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 Payless Liquor Stores Ltd.
o/a Payless Liquor Store
1085 Falconridge Drive NE, Suite 6
Calgary, Alberta
T3J 3H4
concerning alleged contraventions
DATE OF HEARING: November 18, 2015
HEARING PANEL: Ms. T.L. Lawrence, Panel Chair
Mr. W.J. Anhorn, QC, Panel Member
Mr. B.C. Shervey, Panel Member
LICENSEE REPRESENTATIVES: Mr. T., Director/Shareholder
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 August 18, 2015, 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 Payless Liquor Stores Ltd. operating as Payless Liquor Store, Calgary.
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 violations:
1. Section 7.8.4(e)(ii) Retail Liquor Store Handbook: Licensee offering added value items for sale (miniatures); and
2. Section 1.6 Retail Liquor Store Handbook: Contravention of the ProServe policy requirements.
The licensee and the Hearing Panel were provided with a hearing file containing the incident report dated August 18, 2015 and various documents pertaining to alleged incidents occurring on August 13, 2015. Mr. T. confirmed he received the incident report dated August 18, 2015 and Notice of Hearing dated October 28, 2015.
When completing the Response to Notice of Administrative Sanction, Mr. T. indicated he did not admit the facts contained in the incident report and wished to proceed with a hearing with AGLC witnesses. At the commencement of the hearing, Mr. T. advised the Panel Chair he did not dispute the facts contained in the incident report but wished 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. T. represented Payless Liquor Stores Ltd.
II. The Issue
Did the Licensee:
• Offer added value items for sale (miniatures)?
• Contravene the Pro-Serve policy requirements?
III. Evidence
CSR Division – excerpted from the incident report dated August 18, 2015
Section 1.6 Retail Liquor Store Handbook
At 1:27 p.m. Inspector E. entered the premises to conduct a maintenance inspection. Inspector E. identified himself to the male clerk, later identified as G. T., stationed at the cash register. Inspector E. requested Mr. T. produce his ProServe certification card. Mr. T. pointed to a wall that had three ProServe certificates posted. Mr. T. then pointed to the one with his name on it. Inspector E. noted the ProServe certificate for Mr. G. T. expired on January 11, 2012. Inspector E. advised Mr. T. of this and stated he would need to recertify with ProServe. Mr. T. apologized and stated he would get recertified. Mr. T. was unaware his ProServe had expired.
Section 7.8.4(e)(ii) Retail Liquor Store Handbook
At 1:50 p.m. Inspector E. conducted an inspection of the 50ml miniature bottles of liquor located behind the sales desk. Inspector E. noted all of the price tags for the miniature liquor bottles were printed except for the one for Wiser’s Spiced Whiskey which was handwritten. All of the 50ml miniature bottles of Wiser’s Spiced Whiskey had a label stating “Not for Resale”. Inspector E. inquired why the bottles were in the sales area with a price tag of $2.99. Mr. T. could not provide an explanation as to why the premises was selling “Not for Resale” miniatures. Inspector E. seized 95, 50ml bottles of Wiser’s Spiced Whiskey and provided a copy of the Liquor Seizure receipt.
On Friday, August 14, 2015 Inspector E. contacted D. T., Board Approved Manager, and advised an incident report would be submitted for G. T. working with an expired ProServe certification and for offering added value items for sale. Mr. T. apologized and stated he believed one of his employees must have put the added value items on the sales shelf.
Mr. T.
Mr. T. conducted his own internal investigation after speaking with Inspector E. on August 14, 2015. Mr. T. was in India on vacation at the time of the maintenance inspection. Mr. T. ordered miniatures a few years ago which came as a full case but had labels on them indicating they were “Not for Resale. He believes one of his employees put the product on the shelf and was subsequently stealing from the store. The employee was selling the product and not processing the sales through the cash register. The employee placed the handwritten sign on the shelf offering the miniatures for $2.99.
Mr. T. is not denying responsibility for what happened but the employee was at fault. The fine is now Mr. T.’s responsibility. The employee in question no longer works for Mr. T.. He was asked by Mr. T. to attend the hearing as a witness but he did not show up.
Mr. T. owns multiple liquor stores and has not had any incidents. He feels the Panel should consider a reduction in the penalty previously offered by the CSR Division.
Mr. T. – cross-examined by Mr. H.
Mr. T.’s father, G. T., was working at the time of the maintenance inspection but he was not the employee who was stealing from him. There are four staff members who work at this location of Payless Liquor Store. There is one manager who processes the ordering however, there is no full-time supervisor on duty at this location. His father is not considered an employee; he provides occasional assistance. Mr. T. is at this location approximately three to four times a week.
The miniatures in question were located behind the service counter in full view of customers as they approached the counter. Mr. T. is not certain why none of the other employees noticed the miniatures on the shelf. He questioned the other employees and they indicated they never sold any and were not required to scan the product into the cash register. One of Mr. T.’s female employees was in charge of the premises while he was in India. Mr. T. tried to determine how long the miniatures were offered for sale. He contacted the liquor supplier and they were unable to recall delivering the miniatures. Mr. T. believes either the sales representative brought the bottles to the store or they came in a box.
Mr. T. is directly involved in training new employees; he trains any new employees he hires. Otherwise, they are trained by the female staff member. They review all AGLC policies with new staff, particularly with respect to social responsibility and safety measures. They have a written training manual that is provided to new employees. With respect to the policies surrounding added value items, Mr. T. advises his staff the items are meant for the customer and must be passed on to the customer.
G. T.’s ProServe certification was expired at the time of the inspection. His father is 80 years old and he did not notice the miniatures for sale behind the cash desk.
