Sanctions and Decisions

DATE OF HEARING:

HEARING PANEL:

HEARING BEFORE A PANEL OF THE BOARD OF ALBERTA GAMING, LIQUOR AND CANNABIS COMMISSION

IN THE MATTER OF the Gaming, Liquor and Cannabis Act Revised Statutes of Alberta 2000, Chapter G-1, as amended and the Regulation

APPLICANT / REPRESENTATIVE:

REGULATORY SERVICES DIVISION:

and

Liquor Point Ltd. o/a Liquor Point (Applicant) 226, 4851 Westwinds Drive NE Calgary, AB T3J 4L4

February 22, 2023

Vince Vavrek, Presiding Member Elan Harper, Panel Member Angela Tu Weissenberger, Panel Member

Suresh Kumar Madaan, Owner/Operator

Petrina Nash, Hearing Officer

DECISION OF THE HEARING PANEL The Panel finds that Liquor Point (the Licensee/Applicant) contravened section 75 of the Gaming, Liquor and Cannabis Act (the Act) but that, in accordance with section 121 of the Act, the Licensee took some reasonable steps to prevent employees from contravening the provision.

In accordance with section 94(7)(b) of the Act, the Panel replaces the administrative sanction imposed by the Regulatory Services Division (Regulatory Services) with a fine of $6,000 or a 24-day suspension of the Class D-Retail Liquor Store licence numbered 782184-1.

The fine is to be paid on or before June 19, 2023 or suspension served commencing with the normal opening of business on June 22, 2023 and continuing until the normal close of business on July 16, 2023.

Further, the owner/operator of Liquor Point must obtain his ProServe certification and all Liquor Point employees must participate in a staff training seminar conducted by Regulatory Services on or before April 20, 2023.

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I. Jurisdiction and Preliminary Matters [1] By letter dated October 18, 2022 Regulatory Services of the Alberta Gaming, Liquor and Cannabis Commission (AGLC) advised Liquor Point Ltd., operating as Liquor Point, that the Licensee contravened: • Section 75 of the Act: No person may give or sell or permit any person to give or sell liquor to a minor in licensed premises.

[2] Regulatory Services imposed an administrative sanction of a fine of $11,000 or, in the alternative, a 44-day suspension of the Licensee’s Class-D Retail Liquor Store Licence numbered 782184-1.

[3] The Licensee subsequently applied for a hearing before a Panel of the Board of the AGLC pursuant to section 94(1) of the Act.

[4] In accordance with section 11 of the Act, the Board Chair designated three members of the Board to sit as a Panel to conduct the hearing and make a decision – Vince Vavrek (Presiding Member), Elan Harper, Angela Tu Weissenberger.

[5] The parties and the Panel were provided with a record containing various documents pertaining to the issues before the Panel. The Applicant confirmed receipt of the Notice of Hearing dated November 24, 2022 and the attached hearing record.

[6] On January 8, 2023 the Applicant requested that the hearing be rescheduled due to a family medical emergency that required him to travel overseas. The hearing was rescheduled to February 22, 2023 and an updated Notice of Hearing was issued on January 10, 2023, which the Applicant confirmed receipt of.

[7] Before the hearing, Regulatory Services requested to have AGLC Inspector Kunal Kapur observe the hearing for training purposes. The Applicant objected to the observer as he was not involved in the incident. The Presiding Member considered the request and both parties’ positions and directed that Inspector Kapur could silently observe the hearing for learning purposes only.

[8]

The following documents were entered into evidence: • Exhibit 1 Hearing Record, including Tabs A to D • Exhibit 2 Operating procedures dated October 27, 2020 • Exhibit 3 Complaint/Investigation report dated July 20, 2022

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II. Issues [9] Did Liquor Point contravene section 75 of the Act? If so, should the administrative sanction imposed by Regulatory Services of a fine of $11,000 or a 44-day suspension be confirmed, replaced, or cancelled?

