HEARING BEFORE A PANEL
OF THE BOARD OF THE
ALBERTA GAMING AND LIQUOR COMMISSION
IN THE MATTER OF the Gaming and Liquor Act
Revised Statutes of Alberta 2000, Chapter G-1
current as of November 1, 2010
and the Regulation
and
IN THE MATTER OF 586307 Alberta Ltd.
o/a Crowfoot Wine and Spirits – Strathmore
216 – 4 Avenue
Strathmore, Alberta
T1P 1K1
concerning alleged contraventions
DATE OF HEARING: March 19, 2015
HEARING PANEL: Ms. T.L. Lawrence, Panel Chair
Mr. W.A. Clark, Panel Member
LICENSEE REPRESENTATIVES: Mr. R., Vice President (Operations)
COMPLIANCE AND SOCIAL RESPONSIBILITY: Mr. H., Hearing Officer
DECISION OF THE HEARING PANEL
I. Jurisdiction and Preliminary Matters
As a result of receiving an incident report dated November 20, 2014, the Compliance and Social Responsibility (CSR) Division of the Alberta Gaming and Liquor Commission (AGLC) imposed an administrative sanction under Section 91(2) of the Gaming and Liquor Act, without a hearing, on 586307 Alberta Ltd. operating as Crowfoot Wine and Spirits – Strathmore.
The licensee subsequently applied for a hearing under Section 94(1) of the Gaming and Liquor Act. A Hearing Panel of the Board of the AGLC met to hear the following alleged violation:
Section 4.4.4 Retail Liquor Store Handbook: Failure to request proof of age from a person who appears to be under 25.
The licensee and the Hearing Panel were provided with a hearing file containing the incident report dated November 20, 2014 and various documents pertaining to alleged incidents occurring on November 14 and 15, 2014. Mr. R. confirmed he received the incident report dated November 20, 2014 and Notice of Hearing dated March 3, 2015. He does not dispute the facts contained in the incident report but wishes to speak to the penalty. The incident report and hearing file were entered into evidence by the CSR Division as Exhibit #1.
Mr. H. presented the case on behalf of the CSR Division. Mr. R. represented 586307 Alberta Ltd.
II. The Issue
Did the licensee fail to request proof of age from a person who appears to be under 25?
III. Evidence
CSR Division – excerpted from the incident report dated November 20, 2014
On Friday, November 14, 2014 Agent S. entered the premises and observed that there were two patrons and one staff member inside. A “No Minors” sign was observed at the front entrance. “Under 25” signage was prominently posted within the premises. Agent S. selected a 375ml bottle of Blue Sour Puss liqueur from a display shelf and approached the sales counter. The sales clerk asked Agent S. if she had identification and Agent S. advised she did not have identification. The clerk then asked Agent S. what year she was born. Agent S. replied “1994”. The clerk then proceeded with the sale, explaining to Agent S. that she appeared to look “border line” and she should always carry identification with her. Agent S. then exited the premises.
On Saturday, November 15, 2014 Agent B. entered the premises and observed that there were no patrons and one staff member inside. A “No Minors” sign was observed at the front entrance. “Under 25” signage was prominently posted within the premises. Agent B. selected a 375ml bottle of Appleton Estates rum from a display shelf and approached the sales counter. The sales clerk asked Agent B. for his identification and Agent B. advised he did not have his identification. The sales clerk stated “not again” and then asked Agent B. how old he was and what year he was born. Agent B. advised he was 22 years old and was born in 1992. The clerk proceeded with the sale. Agent B. then exited the premises.
Inspector Z., together with Agents S. and B., re-entered the premises. Inspector Z. identified himself to the clerk as an AGLC Inspector. The clerk confirmed she had sold liquor to Agent B. without reviewing his identification. She confirmed she was aware that she must request identification from persons appearing under 25 years of age. She advised she had only been employed for four days and did not have ProServe certification. She confirmed she was the only staff member on duty and that the last staff member went home at the end of their shift at 5:30 p.m. She advised she was not provided with any training with regards to requesting identification. She believed that Agent B. appeared to be 22 – 23 years of age and Agent S. appeared to be 24 years of age.
