Registrar, Alcohol and Gaming Commission Ontario v. 1590370 Ontario Ltd., 2007 CanLII 26959

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The : Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

1590370 Ontario Ltd. O/A AC Bar & Grill Restaurant & Tavern Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair Eleanor Meslin, Board Member

Decision Date: June 28, 2007 Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone (416) 326-0366 Fax (416) 326-5566 Website:www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative 1590370 Ontario Ltd., Licensee ) Jerry Herszkopf, Representative

Allegations

1. A hearing into a Notice of Proposal dated March 12, 2007 to suspend liquor license number 21870 issued to 1590370 Ontario Ltd. and operating as AC BAR & GRILL RESTAURANT & TAVERN, 1151 Dundas Street West, Mississauga, Ontario, L5C 1C6, (the “premises”) on the basis of alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on June 12, 2007 in the City of Toronto.

Decision

2. After considering all the evidence and submissions the Board finds the Licensee violated subsection 45(1) of the O.Reg. Reasons follow.

Registrar’s Evidence

3. Brad Foster, an Alcohol and Gaming Commission of Ontario (“AGCO”) inspector attended at the licensed premises on January 6, 2007, at 12:43 a.m. with Ryan Baird, also an AGCO inspector. They entered the premises through the main entrance from the parking lot, whereupon they made observations. Mr. Foster estimated that there were 25-30 patrons in the establishment, it was moderately busy. He observed a male patron seated at the bar. His head was resting on the bar; his eyes were shut.

4. Mr. Foster then approached Shunai Fu, part owner and the person in charge at the time of the inspection. She was working behind the bar and was approximately 20-30 feet from where the male was seated. At this point, the inspectors had been in the premises for about one minute. He identified himself to her and then pointed out the male to her, expressing concern about his state.

5. Together, they approached the male who had to be spoken to before he raised his head. Mr. Foster engaged him in conversation. The male’s eyes were bloodshot and glassy. His speech was extremely slurred. The male told them that he had consumed five “Canadians” at the bar and that he was drunk. It was clear to Mr. Foster that the male was at a high level of intoxication.

6. Ms. Fu asked the male to leave which he did. Mr. Foster observed, as the male left, that he was unsteady on his feet, swaying from side to side. Mr. Foster then spoke with Ms. Fu again, advising her of the infraction, to which he felt she agreed. He did note her cooperation in asking the patron to leave immediately. He and Mr. Baird left the premises at 12:58 a.m.

7. On cross-examination, Mr. Foster stated that he spoke to the male for approximately five minutes. He could not say from their conversation whether the male was tired. He did not ask him whether he was on medication, or had any disability or medical condition, whether he had frequented the bar before, whether he drove to the establishment or whether his first language was English. He felt his speech was slurred from the consumption of alcohol, not from being awakened suddenly. He did not ask the male to conduct sobriety tests.

8. When asked to leave, the male did so. He was able to stand up without assistance. He did not need to lean on one of the pool tables to gain his balance nor did he fall on his way out.

9. Mr. Foster reiterated that he advised Ms. Fu of his conclusion that the male was drunk. She was in agreement with his observations of intoxication and she understood why the male had to leave. Ms. Fu did not indicate to him that she had been observing the male and was satisfied that he was not drunk, but tired.

10. Mr. Foster stated that he had been in the establishment about 4 or 5 times for inspections over a 2½ year period. He could not recall if any of those inspections had led to charges by the AGCO.

11. On re-examination, Mr. Foster stated that Ms. Fu did not say anything to them about the male being on medication or being physically impaired in any way. She did not counter the information given by the male that he had five beers nor their conclusion that he was drunk. As well, on re-examination, a decision of the Board regarding this establishment, from August, 2006 was made an exhibit wherein findings were made of a violation of subsection 45(1) of O.Reg. and a ten day suspension agreed to. Mr. Foster was the inspector on one or more of the dates in issue.

12. Ryan Baird attended with Brad Foster on January 6, 2007. He described seeing a male slumped over at the bar. The male stood out as the establishment was not overly crowded. He appeared to be sleeping. A Molson Canadian beer was on the bar in front of him. They identified themselves to Ms. Fu and pointed to the male who appeared to be passed out at the bar. They approached the male and Ms. Fu woke him up. He raised his head. Mr. Baird observed that the male’s eyes were red and glossy as he opened them.

