Mugs And Jugs And Chicago Tonight Closed In New West Permenantly
Greg Carr
Lately it was called Thugs and Drugs by many of the regulars that
gathered there. This was the only remaining strip bar in New West that
served liquor since the Royal long ago got rid of that format.
Hopefully all the strip bars and whorehouses will be closed in the
Lower Mainland eventually. Prostitution was known to occur there and
cocaine was sold in the bathroom that had the worst toilets in New
West, always plugged and filthy. The closing notice in the front door
has a pic of the, "best bar staff in history" but I didn't recognize
any of them even though many of the staff from when I was a regular
yrs ago were there 18 months ago when I happened by. Oddly enough I
saw one of the old bartenders drinking beer at Amberjacks Pub at the
Days Inn recently. Not a bad place to play pool or watch a game on TV.
The most famous incident in the history of the place was the murder of
JR 16 yrs ago out front that is still unsolved. The official theory is
he was killed outside after being called outside to fight. The
unofficial theory is that pimps shot him dead without warning. The
other was when Tony the then manager put 5 strippers on the stage at
once including one with a 7 inch clitoris. There used to be a lot of
HA activity at the bar and they ran the prostitutes. The New West
police did walk throughs almost everyday and I saw the Burnaby RCMP
send in three officers one time all wearing bullet proof vests.
Apparently the place has been closed twice in the last 18 months
because of selling booze to minors. I always thought they did a good
job of stopping that but the second set of doors from the lobby was
always a way for ppl to get around them.
The neighbouring Chicago Tonight is also permanently closed. At one
time there was a telephone on every table. The Residences remain open
upstairs but it is just an SRO. The lone person I saw working there
the other day was wearing a O.C.C. hat.
It is ironic that before the highly successful Rivers Reach Pub opened
up at 320 6th St around 6 yrs ago the owners of the closed bars tried
to get city council to say no to it claiming that there were too many
bars in New West and there wasn't enough business to go around. I'm
not too surprised to see that their business is the one that failed.
http://www.nwdra.org/minutes/29 lists the College Place as a scene of
trouble activity and I used to hear the screaming going on as the bar
closed. I, "Yeehaweeed" a few times myself upon leaving but some ppl
would just go to the parking lot and keep it up for 15 minutes or so.
IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
Butterworth Holdings Ltd. v. General Manager of the Liquor Control
and Licensing Branch,
2007 BCSC 1513
Date: 20071011
Docket: S103293
Registry: New Westminster
Between:
Butterworth Holdings Ltd., Frizzell Holdings Ltd. and
Legree Holdings Ltd. doing business as College Place Hotel
Petitioner
And
General Manager of the Liquor Control and Licensing Branch
Respondent
Before: The Honourable Madam Justice Loo
Reasons for Judgment
Counsel for the Petitioner
W. D. Murdoch
Counsel for the Respondent
R. C. Mullett
Date and Place of Hearing:
25 and 27 July 2007
New Westminster, B.C.
A. Introduction
[1] This is an application for judicial review of an
adjudicator’s finding that the petitioner contravened sections 33 and
35 of the Liquor Control and Licensing Act, R.S.B.C 1996, c. 267 (the
"Act") and order that the petitioner's business close for 13 days.
[2] The petitioner holds a liquor license and operates
a pub in the College Place Hotel in New Westminster.
[3] The Liquor Control and Licensing Branch alleged
that the petitioner contravened s. 33 by supplying a liquor to a minor
on March 4, 2006; and contravened s. 35 by permitting a minor to be on
its premises on April 9, 2006.
[4] The relevant words of ss. 33 and 35 of the Act
provide:
Supplying liquor to minors
33 (1) A person must not
(a) sell, give or otherwise supply liquor to a minor,
…
(c) in or at a place under his or her control, permit a minor
to consume liquor.
…
(5) It is a defence to a charge under this section if the
defendant satisfies the court that, in reaching the conclusion that
the person was not a minor, the defendant
(a) required that the person produce identification, and
(b) examined and acted on the authenticity of the
identification.
…
Minors on licensed premises
35 A person who holds a licence under this Act or who sells
liquor under the Liquor Distribution Act, or the person's employee,
must not authorize or permit a minor to enter on or to be on premises
where liquor is sold or kept for sale except
(a) if the minor is accompanied by a parent or guardian on
premises where liquor is sold exclusively for consumption off the
premises,
(b) with lawful excuse, or
(c) in prescribed circumstances.
[5] An enforcement hearing was held on October 12 and
13, 2006. In the decision dated December 15, 2006, the adjudicator
found that the petitioner contravened the sections as alleged. He
imposed a penalty by ordering that the petitioner's pub close for 10
days for the March incident and 3 days for the April incident.
[6] The petitioner seeks an order quashing the
decision, or alternatively, remitting the matter back for rehearing
before an alternative adjudicator. The grounds for the appeal are set
out in the Petition as follows:
1. The Adjudicator failed to properly consider all the
evidence or applied an inappropriate standard of proof.
2. The Adjudicator erred in law in the application of the
defense of due diligence.
3. The Adjudicator erred in failing to consider the lack of
enforcement history of the licensee and imposing a penalty that was
unreasonable, unwarranted and wholly out of proportion to the facts as
found.
4. The Adjudicator erred in considering he was bound to impose
a penalty as set out in Schedule 4 of the Regulations under the Liquor
Control and Licensing Act, and further, in failing to consider a
monetary penalty rather than a license suspension.
[7] The respondent contends that identical challenges
were made by the same petitioner in an unsuccessful application for
judicial review before Madam Justice MacKenzie in Butterworth Holdings
Ltd. v. British Columbia (General Manager, Liquor Control and
Licensing Branch), 2007 BCSC 6. That application arose out of an
adjudicator’s finding that the petitioner contravened s. 33 on January
27, 2006.
B. The Legal Principles on an Application for Judicial Review
[8] In Butterworth at ¶ 16-22, Madam Justice MacKenzie
set out the general principles that the parties agree apply to this
application for judicial review. She stated:
General Principles
[16] A petition pursuant to the Judicial Review Procedure Act
involves the application of administrative law principles. A court
will only rarely make the decision which legislation assigns to an
administrative tribunal: Dennis v. British Columbia (Superintendent of
Motor Vehicles), 2000 BCCA 653, at ¶26. In this case, that decision
is assigned by legislation to the general manger.
[17] The role of the court on judicial review in this context is
supervisory; it is not to re-hear and re-assess evidence, but merely
to ensure that the adjudicator did not make a decision that was
outside his or her jurisdiction. It is not within the power of the
court to examine the appropriateness of the decision and substitute
its own view for that of the adjudicator: Wells v. British Columbia
(Superintendent of Motor Vehicles), 2000 BCSC 1857 at ¶9 to 11,
following Toronto (City) Board of Education v. OSSTF, District 15,
[1997] 1 S.C.R. 487, where Cory J. said at ¶45 that when a court is
reviewing a tribunal’s findings of fact or the inference is made on
the basis of the evidence, it can only intervene where the evidence,
viewed reasonably, is incapable of supporting a tribunal’s findings of
fact. See also D.P. Jones & A.S. de Villars, Principles of
Administrative Law, 2d ed. (Toronto: Carswell, 1994) at 6-8; and
D.J.M. Brown & J.M. Evans, Judicial Review of Administrative Action in
Canada (Toronto: Canvasback, 2004) at 12-9.
[18] The standard of review for findings of fact in this case is
that of patently unreasonable. The standard of review for questions
of mixed fact and law is reasonableness simpliciter.
[19] The Act is public safety legislation that balances various
competing interests, including: the interests of a licensee to
maximize profits and the interest of public safety to minimize the
adverse and sometimes tragic consequences of underage drinking.
[20] Under s. 33(1)(a) of the Act a person must not sell, give or
otherwise supply liquor to a minor.
[21] Section 45(2) of the Regulation provides that a licensee
must request two pieces of identification from any person appearing to
be under the age of 25 before (a) allowing the person to enter the
licensed establishment, if the establishment is one in which minors
are not allowed, or (b) selling or serving liquor to the person.
