1213963 Ontario Limited (Sin City Bar & Eatery), 2007 CanLII 21340

LIQUOR LICENCE ACT, R.S.O. 1990

In the Matter of: SIN CITY BAR & EATERY

295 George Street North

Peterborough, Ontario

K9J 3H3

Licensee: 1213963 Ontario Limited

Licence Number: 92310

Notice of Proposal: To SUSPEND a licence

Dated January 24, 2005

Notice of Proposal: To SUSPEND a licence

Dated May 31, 2005

The Proposal alleges that:

(a) Contrary to section 29 of the Liquor Licence Act, (“LLA”) liquor was permitted to be sold or supplied to a person who was or appeared to be intoxicated.

(b) Contrary to subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) 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.

Hearing: Holiday Inn – Peterborough Waterfront

150 George Street

Peterborough, Ontario

K9J 3G5

May 23, 2006

November 7, 2006

Comfort Hotel & Suites - Peterborough

1209 Lansdowne St. West

Peterborough, Ontario

K9J 7M2

March 15, 2007

Presiding

Board Members: Bruce Monteith, Chair of Panel

David C. Gavsie, Chair of AGCO

Appearances: Joyce Taylor, Representative of the Registrar

Harry Black, Representative of the Registrar

Witnesses: Stacy Guymer, AGCO Liquor Inspector

Brad Foster, AGCO Liquor Inspector

Albert Duncan , former Police Officer

Allan Ray Nelson, Licensee

Clinton Hadwyn, Manager

Steve Miele, Bartender

Dan Barton, Bar Manager

Exhibits: #1 – Series of AGCO inspection reports recording the Licensee and the Premises made between March 6, 2004 to August 30, 2005

#2 – Diagram or floor plan of the Premises

#3 – Same as Ex.2 with 2 yellow marks on it

#4 – Exhibits 4-4 to 11, inclusive being a series of photographs

#5 – Same as Ex.2, but marked up by witness Albert Duncan

#6 – Series of photographs led by witness Albert Duncan and referred to in evidence marked with numbers on the back of each photograph

#7 – Tape made by witness Albert Duncan on April 14, 2005 and played as part of his evidence

#8 – Smart Serve workbook

#9 – City of Ottawa bar staff guide

#10 – AGCO information on its website

#11 – Decision of the AGCO dated January 15, 2004 re the Licensee and the License

#12 – Will-say statement regarding evidence to be given by Clint Hadwyn

Authorities: Corktown Tavern, an unreported decision of the AGCO, September 16, 2004

Voodoo Nightclub [2006] O.A.G.C.D. No. 392

Birchmount Restaurant v. Ontario (Liquor License Board)

[1998] O.J. No. 1367

Gordon Capital Corp. v. Ontario (Securities Commission)

[1991] O.J. No. 934

A hearing of the Alcohol & Gaming Commission of Ontario (“AGCO”) was held in Peterborough on May 23, 2006, November 7, 2006 and March 15, 2007 to consider both a Notice of Proposal dated January 24, 2005 (the “NOP”) and a Supplementary Notice of Proposal dated May 31, 2005 (the “SNOP”), the latter to suspend for 40 days the liquor licence of 1213963 Ontario Limited (the

“Licensee”) operating as SIN CITY BAR & EATERY, 295 George Street North, Peterborough (the “Premises”), licence number 92310.

1. Preliminary Matters

An ORDER excluding witnesses was made. Notwithstanding the ORDER, Mr. Allan Nelson, the sole director, officer and shareholder of the Licensee was permitted to remaining in the hearing.

2. Registrar’s Evidence

Inspector Stacy Guymer

Inspector Guymer has been with the AGCO as a liquor inspector since January 2003. She is familiar with the Premises. She was there on October 1, 2004. She made notes, and on consent, was allowed to refer to them to refresh her memory.

She arrived at the Premises at 12:42 a.m. by herself. She entered through the patio. She observed patrons being served alcohol while they were on the patio. She went inside the Premises and stood near the north bar to observe the patrons and service.

She observed a male who walked by her, staggering. He was walking toward the dance floor. There was a row of tables in front of the dance floor. The male stopped there, teetering back and forth, having to use a table for support. Other patrons walked by him and talked to him. He used them to support himself as well. The male was drinking from a bottle of Molson Canadian. His face was red, his eyes were glassy and blood shot. The male then headed towards the south bar. He appeared to be disoriented and confused. At the south bar, the male leaned on it for support. He spoke with the bartender. The male then started back towards the north bar, staggering as he walked. A number of employees of the Licensee passed by the male. Inspector Guymer stopped one of the employees, Clint Hadwyn and told him of her observations about the male patron. Mr. Hadwyn had come from the disc jockey’s booth. As that point a second male staggered up to the first. The males spoke. The second was teetering back and forth. His face was red, his eyes glassy and he was also drinking from a bottle of Molson Canadian. Inspector Guymer was 3 feet way from the 2 male patrons. Mr. Hadwyn spoke to both patrons, and the 2 males were escorted out of the Premises.

The manager, Dan Barton, came over to where the Inspector was standing. She advised Mr. Barton of her observations. Also, before she left, Inspector Guymer spoke to Steve Doyle, a representative of Molson’s who was in the Premises. Inspector Guymer left at 1:20 a.m. During her inspection, Ms. Guymer did not see either of the 2 male patrons being sold alcohol. Inspector Guymer said that she has dealt with drunken patrons before. The 2 males were extremely intoxicated. She did not know how long they had been in the Premises. She estimated she observed the first male for about a half hour.

On cross-examination in answer to questions, Inspector Guymer said she was 5 feet 6 inches tall. She works in what she called the “OPP Central Area”, being Peterborough and north. She estimated there were 1, 700 bars in the region, and she covers about 700. She has been at the Premises both before and after her October 1, 2004 inspection. It is a large establishment having 2 separate capacities, one inside and one outside – 540 in all.

