LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: BARCODE CAFÉ
4002 Sheppard Avenue East, Unit 101
Scarborough, Ontario
M1S 4R5
Licensee: 1595791 Ontario Inc.
Licence Number: 805767
Notice of Proposal: To SUSPEND a licence
Dated September 29, 2006
The Proposal alleges that:
(a) Contrary to subsection 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder.
(b) contrary to subsection 31.1(1) of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder had permitted in the licensed premises or areas used in conjunction with the licensed premises a container in which there was liquor or a substance that was not originally in that container when purchased under the liquor licence from a government store.
Hearing: Alcohol & Gaming Commission of Ontario
90 Sheppard Avenue East, 3rd Floor
Toronto, Ontario
M2N 0A4
February 19, 2007
Presiding
Board Member: Patricia McQuaid, Vice Chair
Agent for the Registrar: Sujin Chan, Student-at-Law
Counsel for the Licensee: Jerry Levitan
Attendance: Detective Constable Michael Burns, Ontario Provincial Police
Guoging (James) Yu, on behalf of the corporate licensee
Joseph Garijans, licensee’s witness
Exhibits: None presented
A hearing of the Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held on February 19, 2007, pursuant to a Notice of Proposal dated September 29, 2006 (“NOP”) to suspend the liquor licence issued to 1595791 Ontario Inc. for premises operating as BARCODE CAFÉ, 4002 Sheppard Avenue East, Unit 101, Scarborough, Ontario, M1S 4R5, licence number 805767.
As a preliminary matter, Ms. Chan requested an order of exclusion of witnesses, to which Mr. Levitan had no objection. The order was granted.
After a careful review of the evidence and submissions from Ms. Chan and Mr. Levitan, the Board, for reasons set out below, makes the following findings:
The Board accepts the withdrawal of the allegation of a breach of subsection 31.1(1) of O. Reg. 719/90.
The Board declines to make a finding of a breach of subsection 45(1) of O. Reg. 719/90.
Registrar’s Evidence
Detective Constable Michael Burns is a police officer with the Ontario Provincial Police (OPP). He attended at the licensed establishment on June 10, 2006, as part of a joint forces project undertaken in Scarborough that particular weekend, the focus which was to monitor for, and enforce, after-hours service.
He entered with Jade Leadbetter, an AGCO inspector. He arrived at the Barcode Café at 2:32 a.m. He noted two patrons in the establishment; both appeared intoxicated, which he confirmed after speaking to them. One of the patrons, a male, was sitting with a pint glass of beer in front of him. The male confirmed that the pint was his. Detective Burns identified himself as a police officer and demanded that the male produce identification, to which the male took issue. The male’s words were slurred; he seemed to have difficulty putting words together. The male did, however, produce identification; his name was Joseph Garijans.
Mr. Garijans indicated that he could not remember how much he had to drink; he had been there for some time. The pint was, to Detective Burns’ touch, very cold. It still had a head on it so appeared to be freshly poured. As well as having slurred speech, Det. Burns described Mr. Garijans’ eyes as being quite red; he exuded a very strong smell of alcohol. Though he was sitting initially, Mr. Garijans, when he stood up, staggered about on his feet. Det. Burns did state that after his initial reluctance to identify himself, Mr. Garijans was quite cooperative.
Regarding the female patron, Det. Burns stated that she had in front of her, two full glasses of wine. She, too, was described as belligerent when asked for identification though less so than Mr. Garijans. Her name was Kaya Seki. Det. Burns described her as having slurred speech, red eyes and a heavy smell of alcohol. When she stood up, she was unsteady on her feet.
Det. Burns asked them both to leave the bar, which they did though both had difficulty walking in a straight line. Ms. Seki, before leaving, gulped down both glasses of wine.
Det. Burns described the premises as closed when he entered and stated that the alcohol should have been cleared at that stage. He left the premises at 2:42 a.m.