[10] If Liquor Point contravened section 75 of the Act, is there evidence that the Licensee took all reasonable steps to prevent its employee or agent from contravening the provision in accordance with section 121 of the Act?

III.

[11]

Regulatory Services Submissions

Regulatory Services called three witnesses to give evidence: • Alex Moring, Alberta Sheriff Highway Patrol • John Schimpf, Alberta Sheriff Highway Patrol • Robin Carter, Supervisor, AGLC Inspections

[12] The following is a summary of the evidence provided by Alberta Sheriffs Moring and Schimpf. July 27, 2022 Incident [13] On August 4, 2022, Sheriff Moring submitted a licensed premises check to AGLC detailing an incident that occurred at Liquor Point on July 27, 2022.

[14] On July 27, 2022, Sheriff Moring observed a vehicle driving in the Town of Canmore without headlights then park outside of Liquor Point. Sheriff Moring then observed the driver exit the vehicle and enter into the licensed premises.

[15] Sheriff Moring stated that the driver was young-looking but that he assumed the driver was of age. Sheriff Moring noted that the driver was wearing clothes that his teenage daughter’s friends might wear.

[16] The young-looking male then exited Liquor Point with what appeared to be a case of beer that he placed in the back seat of the vehicle.

[17] Sheriff Moring continued his observation as the vehicle pulled out of the parking lot, again with no headlights on. Sheriff Moring conducted a traffic stop and pulled the vehicle over.

[18] During the traffic stop, Sheriff Moring noted there was one other passenger in the vehicle. The driver produced an Alberta driver’s licence with a date of birth that showed he was 17 years of age.

[19] When asked by Sheriff Moring whether he had any liquor in the vehicle, the minor confirmed that he had purchased a case of 24 Pabst Blue Ribbon beer from Liquor Point and told Sheriff Moring that he was not asked to provide identification when he purchased the liquor.

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[20] The minor informed Sheriff Moring that he and his schoolmates have purchased liquor from Liquor Point numerous times in the past.

[21] Sheriff Moring issued violation tickets to the minor for the attempt to purchase and obtain liquor. He asked the minor to produce the liquor and advised the minor they would return to the premises so a refund could be issued.

[22] When Sheriff Moring and the minor entered the premises, there was an employee at the point of sale who appeared to be the only employee working. The employee immediately stated that he had asked the minor for identification when Sheriff Moring and the minor entered. Sheriff Moring advised the employee that the minor already told him he was not asked for identification.

[23] Sheriff Moring submitted that the employee then admitted that he did not request proof of age from the minor that day but that he recognized the young male and had asked him for identification about a month before. The employee suggested that the minor must have previously produced fraudulent identification.

[24] Sheriff Moring advised the Panel that the minor did not appear to have any pieces of identification on his person other than the Alberta driver’s licence he produced. Sheriff Moring suggested that if the employee did ask for identification from the minor in the past, it could be assumed that the minor produced fraudulent identification because his driver’s licence showed he was under 18 years of age.

[25] The employee issued a refund and a receipt to the minor. Sheriff Moring included a copy of the refund receipt with his licensed premises check report (Exhibit 1, Tab B, attachment 1).

[26] Sheriff Moring issued a violation ticket to the employee for supplying liquor to a minor. Sheriff Moring advised the Panel that, as of the date of the hearing, the employee had attended his mandatory Court date where he plead guilty to the charges.

[27] On August 5, 2022, Inspector Ciganik attempted to contact the owner/operator of Liquor Point, Suresh Madaan, to discuss the incident reported by Sheriff Moring. He left a voicemail for Mr. Madaan requesting a call back.

July 24, 2022 Incident [28] On August 5, 2022, Regulatory Services received a second licensed premises check from Sheriff Schimpf detailing an incident that occurred at Liquor Point on July 24, 2022, prior to the incident reported by Sheriff Moring.

