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-
866917 Ontario Limited O/A Royal Hotel Licensee
DECISION
Panel: Dianne Axmith, Member Brian J. Ford, Member
Decision Date: June 26, 2007
Hearing Location: Belleville, Ontario
Appearances
Registrar, Alcohol and Gaming Commission ) Joyce Taylor, Representative 866917 Ontario Limited, Licensee ) Patrick Hurley, Representative
Authorities: Sand Bar [1999] O.A.G.C.D. No. 64 (Q.L.) Shooters Sports Bar [2006] O.A.G.C.D. No. 288 (QL)
Allegations
- A hearing into a Notice of Proposal dated July 25, 2006, to revoke the liquor licence (the Licence) issued to 866917 Ontario Limited, operating as Royal Hotel, 247 Main Street, Picton, Ontario, K0K 2T0, licence number 10071, on the basis of alleged violations of section 29 of the Liquor Licence Act (LLA) and subsection 45(1) of Ontario Regulation 719/90 (O. Reg.) made pursuant to the LLA, was held on June 11, 2007, in the City of Belleville.
Decision
- After considering all the evidence and submissions the Board DISMISSES the alleged breaches of subsection 45(1) of the O. Reg. under the LLA relative to the incidents of April 1 and April 29, 2006. Reasons follow below.
Preliminary Matters
As a preliminary matter, Mr. Patrick Hurley, counsel for the Licensee, raised an objection concerning the addition of two civilian witnesses for the Registrar. He had only recently learned that the two individuals had been included and advised that if they were called to testify, he would be requesting an adjournment of the hearing in order to properly investigate and cross examine them.
Ms. Taylor had no "will say" documents in her file relative to these witnesses to provide Mr. Hurley and informed the Board that although the individuals had been mailed a summons to appear, they had not yet shown up. Ms. Taylor went on to suggest that the Board could adjourn the hearing and the Registrar could then serve these witnesses with a summons to appear at a future hearing date but stated she was prepared to present her case with the police officer witnesses who were present.
The Board advised counsel that it would rule on Mr. Hurley's motion for adjournment if and when the two witnesses appeared to testify. In the meantime, the hearing would continue.
A motion to exclude witnesses was granted.
Registrar's Evidence
April 1, 2006 Incident
OPP Constable Mathew Caissie testified that at 1:38 a.m. on April 1, 2006, he received a call to attend a fight involving unknown persons on Main Street in front of the Royal Hotel. He arrived on scene at 1:39 a.m. and observed a large crowd that he estimated to be 50 to 60 people. The officer saw a male dressed in a black coat and a red baseball cap who was “yelling and ranting”. He exhibited the classic signs of intoxication and was informed that he was being arrested for causing a public disturbance. He began to resist when Constable Caissie attempted to handcuff him and as he and a colleague, Constable Kingston, tried to control him, he began banging his head on Kingston's cruiser.
After some difficulty, they got him to Constable Caissie's cruiser where he banged his head on that vehicle causing a laceration to his forehead and a dent in the cruiser. The severely bleeding male was handcuffed and an obviously intoxicated female arrived attempting to prevent the male's arrest.
The two individuals, identified as Timothy Adams and his mother, Shelley Savoy, were both arrested. (Note: Officer Caissie provided the spelling Savoy but the witness list shows the name as Savoie.) At about that time, OPP Sergeant Noack arrived in another vehicle and assisted in transporting these individuals to the detachment. There was still a crowd on Main Street but according to Officer Caissie, it had settled down.
Once at the detachment, an ambulance was called to assess Mr. Adams' self-inflicted injuries and it was subsequently decided to transport him to the local hospital for treatment. By this time, Mr. Adams had become more compliant and even apologetic but, in the experienced opinion of Constable Caissie, he was still severely intoxicated.
After treatment at the hospital, Mr. Adams was returned to the detachment where he requested that Constable Caissie place a call to his sister to advise her of his arrest. He agreed and dialed the number provided by Mr. Adams which turned out to be incorrect. When he attempted to get the right number, he found Mr. Adams passed out in his cell.
