LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: BIKINI BOB’S INC. 11 Main Street Grand Bend, Ontario N0M 1T0
Licensee: Bikini Bob’s Inc. Licence Number: 22979
Notice of Proposal: To SUSPEND a licence Dated May 25, 2006
The Proposal alleges that:
Contrary to subsection 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act, (“O.Reg”) 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.
Hearing: Forest Golf & Country Hotel 102 Main Street South Forest, Ontario N0N 1J0 October 26, 2006
Best Western Guildwood Inn 1400 Venetian Boulevard Sarnia, Ontario N7T 7W6 April 4, 2007
Presiding Board Members: Beryl Ford, Chair of the Hearing Eleanor Meslin, Member
Counsel for the Registrar: Brad Alton
Counsel for the Licensee: Brian Chambers
Attendance: Denis A. LeBlanc, police officer Karrie Jane Rowcliffe, witness Jennifer Gaukroger, witness
A.) HEARING
A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in Forest and Sarnia, Ontario on October 26, 2006 and April 4, 2007 regarding a Notice of Proposal (“NOP”) dated May 25, 2006 to suspend, for 35 days, the liquor licence of Bikini Bob’s Inc. (the “Licensee”) operating as Bikini Bob’s Inc., 11 Main Street, Grand Bend (the “premises”), licence number 22979.
Brad Alton appeared as Counsel for the Registrar and Brian Chambers as Counsel for the Licensee.
B.) PRELIMINARY MATTERS
At the hearing on October 26, 2006 Mr. Chambers advised the Board that one of his subpoenaed witnesses could not appear because he had suffered a stroke. As a result, he requested that the hearing be adjourned for several months in hopes that the witness could then appear and testify.
Mr. Alton objected to an adjournment since his witnesses were present and prepared to proceed.
After careful consideration, the Board denied the adjournment request, pointing out that the Registrar’s counsel was ready to proceed and Mr. Chambers’ other witness was available.
DECISION
C.) EVIDENCE
(i) REGISTRAR’S EVIDENCE
(a) Denis A. LeBlanc
Denis LeBlanc is an OPP officer who was near the premises on Main Street at 2:30 a.m. on December 30, 2005 checking traffic when he observed approximately 10-12 people crossing the street in front of Bikini Bob’s. Two of the people, a male and a female, appeared to have difficulty walking, were boisterous and seemed intoxicated. When the male tripped and fell over the sidewalk, the officer approached him to offer assistance. They identified themselves as Karrie and John Rowcliffe. Ms. Rowcliffe told the officer that they were coming from Bikini Bob’s and that her husband had a brain tumor. Because officer LeBlanc felt they were intoxicated he followed them home for safety reasons.
Officer LeBlanc then returned to Bikini Bob’s and spoke to a female who was behind the bar. She advised him that Jamie Raycraft was in charge and he joined them. He indicated that the Rowcliffes had been in the bar. He felt they were intoxicated and had cut them off, but had allowed them to stay until it was safe for them to return home. The officer warned Jamie Raycraft that they should not be serving intoxicated patrons or allowing them to remain in the premises.
When questioned further about the Rowcliffes, officer LeBlanc describe Mr. Rowcliffe as having bloodshot, glassy eyes, with a strong smell of alcohol and was swaying and unsteady on his feet. He said Mrs. Rowcliffe was talkative, boisterous, smelled of alcohol and was also unsteady on her feet. He did not arrest or charge them.
In response to questions from Mr. Chambers, the officer testified that he did not actually see the Rowcliffes exiting Bikini Bob’s, because he could not see the doorway from his location. He believed all the people he saw were coming from Bikini Bob’s.
Regarding his questioning of Jamie Raycraft, he indicated that he did not ask when Mr. Raycraft cut the Rowcliffes off or how long they had been in the bar. Officer LeBlanc did not interview any other patrons.
(b) Karrie Jane Rowcliffe
Mrs. Rowcliffe attended Bikini Bob’s with her husband at 7:00 p.m. on December 29, 2005 and left at 10:00 p.m. She testified that she and her husband had been drinking at home before they arrived at Bikini Bob’s and only had two draft beers at the bar. They left Bikini Bob’s because they were cut off not because they were asked to leave. They proceeded to Finnegan’s and had two more drinks. On their way home they returned to Bikini Bob’s, but were refused admission at the door. Mrs. Rowcliffe stated that she did not remember speaking to a police officer on her way home.
(ii) LICENSEE’S EVIDENCE
Jennifer Gaukroger
Ms. Gaukroger was employed at Bikini Bob’s where she manages the kitchen, restaurant and bar. She came to work on December 29, 2005 at 8:00 p.m. At that time the Rowcliffes were at the bar drinking large drafts. They appeared very happy and when they asked for refills she told them that would be their last drinks. Mr. Rowcliffe appeared intoxicated but Ms. Gaukroger was also aware that he was very ill. They left at 10:00 p.m. without incident.
She testified that Jamie Raycraft was employed as the doorman/security person and he worked from 10:00 p.m. to closing (3:00 a.m.-3:30 a.m.). Alcohol service is stopped at 2:00 a.m. Since the procedure on cutting off patrons is to advise staff, she had told Jamie about the Rowcliffes. If there were problems after she left, staff were to call her at home. She did not hear about the incident with officer LeBlanc from Jamie until the following Friday since the officer had only issued a warning.