[29] Sheriff Schimpf was patrolling the Town of Canmore on July 24, 2022 at approximately 12:40 a.m. when he observed a young-looking male exit Liquor Point with what appeared to be a case of beer. Sheriff Schimpf observed the male place the case in his trunk and get back into the driver’s seat of the vehicle. Sheriff Schimpf noted that he was the lone occupant of the vehicle.

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[30] Sheriff Schimpf followed the vehicle to determine whether the driver was impaired and proceeded to conduct a traffic stop of the vehicle. Sheriff Schimpf stated to the Panel that when patrons visit the liquor store shortly before it closes it can be a good indicator that they have already been drinking.

[31] Sheriff Schimpf advised the Panel that the male was very youthful in appearance and that he seemed very young when the Sheriff started speaking with him. Sheriff Schimpf asked the driver for his operator’s licence. The driver was unable to produce any identification other than his high school identification. Sheriff Schimpf asked the driver for his date of birth and the driver told him a date that would make the driver 15 years of age.

[32] Sheriff Schimpf conducted a database search and determined that the driver did not have a licence to drive the vehicle and that the vehicle was registered to the driver’s brother.

[33] When asked if there was any liquor in the vehicle, the minor showed Sheriff Schimpf the case of 15 canned Kokanee beer in the trunk and indicated that he had purchased the beer from Liquor Point for his brother.

[34] Sheriff Schimpf could not recall if he asked the minor whether the minor was asked to produce identification when purchasing the liquor.

[35] Sheriff Schimpf issued a violation ticket to the minor for purchasing liquor as a minor. Sheriff Schimpf did not know the disposition of the ticket as of the date of the hearing.

[36] Sheriff Schimpf contacted the minor’s brother to come collect his vehicle, the liquor and his brother. When he arrived, the minor’s brother confirmed with Sheriff Schimpf that he had asked his brother to take his vehicle and purchase the beer for him. Sheriff Schimpf identified the brother and allowed him to take the liquor and his vehicle home as the minor was not licensed to drive.

[37] Sheriff Schimpf returned to Liquor Point to speak with the employee on duty but by that time the store had closed.

[38] Sheriff Schimpf admitted that he did not follow up further with Liquor Point and was not initially going to refer the incident to AGLC as it was not an issue he had seen before. However, when he spoke with Sheriff Moring and compared the incidents involving minors and their school identification cards, Sheriff Schimpf realized that the 15-year-old he ticketed on July 24, 2022 was also the passenger in the vehicle with the 17-year-old driver that Sheriff Moring ticketed on July 27, 2022. Sheriff Schimpf determined there may be a pattern and decided to submit a licensed premises check after Sheriff Moring submitted his.

Supervisor Robin Carter [39] Supervisor Carter worked closely with Inspector Mike Ciganik who authored the Incident Report included as Exhibit 1, Tab B. The report details the two incidents that were reported to Regulatory Services by the Alberta Sheriff Highway Patrol on August 4 and August 5, 2022.

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[40] Supervisor Carter advised that Inspector Ciganik attended Liquor Point on August 7, 2022 to review the details of the first reported incident. Inspector Ciganik relayed the following information to Supervisor Carter:

July 27, 2022 Incident • The employee stated that the premises was very busy that night and there were four or five customers inside when the minor attended. • The employee did not ask for identification from the minor during the transaction as he had confirmed the minor’s identification approximately one month prior. He stated that the identification produced must have been a “fake ID” because it showed that the minor was of legal age to purchase liquor. • The employee could not recall the date of birth but confirmed that the identification previously produced was an Alberta driver’s licence. • The employee advised Inspector Ciganik that he had been employed for about a year and this was his first mistake. • Inspector Ciganik spoke with Mr. Madaan on August 8, 2022 to review the reported incidents. Inspector Ciganik requested a copy of the surveillance video footage from July 27, 2022 which was provided.