13. When they spoke to the male, his speech was slurred. He did tell them that he had consumed five Molson Canadian beer at the establishment and that he had drank at home before attending the bar. They advised Ms. Fu that the male should leave as he was intoxicated and should not be allowed to remain in the establishment. The male did leave when asked to do so. He was unsteady on his feet as he left the establishment. Mr. Baird did not speak to Ms. Fu following the male’s departure. Mr. Foster is the inspector for the area and so it was he who spoke to Ms. Fu.

14. On cross-examination, Mr. Baird stated that he had not been in the establishment before. When they first observed the male, he appeared to be “passed out, sleeping”. Initially, they were not sure whether he was intoxicated so further investigation was necessary. They did not know how long he had been either passed out or sleeping. They concluded that he was intoxicated after speaking to him for about a minute, Mr. Baird conceded that they did not ask him any questions about his medical health or any impairment. The male was able to get off the bar stool without assistance. He did not fall on his way out nor did he need to lean on anything to support himself.

Licensee’s Evidence

15. Shunai Fu is a co-owner of the licensed premises with her husband Wei Cheng Si. They have owned it for about 3½ years. Ms. Fu was working on January 6th when the inspectors attended. It was not a busy evening, with a maximum of 15 customers there at the time. She remembers the male patron. He had been at the establishment a few times. He never caused trouble for her. He would usually have between two or four beers then leave.

16. Ms. Fu did not think he was drunk that evening. She woke him up and told him he had to go because he was sleeping. He stood up and left. She watched him walk out. She knew that he lived behind that mall, in an apartment building.

17. Ms. Fu did not hear him say that he had about five beers nor that he had been drinking at home. She did not agree with the inspectors’ statement that he was drunk. She wanted the male to leave because she was scared that the inspectors might charge her.

18. Ms. Fu did state that she has her Smart Serve certificate. She will only serve a patron one beer at a time. She will speak to a patron, watching for red face and eyes, smelling their breath. If their talk is loud, and they are falling down, she will ask them to leave. Every day she has to stop service to someone.

19. On cross-examination, Ms. Fu state that she recalled serving the male four beers. He paid for each by cash. She did not wake him and speak to him until asked to do so by the inspectors. She did not observe whether his eyes were red and glassy. She did not think he was unsteady on his feet as he needed no help to leave. He still comes into the bar.

20. On re-examination, Exhibit 2, a warning letter dated December 12, 2003 regarding a drunken patron, was put to Ms. Fu. She did not remember receiving the letter.

Reasons

21. The evidence is undisputed that the male patron had a minimum of four beers on the evening in question. The evidence is also clear that the patron was asleep with his head resting on the bar. Mr. Herszkopf submitted that Ms. Fu exercised due diligence on the evening in question and came to an honest belief that he was not drunk. While due diligence is not a defence in matters before this Board, the evidence does not suggest that Ms. Fu, in fact, did much to come to a conclusion one way or another about this individual.

22. Though there is no evidence as to how long the male was sleeping, the inspectors noted the man’s presence within a minute of their arrival. It was not a busy night at the bar according to Ms. Fu. Ms. Fu only approached the male when asked to do so by the inspectors. There is no evidence that she attempted, prior to this, to ascertain his condition.

23. The inspectors in their conversation, albeit a brief one, with the male, concluded that he displayed the classic indicia of intoxication: red and glassy eyes, slurred speech and, when leaving, unsteadiness on his feet. Ms. Fu could only say that she did not see his eyes and that he was not falling down drunk. While the Board notes Mr. Herszkopf’s point that the inspectors did not ask all the questions that they could have, it is not sufficient to offer speculatively that if the speech was slurred and the eyes red and glassy there may be medically based reasons, or that he may have been tired or his English poor. This male is not an infrequent patron of the establishment and the Licensee has offered no evidence to this Board by way of her own knowledge of any such medical condition or other factors that may have had an impact on his demeanour.

24. The Board does not decide on the basis of possibilities, but on the balance of probabilities. The evidence proffered strongly suggests that this patron was drunk. The Licensee seemed amenable to serving the individual and then allowing him to sleep without any assessment of his condition and, in so, doing permitted drunkenness as defined by the Board as “providing the opportunity for, or failing to prevent the prescribed behaviour.”

Conclusion

25. Therefore, for the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg.

26. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his written submissions within fourteen (14) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file his written response. Registrar’s Representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.

DATED AT TORONTO THIS 28TH DAY OF JUNE, 2007.

PATRICIA MCQUAID, VICE-CHAIR ELEANOR MESLIN, BOARD MEMBER

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