[22] The prohibition against serving liquor to minors is a public
safety issue serious enough to justify legislation prohibiting the
service of liquor to a minor. The penalties set out in the Regulation
reflect this seriousness: Act, s. 33, Regulation.
[9] The difference between an unreasonable decision and
a patently unreasonable decision was considered in R. v. Gordon, 2002
BCCA 224 at ¶ 19 and 20, 100 B.C.L.R. (3d) 35:
[19] Before the instant case the decisions in the Supreme Court
all supported the view that “patent unreasonableness” was the proper
standard of review. The cases are discussed comprehensively by
Macaulay J. in Jones v. British Columbia (Superintendent of Motor
Vehicles), [2001] B.C.J. No. 1738. Macaulay J. doubted that the
reasonableness simpliciter standard was correct, but concluded that he
was bound to apply it because of the decision under appeal.
[20] The difference between the two standards was set out by
Iacobucci J. in Canada (Director of Investigation and Research) v.
Southam Inc., [1997] 1 S.C.R. 748 at 776:
… An unreasonable decision is one that, in the main, is not supported
by any reasons that can stand up to a somewhat probing examination.
Accordingly, a court reviewing a conclusion on the reasonableness
standard must look to see whether any reasons support it. The defect,
if there is one, could presumably be in the evidentiary foundation
itself or in the logical process by which conclusions are sought to be
drawn from it. An example of the former kind of defect would be an
assumption that had no basis in the evidence, or that was contrary to
the overwhelming weight of the evidence. An example of the latter
kind of defect would be a contradiction in the premise on an invalid
inference.
The difference between “unreasonable” and “patently
unreasonable” lies in the immediacy or obviousness of the defect. If
the defect is apparent on the face of the tribunal’s reasons, then the
tribunal’s decision is patently unreasonable. But if it takes some
significant searching or testing to find the defect, then the decision
is unreasonable but not patently unreasonable ….
C. The Evidence Before The Adjudicator
[10] The evidence that was before the adjudicator with
respect to this application is set out in the petitioner’s written
outline of submissions as follows:
FACTS:
The March 4, 2006 incident:
3. The first witness for the Branch was B. Grossman. She
testified that she was born August 11th, 1987, so was 18 on March 4,
2006 (would turn 19 that August).
4. She entered the licensed premises knowing that it was
illegal for her to do so, and then lied to the police about her age
when checked by them.
5. Despite the police intervention and Liquor Control and
Licensing Act proceedings against the licensee herein, she was not
ticketed for the offence under the Act, nor charged criminally with
impersonation.
6. The only way the policeman was able to get past her lie
about her age was by using his radio to search a driver's license data
base. She then admitted she was underage.
7. Her friend purchased a drink for her - she did not buy any
drinks from any licensee staff (so was not served liquor by them as
alleged).
8. When the policeman asked her for her ID, she lied and
claimed she didn't have any on her. In fact she had fake ID with her,
as she always did to facilitate entry, being the driver's license of a
friend that looked sufficiently like her that she had used it to enter
licensed premises successfully on ten to fifteen previous occasions.
9. She believes that if asked by licensee staff to show age ID
that night they would have accepted that she was of age because the
photo looked so much like her.
10. The 2nd witness for the branch was police constable Dyck,
who dealt with Ms. Grossman. He also testified that she lied about
her age to him and that the only way he was able to determine that was
by the use of police resources that hotel staff would not have access
to, via his police radio. He also confirmed that he did not ticket her
under the Act or charge her criminally with respect to the false
information she had given him.
11. When he checked her that night, she did not disclose to him
that she had her girlfriend's driver's license on her, and her purse
was no longer to be seen. He agreed it was quite possible that when
she saw him approach she had passed her purse to someone else to avoid
him finding and seizing her fake ID that she had with her to
facilitate entry.
12. He testified in re-examination by Branch Counsel that Ms.
Grossman may well have been asked for ID by licensee staff on entry,
provided her fake ID (the friend's driver's license with photo that
looked like her), and thereby had them believing she was of age.
13. Marco Sahabi testified that he was working the door for the
licensee on March 4th, 2006. He had considerable experience in
working at various liquor licensed businesses.
14. He checked Ms. Grossman for ID on entry and was satisfied
from the ID she produced that she was at least 19 years old. She had
a purse at the time, but when later checked by the police she was no
longer carrying the purse.
The April 9, 2006 incident:
15. Police constable Carrie testified that he dealt with a woman
later known to be Ursulak and 2 males to do with drugs, outside the
College Place Hotel on that date. Ursulak indicated to him that she
was 19 years old.
16. Later, inside the licensed premise, constable Carrie was
only able to determine that she was in fact under 19 by warning her of
the offence of obstruction and by utilizing police data banks that
hotel staff do not have access to.
17. She advised him that she was not supplied any drinks by
hotel staff.
18. It was admitted on behalf of the licensee, that the doorman
that night had not checked Ursulak for ID on entry as required to do
by the licensee, as she had produced apparently valid ID when asked on
previous occasions, and was with an ex-doorman who he was confident
wouldn't bring someone under age in.
19. None the less, the doorman in question was disciplined by
the licensee by way of a 4 day suspension without pay.
[Underlining in the original]
[11] Ms. Grossman also gave the following evidence in
direct examination:
Q And were you asked for any identification by any of the
doormen?
A No.
Q What did you do once you were inside the establishment?
A I -- we walked into the door. It was quite busy. Just
kind of went through all the people. Went straight to the bar.
Q When you went to the bar, did you order a drink?
A My friend did who was right beside me, and he handed it to
me right in front of the bartender.
Q Did the bartender look at you or ask you for I.D. or
anything?
A No.
[12] On cross-examination she testified:
Q Okay. So at no time when you were in there were you -- did
you buy or acquire a drink directly from any of the hotel staff?
A No.
…
Q You weren't handed it by any hotel staff, you've already
told me, correct? You didn't -- you've already told me just a minute
ago that you didn't acquire any alcoholic beverage from any of the
hotel staff.
A Okay. Well, I can't remember if I was handed directly it
or if my friend was handed it and he handed it to me, but I was
standing right there at the bar. It was obvious that it was for me.
[13] There was also evidence from Mr. Scott, an inspector
with the Branch:
Q … you actually met Ms. Grossman, did you not?
A Yes, I did.
Q And to your eyes, did she appear to be of legal drinking
age, or was it questionable?
A No, it wasn't questionable at all. She was not old enough.
Q I mean, even if you did not know the background, if you had
not the access to the police Licence Premise Check and the fact that
they found out she was a minor, in both cases and specifically Ms.
Grossman, if you were to just look at her on the street, you would
definitely want to question her or to ask her to produce some I.D. if
she was going to enter?
A Certainly, if I saw her in a licensed establishment, I'd
have no difficulty wondering whether or whether or not she was old
enough. She wasn't old enough.
[14] The Branch proposed a 10 day license suspension for
the March 2006 contravention, which is the minimum suspension for a
second s. 33 contravention in the same year. For the April 2006
contravention, the Branch proposed a 3 day suspension which is the
maximum suspension for a first contravention under s. 35.
[15] The petitioner argued before the adjudicator and on
this application that for more than 30 years it had no history of
offences, and that a 13 day suspension will cause significant
unrecoverable financial losses and irreparable harm, including
approximately $130,000 loss of business, long-term loss of customers
and revenue, and laying off 16 employees and 8 contractors.
D. The Decision of the Adjudicator
[16] The adjudicator found that on March 4, 2006 a drink
was either handed to Ms. Grossman by the bartender or by her friend
who handed it to her in clear view of the bartender. The adjudicator
noted that there was no evidence to the contrary. He stated:
There is conflicting evidence whether the minor was checked for
identification when entering the licensed area. The minor says no, the
doorman says that she was. In cross-examination the minor admitted
that she was carrying false identification in the form of an expired
driver's licence of a friend with a photograph which resembled her
(the minor). There are inconsistencies in the minor's evidence,
particularly as it relates to where the identification was kept.