She performed her inspection on October 1, 2004, early on a Friday morning. Mostly college–age students were there, both males and females. There was a crowd on the patio. The inside of the Premises was not at full capacity. No one was seated at either the south or north bar. There is also a third bar in the smoking room. It has chairs, but it was not at full capacity. People were dancing on the dance floor and it looked busy.

The lighting inside the Premises is very good. Sometimes they use strobe lights which are high – powered flashing, bright lights.

Through Inspector Guymer, a series of inspection reports between March 6, 2004 and August 30, 2005 was introduced into evidence (Ex.1). Inspector Guymer stated that she prepares a written spot report of her inspection visits, then types them up She went through a number of them. There were a lot of inspections but only a handful resulted in violations. She also testified about the notes she made in her notebook. These show where she has been and to indicate infractions or if there were none. She knows these notes are provided to licensees or their representatives. Inspector Guymer said her notes indicated she was in the Premises on October 1, 2004 at 12:42 a.m. by herself. She entered the Premises by the back door leading in from the patio. There are several entrances into the Premises. Inspector Guymer was coming from another establishment and the doorman at the patio entrance to the Premises let her in.

Through Inspector Guymer, a diagram of the Premises was placed in evidence (Ex.2). She explained where she stood. When she came inside the Premises, she walked up to the north bar. She explained that the dance floor has a railing which splits in half. She indicated on Ex.2 where she saw the first male and where a table is located against the east railing, close to the north bar.

A diagram of the Premises with 2 yellow marks on it was introduced through the witness (Ex.3). Inspector Guymer indicated the first male she saw was walking from the west. She said she walked up to the male to get a better observation. She was perhaps 10 to 12 feet away.

At that point, counsel for the Licensee raised an issue that Inspector Guymer was not being truthful. This information was not recorded in her notes. Mr. Black said Inspector Guymer added this and she knows it did not happen. Ms. Taylor asked to be permitted to recall Inspector Guymer for evidence.

Mr. Black continued to ask Inspector Guymer questions about things not in her notes, indicating these were “failures”. Inspector Guymer said such was not the case at all. In fact, Mr. Black stated that a lot of Inspector Guymer’s testimony at the hearing was not in her notes, for example, she moved to the south bar, the patron appeared disorientated and confused, he leaned on the south bar for support, he spoke to the bartender and returned toward the north bar, employees passed by him, she stopped Clint Hadwyn, she was about 3 feet away from the male patrons.

Inspector Guymer said she did not see either of the 2 patrons purchase beer. She did not seize either bottle because it could be dangerous if a patron reacts negatively.

Mr. Black pointed out that the words “extremely intoxicated” were not in Inspector Guymer’s notes. Nor was her testimony that she observed the first male for 30 minutes in her notes. The size of the crowd or how crowded it was in the Premises, was not in her notes.

Inspector Guymer reiterated she did not smell the breath of either of the 2 males, she did not hear either speak, she did not ask any questions to either of the male patrons nor did she take down their names. She indicated that Mr. Hadwyn had told her that both males were escorted out because they were intoxicated.

In re-direct, Inspector Guymer indicated she has never had to ask management that patrons be removed, except for this one time. She also indicated that there was beer in the bottle being drunk by the 2 male patrons. Otherwise, there would not have been an infraction. On the night of her inspection, Inspector Guymer indicated there was approximately 15 security staff on duty. Inspector Guymer indicated she has taken the Smart Serve course twice.

3. Order at the End of Day One of the Hearing (May 23, 2006)

Full disclosure by both sides was ORDERED by the Board to be made at least ten (10) days prior to day 2 of the hearing. Anything omitted to be disclosed would not be allowed in evidence, the Board ORDERED. The Board also ORDERED that Inspector Guymer would be able to be recalled by Ms. Taylor with regard to the Licensee’s evidence if, as and when presented.

4. Motion and Order at the Start of Day 2 of the Hearing (November 7, 2006)

At the start of day 2 of the hearing, counsel for the Registrar brought a motion to limit the Licensee’s witnesses due to lack of disclosure by Licensee and failure to comply with the Board’s Order given at the end of day 1 of the hearing held on May 23, 2006. Mr. Black had first indicated he intended to call 5 witnesses, namely Messrs, Nelson, Hadwyn, Miele, Barton and Duncan. Ms. Taylor’s position in her Motion was that proper disclosure had been made only to allow:

a) Mr. Miele to testify respecting 2 drunken patrons; and

b) Mr. Duncan to testify only about the lighting and condition of the floor in the Premises as he observed it on April 14, 2005.

In speaking to her Motion, Ms. Taylor stated that its intent was to prohibit 3 people from being called by the Licensee from giving any evidence, and limiting a fourth person from deviating from his notes.

The basis for the Motion was the Board’s disclosure Order given by the Board at the end of day 1 of the hearing on May 23, 2006. The Order was contained in a partial transcript at tab 2 of the Motion Record. The chair of the panel conducting the hearing said at line 9:

The disclosure that you are going to be providing will be in full as per AGCO standards and regulations. Anything that you omit will not be allowed at the next hearing.

Then lines 20 and 21 on the same page of the transcript, the Chair of the Panel said:

So that is all the licensee’s evidence to be disclosed in full….

The disclosure mentioned in both quotes was that to be made by the Licensee.

Ms. Taylor went on to say that while the evidence of the intended witness was disclosed to her at least 10 days in advance of today’s hearing, it did not meet the standard required by the AGCO Rules of Practice. Ms. Taylor then reviewed the disclosure provided to her at tab 3 of the Motion Record (Al Nelson), tab 4 (Clint Hadwyn) and tab 5 (Dan Burton). In all cases, Ms. Taylor indicated the information was insufficient – “topics without information”, she said specifically. As for tab 6 (Steve Miele), Ms. Taylor had no objection. Regarding tab 7 (Al Duncan), Ms. Taylor stated that Mr. Duncan had not been qualified as an expert.