On cross-examination, Det. Burns described the joint forces project, for which he was the lead officer. There were 42 law enforcement officers in the entire project. He was travelling in an AGCO vehicle with Jade Leadbetter and they were the first to enter the premises.
There would have been, in his recollection, no more than 4 or 5 other officers attending at this premises. Det. Burns stated that no guns were drawn; there was no threat to anyone, so no need. He did not recall the names of the other officers or if he spoke to Christine Hamill, another AGCO inspector. His attention was focussed on the two patrons, Mr. Garijans and Ms. Seki. He did not ask Ms. Seki how much she had to drink nor did he speak to any staff about the patrons though he believed Ms. Leadbetter did.
Det. Burns advised, on cross-examination, that within a very short time, a matter of seconds, he made a determination that the two patrons were drunk. He described determining factors as very red eyes, a strong smell of alcohol and a difficulty in putting a sentence together. After making a determination of drunkenness, he would ask for identification. Belligerence is not, for him, a determining factor of drunkenness nor was the loudness or demonstrative actions of Ms. Seki. He did acknowledge that a medical condition can suggest indicia like that for intoxication.
The two patrons were not charged with drunkenness. He suggested to them that it was time for them to leave, and that it was “after hours”. They were cooperative. Ms. Seki gulped her glasses of wine apparently in response to the suggestion to leave. Once the patrons left, he left shortly thereafter.
At the conclusion of Det. Burns’ evidence, Ms. Chan advised that her second witness, Ms. Leadbetter was unable to attend. As a result, the Registrar would withdraw the allegation of a violation of section 31.1(1) of the O. Reg. 719/90.
Licensee’s Evidence
Guoging (James) Yu is the owner of the Barcode Café, which has a licensed indoor capacity of 105 persons. He has been the owner for approximately 2 ½ years. He was working on the evening of June 10th, as the bartender; his wife was the cashier.
At about 2:30 a.m., about fifteen people, AGCO inspectors and police officers, entered his premises. He could see 3 or 4 police cars drive up, two of which had their lights flashing. He described seeing three police officers enter with machine guns. They stood by the door. This made him and his wife nervous.
When the police entered, there were about seven people in the bar, three of whom were sitting at the bar, Kaya Seki, Joseph Garijans and another friend who is a taxi driver. Both Kaya and Joseph are regulars. Joseph arrived first, at around 11:30 p.m. He ordered a Labatt Ice, and then another at about 12:30 a.m. Kaya arrived at about midnight and ordered a glass of red wine. The three friends played some pool. Last call is at 1:45 a.m. Kaya asked for a second glass of wine. At this point, she still had some wine in her first glass, which she then finished. Joseph also ordered another Labatt Ice at this point.
As is his usual practice, Mr. Yu poured the beer into a glass at 2:20 a.m. He put the beer bottle into a box. There was probably a half glass of beer. He recalled seeing about five officers stand around Joseph and ask him for identification. Joseph showed them his passport. Joseph does not have a driver’s licence.
Mr. Yu described Joseph as appearing nervous and upset at this point. The police checked to see if Joseph had a criminal record. When the three were asked to leave by police, they did so. It was almost 2:45 a.m. by then and time to take the drinks from the patrons. They finished their drinks before leaving. The police left with Kaya and Joseph. It was Mr. Yu’s recollection that an inspector, he believes, Christine Hamill, asked him how many drinks Joseph had. He said three in three hours. No questions were asked about Kaya.
On cross-examination, Mr. Yu reiterated that about 15 officers entered his premises, about eight of whom were in uniform. He did not recall seeing Det. Burns specifically. He knows Ms. Hamill, the inspector and recollects that a second inspector was also present. Mr. Yu stated that he has visits from inspectors every three months or so, but this was the first time police entered with machine guns. He did not know, nor did he ask, why they were there with guns.