Witnesses say that she was not carrying a purse upon leaving and thus
had handed the purse with the identification off to someone else upon
being approached by the police officer.
On the issue of whether the minor did produce identification to the
doorman or not, there is difficulty in preferring the evidence of one
over the other. There are as stated inconsistencies in the evidence of
the minor. The evidence of the doorman is also not without question.
It may be seen as self-serving given that it was his responsibility to
check identification. Further it differs with that of other witnesses.
The doorman testified that the minor entered with three other young
females. This is contrary to the evidence of the minor on this point
and is contrary to the evidence of the police officer (witness B) that
observed the minor arriving and entering the establishment. In the end
result, I am satisfied that the doorman did not satisfactorily check
the identification of the minor. At best he viewed an expired driver's
licence which did not belong to the minor. It did not bear her
photograph and while it bore a photograph resembling the minor, the
name and biographical information did not pertain to her. He did not
examine the identification for it authenticity [sic].
…
In conclusion, on the evidence, I find on a balance of probabilities,
that on March 4, 2006, liquor was, "otherwise supplied" within the
meaning of Section 33 of the Act and in contravention of those
provisions.
[17] The petitioner admitted that on April 9, 2006 the
doorman permitted a minor to be on the premises contrary to s. 35.
E. Did the adjudicator fail to properly consider all the
evidence or apply an inappropriate standard of proof?
[18] The petitioner argues that the adjudicator "misstated"
the evidence and failed to properly consider all of the evidence by
finding there was a conflict in the evidence of Constable Dyck, Mr.
Sahabi, and Ms. Grossman. The petitioner contends that the evidence
discloses three different points of view at different points in time
and therefore the adjudicator ought to have accepted Mr. Sahbi’s
evidence that he checked Ms. Grossman’s ID when she entered the
premises and that her ID, albeit "fake", showed that she was at least
19 years old.
[19] It is not the function of this court on an application
for judicial review to weigh or re-weigh the evidence, or determine
issues of credibility. As long as there was evidence on which the
adjudicator could base his findings, this court must not intervene. In
this case, there was evidence on which the adjudicator could base his
findings of fact which cannot be said to be unreasonable, let alone
patently unreasonable.
F. Did the adjudicator err in law in the application of the
defence of due diligence?
[20] The adjudicator stated:
The licensee is entitled to a defence to the allegations of the
contraventions, if it can be shown that it was duly diligent in taking
reasonable steps to prevent the contraventions from occurring. The
licensee must not only establish procedures to identify and deal with
problems, it must ensure that those procedures are consistently acted
upon and problems dealt with.
Here the licensee has hired staff with previous experience in the
industry and has provided training and instructions on how to perform
their duties. The instructions are updated from time to time and staff
is reminded of their responsibilities.
…
Counsel for the licensee has submitted that due diligence is planning
ahead of time to prevent things from going wrong. I agree. Thus, it is
appropriate to consider the actions of the licensee as it has planned
ahead and the circumstances in which it has done so. Here the alleged
contravention occurred on March 4, 2006, shortly following a
previously alleged contravention of the same type that occurred in
January 2006. Yet, there is no evidence that the licensee took any
measures to improve the policies and procedures to prevent such
recurrences. Further, there is no evidence that the licensee has any
policies and procedures in place to instruct its bartenders not to
supply liquor unless satisfied that the person is of age. While the
bartender may have the authority to check identification, there is no
policy providing guidance as to when that authority should be
exercised. Here I am satisfied that in the circumstances the bartender
knew or ought to have known that the liquor was being purchased for a
young appearing person and should have ensured that the person was of
age. It was not sufficient for the bartender to assume that a doorman
had requested identification and carefully examined it for its
authenticity. Such an assumption could lead to the very results of
this case.
[21] With respect to the April 2006 incident, the
adjudicator said:
… Here the alleged contravention occurred on April 9, 2006, shortly
following previously alleged contraventions involving minors that
occurred in January and March of 2006. Yet, there is no evidence that
the licensee took any measures to improve the policies and procedures
to prevent such occurrences.
[22] In both instances, the adjudicator found that the
petitioner was not duly diligent.
[23] The petitioner argues that due diligence does not
require perfection but only what is reasonable in the circumstances
and within the capacity of the licensee to effect. The petitioner
contends that the adjudicator treated both offences as absolute
liability offences requiring perfection.
[24] The petitioner argues that if the doorman failed to
check Ms. Grossman’s ID, he made a mistake: humans are always going
to make mistakes. The doorman’s mistake does not mean the petitioner
failed to exercise due diligence. Even if the doorman or bartender
had checked Ms. Grossman’s ID, it would not have made any difference
because Ms. Grossman had the expired ID of her friend whose photograph
resembled her. She had used it successfully many times before. The
police were only able to verify her age through its data bank which is
unavailable to the petitioner.
[25] However, the adjudicator dealt with that aspect of the
argument when he found that the doorman, even if he viewed Ms.
Grossman's ID, did not examine it for its authenticity.
[26] The petitioner's written policies and procedures for
doormen includes the following:
College Place Hotel
740 Carnarvon St, New Westminster
Employee Duties and Responsibilities (Doormen)
The primary functions of doormen are as follows:
? To provide access control and to screen those who enter.
? To prohibit entry of minors, to check 2 pieces of valid ID
also prohibit entry to intoxicated persons, or undesirables.
Patron Entry: Employees will permit entry of legally allowed patrons
to the licensed limit of 331 persons (pub) …
Minors: Employees will require persons, appearing to be under 25
years of age, to produce a valid drivers' license or B.C. I.D. card
with supporting document. Verification techniques should be used when
in doubt, such as obtaining a signature sample for comparison. If
suspicions are aroused, the person must be refused entry, even if the
I.D. appears legitimate. Fake/adulterated I.D. cards are to be
collected and submitted to the local police or management.
…
[Underling and italics in the original]
[27] The policy appears to reflect s. 45 of the Liquor
Control and Licensing Regulation, B.C. Reg. 244/2002 ("Regulation")
which provides:
Minors
45 (1) For the purposes of section 33 (5) of the Act, identification
means both of the following:
(a) one of the following:
(i) a passport;
(ii) a driver's licence that displays a photograph and the date
of birth of the holder;
(iii) an identification card, issued by a government agency,
that displays a photograph and the date of birth of the holder;
(b) one other piece of identification that displays
(i) the person's name, and
(ii) one or both of the person's signature and picture.
[28] There was no evidence that the doorman examined or
acted on the authenticity of the identification by requiring Ms.
Grossman to produce a passport or identification card issued by a
government agency, or a sample of her signature for comparison.
[29] There was evidence that the bartender knew or ought to
have known that the liquor was being purchased for a person appearing
under the age of 25. The adjudicator's finding that the bartender
ought to have required Ms. Grossman to produce identification,
examined it, and acted on the authenticity of the identification
cannot be said to be unreasonable.
[30] The arguments raised by the petitioner are similar if
not identical to the arguments raised before Madam Justice MacKenzie
relating to the January 27, 2006 incident where she stated at ¶ 27 to
29, 36 and 37:
[27] The petitioner referred to evidence regarding its alleged
due diligence. It argues that the training of the staff was adequate
in the circumstances. It submits that the problem of underaged people
trying to obtain entry into licensed premises by using false
identification is enormous because “fake ID” is extremely difficult to
recognize. It emphasizes that in this case, the two underage boys
obtained entry by using the “L” drivers licence and the “N” licence of
the older brother of one of the two minors. The licences looked
legitimate, and according to the petitioner, most 19 year olds look as
if they are 16 or 17. Also, the petitioner argues there are numerous
schemes available for the obtaining of false identification.
[28] The petitioner further submits that due diligence does not
require perfection, but only consists of what is reasonable in the
circumstances and within the capacity of the licencee to carry out.
The petitioner complains that the adjudicator apparently required
perfection and treated this allegation as if it were an absolute
liability offence.