[41] Supervisor Carter admitted that there was initially some confusion around the two incidents and how they were reported by Sheriffs Moring and Schimpf. As such, Regulatory Services did not review the details of the July 24, 2022 incident until September and the video files had expired and could not be reviewed. However, Mr. Madaan was able to confirm for Inspector Ciganik that it was the same employee working at Liquor Point on both July 24 and 27, 2022.

[42] Supervisor Carter reviewed the surveillance footage from the July 27, 2022 incident for the Panel (Exhibit 1, Tab B, attachment 3). Supervisor Carter pointed out the youthful appearance of three patrons shown on the surveillance footage and the interactions the employee had with each of the young-looking individuals, including the 17-year-old minor. The employee is seen shaking hands with the minor and Supervisor Carter suggested this demonstrates familiarity and that the minor had been in the premises before.

[43] Supervisor Carter noted that the employee did not request proof of age from any of the young-looking patrons shown in the footage.

[44] Supervisor Carter emphasized the concern around selling liquor to minors and advised the Panel that the operating procedures reviewed with licensees when they obtain their liquor licence highlight the seriousness of selling liquor to minors. A copy of the operating procedures document, signed by the previous partial owner/operator of Liquor Point in October 2020, was included as Exhibit 2.

[45] When asked by Mr. Madaan why the operating procedures were not reviewed with him when he became sole owner of Liquor Point, Supervisor Carter advised that Mr. Madaan was part owner at the time and he was responsible for understanding the operating procedures even if he was not the individual that signed off on them. Supervisor Carter submitted that it is the responsibility of the

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Licensee to ensure all owners, operators and staff are aware of the legislation, regulation and policies governing the operation of the licensed premises.

[46] Supervisor Carter provided a copy of a complaint/investigation report (Exhibit 3) received regarding Liquor Point on July 20, 2022, a few days before the incidents occurred. The report detailed a complaint from a concerned mother who claimed that she discovered five debit transactions for purchases of liquor from Liquor Point on her 16-year-old daughter’s bank statements. There were no times associated with the transactions on the statement, only dates.

[47] Supervisor Carter advised that Inspector Ciganik contacted Mr. Madaan on July 26, 2022 to review the complaint. Inspector Ciganik reported that Mr. Madaan confirmed he is aware of the policies regarding identification and that he continually reminds his staff to request proof of age if someone appears under the age of 25 years. Inspector Ciganik advised Mr. Madaan that increased checks would be conducted by AGLC inspectors and agents.

[48] Since the complaint and the two incidents in July 2022, Supervisor Carter confirmed that there have been no further incidents or complaints regarding Liquor Point.

[49] When asked by Mr. Madaan why there was no formal training or education offered by Regulatory Services after the first incident, Supervisor Carter reiterated that the operating procedures were reviewed with the former partial owner of the premises. When asked by Mr. Madaan whether this was considered a first violation for Liquor Point, Supervisor Carter stated that Regulatory Services considered the incidents on July 24 and 27, 2022 as two incidents but combined them into one report and considered both a first violation.

IV. Liquor Point Submissions [50] The owner/operator of Liquor Point, Suresh Madaan, gave evidence on behalf of the Licensee. Mr. Madaan does not work full time at the premises but attends the premises every other week and on every long weekend.

[51]

Mr. Madaan thanked the Alberta Sheriffs for keeping the community safe.

[52] Mr. Madaan explained that he was a joint owner in Liquor Point Ltd. until April 2022 when his partner left and he became sole owner. His partner was involved with the day-to-day operations of the premises and had been the one to sign off on the operating procedures. Mr. Madaan informed Regulatory Services of the ownership change and asserted that he was not offered any training.

[53] Mr. Madaan reviewed the Retail Liquor Store Handbook and other information and policies offered by AGLC online. He submitted that he has a good understanding of the rules and policies and abides by them. However, he advised the Panel that he does not have his ProServe certification.

[54] Mr. Madaan stated that he has signs and bulletins about the requirement for proof of age for patrons who appear to be 25 years of age or younger.