When the Hearing resumed on April 4, 2007 Mr. Chambers advised the Board that the witness who had the stroke would not be testifying and that he had no other witnesses.
D.) SUBMISSIONS
(1) For the Registrar
Mr. Alton began his submissions by referring to the NOP and the alleged contravention of subsection 45(1) of the Ontario Regulation regarding permit drunkenness. He reviewed officer LeBlanc’s evidence of his conversation with Mrs. Rowcliffe and her admission that they had been drinking in Bikini Bob’s on December 29, 2005. They were intoxicated and were cut off, but had not been asked to leave. Also his interviews at the bar with a female and Jamie Rowcroft indicating the Rowcliffes had been cut off.
Mr. Alton then proceeded to discuss the evidence of licensee’s witness Jennifer Gaukroger who testified that when she started her shift at 8:00 p.m., the Rowcliffes were already drinking and she subsequently cut them off but did not ask them to leave. She did not know how many drinks they had consumed before she arrived.
Mr. Alton submitted that the evidence showed that the Rowcliffes were served to the point of intoxication but were not asked to leave, thereby violating subsection 45(1) of the O.Reg, and asks the Board to make this finding.
(2) For the Licensee
Mr. Chambers started his submissions by pointing out that the Rowcliffes were in Bikini Bob’s from 7:00 p.m. to 10:00 p.m. and there was no evidence that they were drunk during that time. The only evidence was from Jennifer Gaukroger that after she arrived at 8:00 p.m. when they showed some signs of intoxication she cut them off.
He then discussed the evidence of Mrs. Rowcliffe who said they’d had 2-3 draft beers between 7:00 p.m. and 10:00 p.m., which he pointed out was not a huge quantity for that length of time.
In reviewing officer LeBlanc’s evidence he submitted that the officer could not see the entrance to Bikini Bob’s, but assumed the Rowcliffes came from there, although he did not ask them if they had been drinking there.
Mr. Chambers also pointed out to the Board that neither the female behind the bar nor Jamie Raycraft had been called by the Registrar as witnesses.
He submitted that the only evidence of the Rowcliffes behaviour was from Mrs. Rowcliffe and Jennifer Gaukroger indicating that they had only 2-3 beers and were cut off and left around 10:00 p.m. The establishment did the right thing by cutting them off and not permitting them to re-enter later. There was no evidence of intoxicated behaviour while they were in the bar necessitating their being asked to leave.
(3) Registrar’s Reply
Mr. Alton reiterated Mrs. Rowcliffe’s evidence that they had been drinking before arriving at Bikini Bob’s at 7:00 p.m., that Ms. Gaukroger served them after 8:00 p.m. and they did not leave until 10:00 p.m. Therefore, the Licensee permitted them to remain, even though Mrs. Rowcliffe admitted they were drunk and had been drinking in Bikini Bob’s.
DECISION AND REASONS FOR FINDINGS
The Board has carefully reviewed the evidence and submissions.
Subsection 45(1) of O.Reg 719 reads:
“The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”
In previous cases, the Board has interpreted this subsection to mean that if a patron appears to be drunk the Licensee and his staff must insure that the patron does not continue to obtain liquor on the premises.
Ms. Gaukroger, in her evidence, indicated that Mr. Rowcliffe appeared to be intoxicated, but also that since he was very ill, there was some doubt. She did not say that Mrs. Rowcliffe was drunk.
However, officer LeBlanc’s evidence, from speaking to Jamie Rowcroft, is that the Rowcliffes were intoxicated when they were cut off, but were allowed to remain in the bar until they could safely return home.
Although officer LeBlanc’s evidence of his conversations with Jamie Rowcroft is hearsay, the Board accepts this hearsay evidence. Mr. Rowcroft was not called as a witness.
Officer LeBlanc’s other evidence related to an incident that occurred at approximately 2:30 a.m. that night. Although the Board accepts his evidence that Mr. and Mrs. Rowcliffe were intoxicated when he spoke with them, the Board is not convinced that they had been inside Bikini Bob’s drinking and were exiting at that time. By his own admission, officer LeBlanc testified that he could not see the entrance and did not see them exit the premises. The Board accepts Mrs. Rowcliffe’s evidence that they had tried to enter but were denied admission.
Mr. Alton has asserted that a licensee must not only stop serving an intoxicated patron, but must also remove them from the premises or be in violation of subsection 45(1).
In this case, where the patrons were neither riotous, quarrelsome, violent or disorderly, the Board does not agree that by not removing them the licensee would be in violation of subsection 45(1).
The issue here is-did the licence holder permit drunkenness in the premises?
The Board believes that by cutting off the Rowcliffes when they showed signs of drunkenness, but allowing them to remaining until they could return home safely, was both prudent and is in keeping with subsection 45(1).
Therefore the Board makes NO FINDING of a violation of subsection 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act.
DATED AT TORONTO THIS 25th DAY OF APRIL 2007.
ELEANOR MESLIN, BOARD MEMBER BERYL FORD, BOARD MEMBER
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