Ms. Taylor in support of her position referred to a decision of the Ontario Workplace Safety and Insurance Appeals Tribunal (“OWSIAT”) in its decision no 1387/98I.[1999] O.W.S.I.A.T.D. No. 1594. Specifically she quoted paragraphs 42, 43 and 44 of that decision which read as follows:

42 Any party which chooses to call a witness before the Tribunal must provide a will-say document, a description of what each witness will say, which outlines, in sufficient detail, the content of the factual evidence which the witness intends to provide at the hearing in this matter. The degree of detail necessary in the will-say must be sufficiently clear that the opposite party in the hearing knows the case which it has to meet.

43 …. failure to provide a will-say document of sufficient detail in order to afford the opposite party the opportunity to know the case that it has to meet prior to the commencement of the taking of testimony at the hearing, may result in a decision by this Panel to rule some or all of the evidence of the witness inadmissible in the hearing, or, if admissible, may affect this Panel's determination of the weight to be given to the evidence provided by the witness, if any.

44 …. the Panel finds that the will-say document presently provided by Mr. Barbato referable to the testimony of the co-worker, which outlines the questions to be asked of the co-worker, but does not outline any of the evidence which the co-worker will say, is not in fact a will-say document at all, as it gives no information whatsoever concerning the evidence which this witness will tender.

Ms. Taylor continued that the Registrar is not seeking perfection. But the Board having Ordered full disclosure by Licensee, the Registrar’s position is that what was furnished did not comply with the Board’s Order.

Ms. Taylor then referred to the AGCO’s Rules of Practice. First, section 7.6 sets out how an expert is qualified. A written report setting out the proposed expert’s qualifications must be submitted. This was not done in the present case. Second, sections 7.5 and 7.7 deal with non –compliance by a party, and without consent of the Board, are straight–forward in prohibiting witnesses. Counsel for Licensee was advised of the Rules at the first day of the hearing at least 5 months ago. He was told anything omitted would not be allowed at the continuation of the hearings. The will-say statements of Messrs, Nelson, Hadwyn and Burton and the statement of Mr. Duncan as contained in the Motion Record do not provide evidence. Ms. Taylor concluded by saying that the will-say statements are not adequate and do not constitute disclosure, and as a result the witnesses should not be permitted to testify. Alternatively, Ms. Taylor asked the Board to state that the weight of these witnesses evidence will be significantly reduced because of the lack of disclosure.

In response, Mr. Black said the issue arose when he was cross-examining Inspector Guymer. He asked her to look at photos and a sketch of the Premises, and to pinpoint where she was located in making her observations. Mr. Black was stopped in doing this because of disclosure issues. He has given Registrar’s counsel a stack of photos and a videotape taken by Al Duncan. He met the requirements in sections 7.1 and 7.2 of the Rules of Practice. He has furnished all “documents” as required. He believed he was going beyond the Rules by giving Registrar’s counsel statements as to what the witnesses would be saying. Letting Al Duncan testify but not beyond his notes is ridiculous. Inspector Guymer was not limited to her notes. Formalism is not found in administrative hearings. For example, hearsay evidence is permitted. The WSIAT have different rules then the AGCO. In this case, if the Licensee cannot call witnesses to give evidence, the Board would be taking away the ability of the Licensee to make a defence. The Licensee would be deprived of its right to defend itself. Mr. Black continued by saying that Al Duncan was not being called as an expert witness. He had spent 33 years with the Toronto Police Service, and was the longest serving member of internal affairs. He would not be giving an opinion, just an evaluation from a police perspective.

In her reply, Ms. Taylor said that Mr. Duncan would in fact be giving an opinion. He was not in the Premises for either inspection. He has not provided any expert witness reports. So why is he being called as a witness. Ms. Taylor indicated she has no objection to Mr. Duncan giving evidence on the topics contained in his notes (tab 8 of the Motion Record). Ms. Taylor also noted that this hearing is not a prosecution; it is an administrative hearing regarding the fitness to hold a license. It is a civil proceeding. Ms. Taylor continued that, the Board has previously drawn to Mr. Black’s attention section 7 of the Rules of Practice and in particular, section 7.4. The Board made a ruling in accordance with paragraph 7(3)(e) of the Rules, ordering all of Licensee’s evidence to be disclosed in full, and if not, evidence not disclosed be permitted. The Board has made similar rulings in the past in the Oakville Conference Centre decision and the Great Canadian Cabin decision. The Board has enforced the Rules to the detriment of the licensee when circumstances warranted it.

At the conclusion of the argument by counsel, the Board gave the following ORDER. The Motion to exclude some of the Licensee’s witnesses and limit a witness is NOT GRANTED so that the evidence of Messrs, Nelson, Hadwyn, Burton, Miele and Duncan is to be allowed. The reasons are as follows:

a) the statement at tabs 3, 4 and 5 of the Motion Record by Al Nelson, Clint Hadwyn and Dan Burton, respectively, are descriptive, and the direction of their answers to question in favour of the Licensee can be anticipated;

b) the Board is not bound by any prior decision of the AGCO, and certainly not by a decision of the W.S.I.A.T. However, the Board notes the commitment at the very end of paragraph 43 of W.S.I.A.T. decision 1387/98I which provide “if admissible” referring to contested evidence, that it “may effect this Panel’s determination of the weight to be given to the evidence provided by the witness, if any.” In other words, the Board can accept any evidence, but then decide the appropriate weight to give to it; and

c) in the interest of natural justice, a licensee must have the right to present her, his or its case to counter the proposed action of the regulator. Therefore any benefit of the doubt must be decided in favour of a license respecting its right to present evidence. To grant Registrar’s motion would be unfair and prejudicial to Licensee, and therefore the appropriate course of action is to allow the testimony, to permit Registrar’s counsel the right to recall Inspector Guymer to permit her to provide additional viva voce evidence, and in considering its decision, for the Board to decide on what weight to place on all evidence presented to it.