It was Constable Caissie's testimony that during the trip to the hospital, Mr. Adams stated he had been drinking and arguing with his Mother in the Royal Hotel that evening. It was also this Officer's testimony that Ms. Savoy was “so severely intoxicated that she was almost incoherent”.
On cross examination, Officer Caissie agreed with Licensee's counsel that there is a taxi stand in front of the Royal Hotel and patrons from other bars also gather there to wait. There is a bar (Alleycats) right next door to the Royal and several more on Main Street. Mr. Adams was on public property when Officer Caissie first saw him and he did not enter the Royal Hotel to determine whether the two individuals had been inside. He only had Mr. Adams' word that he had been there after drinking at his Mother's place and he agreed that he had not included that information in his notes relating to the incident.
On re-direct, Constable Caissie stated he did not think Mr. Adams was waiting for a cab and in fact appeared to be walking away from the area when he first saw him. He saw no taxis at that location.
In answer to a Board question regarding Officer Caissie's comment about being in the Royal Hotel earlier in the evening, he stated it was at 10:45 p.m. and he did not observe Mr. Adams or Ms. Savoy in the establishment then.
OPP Sergeant Kevin Noack heard the call for assistance at 1:38 a.m. He did not record his time of arrival on the scene but Constables Caissie and Kingston were already there when he arrived. He observed Officer Kingston putting a male in the cruiser and Constable Caissie attempting to handcuff a female. He estimated about 20 to 30 bystanders on the sidewalk and roadway whom he described as very vocal. He was concerned that more trouble might erupt as crowds can sometimes become quite aggressive in such a situation. He then assisted Constable Caissie with the female who was very loud, uncooperative, and resisting the handcuffs. He put this individual into his vehicle and concluded that she was extremely intoxicated.
Sergeant Noack observed dramatic mood swings in this individual - from happy to crying. After arriving at the detachment at 1:50 a.m. he decided to drive her home because there was no room for her in the holding cells. After determining there was a responsible adult to care for her, he took her to her residence where they arrived at 2:11 a.m. During the drive, she told him she had been at the Royal Hotel where she consumed a couple of beers. She did not say she had been drinking anywhere else. She stated she was upset about her son buying drugs. Sergeant Noack took her inside the residence, confirmed that someone was there to look after her, observed that her trousers were wet, and concluded that she had urinated in his vehicle during the drive there. He returned to the detachment at 2:50 a.m. where he had a conversation with Constable Caissie about the dent in his cruiser caused by Mr. Adams.
On cross examination, Sergeant Noack stated that Ms. Savoy was not charged that night but Mr. Adams was. He agreed that Alleycats had an exit/entrance beside the Royal Hotel and that the Royal is a "landmark" locator on Main Street. Intoxicated patrons often gather at the taxi stand in front of the Royal and fights sometimes occur there. To his knowledge, he had never encountered Ms. Savoy prior to the incident of April 1, 2006. Sergeant Noack recalled another dispatch describing a male and the statement “he was going out the back door”. He could not explain why this happened after the 1:38 a.m. call about a fight "in front". He did assume the dispatcher meant the back door of the Royal. Sergeant Noack agreed that Mr. Hurley had been unable to get transcripts of the dispatches relative to that morning.
April 29, 2006 Incident
OPP Constable Timothy Denstead testified that he attended the Royal Hotel at 11:10 p.m. on Saturday, April 29, 2006 after a dispatch described three patrons in that establishment who were resisting staff efforts to remove them from the premises. He and Constable Staley were directed to the three offending patrons in the dance floor area by Veronica Way, an employee of the Royal Hotel. They approached and observed Ms. Way again tell them to leave. One male appeared unsteady on his feet, had a strong odour of alcohol, slurred speech and red eyes. Two individuals left on their own and the two constables had to physically remove the third. This intoxicated individual tried to strike the two officers and was subsequently arrested and placed in Constable Staley's cruiser. Constable Denstead followed Constable Staley to the detachment where this male was identified and charged.