Mr. T. – questioned by the Panel
Mr. T. does not believe the miniatures of Wiser’s Spiced Whiskey offered for sale can be ordered from the liquor supplier. Mr. T. checked the liquor catalogue during the course of his investigation. Mr. T. cannot recall ordering the items. He is aware there were 95 bottles of these miniatures on the shelf behind the sales counter.
Five or six years ago Mr. T. received a box of miniatures. He did not order them so he called the AGLC and the Inspector he spoke with indicated he could sell the miniatures even though they had a label indicating “Not for Resale”. The handwritten sign for the miniatures of Wiser’s Spiced Whiskey was prepared by the employee. Although it did not match any of the other sales stickers in the premises, Mr. T. did not notice the handwritten sign. If a customer asked to purchase one of the miniatures, the employee would not scan the product into the register. Instead, he would press “no sale” and pocket the money from the sale of the miniature. All 95 bottles of the miniatures in question were located behind the sales counter on the shelf.
IV. Summation
Mr. H.
As noted in the incident report, Inspector E. conducted a routine maintenance inspection of Payless Liquor Store and found the premises was offering added value items, specifically Wiser’s Spiced Whiskey, for sale and the lone staff member working, Mr. G. T., did not have the require ProServe certification required to be working in a retail liquor store.
Inspector E.’s incident report indicates he found the licensee was offering 95, 50ml bottles of Wiser’s Spiced Whiskey for sale at a price of $2.99. This was in plain view of all staff members and customers. The miniature bottles were located directly behind the service counter and were all labeled with “Not for Resale”, indicating they were added value items that were the liquor supplier’s property, which were to be provided to consumers as an added value item to create brand loyalty for that brand of liquor.
The CSR Division received comments from liquor agencies and suppliers in the past with respect to these added value items that these items are solely at the cost of the liquor supplier in order to create brand loyalty with consumers and any deviation from this they would consider a breach of trust between themselves and the retail liquor store. Mr. T. advised the Panel it was a staffing error and further indicated he does believe the product can be purchased for Connect Logistics Services. That assertion is not correct. The product is available for any licensee to purchase in the province.
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”. The CSR Division does not believe the licensee took all reasonable steps, as more could have been done to prevent the contraventions from occurring. Better and ongoing supervision and clear and consistent training of staff are reasonable steps that the licensee could employ. Mr. T. could also ensure his staff members have the proper certification to be working in a retail liquor store as well as requesting a staff training seminar from the AGLC to help staff members better understand their responsibilities. Increased visits to the premises by Mr. T. could also be considered to ensure his staff are conducting his business within AGLC policy guidelines. The staff members themselves could have contacted the AGLC and asked question about the sale of the miniatures to avoid any potential issues from occurring.
The CSR Division does not believe the licensee’s staff members were acting within the policies required of a retail liquor store employee. Mr. T. did not present any of his employees to the Panel to determine their understanding of Section 7.8 of the Retail Liquor Store Handbook, particularly of how these policies apply to them and the licensee. None of the staff members or Mr. T. noticed the miniatures for sale on the shelf and rectified the issue prior to the Inspector’s visit, when the bottles were literally right behind them. It seems more plausible to the CSR Division the staff at this location did not have the required understanding of the policies and it was common practice.
Operating a licensed premises in the province of Alberta is a privilege, it’s not an automatic right and it comes with significant responsibilities including complying with the Gaming and Liquor Act, Gaming and Liquor Regulations and AGLC policies.
The CSR Division respectfully submitted that the original administrative sanctions previously offered be upheld.
Mr. T.
Mr. T. concedes he should be more aware of what his employees are doing while working in his liquor store. He disagrees that miniatures of Wiser’s Spiced Whiskey, specifically marked “Not for Resale”, are available for purchase through liquor agencies or Connect Logistics Services. Mr. T. never ordered the case of Wiser’s Spiced Whiskey miniatures; they are not part of the catalogue and cannot be ordered.
V. Finding
The Panel makes a finding of a violation of Section 7.8.4(e)(ii) Retail Liquor Store Handbook: Licensee offering added value items for sale (miniatures).
Mr. T. advised the Panel he admitted the facts contained in the incident report but asked the Panel to consider a reduction in the penalty previously offered by the CSR Division. The Panel is of the opinion there was clear violation of Section 7.8.4(e)(ii) of the Retail Liquor Store Handbook and the licensee did not provide any credible or compelling evidence which would cause the Panel to consider a reduction in the penalty.
There were 95, 50ml bottles of Wiser’s Spiced Whiskey with labels indicating “Not for Resale” located on the shelf directly behind the sales counter with a handwritten price tag, which was obviously different from all the other computer generated price tags in the premises. Mr. T. should have noticed these bottles on the shelf and dealt with them immediately and/or his staff should have noticed them and brought them to his attention.
The Panel makes a finding of a violation of Section 1.6 Retail Liquor Store Handbook: Contravention of the ProServe policy requirement.
Mr. T. did not dispute the evidence contained in the incident report with respect to a violation of Section 1.6 of the Retail Liquor Store Handbook.
VI. Penalty
In accordance with Section 91(2) of the Gaming and Liquor Act, the Panel imposes the following penalty for a violation of Section 7.8.4(e)(ii) Retail Liquor Store Handbook:
Penalty: A $1000 fine - OR - a 4 day suspension of Class D retail liquor store licence 762445-1. The fine is to be paid within three months of the date of this decision or on or before Wednesday, March 16, 2016 or the suspension served commencing Thursday, March 17, 2016 and continuing until the close of business on Sunday, March 20, 2016.
In accordance with Section 91(2) of the Gaming and Liquor Act, the Panel upholds the penalty previously offered by the CSR Division for a violation of Section 1.6 Retail Liquor Store Handbook:
Penalty: A warning.
Signed at St. Albert this 16th day of December, 2015.
_________________________________
T.L. Lawrence, Hearing Panel Chair