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[55] When he hires new staff, he goes through a checklist of policies and highlights the seriousness of selling liquor to minors. Mr. Madaan also speaks with employees before every long weekend and reminds them to be diligent in requesting identification from young-looking patrons.

[56] Mr. Madaan spoke to the challenges of operating a liquor store in Canmore where the cost of living is high and the business relies heavily on tourism. Mr. Madaan submitted that he experiences high turnover of employees as a result of the location and cost of living in Canmore. Mr. Madaan submits that the high labour turnover makes it difficult for his employees to gain real world experience assessing the age of patrons, despite his best efforts to train them and their two to three days shadowing more experienced employees as part of their training.

[57] Mr. Madaan acknowledged that the surveillance footage presented of the July 27, 2022 incident clearly demonstrated that the employee did not ask for proof of age from the patrons in the video and he apologized on behalf of Liquor Point. However, Mr. Madaan suggested that determining age is subjective and he suggested that the video was not a clear enough depiction of the faces of the patrons for him to be able to determine if they appeared younger than 25 years of age.

[58] When asked by Regulatory Services why the employee first told Sheriff Moring that he had asked the minor for identification when he had not, Mr. Madaan suggested that the employee was likely very nervous and did not want to get in trouble.

[59] Mr. Madaan stated that after the July 27, 2022 incident, the employee told Mr. Madaan that he had previously asked the minor for identification and he believed him to be of age. Mr. Madaan discussed the incident with the employee over the phone and met with the employee on August 1, 2022 to review AGLC policies. Mr. Madaan spoke with the employee again when they became aware of the July 24, 2022 incident.

[60] When asked by Regulatory Services how a 15-year-old was able to purchase liquor on July 24, 2022, Mr. Madaan stated that his employee advised him he was not aware of any minors being in the store on that date. Mr. Madaan could not confirm whether ID was requested because the video footage was past the storage date by the time Regulatory Services made him aware of the reported incident.

[61] Mr. Madaan asserted that his employee is diligent; there have been previous incidents with this particular employee where he has been threatened by angry patrons for refusing to serve them when they were unable to produce identification at his request.

[62] Mr. Madaan provides his contact information to employees and even to patrons. He suggested that if patrons had concerns about the operation of the premises or the employees, he would hear about it.

[63] Further, Mr. Madaan stated that when Inspector Ciganik made him aware of the complaint received by the concerned mother on July 20, 2022, he asked Inspector Ciganik to provide the times of the transactions so he could check the surveillance video footage to see who was making the purchases and whether identification was shown. Mr. Madaan asserted that Inspector Ciganik told him that there

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was no other proof or receipts provided and that AGLC would not be taking further action on the complaint.

[64] As a result of the July 2022 incidents, the employee involved received a letter on November 7, 2022 (Exhibit 1, Tab B, attachment 4) that he would be required to recertify his ProServe certification. Mr. Madaan advised the Panel that the employee resigned from Liquor Point in January 2023.

[65] Mr. Madaan asserted that he has strong ethics, a clean record and that he is an honest person and operates his business in the same way. He reiterated that Liquor Point has had no other contraventions prior to the July 2022 incidents and has not had any incidents since that date.

[66] Liquor Point has been the subject of Under 25 audits conducted by AGLC where young agents enter the licensed premises to audit the identification practices. Mr. Madaan referenced the details of the Under 25 audit program and stated that the first failure to ask for identification as part of the audit results in a warning and further education from Regulatory Services. He suggested that, like the audit, he should not have received an administrative sanction for the first incident and should have been provided with a warning and an opportunity to take corrective action.

[67] Mr. Madaan stated that he would have provided surveillance video footage of the July 24, 2022 incident but he was not asked to provide it until September 9, 2022 when it was past the storage date. Mr. Madaan suggested that he has always been cooperative with Regulatory Services and would like to work with AGLC to continue to learn, comply and prosper by participating in additional training.