5. Continuation of Registrar’s Evidence

Inspector Guymer was asked by Licensee’s counsel to look a number of photographs of the outside and inside of the Premises. A series of photographs was entered as an exhibit, numbered on the back from 4 to 11 (Ex 4-4 to 4-11, inclusive). Inspector Guymer was asked where she was standing when she observed the first male patron on October 1, 2004, and where the man was standing. She identified 2 spots on Ex 4-4 by placing a circled “x” where she was standing and a plain “x” where the man was standing. Then she looked at Ex. 4-7 and indicated the tables in it were pushed back. In looking at her notes, she said she was standing in front of the north bar. The man she observed was walking by her from the top of the photo – Ex. 4-7 – down towards the bottom of the photo.

Inspector Guymer said she spoke to Mr. Hadwyn about the man. In answer to a question, Inspector Guymer said she told Mr. Hadwyn he may want to assess the male.

Registrar’s counsel in reply asked Inspector Guymer when she had gone to the spot she had marked on Ex. 4-7. She answered she went there after she observed the male walk by her. He had used chairs, not in the photo, to support himself. She had moved to the spot to get a better view. After Inspector Guymer spoke to Mr. Hadwyn, he spoke to the 2 males, and they were escorted out of the Premises. Mr. Hadwyn did not dispute to Inspector Guymer that the males were intoxicated.

Inspector Brad Foster

Mr. Foster has been an inspector with the AGCO for 3 years. He was in the Premises on March 12, 2005. He made notes and, on consent, was allowed to refer to his notes to refresh his memory.

Inspector Foster arrived at the Premises at 10:50 p.m. on March 12, 2005 with AGCO Inspector Ryan Baird. Both were undercover. They entered through the main door off of George Street. They proceeded towards the dance floor to make observations. A number of patrons were on the dance floor and also throughout the Premises. They stood for about a half hour and then did a walk through. They made their observations from a place near the disc jockey booth close to the patio.

They observed a male exhibiting signs of intoxication. He was wearing a plaid shirt and jeans. He was approximately 20-25 years old. He was unsteady on his feet and bumping into other patrons while walking towards the patio. He was consuming a Coors Light. He was drinking recklessly – gulping beer as opposed to sipping. The patron showed impaired motor skills and was swaying from side to side.

Inspector Foster did not approach the patron. He did not feel it was necessary to engage the patron in conversation. To do so could have posed a safety risk.

The crowd was younger, mixed male and female. There were lots of groups. The average age of the patrons was between 19 and 25.

That evening was Inspector Foster’s first time in the Premises. He has not been back.

In answer to questions on cross-examination, Inspector Foster stated that there were approximately 80 to 100 people in the Premises. The night he was there was a Saturday night in March.

After he observed the male patron, Inspector Foster went to the patio and stayed there for a time. He did not alert any one in the establishment. The intoxicated man was not approached. Inspector Foster stated he had taken the Smart Serve course.

Inspector Ryan Baird

Mr. Baird has been an AGCO Inspector for 2 ½ years. He is familiar with the Premises. He was there on March 12, 2005. He had made notes and, on consent, was allowed to use his notes to refresh his memory.

Inspector Baird entered the Premises at 10:50 p.m. on March 12, 2005 with Inspector Brad Foster. They were undercover. They entered on the side of the dance floor and did a walk through. Towards the patio, Inspector Baird observed a male patron showing signs of intoxication. The male was wearing a plaid shirt and jeans and was in his mid – 20’s. He was swaying from side to side. He had slow motor skills and he was unsteady on his feet. He was consuming a Coors Light. As he spoke with other patrons he was very loud. He was consuming quicker than other patrons. Inspector Baird departed the Premises at 12:13 a.m.

Inspector Baird had not been in the Premises before March 12, 2005, not has he been there since. When he first entered, he stood and made observations near the dance floor for 20 to 25 minutes, and then conducted a walk through. There was a line up of people going out to the patio. The male stood there talking loudly to other patrons. He was staggering and swaying from side to side.

In answer to questions on cross–examination, Inspector Baird said he watched the male patron continuously for 5 to 8 minutes. The male had trouble walking in a straight line. He stood out because the bar was not busy that night.

6. Licensee’s Evidence

Albert Duncan

Mr. Duncan has been a career police officer. He resigned from the Toronto Police Service in 1999 after a 31 year career. He was a Detective Sergeant in Internal Affairs. In 1999, Mr. Duncan started a private investigator business.

Mr. Duncan had been asked by the Licensee’s counsel to attend at the Premises and do an inspection. He did so on April 14, 2005 His notes, photographs and a video produced at and around the Premises had been disclosed to Registrar’s counsel. On consent, Mr. Duncan was permitted to use his notes to refresh his memory.

T

Mr. Duncan used a copy of Ex. 2 to make marks on during his evidence. This marked up copy was itself made into an exhibit (Ex. 5). Mr. Nelson had told Mr. Duncan where Inspector Guymer stood when she was in the Premises on October 1, 2004. The notation “INSP” was placed on Ex. 5 in front of the north bar. Tables on the floor of the Premises were marked with the notation “ ”. There were rust marks on the floor so Mr. Duncan believed the marks had been made by the base of the tables. The distance from where Inspector Guymer stood to the closest table to her was 13 feet, whereas the distance from the north bar to the furthest tables in the direct line to the south was 26 feet. The patrons seen by Inspector Guymer had been in the area of the tables. Mr. Duncan then marked “X’s” on Ex. 5 in a straight line almost down the middle of the Premises running in and east – west direction. The “X’s” denoted a drop in the level of the floor by ½ or 1 inch. Wood moulding was used to note the drop. The moulding ran the length of the bar, and separated the bar area to the north from the dance floor to the south. There was a clear difference in level between 2 sections of the floor.