[29] The petitioner argues there was nothing more the licensee
could have done because its system of having the doorman require
identification was reasonable in the circumstances. In this regard,
it submits the bartender does not have time to check the
identification of those to whom he serves liquor. Instead, he relies
on the doorman. Furthermore, the bartender is able to see the doorman
as he is checking identification. The petitioner says the fact both
minors had been checked for photo identification by door staff on
behalf of the licensee and had produced the real identification of the
older brother of one of the minors was adequate to establish due
diligence in the circumstances.
…
[36] The licensee acknowledged that it did not require its
bartender to ask for identification from persons appearing under the
age of 25 before serving liquor. The only system was to check “ID” at
the door. The hotel manager confirmed that the bar staff relied on
the door staff to check “ID”. The adjudicator found this policy
insufficient because the obligation continues beyond the door staff to
the employees within. As a result, he found that the licensee failed
to establish that it was duly diligent in checking identification and
preventing minors from being served alcohol in its establishment.
[37] There is no basis to interfere with the adjudicator’s
decision that the petitioner failed to establish the defence of due
diligence. The adjudicator’s decision in this regard was not
unreasonable as it was supported by ample evidence.
[31] In R. v. Sault Ste. Marie (City), [1978] 2 S.C.R.
1299, Dickson J. stated at p. 1331:
… The due diligence which must be established is that of the accused
alone. Where an employer is charged in respect of an act committed by
an employee acting in the course of employment, the question will be
whether the act took place without the accused's direction or
approval, thus negating wilful involvement of the accused, and whether
the accused exercised all reasonable care by establishing a proper
system to prevent commission of the offence and by taking reasonable
steps to ensure the effective operation of the system. The
availability of the defence to a corporation will depend on whether
such due diligence was taken by those who are the directing mind and
will of the corporation, whose acts are therefore in law the acts of
the corporation itself. …
[32] I do not find the arbitrator's decision on the defence
of due diligence to be unreasonable.
G. Did the adjudicator err in failing to consider the
petitioner’s lack of enforcement history and impose an unreasonable
penalty?
[33] On the issue of the penalty for the March 2006
incident, the adjudicator stated:
Pursuant to section 20(2) of the Act, having found that the licensee
has contravened the Act, the Regulations and/or the terms and
conditions of the licence, I have discretion to order one or more of
the following enforcement actions:
• impose a suspension of the liquor licence for a period of
time
• cancel a liquor licence
• impose terms and conditions to a license or rescind or
amend existing terms and conditions
• impose a monetary penalty
• order a licensee to transfer a license
Imposing any penalty is discretionary. However, if I find that either
a licence suspension or monetary penalty is warranted, I am bound to
follow the minimums set out in Schedule 4 of the Regulations.
There is a previous proven contravention of the same type for this
licensee within the year preceding this incident. Pursuant to Liquor
Control and Licensing Regulation, Schedule 4, Section 1(1 )(b), the
branch has treated the allegation as a second contravention. The range
for second contraventions of this type is a licence suspension for
10-14 days.
The branch's primary goal in bringing enforcement action is to achieve
voluntary compliance. In the circumstances of this case, I am
satisfied that the licensee has not successfully or sufficiently
stressed upon its employees the need to fully and conscientiously
carry out their duties and a penalty is necessary to ensure future
compliance.
Any penalty imposed must be sufficient to ensure compliance in the
future. In the circumstances I find that the minimum ten (10) day
suspension is necessary and sufficient.
[Emphasis added]
[34] On the issue of the penalty for the April 2006
contravention, the adjudicator stated:
There is no previous proven contravention of the same type for this
licensee within the year preceding this incident. Pursuant to Liquor
Control and Licensing Regulation, Schedule 4, Section 1(1)(b), the
branch has treated the allegation as a first contravention. The range
for a first contravention of this type is a license suspension for 1-3
days and/or a monetary penalty of $1000 to $3000.
The branch's primary goal in bringing enforcement action is to achieve
voluntary compliance. In the circumstances of this case, I am
satisfied that the licensee has not successfully or sufficiently
stressed upon its employees the need to fully and conscientiously
carry out their duties and a penalty is necessary to ensure future
compliance.
Any penalty imposed must be sufficient to ensure compliance in the
future. In the circumstances that this is the third contravention
involving minors within a short period of time (Jan - April 2006) I
find that the maximum three (3) day suspension is necessary.
[35] The petitioner contends that the adjudicator ought to
have imposed no penalty or, at most, the monetary penalty provided for
by the Regulation: namely $5,000 to $7,000 for the breach of s. 33,
and $1,000 to $3,000 for the breach of s. 35.
[36] I will consider this ground of appeal together with
the last ground of appeal.
H. Did the adjudicator err in considering he was bound to
impose a suspension penalty and not considering a monetary penalty?
[37] Schedule 4 to the Regulation, reads:
Schedule 4
[am. B.C. Regs. 437/2003, s. 3; 205/2005, s. 13.]
Enforcement Actions
Interpretation
1 (1) For the purposes of this Schedule,
(a) a contravention is of the same type as another
contravention if each contravention is described by the same Item of
this Schedule, and
(b) a contravention by a licensee is
(i) a first contravention if the contravention was committed
at or in respect of an establishment and the licensee has not
committed a contravention of the same type at or in respect of that
establishment within the 12 month period preceding the commission of
the contravention,
(ii) a second contravention if the contravention was committed
at or in respect of an establishment and the licensee has committed
one contravention of the same type at or in respect of that
establishment within the 12 month period preceding the commission of
the contravention, …
Item
Contravention
Period of Suspension (Days)
Monetary Penalty
First
Contravention
Second
Contravention
Subsequent
Contraventions
…
Minors
2
A breach of section 33 of the Act [Selling liquor to minors]
4-7
10-14
18-20
$5 000 - $7 000
3
A breach of section 35 of the Act [Minors on licensed premises]
1-3
3-6
6-9
$1 000 - $3 000
[38] The petitioner argues that the 13 day suspension
penalty is wholly out of proportion to the offence and the adjudicator
ought to have either imposed no penalty or, at most, the applicable
monetary penalty. The petitioner also complains that the adjudicator
gave no reasons for not imposing a monetary penalty.
[39] There is no dispute that the adjudicator accurately
set out the law relating to the issue of a penalty. He was aware that
any penalty was discretionary. He was also aware that if he found a
suspension or a monetary penalty was warranted in the circumstances,
he was required to order the suspension or penalty set out in Schedule
4 to the Regulation.
[40] The adjudicator's reasoning for deciding to impose the
suspension rather than a monetary penalty is clear. He found that the
petitioner supplied liquor to a minor, shortly after a contravention
notice for the same offence in January 2006. He found there was no
evidence that the petitioner took any steps after January 2006 to
improve its policies and procedures, or to emphasize to its employees
the need to strictly adhere to its policies, or had a policy requiring
the bartender to check for identification, particularly when the
person appeared to be underage.
[41] I cannot find that the arbitrator erred in the
exercise of his discretion.
[42] The application is dismissed with costs.
Loo J.
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DECISION OF THE GENERAL MANAGER LIQUOR CONTROL AND LICENCING BRANCH IN
THE MATTER OF A hearing pursuant to Section 20 of The Liquor Control
and Licensing Act RSBC c. 267 Licensee: Butterworth Holdings Ltd.,
Frizzell Holdings Ltd. & Legree Holdings Ltd. dba College Place Hotel
740 Carnarvon Street New Westminster, BC V3M 1E7 Case: EH06-065 & 079
For the Licensee: Wayne D. Murdoch For the Branch: James Macdonnell
Enforcement Hearing Adjudicator:Edward OwsianskiDate of Hearing:
October 12 & 13, 2006 Place of Hearing: Surrey, BC Date of Decision:
December 15, 2006
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EH06-065 & 079 College Place HotelDecember 15, 2006
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2 -INTRODUCTION The licensee, Butterworth Holdings Ltd., Frizzell
Holdings Ltd. & Legree HoldingsLtd., dba College Place Hotel holds
Liquor Primary Licence No. 007446 for a liquor primary licensed area
known as Mugs and Jugs Pub (the pub) located in the hotel. The
licensed hours for the sale of liquor are 11:00 a.m. to 1:00 a.m.
