Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2018-01-11

Appeal from an Order of Monetary Penalty of the Registrar of Alcohol, Gaming and Racing under section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, S.O. 1996, c. 26, Schedule.

Between:

Piermari Hotels Limited o/a Village Inn (The) Appellant

and

Registrar of Alcohol, Gaming and Racing Respondent

DECISION AND ORDER

Adjudicator: Laurie Sanford, Vice-Chair

Appearances:

For the Appellant: Richard Kulis, Counsel For the Respondent: Rena Khan, Counsel

Place and date of hearing: Toronto, Ontario August 15, 2017, December 13, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1The Registrar of Alcohol, Gaming and Racing (the “Registrar”) has ordered a monetary penalty of $6,000 to be paid by Piermari Hotels Limited o/a Village Inn (The), (“Village Inn”). The Registrar alleges that on the night of June 25, 2016 or the early morning of June 26th, three minors were sold or served alcohol at the Village Inn without their identifications being inspected. According to the Registrar, employees of the Village Inn also permitted these three minors, who appeared under the age of 19, to have or consume alcohol. The monetary penalty is calculated at $3,000 for each alleged infraction.

2The Village Inn denies the allegations and appeals the Order. The Village Inn asserts that it inspected the identifications of the three minors and denies that it served the three minors alcohol.

3For the reasons set out below, I find the evidence that the three minors were sold or served alcohol, had alcohol or consumed alcohol at the Village Inn on the night of June 25, 2016 or the early morning of June 26th is not persuasive. I accept the testimony of the employee of the Village Inn, who was alleged to have served the three minors, that she did not serve them alcohol. Since the sale, service, possession or consumption of alcohol is central to each of the two alleged infractions, I find that the Registrar has not established the grounds for the monetary penalty and I direct that it be set aside.

ISSUES & ANALYSIS

Fundamental Issue

4The fundamental issue in this case is whether three minors were sold or served alcohol, had alcohol in their possession or consumed alcohol in the Village Inn on the night of June 25, 2016 or early morning of June 26th. The Registrar alleges that they were served and consumed at least one mixed drink apiece and that, as a result, there were two infractions of the Liquor Licence Act, R.S.O. 1990 c. L 19 (the “Act”) and the associated Ontario Regulation 719/90 (the “Regulation”). First, the Registrar alleges that the Village Inn breached subsection 41(1) of the Regulation by failing to inspect the identification of a person apparently under the age of 19 prior to selling or serving them liquor. Second, the Registrar alleges that subsection 30(4) of the Act was violated when the Village Inn permitted three women who appeared to be under age to have or consume liquor.

5What is common to both alleged infractions is the sale, service, possession or consumption of alcohol. If those elements of the offenses are demonstrated, then it is necessary to consider the other grounds of each offense. That is, if there has been a sale or service of alcohol to a minor, it is necessary to consider whether that person was apparently under that age of 19 and, if so, whether the identification of that person was inspected prior to the sale or service. If the three minors had or consumed alcohol in the Village Inn that night, then the question of whether the establishment permitted this becomes relevant. If, however, I conclude that alcohol was not involved, then the case for the monetary penalty fails and it is not necessary to consider the other elements of the alleged offenses.

Evidence

6Two inspectors of the Alcohol and Gaming Commission (“AGCO”) testified for the Registrar and the Village Inn called three employees. Additionally, two videos taken in the early morning of June 26, 2016 were shown and much of the testimony concerned conflicting interpretations of one of the videos.