Mr. Duncan introduced a series of photographs all of which were all marked as one exhibit (Ex. 6). The photographs were taken by Mr. Duncan during his visit to the Premises on April 14, 2005. While some pictures showed the outside of the building, most of them were images of the inside.

Mr. Duncan then produced a video which he had made on his visit to the Premises on April 14, 2005. It was entered into evidence (Ex. 7), and was played at the hearing. Mr. Duncan narrated. It started with the outside front of the building in which the Premises are located, continued down the north side laneway, showing the wooden fence around the patio. Inside, Mr. Duncan drew attention to the moulding on the floor which gets thicker going from west to east, all the way to the front entrance. There are 2 different floor levels which the mouldings cover where they join. Mr. Duncan stated that from where Inspector Guymer was standing at the north bar, one set of tables is 13 feet and the other 26 feet from the north bar.

Mr. Duncan went to the Premises to conduct observations. He found the floor was in bad condition which could have been a factor in what Inspector Guymer observed. A person walked along as though they had lost a one inch heel off of their shoe.

The Premises were also very, very dark. Mr. Duncan had to turn all lights on, to make his observations properly, and he was there in morning daylight hours. During normal operating hours, it was dark. A person had to be close to some one to see them. Mr. Duncan also said that the floor moulding appeared worn and chipped, so it was easy to trip over it.

In answer to questions on cross – examination, Mr. Duncan said that he relied on what Mr. Nelson told him as to the spot where Inspector Guymer stood and as to the location of the tables on the floor of the Premises. As he was not in the Premises on October 1, 2004 when Inspector Guymer was there, Mr. Duncan did not know if the tables were in the same location that night as when he saw them on April 14, 2005.

Allan Ray Nelson

Mr. Nelson is the owner of the Licensee. It is the 10th year since to inception of the bar. Mr. Nelson also owns the building in which the Premises are situated. It is mortgaged. The Building was built around 1900, so that maintenance on it is continuous.

There are 35-40 staff members working at the Premises - bartenders, security, busboys, maintenance and cleaning. The clientele are mainly college students, in the age range of 19 to 23 or 24. During the day when the Premises is mainly a restaurant the clientele is older. The busy nights at the Premises are Thursday and Saturday. In the summer, the licenced patio is very busy.

People wanting drinks have to get them at the bar. There is often entertainment, sometimes a band, but usually a DJ with music. The lighting is very subdued. All overhead lights are off. Light comes from the picture on the TV screen. There is intelligent multi-colour and shaped lighting around the stage. It moves to the beat of the music. There is also ambient light from signs. There are some flashing lights. The lights in the bar area are turned off.

Capacity on the Licence is 425 inside and 98 on the patio. On Thursday October 1, 2004 and Saturday March 12, 2005, the Premises would have been at capacity and there would have been a line-up at the front door.

The music level in the Premises is extremely loud but the patrons like it that way. People usually have to shout to be heard in a conversation. The temperature in the room can be stifling in the summer. Even in the winter it can be very hot. Fans are used. The ceilings are fairly low. People sweat and are red because they are very warm. There are a few booths, but the vast majority of patrons are standing or milling around. It is very congested in the front of the bar area and around the dance floor. The central area of the Premises is very crowded. The area in front of the patio exit/entrance is also congested as people going to or coming from the washrooms pass through also. There is a lot of physical contact when people are milling and they bump into each other.

Mr. Nelson stated that compliance with the LLA and regulations is the only way to go because it could impact on his livelihood. He takes compliance very seriously as does his staff. Everyone has Smart Serve training. There have been multiple meetings with police and health officials. The managers and some staff have had CPR training. They try to remain as educated as possible. Most of the staff have been employed at the Premises since its inception. Staff have monthly meetings. They address problems that may have happened and decide how best to deal with them. Mr. Nelson said he has a good relationship with downtown police and they are happy with the Licensee.

Mr. Nelson stated that if a patron was showing signs of intoxication, he would be removed from the Premises. If a person is intoxicated at the front door, he would not be allowed inside. There are 13 to 15 security on duty posted at every entrance. Dan Barton, the manager, is generally at the front door. He and assistant manager Clint Hadwyn roam the Premises. They and the busboys and bartenders, are all looking for possible infractions.

Mr. Nelson said he was not in the Premises on either of the 2 nights referred to in the NOP and SNOP.

Mr. Nelson was handed a floor plan of the Premises (Ex.5) and indicated in front of the north bar, the centre section is very congested. People stand shoulder to shoulder. They are standing still. Most of the males in the crowd would be 5 feet 11 inches or taller.

Mr. Nelson described the floor surface as having “dipsy doodles”. Over time walls had been removed and the floors were well used, so they were uneven. It was easy for someone to trip. There were no signs warning patrons to watch their step. Through Mr. Nelson the following documents were placed in evidence:

(i) a Smart Serve workbook (Ex.8); and

(ii) a City of Ottawa bar staff guide (Ex.9); and

(iii) AGCO website material (Ex.10).

Regarding the March 12, 2005 incident, Mr. Nelson said that no staff member had told him there were any infractions. He indicated he did not know how to defend himself if he or his staff was not told there was an undercover sting taking place. Licensees should be informed immediately.

In cross-examination, Mr. Nelson was asked how he was advised of the undercover visit on March 12, 2005. He replied that he was advised on March 30, 2005 by Inspector Guymer. He said it was difficult to defend himself if he did not know there were issues for a week or two after the inspection.

Mr. Nelson was then asked if this was the first time he appeared before the AGCO. He stated it was not and that he had served an 18 day suspension. An AGCO Board decision dated January 15, 2004 was placed in evidence (Ex.11) and was identified by Mr. Nelson.

At that point Licensee’s counsel, Mr. Black reviewed the prior decision. He noticed that member Monteith was a member of the panel who made that decision and MOVED for a mistrial on the grounds it was “hugely prejudicial” to his client and that it was not right for this panel to have disclosed that fact before this hearing had commenced. Counsel for the Registrar, Ms. Taylor, opposed Mr. Black’s motion indicating his client had a copy of the prior decision and either failed to or was not asked to show it to Mr. Black.