Mr. R.
In Mr. R.’s opinion, the purpose of the U25 Program is to punish businesses that show a pattern of behaviour for failure to request identification from persons who appear to be under 25. Mr. R. argued the same point, based on the same merits, when he appeared before a Panel of the Board to speak to an administrative sanction issued to the Springbank location of Crowfoot Wine & Spirits.
The employee in question was a new employee with Crowfoot Wine & Spirits. She was reprimanded as a result of the incidents. She is still an employee but Mr. R. does not foresee any more issues with her. The same employee was encountered by the Agents during both audits. One employee does not indicate a pattern of behavior within the Crowfoot Wine & Spirits organization as a whole.
Crowfoot Wine & Spirits has conducted its own internal audits and none of their locations failed any of the audits. They are trying to ensure minors are not being served alcohol in Alberta. There is no pattern of behavior; it was a single employee. They have instigated their own in-house training program and penalty program.
Mr. R. has been in the business for approximately 20 years and it has been a partnership with the AGLC for the past 20 years. He believes this program is punitive and is a cash grab on the part of the AGLC. Crowfoot Wine & Spirits is being as proactive as possible to ensure their employees are asking for identification from anyone who appears to be under 25.
Mr. R. would like this fine struck from his record. He is a stakeholder and he wishes to be treated like a partner by the AGLC. His employee made a mistake but the AGLC also makes mistakes and are not held accountable for them.
Mr. R. – cross-examined by Mr. H.
The cashier in question advised the Inspector she had not received any training however, the employee did review the new employee handbook prior to commencing her employment with Crowfoot Wine & Spirits. The cashier had only been working at the premises for three days when the audits were conducted and she was working unsupervised. Under normal circumstances, this would not occur but it was a busy time of year. Typically, an employee would not work alone until they had worked under the supervision of another employee for three weeks.
The cashier did not have ProServe training and was working alone, without the supervision of an employee who did have valid ProServe certification. She did not commence her ProServe training until several days following the incidents in question. Mr. R. has not requested an AGLC staff training seminar for this location specifically but he does have a session scheduled for March 25, 2015 at the head office of Crowfoot Wine & Spirits.
Mr. R. – questioned by the Panel
The staff member in question was hired during the Christmas season, which is a busy time. She had not fully completed her ProServe certification. She had reviewed the in-house training handbook, which includes a section on requesting identification from anyone who appears to be under 25. Each employee must review the handbook at the time they are hired. The handbook is very comprehensive and is reviewed with the employee by a manager. There are test modules that require completion throughout the handbook. Each employee must sign the handbook upon completion. They had approximately 160 employees in December.
IV. Summation
Mr. H.
The AGLC takes the issue of minors trying to obtain liquor very seriously. It is often difficult to tell if a person is of legal age just by looking at them, so licensees and their staff must ask for proof of age in order to eliminate any situation where a purchaser of liquor is potentially a minor. That is why the AGLC implemented this policy and the policy is regulated. Operating under a liquor licence in the province of Alberta is a privilege, not an automatic right and comes with significant responsibilities.
Every individual in the liquor industry must assume responsibility for ensuring liquor is not served to minors and the CSR Division believes the AGLC took reasonable and sensible steps in this matter. The Under 25 Program is well publicized and the AGLC supplies signs and pamphlets to licensees advising them and their staff of their responsibilities. The AGLC advised licensees that audits would be undertaken, as noted in the November 4, 2013 letter from the Director of the CSR Division.
During two separate audits conducted at the premises, the Agents, who were 20 and 22 years of age, were not asked for identification when liquor service was requested and ultimately provided. During both of these audits the premises was not busy and clear violations of the policy occurred. A different Agent was used for each of the audits and the staff member failed to request proof of age from the Agents, other than to ask them for their year of birth.