7The senior AGCO inspector testified that she and her junior colleague entered the Village Inn at 1:47 a.m. on the morning of June 26, 2016. The bar was not crowded, she said. Very shortly after entering, the inspectors noticed three young women on the north side of a rectangular bar which sits to the north of the dance floor. The three young women appeared to be in a group of six, including three young men. One inspector described the young women as being “bellied up to the bar, looking like they were waiting to be served.” She described them as “looking disappointed” when the server bypassed them. The inspectors thought the women looked young so they approached the group. The inspectors began speaking to the young women but one of the men interrupted to ask who they were and what they were doing. The inspectors led the three woman to the west side of the bar, for privacy. There, the young women were asked for their identification and produced drivers’ licences, which they said they had showed to the Village Inn security on entering. The drivers’ licences did not appear to the inspectors to match the faces or the heights of the three women. On being questioned, the women confessed that the identifications belonged to their respective cousins. Each of the three young women admitted to being under the age of 19.

8The three minors gave their names and addresses to the inspectors. The inspectors made no effort to verify this information, taking the minors at their word. The minors said they had arrived at the Village Inn at 12:30 and each had been served at least one whisky sour by a server they pointed out. The server was subsequently identified as Ms. S.S.. The inspectors confiscated the drivers’ licences and had a doorman escort the three minors out of the establishment. The inspectors noticed no odour of alcohol on the breaths of the three minors, no signs of intoxication or of alcohol consumption. They did not observe any alcohol in the hands of or in front of the three minors, although one inspector noticed a beer bottle “in the vicinity” which appeared to be in front of an older female patron. They also noticed prepared drinks on a lower shelf on the service side of the bar but they did not see the minors being served or consuming alcohol.

9The inspectors reviewed a video recorded by the Village Inn that night. They noted that the three girls were milling around the bar, sometimes dancing, sometimes apparently talking to one or more of the young men. The inspectors pointed to what appeared to be one of the three minors handing money to one of the young men. On cross examination, one inspector conceded that the money might have been for some purpose other than funding to buy a drink. The inspectors also pointed to one of the young men speaking to the server, Ms. S.S., and gesturing towards his group. He placed money on the bar. Ms. S.S. then prepared six mixed drinks on a shelf below the bar on the service side. At that point, the inspectors approached the group and drew the minors off to the west. One of the young men spoke to Ms. S.S. and she removed three of the drinks from the service shelf. She served the remaining three drinks to the young men who consumed them and left the bar area. The inspectors interpreted this activity as the three men buying drinks for the three minors but changing their order when the inspectors took the young women aside. The inspectors infer that the men knew the young women were underage.

10Ms. S.S. testified for the Village Inn. She said that she did not see the young women in the bar that night until they were taken to the west side of the bar by the AGCO inspectors. Prior to that, the minors were in front of the bar to the north but were behind four brightly lit draft taps and one larger lit sign advertising draft on tap. Ms. S.S. testified that in that position they were invisible to her. Ms. S.S. testified that one of the inspector came behind the bar and aggressively demanded the receipts for the whisky sours the inspector claimed Ms. S.S. had served the three minors. Ms. S.S. testified that she had not served any whisky sours that night and had no receipts for such a sale. She was adamant that she had not served the three girls whisky sours and denied serving them any alcohol.

11Ms. S.S. reviewed the video. It had been her impression that the three young men were buying the mixed drinks for themselves and three other men who were seated outside the camera range. She pointed to the video which showed one of the men apparently greeting someone off camera when the three men first arrived at the bar. Her testimony was that one of the other men asked about the cost of the drinks and then amended the order to three drinks from the six.

12A security guard employed at the Village Inn testified that he and a colleague had inspected the young women’s identifications when they entered the Village Inn and had permitted them to enter. He contradicted their statements that they entered the bar at 12:30; he believed they entered shortly after 1:00 a.m.

13Mr. Dykie, the senior manager and son of the Village Inn’s owner, also gave evidence. He said that he and one of his managers had approached the three minors after they were escorted off the premises. He told one of the girls that he needed to talk to her about what had happened and asked for her telephone number, which she gave him. The other manager obtained the telephone numbers of the other two girls. When Mr. Dykie attempted to contact the minors, he discovered that the telephone numbers were false. He also noted that the girl he spoke to gave the same false number as one of the girls speaking to the other manager.