Monday to Saturday and 11:00 a.m. to midnight on Sunday. The licence
permits 349 persons in the licensed area. The licence is, as are all
liquor licences issued in the province, subject to the terms and
conditions contained in the publication ‘Guide for Liquor Licensees in
British Columbia’. Alleged Contravention and Recommended Enforcement
Action The branch’s allegations and recommended enforcement action are
set out in the Notices of Enforcement Action (NOEA) dated June 13,
2006 and June 28, 2006. EH06-065 (dated June 13, 2006) The branch
alleges that on March 4, 2006, the licensee contravened Section 33 of
the Liquor Control and Licensing Act by selling, giving or otherwise
supplying liquor to a minor. The proposed penalty is a ten (10) day
suspension of the liquor licence (item #2, Schedule 4 of the
Regulation). Item 2 of Schedule 4 of the Regulation provides a range
of penalties for a second contravention of this type of a licence
suspension for 10 - 14 days. The licensee disputes that the
contravention took place.
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EH06-065 & 079 College Place HotelDecember 15, 2006
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3 -EH06-079 (dated June 28, 2006) The branch alleges that on April 9,
2006, the licensee contravened Section 35 of the Liquor Control and
Licensing Act by permitting a minor to enter on or to be on premises
where liquor is sold or kept for sale. The proposed penalty is a three
(3) day suspension of the liquor licence (item 3, Schedule 4 of the
Regulation). The branch also recommended a term and condition be
imposed to require the licensee to acquire, install and incorporate
into daily operations a system which captures and records an image of
the identification presented and the person presenting the
identification. Item 3 of Schedule 4 of the Regulation provides a
range of penalties for a first contravention of this type of a license
suspension for 1-3 days and/or a monetary penalty of $1000 to $3000.
The licensee disputes that the contravention took place. RELEVANT
STATUTORY PROVISIONS Liquor Control and Licensing Act, R.S.B.C. 1996,
c. 267 (the “Act”) Supplying liquor to minors 33 (1) A person must not
(a) sell, give or otherwise supply liquor to a minor, (b) have liquor
in his or her possession for the purpose of selling, giving or
otherwise supplying it to a minor, or (c) in or at a place under his
or her control, permit a minor to consume liquor.
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EH06-065 & 079 College Place HotelDecember 15, 2006
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4 -(2) Subsection (1) does not apply if liquor is (a) given to a minor
by his or her parent, spouse or guardian in a residence for
consumption in the residence, (b) administered to a minor by or under
the authority of a medical practitioner or dentist for medicinal
purposes, or (c) given or otherwise supplied to a minor in accordance
with the regulations. (3) A person has liquor in his or her possession
when the person has it in his or her personal possession or
knowingly(a) has it in the actual possession or custody of another
person, or (b) has it in or at a place, whether or not that place
belongs to or is occupied by the person, for the use or benefit of the
person or another person. (4) If one of 2 or more persons, with the
knowledge and consent of the rest, has liquor in his or her
possession, it is deemed to be in the possession of each of them. (5)
It is a defence to a charge under this section if the defendant
satisfies the court that, in reaching the conclusion that the person
was not a minor, the defendant (a) required that the person produce
identification, and (b) examined and acted on the authenticity of the
identification. (6) A person who contravenes this section commits an
offence and is liable on conviction to a fine of not less than $500.
Minors on licensed premises 35 A person who holds a licence under this
Act or who sells liquor under the Liquor Distribution Act, or the
person's employee, must not authorize or permit a minor to enter on or
to be on premises where liquor is sold or kept for sale except
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Page 5
EH06-065 & 079 College Place HotelDecember 15, 2006
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5 -(a) if the minor is accompanied by a parent or guardian on premises
where liquor is sold exclusively for consumption off the premises, (b)
with lawful excuse, or (c) in prescribed circumstances. ISSUES
Preliminary Issue: Contemporaneous Submissions Counsel objected to
making submissions on penalty, prior to a determination thata
contravention has been found. This position has been taken in several
hearings. It has consistently been held that the hearing process
allows for penalty submissions to be made during the course of the
hearing prior to a determination on the alleged contravention and that
that process does not prejudice the licensee. The hearing proceeded on
that basis. Substantive Issues: 1. Whether the licensee contravened
the Act as alleged by the Branch. 2. If so, what penalties, if any,
are appropriate? EXHIBITS The following exhibits were presented:
Exhibit No.1 Exhibit No. 2 Exhibit No. 3 Exhibit No. 4 Exhibit No. 4A
Branch Book of Documents #1, tabs 1 – 8 and 11 & 12 Branch Book of
Documents #2, tabs 1 – 8 and 11 & 12 Branch Book of Documents #1, tabs
9 & 10 and 13 – 17 and Branch Book of Documents #2, tabs 9 & 10 and 13
– 18. Book of Document titled “ID Verification Technology” Excerpt
from Bill 38 – 2003 [British Columbia] “Personal Information
Protection Act”
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Page 6
EH06-065 & 079 College Place HotelDecember 15, 2006
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6 -Exhibit No. 5 Exhibit No. 6 Typewritten Statement dated March 4,
2006. Licensee’s Book of Documents EVIDENCE – THE LIQUOR CONTROL AND
LICENSING BRANCH EH06-065Witness A, testified that on March 4, 2006,
she was 18 years old. On that date she had received a ride to the
College Place Hotel with a male acquaintance who worked at the hotel.
This male entered the hotel a period of time before she did. Later she
entered the licensed area known as Mugs and Jugs (the pub) with
another male acquaintance. She did not enter with other females. She
had been at the hotel in another licensed area on previous occasions;
however, this wasthe first time inside the pub. Although there were
door staff present at the entrance, they did not request that she
produce identification. The staff appeared more interested in a
televised boxing match. She and the male proceeded to the bar area
where the male ordered a drink for her and handed itto her. She later
testified that she was unclear whether the male handed the drink to
her, or if the bartender did. She does not remember whether in a
subsequent interview with a branch liquor inspector that she told him
that she had purchased the drink herself. She was adamant that in
either case it tookplace in front of the bartender and it was obvious
that the drink was for her. The bartender did not request that she
produce identification. She testified that she did not have fake
identification, but under cross-examination testified that she always
carried fake identification with her in the event that she was
requested to produce it to gain entry. It consisted of an expired
driver’s licence of a friend. The photograph in the driver’s licence
resembled her. She had used it without being caught on 10-15 occasions
in the past. She carried the fake driver’s licence in her pocket. She
had her own
--------------------------------------------------------------------------------
Page 7
EH06-065 & 079 College Place HotelDecember 15, 2006
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7 -identification, a visa card. She has a valid driver’s licence;
however, could notrecall whether she had it with her. She testified
that she had a purse with her. She testified that she was approached
inside by a police officer. She told him her name and at first lied
about her age, then told him her real age. She told the officer that
she had received a ride to the hotel with the male acquaintance
thatworked at the hotel. She did not tell the officer that she entered
the hotel with him. She does not recall whether the police officer
checked her purse for identification. Witness B, a Constable with the
New Westminster Police Department, testified that on March 4, 2006, he
was working in the downtown area of New Westminster with another
constable on duties that included the checking of licensed
establishments in the area. He was outside the College Place Hotel
atapproximately 9:15 p.m. when he observed a vehicle arrive with two
male and one female occupant. He knew one of the males to be a doorman
employed at the hotel. The occupants left the vehicle and walked into
Mugs and Jugs Pub.The constable later spoke to the doorman who had
arrived in the vehicle. He was wearing a black shirt, the uniform for
this establishment. Upon entering the pub the constable noted the
female standing at a table with a bottle of beer in her hand. As she
appeared to be a “young teenager”, he asked her to step outside into
the lobby where he requested that she produce her identification. She
told him that she did not have any identification and provided him
with a name and date of birth. Accessing the police database, he
determined that the date of birth provided by her was off by one year.
