around 1:00 a.m.

Terry Morin is a university graduate. He has worked as a bartender for several years and has been at Tequila Jack’s Ottawa/Dodge City for approximately three years. As the establishment has an extensive procedure to check two pieces of identification at the front door and stamp patrons after they clear the cover-charge area, he relies on this process and generally does not ask for identification prior to serving patrons at the bar. He is Smart Served and he always checks for signs of intoxication when patrons approach the bar. On the night in question, he estimated serving over 200 hundred drinks and does not recall having any issue with any patron’s age during the evening. He had no recall of serving two females who may have appeared to be underage and no recollection of their appearance.

Mr. Morin testified that he does not serve any alcohol to patrons without payment. He is diligent as a bartender as his job is on the line. He stated it frequently happens that patrons approach the bar and ask for “free” drinks. On such occasions, he serves the patron water. Water is poured from a clear glass bottle with a spout on top. He uses a rock glass, which is a hard plastic clear glass, beer or shot glasses depending on the circumstance or what is available. He may dress the glass with a piece of lemon. If patrons ask for a special or recommended drink, he would never suggest tequila as it is not his type of drink. He confirmed the establishment sells dark yellow gold tequila which is served in a shot glass and the colour can visibly be seen through a clear glass.

In cross-examination, Mr. Morin accepted that shortages in liquor occur on busy nights. Mr. Morin had no recollection of a shortage that evening.

ISSUES

Section 30(4) of the Act requires the evidence to show that the licensee or the licensee’s employee or agent permitted a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises.

Section 41(1) of the O.Reg requires the Registrar to demonstrate that the licensee failed to inspect a piece of identification of a person apparently under the age of nineteen years before liquor was sold or served to the person,

APPLICATION OF LAW TO FACTS

Ms. Taylor submitted that the evidence of Patron A was clear and credible. She had no reason to lie. It is undisputed that Patron A and B were underage on the night they entered the Licensee’s establishment. The AGCO inspectors’ evidence was consistent and based on direct observations of the two females during the evening. The evidence showed they entered the establishment without showing identification and were served alcohol by the bartender who failed to ask for identification at the point of service.

Ms. Taylor argued that the Appellant’s reliance on security procedures to screen all patrons at the entrance of the establishment is insufficient and flawed. In support of her submissions, Ms.Taylor referred the Tribunal to the following cases: Rejeanne’s Bar & Grill [2009] O.J. No.3176, Shooters 222 Restaurant [2004] O.J. No.5595, 2332385 Ontario Inc. (c.o.b. Shoeless Joes Brant St.) [2014] O.J. No. 5764, Van Gogh’s Ear [2004] O.A.G.C.D. No. 221, 1605511 Ontario Inc. (c.o.b. The Drink) [2010] O.A.G.C.D. No. 62, Rack “N’ Roll Billiard & Lounge [2002] O.A.G.C.D. No.387.

Ms. Taylor submitted there is ample evidence to make a finding of a breach of subsection 30(4) of the Act and of subsection 41(1) of the Regulation.

Mr. Barrs submitted no direct evidence was introduced to show that the two females were sold or consumed liquor while in the Appellant’s establishment. The inspectors accepted the 13 year old patron’s statement they were served clear tequila, yet the establishment only serves dark yellow gold tequila. The inspectors failed to gather evidence to determine whether the alleged drinks might contain a liquid other than alcohol. The drinks should have been seized and tested. Management stresses security and there is ample video surveillance in the establishment. The allegation of serving a minor is taken very seriously by the Licensee. The inspector failed to review the video footage of the front door.

Mr. Barrs submitted Patron A’s evidence is not credible and her account of the evening is very suspect. It is not realistic that she and her friend entered the establishment without producing identification, did not pay a cover-charge, avoided getting stamped and were served free alcoholic drinks. Mr. Barrs submitted there is no evidence of permitting service to a minor as the females got in by fraud. He argued the only feasible way they entered the establishment was through the exit door when the security guard was absent for a brief moment. Their physical appearance made them look older allowing them to blend in with other patrons. They had no money to pay for the cover-charge or drinks of alcohol. He concluded that no finding can be made on the balance of probabilities in this case.

This case is highly dependant upon a determination of credibility given the different evidence of the Registrar’s witnesses, on the one hand, and the witnesses for the Licensee, on the other hand. The onus for establishing that the alleged violations did in fact take place is on the Registrar, based on a balance of probabilities.

In order to find that there has been a violation of subsection 30(4) of the Act, it must be established: a) that a person who appears to be under the age of 19 years of age had or consumed alcohol in the Appellant’s premises and b) employees of the Appellant permitted such consumption.

The Tribunal found Patron A was not completely truthful. She did not provide persuasive evidence and her story, on the whole, was not convincing. There was no corroboration of her evidence, as her friend, Patron B, did not testify. Part of her testimony was not consistent with the evidence of the inspectors.

Although Patron A remembered details of some of the events in question, when cross examined on other matters, she often could not remember. While one inspector stated there was no line up, she claimed they stood in a line up for ten minutes. While it was a police officer in full uniform that approached them in the bar, she stated it was an inspector, not someone in uniform. She denied they were asked for their age inside the bar and stated they were 19 and 21. Patron A consistently stated they had no identification or money that evening, but then thought Patron B had a debit card.

The central issue for the Tribunal is whether or not Patron A and Patron B had or consumed alcohol in the Appellant’s establishment.

Although Patron A stated they were served tequila, she did not drink it and they had no money to purchase an alcohol drink. She claimed Patron B took a sip and told the police officer it was tequila. The bartender with several years of experience was unwavering in his testimony. It is improbable that he would risk his job and serve free alcohol drinks to two female patrons. The Tribunal found him to be a credible witness.

While not finding that the AGCO inspectors lacked credibility, their recollections of the events of the evening were inconsistent. There were disparities in their written notes. They had different observations of the girls and the alleged drinks of alcohol.

Although both inspectors stated it was a clear tequila drink, one stated it was served in a plastic glass while the other stated it was a regular shot glass. The Tribunal learned through the evidence that the establishment sells only dark yellow gold tequila that is visible through a clear glass. From a distance of 15 feet, in a noisy, crowded and darkened room, one inspector described the bartender pouring from a glass bottle what he believed to be tequila. However, the inspector did not have a clear line of sight on the bartender, nor could he identify the label on the bottle. Both inspectors stated the two females did not consume the drink.

More importantly, no steps were taken by either inspector to determine whether or not the content in the glass was alcohol. There was no evidence whatsoever on its smell or their observations of what was in the glass. Other than asking the bartender on duty for his name, no inquiries were made of him about service of alcohol to the two females, nor was the content of the alleged tequila bottle seized.

After considering all of the evidence, the Tribunal cannot conclude, on the balance of probabilities, that the Licensee permitted a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises. The Tribunal finds there is insufficient evidence to support the allegation of a violation under subsection 30(4) of the Act.

As the evidence suggests that the two female patrons were not served alcohol, hence the key element of subsection 41(1) is not present. Therefore, the Tribunal need not proceed to make a determination on whether or not the Licensee failed to inspect a piece of identification.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to not carry out the Proposal.

LICENCE APPEAL TRIBUNAL

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