Analysis

14At its heart, this is a simple case. Three minors told the AGCO inspectors that Ms. S.S. served them each at least one whisky sour, which they consumed. Ms. S.S. denies serving any whiskey sours that night and denies serving the minors any alcohol. She says she did not see the minors until they came into her line of sight when the AGCO inspectors moved them to the west side of the bar.

15It was open to the AGCO to verify Ms. S.S.’ claims by asking Mr. Dykie to produce all the receipts for Ms. S.S.’ service that night. That would have revealed whether Ms. S.S. was telling the truth when she said she had not served any whiskey sours. The inspectors chose not to do this. Instead they chose to rely on the statements of the three minors, whom the Registrar characterised as “honest”. There is no corroborative evidence that the minors were honest. What we know is that they lied at least three times. They lied in producing false identification, first to the Village Inn security on entering the bar and, second, to the AGCO inspectors. They also lied to Mr. Dykie and his fellow manager when they gave false telephone numbers. The fact that two of them, while speaking separately to the management, gave the same false number suggests that this was a practiced misdirection.

16The Registrar argues that the minors would have had no reason to lie about consuming alcohol at the Village Inn that night and would have had every reason to deny it. That doesn’t necessarily follow. There might have been reasons, valid to themselves, for giving false statements. They might have wanted to cause trouble for someone, for example, or they might have wanted to conceal information about when and where they had consumed alcohol and under what circumstances.

17The Registrar has premised his case on the hearsay evidence of the AGCO inspectors. This evidence was based on unsworn statements of three minors who have demonstrably made false statements in the same matter. The Registrar has not corroborated the statements of the minors about what they had to drink, although it was open to him to do so. There is no persuasive evidence that the minors consumed alcohol, had alcohol in their possession or were sold or served it. The inspectors noticed no signs of alcohol consumption and did not see the girls being sold or served drinks.

18The video on which the inspectors relied is not conclusive. It could support the testimony of either the inspectors or of Ms. S.S.. For example, it does not show the three minors “bellied up to the bar and waiting for service” as one inspector testified. It shows them milling around the bar, talking, using their cell phones and dancing from time to time. The young man who ordered the mixed drinks gestures to his right, which might have meant he was pointing to his group, including the three young women. This would support the inspectors’ interpretation that he was buying the drinks for the minors. On the other hand, he appears to greet someone on his left on approaching the bar, which supports Ms. S.S.’ impression that the young men had friends sitting outside the camera range. The three brightly lit tap signs are clearly visible on the video and support Ms. S.S.’ testimony that she could not see the girls. It is not possible to determine what time the three minors arrived at the bar from the video. The video does not show them arriving at 12:30 as they said.

CONCLUSION

19The Registrar has no direct evidence that the three minors were sold or served alcohol, had alcoholic drinks or consumed them. The Registrar relies on hearsay evidence, reporting the statements of three minors, for the crux of his case. The truth of their statements is not corroborated. The minors made a series of false assertions that night to the security guard, the inspectors and Mr. Dykie and his manager. These falsehoods call the truth of their statements to the inspectors into question. It was open to the AGCO inspectors to confirm a key component of the minors’ statements by inspecting the bar bill but they elected not to do this. Ms. S.S., the woman identified by the minors as their server, did testify. She was adamant that she had not served whisky sours to anyone that night and had not served the minors alcohol. In assessing the competing hearsay statements of the inspectors and the direct testimony of Ms. S.S., I prefer the latter. I find that the Registrar has failed to show that the minors were sold or served alcohol, had alcohol in their possession or consumed alcohol while at the Village Inn on the night of June 25, 2016 or early morning of June 26th.

ORDER

20By the authority of subsection 14.1 (7) of the Alcohol and Gaming Regulation and Public Protection Act, S.O. 1996, c. 26, Schedule, I direct the order for monetary penalty dated March 3, 2017 against the Village Inn be set aside.