The Board pointed out to Mr. Black that the prior decision was based on an Agreed Statement of Facts and joint submission as to the disposition. Secondly, it is very common for the same Board member to sit on different panels involving discipline matters against the same licensee. Accordingly the Board DENIED Mr. Black’s motion for a mistrial.

Mr. Nelson was asked about the findings in the previous decision of the Board as to overcrowding and having intoxicated patrons in the Premises. Mr. Nelson stated that he only agreed to the overcrowding allegation. When asked if he remembered that suspension placard referred to both violations, he said he did not recall that. He also said he did not register a complaint about the suspension placard because it was a “done thing” and there was no use to complain. He further stated he had authorized his counsel at that time to do “what was required”. Mr. Nelson did not attend the hearing.

On re-examination, Mr. Nelson said that he had sat in the previous lawyer’s office, tried to get a minimum suspension. As far as he was aware, Mr. Nelson said that the previous violation was for overcrowding on the patio, and that was all. Mr. Nelson stated that as a result of the prior incident, he has put Messrs, Hadwyn and Barton on the floor and has added more staff. He said that he cannot have any more incidents.

Clinton Hadwyn

Mr. Hadwyn is the bar manager at Sin City. He has worked there for 8 years. He has taken Smart Serve, a server intervention program, has attended police meetings, AGCO meetings, and has taken a course on date rape prevention. He looks after the bars in the Premises, makes sure bouncers are in position, and watches for problems such as intoxicated patrons.

Mr. Hadwyn recalled working in the Premises on October 1, 2004 and that Inspector Guymer had been there that night. One of the bouncers had advised him that she had identified herself and entered through the patio door. Mr. Hadwyn went to find her. Mr. Hadwyn was referred to a floor plan (Ex.3). He said he met Inspector Guymer about 2/3rds of the way down the north bar about 5 minutes after she had entered the Premises. It was congested. Inspector Guymer told him that Mr. Hadwyn “might want to look at a patron who appeared to stagger”. The patron was 8 to 10 feet away between the north bar and the dance floor. Mr Hadwyn observed the patron for few seconds and saw him take a couple of steps. He seemed fine to Mr. Hadwyn. The patron was about 40 to 45 years old. Mr. Hadwyn said apart from his age, there was nothing out of the ordinary regarding this patron. Mr. Hadwyn approached the patron, identified himself as security and told the patron he had to leave. Mr. Hadwyn stated that if an AGCO inspector was looking at someone, it was better to get him out of the Premises. Mr. Hadwyn said he was very close to the patron who seemed fine but was shocked he was to leave.

Mr. Hadwyn walked the patron towards the front door and handed him off to Steve Miele. Again, the patron walked and talked fine. Mr. Hadwyn said had the patron been intoxicated, he would have walked the patron out himself, and pointed him out to Dan Barton the manager. However, he said it was not worth arguing with the Inspector, so he put the patron out.

Mr. Hadwyn said in addition to working at Sin City, he had worked at another bar for 8 years. If he notices signs of intoxication, he approaches that person to talk to and assess him.

There was a second patron with the first, about the same age. Mr. Hadwyn told the second patron he had to leave because his buddy left. The second patron was sober. He wanted to talk to the liquor inspector but he left without doing so.

Mr. Hadwyn said he and Inspector Guymer were 6 to 8 feet away from the patron, it was crowded and they were in a walkway area. It was hard to get through. There were no lights in the area, just flashing lights. He could not tell how a persons face or eyes looked from where he and Inspector Guymer were standing.

After the second patron left, Mr. Hadwyn returned to speak to Inspector Guymer. They talked about how the 2 patrons in their 40’s stood out in the crowd in their 20’s. The Inspector said nothing about a violation. She asked where Dan Barton was.

In answer to questions on cross-examination, Mr. Hadwyn said usually when the bar opens, there are 13 security people on duty. Even the busboys and waitresses can assist security if needed. Mr. Hadwyn stated that he had made an incident report. It has not been disclosed to Registrar’s counsel.

Mr. Hadwyn was shown a copy of his will-say statement as disclosed to Registrar’s counsel and it was placed into evidence (Ex.12). He stated that there was no way Inspector Guymer was in the Premises for more that 5 minutes before he approached her. She would have had to produce identification to get onto the patio, and the bouncer on that door would have immediately told staff to tell him.

After all involved had left including Inspector Guymer, Dan Barton asked Mr. Hadwyn about the ejected patron. Messers, Barton and Hadwyn are told that if an AGCO inspector is in the Premises to follow them around.

In re-examination, Mr. Hadwyn stated the reason they follow AGCO inspectors around in case they want to identify someone, or answer a question about someone or something and possibly correct it on the spot.

Counsel for the Licensee requested permission to introduce into evidence pages from an incident log book for the Premises. It had not been disclosed previously to Registrar’s Counsel. Registrar’s Counsel objected after reviewing the log book citing issues regarding authenticity, reliability, a date being scratched out and pages being out of order. The Board ORDERED that the logbook had not been disclosed in a timely manner, and as a result it could not be placed into evidence at this stage.

Steve Miele

Mr. Miele is a bartender at Sin City and has worked there for 6 years. He has taken the Smart Serve course twice and also has attended meetings with police and other bar employees.

Mr. Miele was working the night of October 1, 2007. He recalled having contact with Mr. Hadwyn regarding a patron out of the Premises. As he was leaving at the front door the patron asked Mr. Miele escorted the patron out of the Premises. As he was leaving at the front door the patron asked Mr. Miele why he had to leave. The answer was that a liquor inspector believed he was intoxicated. The patron said he was not, but would leave anyway. Mr. Miele walked about 10 to 15 feet behind the patron. The patron was older, looked perfectly fine and did not slur his words.