Regarding his practice of pouring the beer from a bottle into a glass at 2:30 a.m., Mr. Yu stated that he was advised to do so by an inspector, whose name, he thought, was Leung. He described Joseph as often talking with a slurred speech and having an unstable walk. Before serving his customers, it is his practice to speak to them, so he can make observations as to whether they have had too much to drink. By the time Joseph was served his third beer, when face to face, he could smell alcohol on his breath. He did follow Kaya and Joseph out when they left, to lock the door behind them. Kaya appeared to be walking without difficulty.
Joseph Garijans is thirty years old. He does not have a drivers licence. In June, 2006, he was working at Home Depot, and was still in his probationary period at work. He would regularly attend Barcode Café, a couple of times a week. He lives only a block away. On June 10th, he arrived at the establishment at approximately 11 p.m. He arrived on his own and had not had anything to drink prior. He ordered a Labatt Ice, his usual, which was served in a bottle. His usual practice was to limit himself to one drink per hour or so. Mr. Garijans recalled that Kaya and Abdul, a taxi-driver friend, showed up. They played some pool.
He ordered a second beer and later, a third, before last call. By the end of the evening, he had a glass in front of him as James would always pour the beer into a glass later in the evening. He did not finish the final beer, maybe drinking two-thirds of it.
Mr. Garijans recalled seeing between 10-15 officers arrive, about 50% of whom were in uniform. There were two officers standing at the exit who appeared to be holding weapons. Within 5-10 minutes of the arrival of the police, two officers approached him, one was in uniform, and the second was female. He found them to be intimidating. He was very nervous. At this point, Mr. Garijans explained that he suffers from anxiety attacks and takes both anti-anxiety and anti-depressant medication.
He was asked for identification from a gentleman wearing a suit, though he did not recognize him as Det. Burns. He provided his passport as well as showing his wallet with birth certificate and SIN card. During this time, he tried to focus on calming himself down. When he feels anxious, he experiences heart palpitations, gets disoriented, feels a sense of claustrophobia and speaks fast. His goal was to get out, walk off his anxiety and get home to take his medication.
After reviewing his identification, and calling in something, which he did not hear, on the police radio, his identification was returned to him by the officer. He was thanked for his cooperation and he left. He did not recall being asked to leave. He walked by a police cruiser parked outside the bar as he went home; its lights were flashing.
As to Kaya, he recalled that she had red wine that evening though he could not say how many. She was, to his mind, her normal, sometimes loud, self. She left the establishment when he did.
On cross-examination, Mr. Garijans stated that to those who do not know him, he would appear off balance when he has an anxiety attack. He did not tell the police officers about his medical condition.
DECISION ON FINDINGS
As noted above, the Registrar indicated an intention at the hearing to withdraw the allegation of a violation of section 31.1(1) of O. Reg. 719/90. The Board accepts that withdrawal.
The allegation with respect of section 45(1) is that the licensee “permitted drunkenness”. The evidence led, regarding the events of June 10, 2006, by no means presents a clear picture; credibility issues clouded the matter. There are significant contradictions between the evidence of Det. Burns and the licensee. Ms. Chan, in submissions, suggests that the Board need only focus on Det. Burns’ evidence regarding the clear signs of intoxication observed of both Joseph Garijans and Kaya Seki – their slurred speech, red eyes, strong smell of alcohol and unsteady gait. Their initial belligerence when asked for identification is, she submits, immaterial to the allegation. Further, Det. Burns had ample time to make his observations. He was firm in his answers and unwavering in his evidence. In addition, the evidence of the licensee was less than credible, from his reference to his practice of pouring beer from the bottle to the glass at 2:30 a.m., to the number of police officers present, two or three of whom carried machine guns.
When reviewing Detective Burns’ evidence, the Board notes that he was in the premises for ten minutes. Within seconds of encountering Mr. Garijans and Ms. Seki, he draws the conclusion that they are intoxicated, based upon the “classic signs”. He does not have a conversation with Mr. Yu, nor does he ask Ms. Seki how much she had to drink. His recollection was that he did ask this of Mr. Garijans, who responded that he could not remember. The Board notes that there is no evidence before it that the two patrons had been drinking prior to arriving at the bar. Det. Burns made an observation that Mr. Garijans’ beer, which was in a glass, was cold to the touch. He suggested that the patrons leave as it was “after hours”, though he himself left at 2:42 a.m. There is, however, no allegation of service after hours or a failure to clear the signs of service.
