Annette Nardone is trying hard not to be a whiner.
As a small business owner -- and non-smoker -- she works hard to be a good corporate citizen. While she sells cigarettes and lottery tickets as part of her store's inventory, she strongly supports efforts to ensure that no underage buyers are allowed to purchase those products.
"Please, please, please! Do not sell cigarettes to MINORS!" says a sign posted by the till in her store, Telly's Variety on Colborne Street. "Ask for ID"
Another sign says, "If a customer does not look like they are 25, ask for ID. If you sell to minors you will receive a fine for $365."
Nardone also insists her employees read and sign off on a book of legislation provided by the Brant County Health Unit and warns them that anyone caught selling to a minor would be fired.
Despite Nardone's best efforts, three employees, including her own 16-year-old daughter, were caught and fined for selling to underage teens who were working for the health unit in 2007.
The three were fined and -- except for Nardone's daughter -- they were fired.
Nardone posted her daughter's ticket by the till with a warning to other clerks: "If someone doesn't look 25, don't sell them tobacco products."
But after a request from a provincial offences officer at the Brant County Health Unit, Telly's Variety was hit with a one-year prohibition on the sale of tobacco products, a move that could be the death of the long-time store.
It's called vicarious liability.
The employee breaks the law but, eventually, the store is punished and given no chance to explain, argue or challenge the prohibition. However, Nardone could cross the street and open a new store under a new name and have no problems selling tobacco.
Instead, on Friday, Nardone will go to court seeking a stay of the injunction.
She's basing her argument on the part of the law that says the owner of the business is liable for any contravention "unless the owner exercised due diligence to prevent such a contravention."
"As owner, I did everything I could, except be there 24 hours a day," says Nardone.
She'll probably win her case initially, said Dave Bryans, president of the Canadian Convenience Stores Association.
"There are about 100 cases like this going on in Ontario but as soon as they win, someone appeals it and they'd have to pay a lot to continue fighting it."
Bryans said his association will eventually take one of the cases to the Supreme Court to prove vicarious liability is wrong.
"Tobacco is a legal product being sold in a licensed establishment. These people should be allowed to sell it like any other product in a responsible way.
"Does the health unit go into liquor stores and do testing and hand out tickets? Do they go into beer stores? Do they go to the reserves?"
Of 13 charges that were laid against employees who sold cigarettes to minors in 2007, three of them were Telly's. No other store had more than one charge.
After each infraction, Telly's received a warning letter but it came by regular post.
When a third clerk was charged, she didn't want to lose her job and so she didn't tell Nardone about being ticketed.
When the warning came from the health unit, Nardone suspects the clerk tossed it in the garbage.
Nardone only learned about the third ticket when she received her prohibition from selling. She wants to see those ticket warnings to store owners come in registered mail so no one else is surprised in the same way.
Penalties are supposed to be incremental, going from six to nine to 12 months, but Telly's was first hit with the year-long penalty, likely because the earlier tickets weren't caught by the system.
Jeff Kowal, spokesman for the health unit, said the prohibition from selling isn't set locally but by the Ministry of Health.
Nardone hopes she can talk a judge into seeing her side of the story on Friday because business has dropped by more than 50 per cent, she's had to lay off employees and she has no hope of even selling her 23-year-old store since the prohibition would stay with the property.
"No one is benefiting from this. I've spent $10,000 already on a lawyer. Why can't they fine me $5,000 and give the money to the Lung Association?"