Mr. R. has come before the Panel to argue that the penalty previously offered by the CSR Division is not representative of how the program was operated in the past, with a possible first failure of an audit resulting in a warning. Mr. R. is of the opinion the CSR Division is not working with licensees to ensure compliance. The CSR Division respectfully submits that Mr. R. would have been alerted to the changes with respect to the Program by the letter dated November 4, 2013 and Mr. R. is certainly aware from previous violations how the Program is being conducted at the present time.
The letter dated November 4, 2013 specifically states that should a licensee fail an audit, they would be retested and should they fail two separate audits, an incident report would be submitted. The changes to the Under 25 Program, as noted in the November 4, 2013 letter, were an attempt to determine if there was a pattern of behavior. The CSR Division believes the changes give the licensee an opportunity to convey the system they have in place works and also gives them an opportunity to show that one failed audit is not indicative of how the premises is operated. With the changes in mind, if this premises had only failed one audit, an Inspector would have contacted them and alerted them to this fact and provided a caution. Unfortunately, that was not the case in this instance.
Section 121 of the Gaming and Liquor Act states “if an employee or an agent of a licensee contravenes a provision of this Act, the licensee is deemed also to have contravened the provision unless the licensee establishes on a balance of probabilities that the licensee took all reasonable steps to prevent the employee or agent from contravening the provision”. Mr. R. has indicated to the Panel that he took reasonable steps based on Section 121 of the Gaming and Liquor Act. The CSR Division respectfully disagrees with Mr. R.’s assertions, as more could have been done to prevent the contraventions from occurring. Better and ongoing supervision and correct, clear and consistent training of staff are reasonable steps that the licensee could employ. The clerk in question was not ProServe certified and was permitted to work unsupervised on her fourth day of employment, during a busy time of the year.
The CSR Division respectfully submitted that the original administrative sanction previously offered by upheld.
Mr. R.
The Strathmore location of Crowfoot Wine & Spirits is no longer in business. It was indicated that the AGLC is looking for a pattern of behavior during under 25 audits. A pattern of behaviour is not demonstrated when the same cashier is encountered during both audits. A pattern of behaviour has not been found within the Crowfoot Wine & Spirits organization.
In the past, if they failed the initial audit they were contacted by the AGLC and Mr. R. immediately dealt with the employee. In the past it was a partnership, not a cash grab. Crowfoot Wine & Spirits is one of the most proactive retailers in the industry. Mr. R. sits on the ALSA Board and he is confident their staff training program is one of the best in the business. Mr. R. does not feel he can be any more proactive in ensuring liquor is not sold to minors. They are doing everything they can to remain in compliance with AGLC policies and legislation.
V. Finding
The Panel makes a finding of a violation of Section 4.4.4 Retail Liquor Store Handbook: Failure to request proof of age from a person who appears to be under 25.
On two separate occasions, a staff member failed to request identification from the AGLC Agents. While the licensee presented evidence he provides extensive training and reminds employees to check for identification, the Panel finds he did not take all reasonable steps necessary to prevent the incidents in question from occurring and the training he provided to the sales clerk was clearly not effective. The staff member had not completed her ProServe certification, had only been employed with the company for four days and was permitted to work unsupervised during a busy time of the year.
VI. Penalty
The Panel is of the opinion Mr. R. did not present any evidence which would warrant a reduction in the penalty. In accordance with Section 91(2) of the Gaming and Liquor Act, the Panel imposes the following penalty for a violation of Section 4.4.4 Retail Liquor Store Handbook:
Penalty: A $750 fine - OR - a 3 day suspension of Class D retail liquor store licence 753622-1. The fine is to be paid within 60 days of the date of this decision or on or before Friday, July 3, 2015 or the suspension served commencing Saturday, July 4, 2015 and continuing until the close of business on Monday, July 6, 2015.
Signed at St. Albert this 4th day of May, 2015.
________________________________
T.L. Lawrence, Hearing Panel Chair