This was an attendance as part of a joint forces operation for which Det. Burns was the lead. Beyond the presence of Inspector Leadbetter, Det. Burns has little recollection of who else was present. It does trouble the Board that, as the only witness on behalf of the Registrar, his recollection of certain aspects of the attendance was vague and that his notes were provided only eleven days prior to the hearing and appeared to contain little detail.
Balanced against the evidence of Det. Burns, is that of the licensee, Mr. Yu. Mr. Yu did not notice anything amiss with Mr. Garijans or Ms. Seki, regulars, that evening. His description of his techniques to ascertain the state of his patrons seems responsible. His practice of pouring beer into a glass in anticipation of 2:45 a.m., though unusual, is not reason to question his credibility. And indeed Det. Burns did note that Mr. Garijans’ beer was in a glass. Both Mr. Yu and Mr. Garijans’ evidence is consistent in terms of the number of drinks served. What the Board does find less believable, and somewhat troubling in terms of his credibility, is his description of police officers at his door with machine guns, an event less than probable in the context of a joint forces operation with AGCO inspectors to detect LLA violations. The Board notes that Mr. Levitan made no reference to this evidence in his submissions.
In reviewing the evidence of Mr. Garijans, in light of his demeanour at the hearing, the Board has concluded that his is the most compelling. He was the one witness with no real interest in the outcome of this proceeding. His evidence bore consistencies with that of both Det. Burns and Mr. Yu, at various points, but more importantly in the context of the core issue of “permit drunkenness”; the Board accepts the evidence that he ordered three, and consumed about two-and-a-half beers over an approximate three hour period. He was distressed when asked for identification initially, and did in all likelihood, suffer anxiety in the situation. He was forthright about his condition and again, when measured against his physical demeanour while giving evidence, a quickness to his speech and excitability, the Board concludes that his medical condition may well have presented that evening like indicia of intoxication – the slurred speech, unsteady gait. His apparent belligerence must also be considered against his anxiety. Further, after consumption of close to three beers, the odour of alcohol is not compelling as an indication of drunkenness.
The Board notes that Ms. Chan did not challenge Mr. Garijans’ evidence regarding his medical condition and the impact of that condition on his behaviour.
As to Ms. Seki, the Board did not have the benefit of seeing or hearing from her to assess her demeanour in light of Det. Burns’ description of her. The only evidence before the Board is that she was served two glasses of wine. On Det. Burns’ evidence, both were in front of her at approximately 2:30 a.m., and both were full. Again, there was no evidence to suggest that Ms. Seki had been drinking alcohol before her arrival at the bar. When it was suggested they leave, he witnessed her drink both, one after the other. He did not prevent this, nor did Mr. Yu. When she stood up to leave, his observation was that she was unsteady on her feet. Det. Burns’ interaction with her was even less than that with Mr. Garijans. If Ms. Seki quickly consumed two glasses of wine immediately before standing up, it is not unlikely that she was somewhat off balance. Furthermore, with the sequence of events as described by Det. Burns, the quick consumption of alcohol by Ms. Seki, followed by her immediate departure, the timing itself would not lead the Board to reasonably find that the licensee permitted drunkenness to occur on the licensed premises.
On balance, based on the scant evidence put forward by the Registrar, the Board is not satisfied that the evidence establishes that the licensee permitted drunkenness in violation of section 45(1) of O. Reg. 719/90. It is not sufficient to have one witness recount the classic indicia of intoxication, based on a brief interaction, without further substantiation of that conclusion. The Board therefore declines to make a finding of a violation of section 45(1) of O. Reg. 719/90.
DATED AT TORONTO THIS 13TH DAY OF MARCH, 2007.
___________________________________
PATRICIA MCQUAID, VICE CHAIR
PM/rb