She told him that she had arrived with a male acquaintance who was
employed at the hotel as a doorman. He did not ask her how she had got
into the pub. The officer testified that he did not charge the minor
female for being in a licensed establishment or for providing false
information. He did not search her
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Page 8
EH06-065 & 079 College Place HotelDecember 15, 2006
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8 -for identification but did observe that she was wearing tight
clothing without pockets. He did not observe her to be carrying a
purse. He agreed that it was possible that she was carrying false
identification but did not want to produce it to him. He did not
recall two managers from the hotel commenting to him that she did not
have a purse and may have passed it to a girlfriend. EH06-079Witness
C, a Constable with the New Westminster Police Department, testified
that on April 9, 2006, he was working on patrol duties that included
the checking of licensed establishments. He was outside of the College
Place Hotel atapproximately 12:50 a.m. and had occasion to check two
males and a female.The female said that she was 19 years old but did
not have any identification with her. He spoke to the hotel doorman
about the two males then proceeded down the street while keeping an
eye on the female. When she disappeared from sight he went into Mugs
and Jugs Pub to see if she was there. He located her in the back of
the pub in front of the liquor service bar with a drink in her hand.
The drink smelled like liquor and appeared to be a conventional mixed
drink. She appeared that she could have been underage. He took the
drink from her and asked her where she had obtained it. She said that
a friend had given it to her, she had not got it from pub staff. He
took her outside and cautioned her about obstruction. She provided her
name and date of birth. She was 18 years old.He wrote out and gave her
a violation ticket for being a minor in a licensed establishment and
wrote out a Licensed Premises Check for the establishment that was
given to a manager. He did not search her but was satisfied that she
was not carrying identification. She was wearing tight clothing and a
rigid plastic driver’s licence would have been noticeable inside a
pocket. She was not carrying a handbag. Witness D, a branch liquor
inspector testified that he is the Branch inspector responsible for
licensed establishments located within the city of New
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Page 9
EH06-065 & 079 College Place HotelDecember 15, 2006
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9 -Westminster. In that capacity, he received Licensed Premises Checks
(LPC)from the New Westminster Police Department regarding the
operation of the College Place Hotel. EH06-065Upon receipt of the LPC
(exhibit 1, tab 11) he contacted the police officer and reviewed the
information with him. He then contacted the minor identified in the
LPC. She advised him that she had entered the licensed area and had
obtained and consumed liquor in the establishment without being
checked for identification. He felt that the minor obviously appeared
to be underage and should have been checked for identification. He is
familiar with the policies and procedures of the establishment and was
concerned that they are not effective in preventing contraventions. In
his experience, staff on occasion have failed to request
identification or when presented with identification have failed to
examine it closely or look behind the identification to determine its
authenticity. He issued a Contravention Notice (CN) (exhibit 1, tab 4)
to the establishment and completed an Enforcement Action Recommended
report (EAR) (exhibit 1, tab 3)which was forwarded to his regional
manager for approval. He recommended that enforcement be taken as this
was the second incident within a six month period involving liquor
being supplied to a minor. The earlier contravention occurred in
January of this year. He acknowledged that it is currently
underappeal. He recommended a ten day license suspension, which is the
minimum penalty for a second contravention of the same type occurring
within a year. Upon receiving the approval he completed a Notice of
Enforcement Action report (NOEA), (exhibit 1, tab 2) which was
forwarded to the establishment. EH06-079Upon receipt of the LPC
(exhibit 2, tab 12) he contacted the police officer and reviewed the
information with him. He issued a CN (exhibit 2, tab 4) to the
establishment and completed an EAR (exhibit 2, tab 3) which was
forwarded to his regional manager for approval. He recommended that
enforcement be taken
--------------------------------------------------------------------------------
Page 10
EH06-065 & 079 College Place HotelDecember 15, 2006
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10 -as this was the third incident involving minors in the
establishment within a short period of time. He recommended a three
day suspension, which is the maximum penalty for a first contravention
for permitting a minor on the premises. He also recommended that a
term and condition be imposed to require the licensee to acquire,
install and incorporate into daily operations a system which captures
and records an image of the identification presented and the person
presenting the identification. In making this recommendation he was
concerned that staff at the establishment do not check identification
or do so only superficially. Upon receiving the approval he completed
a NOEA (exhibit 2, tab 2) which wasforwarded to the establishment.
EVIDENCE – THE LICENSEEWitness E, testified that he is 26 years old
and holds a Bachelor of Businessdegree from the University of Toronto
and a Bachelor of Accounting from Simon Fraser University. He has
worked within the hospitality industry for the past six years, has a
Serving It Right certificate and is a knowledgeable doorman.
EH06-065He was working as a doorman at the main entrance to the Mugs
and Jugs pub on March 4, 2006. It was fight night with boxing matches
being televised; consequently the crowd was primarily male. He recalls
a group of four young women coming in sometime between 7:00 and 9:00
p.m. The alleged minor wasone of them. They all carried purses,
including the alleged minor. They all produced identification. The
alleged minor produced a driver’s licence and one other piece of
identification. His manager advised him that one of the young women
had been checked by a police constable and found to be a minor. The
manager said that she did nothave any identification, nor did she have
a purse. He advised his manager that he recalled her coming with three
other young women, they all had purses and
--------------------------------------------------------------------------------
Page 11
EH06-065 & 079 College Place HotelDecember 15, 2006
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11 -they all produced identification. The other three young women were
seated on a couch in the licensed area when he was approached by his
manager butdisappeared shortly thereafter. He provided a hand-written
statement later that night which was then typed by his manager
(exhibit 5). He recalls the person identified as the doorman arriving,
he was with his girlfriend. The girlfriend wasnot one of the four
young women. He does not recall when the other male acquaintance of
the minor arrived. Witness F, testified that he is 28 years old and
has worked in licensed establishments for the past ten years at
positions of disc jockey, doorman, bartender and manager. He was
working as operations manager during the nights of March 4 and April
9, 2006. EH06-065He testified that he came into the licensed area just
as the police officer wastalking to the minor; however, he first dealt
with the male identified as a doorman with whom the alleged minor had
arrived. This person is in fact an ex-doorman,who was no longer
employed at the establishment and has subsequently moved away. The
ex-doorman was upset at being accused of bringing a minor into the
premises, so he escorted him into the lobby and attempted to calm him
down.The ex-doorman said that the alleged minor did not come in with
him; she musthave just arrived at the same time. The witness knows the
ex-doorman’s girlfriend and the alleged minor is not her. The witness
testified that he then returned into the licensed area and spoke with
the police officer and the doorman on duty. He overheard the
discussion between the police officer and the alleged minor telling
him that she didn’t have any money or identification. The witness
noted that she was not with other girlsat the time, nor did she have a
purse. The doorman told the police officer that she had a purse when
she came in and it must have been given to one of the girlfriends who
had since left.
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EH06-065 & 079 College Place HotelDecember 15, 2006
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12 -EH06-079He testified that he spoke with the doorman on duty the
night of April 9, 2006 and was told that the alleged minor found on
the premises had not been checked foridentification. The doorman had
checked her identification in the past and on this occasion she
entered the premises with an ex-doorman. He was thus satisfied that
she was of age and didn’t check her identification on this occasion.
The witness testified that this resulted in the doorman on duty being
suspended without pay for three days (exhibit 6, tab 1). He testified
that the policy of the hotel is that all persons appearing to be under
25 years old are to be checked for identification. A memo outlining
the duties of a doorman has been taped to the front entrance as a
reminder to them. Documents found at exhibit 6, tabs 2, 3 & 4 are used
in training of staff. He and the senior doorman are responsible for
the training of doormen. A meeting is held with doormen each night.
Witness G, testified that he is 38 years old, holds a Bachelor or
Commerce degree from the University of Calgary and has been employed
within the hospitality industry for 23 years. He has been employed by
the College Place Hotel as the General Manager for the past two years.