Dan Barton

Mr. Barton is the bar manager of Sin City who dealt with the incident that happened on October 1, 2004. He has been in the business for 10 years, and has Smart Serve and first aid training. That night he was working outside the front door. There was a capacity crowd inside and a line-up outside. He is informed if there are probable cases where someone is being put out. The reasons for removing patrons range from shoving people, to showing signs of intoxication, domestic issues, fighting and refusing to pay and others.

On the night of October 1, a man was brought to her attention by Steve Miele who said the man was being removed. Mr. Barton did not ask why.

That evening Mr. Barton stated that a few people were asked to leave. None appeared to be intoxicated. He knew that Inspector Guymer had come in through the back door. Mr. Barton would follow her around to see what she is thinking and seeing. Mr. Barton’s job was to watch for aggressive signs at the front door and to keep people out. Clint Hadwyn dealt with issues inside the Premises.

As Inspector Guymer was leaving, she said there were people for Mr. Hadwyn to look after-one intoxicated patron and one close to being intoxicated. She said she would write a report. Mr. Barton told Mr. Hadwyn who was shocked that Inspector Guymer was evidently going to make a report to her supervisors. Mr. Barton got upset because he did not see any intoxicated patrons. Mr. Barton said to Inspector Guymer that she should have pointed these people out to him. According to Mr. Hadwyn, one patron was fine and the other might have shown one or two signs of intoxication, but he was not impaired.

At the end of the night, Mr. Barton said he wrote down what Inspector Guymer said and what Mr. Hadwyn told him, all in the black log book. It could have been written on loose pages that were then inserted into the back of the book.

Mr. Barton said that if he was assessing a patron, he would go up to him and determine if there were any other signs of intoxication from close up. It is hard, in her view, to make a judgement on this from a distance. He has made mistakes in the past, so that now he goes right up to the patron.

On cross-examination, Mr. Barton said that Inspector Guymer has cautioned him about making a hasty judgement. He stated that his attention could have been diverted so that he did not see the 2 patrons that were removed. Inspector Guymer said she observed the male patrons but did not talk to them. Mr. Barton stated that he would not remove anyone without assessing them up close and without talking to them.

Recall of Inspector Guymer

Inspector Guymer said she was in Peterborough on March 2, 2005, and that she was aware Inspectors Baird and Foster were doing an inspection at the Premises. She was also aware of the results. She did not tell the Licensee the results right after that inspection because she did not wish to jeopardize the results of a project that the inspectors were working on. Once a bar knows there is an inspection that is going on, other bars in town find out quickly and make sure everything looks very good. The project that night was being performed based on complaints from Peterborough police about increasing infractions.

Inspector Guymer said she makes her report and then it goes up the line to supervisors who decide whether a notice of proposal will be issued.

6. Order for Submissions

The evidence having been completed, the Board ORDERED that written submission be furnished. Registrar’s counsel would have until end of day on March 30, 2007 to make her submissions, Licensee’s counsel would have until end of the day April 17, 2007 to submit his and finally Registrar’s counsel would have until the end of day on April 20, 2007 to submit her Reply.

7. Decision

The Board has received and read the submissions from Registrar’s counsel, the submissions from Licensee’s counsel, and the reply from Registrar’s counsel.

There are 4 allegations made by the Registrar against the Licensee in the NOP and SNOP:

a) On each of October 1, 2004 and on March 12, 2005 the Licensee permitted liquor to be sold or supplied to a person who was or appeared to be intoxicated contrary to section 29 of the LLA; and

b) On each of October 1, 2004, and on March 12, 2005, the Licensee permitted drunkenness to occur in the Premises contrary to subsection 45(1) of the O.Reg.

Registrar’s evidence consisted of testimony of AGCO inspectors – Inspector Stacey Guymer for the October 1, 2004 alleged violations, and Inspectors Brad Foster and Ryan Baird for the March 12, 2005 alleged violations.

Licensee’s evidence consisted of testimony from a retiree of the Toronto Police Service who served for 31 years, the principal of the Licensee, and 3 employees of the Licensee.

No witnesses were qualified as experts.

There was no direct evidence presented by the Registrar regarding the alleged violation of section 29 of the LLA, only the submission by Registrar’s counsel that based on the evidence presented, it is open for the Board to conclude that the Licensee breached that section.

On the other hand, there was direct evidence presented by both the Registrar and the Licensee regarding the alleged violation of subsection 45(1) of the O.Reg. on October 1, 2004, and by the Registrar regarding the alleged violation by the Licensee of the same subsection on March 12, 2005.

The issue for the Board to decide is, based on the evidence submitted, on a balance of probabilities, did the Licensee commit breaches of the provisions alleged by the Registrar.

A large part of the Licensee’s case regarding the October 1, 2004 alleged violations is built around the argument that Inspector Guymer’s notes of her inspection of the Premises that evening were lacking a significant number of facts about which she gave viva voce evidence at the hearing. Her notes were not placed into evidence at the hearing. Registrar’s counsel did not dispute these omissions from Inspector Guymer’s notes in making her submissions. What counsel said was that just because a detail might not be in an inspector’s notes does not mean it did not take place because notes cannot include everything. The Board agrees with Registrar’s counsel to a point, but where there are 15 to 20 “details” omitted, then the Board has to question why the numerous differences between the inspector’s notes and the oral testimony, the former shallow and latter much more detailed. Inspector Guymer’s notes apparently did not contain the following evidence which she gave viva voce:

i) where she was standing when she observed the first man stagger;

ii) that the man walked by her, and walked towards the dance floor;

iii) that the man stopped near a row of tables;

iv) that others walked up to the man and talked to him;

v) that the man appeared disoriented and confused;

vi) that the man walked to the south bar and leaned against it for support;

vii) that the man began to walk towards the north bar after talking to the bartender, still staggering;

viii) that the man began to walk towards the north bar after talking to the bartender, still staggering;

ix) that bar employees were walking by him as he moved through the bar;

x) that a second man staggered up to the first;

xi) how far away she was from the first man when she made her observations;

xii) that she walked up to the man, looked at him observed his face;

xiii) that the man headed towards the south bar;

xiv) that both patrons were exceedingly intoxicated;

xv) that she watched the first man for 30 minutes;

xvi) the nature and size of the crowd between herself and the first patron; and

xvii) that she was 3 feet away from the 2 male patrons.