He testified that new employees are hired following interviews by the
operations manager and himselfand all must have a minimum of two years
experience. New doormen work at the main post with the senior doorman
for 6 – 8 shifts. The operations managergoes over the house policies
with them once hired and again following their initial shifts and they
sign the policies. New policies are brought to their attention and
periodically they go back over existing polices. The main duties of a
doorman ischecking identification and monitoring the crowd. The
doormen at the front entrance are primarily responsible for checking
identification. Other doormen take their posts inside the licensed
area and are primarily responsible for monitoring crowd behaviour, not
checking identification. A server or bartendercan make secondary
identification checks, to the best of his knowledge this wasnot done
on these occasions, staff may have assumed that the minors were
--------------------------------------------------------------------------------
Page 13
EH06-065 & 079 College Place HotelDecember 15, 2006
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13 -checked upon entering. It is not required that all employees check
foridentification. To do so, would mean 15 checks per night per
patron. Doormen receive training in detecting fake identification and
situations where another person’s identification is presented. The
document, “Problem Response/Action Plan (condensed)” at exhibit 6, tab
2 was drawn up by him a year ago and lets staff know what he expects
on each incident. The document at exhibit 6, tab 3 “Employee Duties
and Responsibilities (Doormen)” has been updated this year and is in
addition to the provisions of the collective agreement the hotel has
with its employees. The document at exhibit 6, tab 4, “Doorman
Training Schedule”provides instructions for management. The hotel has
approximately 10,000 patrons per month. The New Westminster police do
regular walk-thrus almost every day to a total of about 300 per year.
EH06-065He testified that he was working the night of March 4, 2006.
He saw the police officer making a routine check of the premises and
stopped to talk with a male and female patron. “She”, the police
officer, then told him that the female patron had no identification
and was concerned that an off-duty staff member had brought her into
the premises. The staff member in question was brought in and when
questioned became angry with the manager (witness F). He said that he
had entered the establishment with another female, not the minor, and
that it wascoincidental that the minor had come into the establishment
just before him. Thisemployee was not working that night. He was still
an employee; however, was dismissed later that week for different
reasons. The witness testified that he spoke with the doorman on duty
(witness E) who said that the female minor had identification when she
entered with three other females who had now left. The witness was
questioned about the identity of the police officer. He had described
the officer as a female while the officer presented as a
witness(witness B) was a male and was described as such by other
witnesses. This
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Page 14
EH06-065 & 079 College Place HotelDecember 15, 2006
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14 -witness testified that the New Westminster Police Department has
two officers with the same surname, one male, one female and both were
present that night. He testified that at the time of the incident
there were three police officers in attendance. EH06-079He testified
that on this occasion a mistake was made by the doorman in not
checking for identification and he was subsequently disciplined. There
had been no previous problems with this employee. Witness H, testified
that he owns and operates the hotel. He has been one ofthe principals
of the corporate licensee since 1975. He is a board member of the
Association of Beverage Licensed Establishments of BC (ABLE), which
represents liquor primary licensees. He is a founding member of the
HospitalityIndustrial Relations consulting firm (HIR), which
represents hotels in labournegotiations. He has been a member and has
held office in the BC & Yukon Hotel Association since 1975. The hotel
averages 12,000 patrons per month. A licence suspension of 13 days
would cause a loss of revenue of $8 -10,000 per day and create a
financial hardship on the 52 employees. He has advocated that the
branch suspend the offending employee or suspend their Serving It
Right certificate. By suspending the liquor licence a mistake by one
employee creates a hardship for all employees and the owners. An
employee fired for not doing his/her duty would not receive any
penalty. He testified that the association ABLE has written to the
general manager of the branch outlining some suggestions on how to
deal with contraventions regarding minors in licensed establishments
(exhibit 6, tab 5). The consulting firm HIR has
--------------------------------------------------------------------------------
Page 15
EH06-065 & 079 College Place HotelDecember 15, 2006
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15 -outlined the difficulties in dealing with hotel employees under
the collective agreement (exhibit 6, tab 6). False and fake
identification is a constant problemand a number of newspaper articles
have outlined the difficulties (exhibit 6, tabs 7 – 11). Young persons
are pretty clever and it takes constant vigilance. The hotel maintains
a good rapport with the New Westminster Police Department. Licensee
Submissions EH06-065Counsel for the licensee submitted that there was
no evidence that liquor wassold, given or otherwise supplied to a
minor as required by the wording in the Act. The minor (witness A)
testified that staff did not serve her; a friend ordered the liquor
for her and handed it to her. For this contravention the rest of the
evidence is not relevant. The minor admitted that she had
identification from a friend in which the photograph resembled her and
that she had used it 10 – 15 times previously. She didn’t admit this
to the police officer, nor produce it. She said that it was in her
pocket and she didn’t want to loose it by producing it to the police
officer. She changed her story during cross-examination and stated
thatshe had a purse containing her identification and money. The
evidence of other witnesses is that she did not have a purse when
being questioned by the police officer. The police officer didn’t
search her and the false identification was notdiscovered. She was not
charged for being in a licensed establishment or for impersonation.
The doorman (witness E) was adamant that he remembered herand recalled
checking her identification. The evidence is that her appearance was
such that she could have been 25 years of age. Determining age is not
a science. The police were only able to confirm her age by accessing
theirdatabase.
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EH06-065 & 079 College Place HotelDecember 15, 2006
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16 -EH06-079Counsel submitted that it was admitted that a minor had
been allowed into the establishment. The doorman on duty erred and was
disciplined. The evidence was that it was not obvious that the minor
was not 19 years of age. She obtained her drink from another patron,
not from staff. It is not required that staff repeatedly check the
identification of patrons. This is a busy establishment with many
patrons going thru the door staff and having their identification
checked. It is unrealistic that that a patron be checked again. Due
DiligenceCounsel submitted that due diligence is planning ahead of
time to prevent thingsfrom going wrong. These contraventions are
offences of strict liability, notabsolute, liability thus due
diligence is a defence. Here the establishment goes to considerable
expense to prevent minors from entering or being served liquor.No
system is perfect, mistakes can be made. Under this system of
penalties all persons are punished for the mistake of one, even those
persons who are doing things correctly. The NOEAs at exhibit 1 & 2,
tabs 2 show “no previous compliance history”. An astoundingly good
record for a licensee in business since 1975 and with a high volume of
patronage. PenaltyCounsel submitted that the BC Court of Appeal in the
Urban Well case (CA032081) August 17, 2005, at paragraphs 61-63
requires that in considering penalty the general manager (adjudicator)
consider whether in the circumstancesa penalty should be imposed. Here
it must first be decided that a contravention has occurred. Then given
the circumstances, evidence of due diligence including the volume of
patrons, large number of staff and the clean history since 1975
whether any penalty should be imposed. Here the licensee has suffered
great stress and expense thus the salutary effect of the enforcement
hearing has
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17 -occurred. The penalties recommended by the branch are out of line.
The punishment should match the offence. The penalties here would
amount to a $130,000 cost to the licensee and a financial loss to the
employees. It is disproportionate to what has occurred. The minor
involved in the incident of March 4, 2006, was not charged. The minor
in the April 9, 2006, incidentreceived a violation ticket and it is
unknown if the fine has been paid. The penalties are out of line with
criminal penalties including those for operating illegal marijuana
grow ops. The recommendation of placing a term and condition on the
license “to require the licensee to acquire, install and incorporate
into dailyoperations a system which captures and records an image of
the identification presented and the person presenting the
identification” appears to have been made on the initiative of the
Liquor Inspector and not branch management. It may be contrary to the
provisions of the provincial statute dealing with the collection of
private information. REASONS AND DECISION EH06-065I find that the
evidence is that a minor (witness A) was found in possession of liquor
in a licensed area of this establishment by a police officer. The
liquor in her possession was ordered by an acquaintance and either
handed directly to her by the bartender or handed by the bartender to
the acquaintance and then to her in clear view of the bartender. There
is no evidence to the contrary on thispoint and I am satisfied on a
balance of probabilities that that is what occurred. That is a
contravention of section 33(1)(a) the Act. The licensee is entitled to
a defence to the allegations of the contraventions, if it can be shown
that it was duly diligent in taking reasonable steps to prevent the
contraventions from occurring. The licensee must not only establish
procedures
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18 -to identify and deal with problems, it must ensure that those
procedures are consistently acted upon and problems dealt with. Here
the licensee has hired staff with previous experience in the industry
and hasprovided training and instructions on how to perform their
duties. The instructions are updated from time to time and staff is
reminded of their responsibilities. There is conflicting evidence
whether the minor was checked for identification when entering the
licensed area. The minor says no, the doorman says that she was. In
cross-examination the minor admitted that she was carrying false
identification in the form of an expired driver’s licence of a friend
with a photograph which resembled her (the minor). There are
inconsistencies in the minor’s evidence, particularly as it relates to
where the identification was kept. Witnesses say that she was not
carrying a purse upon leaving and thus had handed the purse with the
identification off to someone else upon being approached by the police
officer. On the issue of whether the minor did produce identification
to the doorman or not, there is difficulty in preferring the evidence
of one over the other. There are as stated inconsistencies in the
evidence of the minor. The evidence of the doorman is also not without
question. It may be seen as self-serving given that itwas his
responsibility to check identification. Further it differs with that
of other witnesses. The doorman testified that the minor entered with
three other young females. This is contrary to the evidence of the
minor on this point and iscontrary to the evidence of the police
officer (witness B) that observed the minorarriving and entering the
establishment. In the end result, I am satisfied that the doorman did
not satisfactorily check the identification of the minor. At best he
viewed an expired driver’s licence which did not belong to the minor.
It did not
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19 -bear her photograph and while it bore a photograph resembling the
minor, the name and biographical information did not pertain to her.
He did not examine the identification for it authenticity. Counsel for
the licensee has submitted that due diligence is planning ahead oftime
to prevent things from going wrong. I agree. Thus, it is appropriate
to consider the actions of the licensee as it has planned ahead and
the circumstances in which it has done so. Here the alleged
contravention occurred on March 4, 2006, shortly following a
previously alleged contravention of the same type that occurred in
January 2006. Yet, there is no evidence that the licensee took any
measures to improve the policies and procedures to preventsuch
recurrences. Further, there is no evidence that the licensee has
anypolicies and procedures in place to instruct its bartenders not to
supply liquor unless satisfied that the person is of age. While the
bartender may have the authority to check identification, there is no
policy providing guidance as to when that authority should be
exercised. Here I am satisfied that in the circumstances the bartender
knew or ought to have known that the liquor was being purchased for a
young appearing person and should have ensured that the person was of
age. It was not sufficient for the bartender to assume that a doorman
had requested identification and carefully examined it for its
authenticity. Such an assumption could lead to the very results of
this case. In conclusion, on the evidence, I find on a balance of
probabilities, that on March 4, 2006, liquor was, “otherwise supplied”
within the meaning of Section 33 of the Act and in contravention of
those provisions. I find that the licensee was not dulydiligent.
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20 -PENALTY Pursuant to section 20(2) of the Act, having found that
the licensee hascontravened the Act, the Regulations and/or the terms
and conditions of the licence, I have discretion to order one or more
of the following enforcementactions: • impose a suspension of the
liquor licence for a period of time • cancel a liquor licence • impose
terms and conditions to a license or rescind or amend existing terms
and conditions • impose a monetary penalty • order a licensee to
transfer a license Imposing any penalty is discretionary. However, if
I find that either a licence suspension or monetary penalty is
warranted, I am bound to follow the minimums set out in Schedule 4 of
the Regulations. There is a previous proven contravention of the same
type for this licensee within the year preceding this incident.
Pursuant to Liquor Control and Licensing Regulation, Schedule 4,
Section 1(1)(b), the branch has treated the allegation asa second
contravention. The range for second contraventions of this type is a
licence suspension for 10-14 days. The branch’s primary goal in
bringing enforcement action is to achieve voluntary compliance. In the
circumstances of this case, I am satisfied that the licensee has not
successfully or sufficiently stressed upon its employees the need to
fullyand conscientiously carry out their duties and a penalty is
necessary to ensure future compliance.
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21 -Any penalty imposed must be sufficient to ensure compliance in the
future. In the circumstances I find that the minimum ten (10) day
suspension is necessary and sufficient. EH06-079Here it is admitted
that a minor had been allowed into the establishment. The doorman on
duty erred and was disciplined. The licensee is entitled to a defence
to the allegations of the contraventions, if it can be shown that it
was duly diligent in taking reasonable steps to prevent the
contraventions from occurring. The licensee must not only establish
proceduresto identify and deal with problems, it must ensure that
those procedures are consistently acted upon and problems dealt with.
Here the licensee has hired staff with previous experience in the
industry and has provided training and instructions on how to perform
their duties. The instructions are updated from time to time and staff
is reminded of their responsibilities. Counsel for the licensee has
submitted that due diligence is planning ahead oftime to prevent
things from going wrong. I agree. Thus it is appropriate to consider
the actions of the licensee as it has planned ahead and the
circumstances in which it has done so. Here the alleged contravention
occurred on April 9, 2006, shortly following previously alleged
contraventions involving minors that occurred in January and March of
2006. Yet, there is no evidence that the licensee took any measures to
improve the policies and procedures to prevent such occurrences. In
conclusion, on the evidence, I find on a balance of probabilities,
that on April 9, 2006, the licensee permitted a minor to enter, or to
be on the premises where liquor is sold contrary to the provisions of
section 35 of the Act. I find that thelicensee was not duly diligent.
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22 -PENALTY Pursuant to section 20(2) of the Act, having found that
the licensee hascontravened the Act, the Regulations and/or the terms
and conditions of the licence, I have discretion to order one or more
of the following enforcementactions: • impose a suspension of the
liquor licence for a period of time • cancel a liquor licence • impose
terms and conditions to a license or rescind or amend existing terms
and conditions • impose a monetary penalty • order a licensee to
transfer a license Imposing any penalty is discretionary. However, if
I find that either a licence suspension or monetary penalty is
warranted, I am bound to follow the minimums set out in Schedule 4 of
the Regulations. There is no previous proven contravention of the same
type for this licensee within the year preceding this incident.
Pursuant to Liquor Control and Licensing Regulation, Schedule 4,
Section 1(1)(b), the branch has treated the allegation asa first
contravention. The range for a first contravention of this type is a
license suspension for 1-3 days and/or a monetary penalty of $1000 to
$3000. The branch’s primary goal in bringing enforcement action is to
achieve voluntary compliance. In the circumstances of this case, I am
satisfied that the licensee has not successfully or sufficiently
stressed upon its employees the need to fullyand conscientiously carry
out their duties and a penalty is necessary to ensure future
compliance.
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23 -Any penalty imposed must be sufficient to ensure compliance in the
future. In the circumstances that this is the third contravention
involving minors within a short period of time (Jan – April 2006) I
find that the maximum three (3) day suspension is necessary. The
branch also recommended a term and condition be imposed to require the
licensee to acquire, install and incorporate into daily operations a
system which captures and records an image of the identification
presented and the person presenting the identification. Given the
concerns raised regarding thisrecommendation, I decline to impose the
term and condition. OrderPursuant to Section 20(2) of the Act, I order
a suspension of the Liquor Primary Licence No. 007446 for a period of
thirteen (13) days, to commence as of the close of business on Friday,
January 19, 2007, and to continue each succeeding business day until
the suspension is completed. "Business day" means a day on which the
licensee's establishment would normally be open for business (Section
67 of the Regulation). To ensure this Order is effective, I direct
that the Liquor Licence No. 007446 be held by the branch or the New
Westminster Police Department from the close of business on Friday,
January 19, 2007, until the licensee has demonstrated to the branch's
satisfaction that the suspensions have been served. [ORIGINAL SIGNED]
Edward W. Owsianski Date: December 15, 2006 Enforcement Hearing
Adjudicator
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24 -cc: New Westminster Police Department Liquor Control and Licensing
Branch, Surrey Office Attention: Regional Manager Michael Clark Liquor
Control and Licensing Branch, Surrey Office Attention: James
Macdonnell, Branch Advocate