The Board agrees with Licensee’s counsel when he says in his submissions that the absence of the above observations from Inspector Guymer’s notes detracts from her viva voce evidence.

There is a further issue in dispute based on the evidence and that is, what exactly did Inspector Guymer say to the Licensee’s employees about the state of intoxication of the 2 male patrons.

Inspector Guymer testified that she stopped Mr. Hadwyn as he was walking by her and told him about her observations of the first male patron. The second male patron approached the first. The second male was intoxicated. Inspector Guymer said Mr. Hadwyn spoke to both and the 2 male patrons were escorted out. The manager, Don Barton, them came over to Inspector Guymer and she advised him of her observations. She also said the 2 male patrons were extremely intoxicated and that she was at one point 3 feet away from both patrons. Inspector Guymer said in answer to questions on cross-examination she did not smell the breath of either, she did not hear either speak, she did not ask either of them any questions, and she did not record their names. She also said that Mr. Hadwyn had told her that the 2 males were escorted out because they were intoxicated. Then in answer to a question on re-direct, Inspector Guymer said she never had to ask management that the patrons be removed, except for this one time. Finally, in answer to a question on continuation of her direct examination, Inspector Guymer said she had told Mr. Hadwyn that “he may want to assess the male.”

The testimony for the Licensee was quite different on this point. Mr. Hadwyn testified that he met Inspector Guymer about 2/3 of the way down the north bar. It was congested. Inspector Guymer told him “you might want to look at a patron who appeared to stagger.” The patron was 8 to 10 feet away from the two of them. Mr. Hadwyn observed that patron, saw him take a couple of steps and he seemed to be fine. The only thing different about the patron according to Mr. Hadwyn was that the patron seemed older than the average patron, Mr. Hadwyn estimated the patron was 40 to 45 years old. Mr. Hadwyn approached the patron, told him he had to leave, even though the patron seemed to be fine. On the way to the front door, Mr. Hadwyn said the patron walked and talked well, and was not intoxicated. Mr. Hadwyn stated, it was not worth arguing with Inspector Guymer as to whether this patron was intoxicated or not.

Mr. Hadwyn also testified that the second male patron, a friend of the first, was about the same age as the first. He was perfectly sober. Mr. Hadwyn also said that he and Inspector Guymer were in a walkway area, it was crowded and hard to get through. There were no lights in the area other than flashing lights. Mr. Hadwyn could not tell how a persons face or eyes look from where he and Inspector Guymer were standing.

Mr. Hadwyn had asked another employee, Steve Miele, to actually escort the 2 patrons out the front door. Mr. Miele testified the first male looked perfectly fine to him and did not slur his words.

The Board agrees with Licensee’s counsel that the omission of so many significant facts from Inspector Guymer’s written notes undermined the credibility of her oral evidence at the hearing. There were inconsistencies in Inspector Guymer’s testimony. There were also differences between Inspector Guymer’s evidence and that of Licensee’s employees as to the state of intoxication of the 2 patrons who were escorted out. Inspector Guymer said she made observations from 3 feet away and again from 8 to 10 feet away, but she had no direct verbal contact with either of the male patrons. Licensee’s employees did have that contact and also observed the patrons, who both seemed fine to the employees. The employees did not question Inspector Guymer’s statement to assess the first male. They asked the patrons to leave so as to avoid any issue. There was also evidence that the Premises were dark making it difficult to see details of a person’s face or state of intoxication from a distance of 8 to 10 feet, or even a shorter distance without having direct contact.

Based on the foregoing, the Board make no finding that there was a violation of subsection 45(1) of the O.Reg. on October 1, 2004.

Ms. Guymer testified she did not see either male patron purchase any beer. There was no evidence that either of the males were sold or served alcohol. There is also the issue of whether either of the 2 males escorted out of the Premises was intoxicated. Therefore, the Board makes no finding that there was a violation of section 29 of the LLA on October 1, 2004.

On March 12, 2005, Inspectors Foster and Baird each testified about the state of an intoxicated patron wearing a plaid shirt and jeans, drinking, or more properly, gulping a Coors Light. He exhibited several signs of intoxication-slow motor skills, unsteady on his feet, talking loudly, swaying from side to side and having trouble walking in a straight line. The patron stood out because the bar was not busy that night.

The evidence was unrefuted. The due diligence defence raised by Licensee’s counsel, as Registrar’s counsel correctly points out, is not available at the findings part of the hearing –Gordon Capital Corporation v. Ontario Securities Commission – a 1991 decision of the Ontario Divisional Court.

However, based on the unrefuted evidence of Inspectors Foster and Baird, the Board does make a finding that there was a violation of subsection 45(1) of the O.Reg. by the Licensee on March 12, 2005.

Finally, there was no evidence presented at the hearing of any sale or service of liquor to this male patron, just that he was consuming. How he got the Coors Light was not mentioned at all at the hearing. Accordingly, the Board makes no finding about a violation of section 29 of the LLA on March 12, 2005.

Having made the above findings, the Board invites written submissions on sanction from the respective parties. Counsel for the Registrar shall serve and file her submissions within seven (7) days of the date of this decision. Counsel for the licensee shall serve and file his submissions within seven (7) days of receipt of the agent for the Registrar’s submissions. Counsel for the Registrar shall have an additional three (3) days for a reply, if any.

DATED AT TORONTO THIS 11th DAY OF JUNE 2007.

DAVID C. GAVSIE, CHAIR OF AGCO BRUCE MONTEITH, CHAIR OF PANEL

DCG/sm