It was Constable Denstead's testimony that he only dealt with Veronica Way that evening; he did not recall seeing any door staff and he does not know how many other staff were on duty. The establishment did not appear to be overcrowded but there was a "good sized crowd". Constable Denstead remembered that he removed a bottle from the offending patron's hand but did not record this in his notes relating to the incident.
On cross examination, Constable Denstead stated it was his understanding that the call for assistance came from the Royal Hotel and agreed that calling the police is always a second option. He is familiar with the Royal because it is policy to do "walk throughs" as a routine for all licensed establishments. He definitely observed the offending patron refuse Ms. Way's request to leave and then the officers asked him to leave as well. He put up a good fight trying to punch both officers and had to be subdued and handcuffed. He kept insisting that he had done nothing wrong.
On re-direct, Constable Denstead stated both officers had this patron in a firm grip and they were trying to walk him to the door but he was not cooperating.
On questions from the Board, Constable Denstead described this individual as tall and about 200 pounds. He did not see anyone serve him the bottle he was holding and he does not know where he got it.
OPP Constable Glen Staley testified that he attended the Royal Hotel shortly after 11:00 p.m. on April 29, 2006 in response to a call about patrons who refused to leave the establishment. He arrived along with Constables Kingston and Denstead and as he and Denstead entered, Ms. Veronica Way approached them and described the situation. He asked her to repeat her request to the offending patrons in his presence and they again refused to comply. Constable Staley informed them they must leave and if they did not, they would be arrested because they were trespassing. Two individuals left but one stated “I don't have to leave - she can't make me”.
With the assistance of Constable Denstead, he began to physically move this individual towards the door and out of the establishment. When it became clear that he was attempting to impede their exit and worrying that he might hurt himself or others, they took him down, handcuffed him, removed him from the building, and placed him in the cruiser and under arrest. Constable Staley returned to the Royal Hotel after charging this individual at the detachment and observed no other problems.
On cross examination, Constable Staley identified the offending patron as Mr. Ken Scanlon and it was his opinion that Scanlon had been looking for a confrontation. He is very familiar with the Royal and confirmed Constable Denstead's statement that it is routine to do regular "walk throughs" in licensed establishments in Picton. He has never observed "bouncers" at the Royal Hotel.
When questioned, Constable Staley stated he could not say that he had seen a bottle or anything in Mr. Scanlon's hand as he approached him. He agreed that he would have been looking for such an object under the circumstances.
Evidence for the Licensee
Ms. Veronica Way has been an employee of the Royal Hotel for 20 years and functions as a senior bartender. It is her responsibility to monitor the conduct of patrons and she can observe the entrance and exit of everyone at all four entrances to the establishment. She described how she evaluates the condition of patrons and is very familiar with Ken Scanlon because she has refused him service on other occasions.
On the morning of April 29, 2006 she saw Scanlon enter the establishment and determined immediately that he should be asked to leave. She asked a co-worker to approach him and advise that he would not be served. One of his companions lit up a cigarette and was asked to leave. Mr. Scanlon again refused to leave and stated "I want the police".
Ms. Way followed him as he walked to the dance floor area and after repeated requests for him to leave, she finally gave her co-worker the signal to call the police. She stayed with him until the police arrived in what she estimated to be approximately 15 to 20 minutes. Mr. Scanlon was never served a beverage during that time.
When Ms. Way observed the police enter the premises, she left Mr. Scanlon to greet them and explain what had been happening. She took the police to where he was and her description of events matched that of Constables Staley and Denstead.
On cross examination, Ms. Way explained that they do not use the word "bouncers" at the Royal but prefer to call them doormen. While there was door staff on duty that evening, she did not call them for assistance. Mr. Scanlon was insisting he wanted the police and after repeated requests for him to leave, she felt the best way to handle the situation was to comply. Ms. Way was certain that nobody served Mr. Scanlon a beverage that evening and the only way he could have had one in his hand as described by Constable Denstead is if he took it from someone else when she left him to greet the police officers. She does not recall seeing Constable Denstead take a bottle away from Scanlon.
Ms. Way agreed with Registrar's counsel that as a long time employee, she would prefer not to see the Royal serve a suspension of its licence.
Jill Pearsall had worked at the Royal Hotel on and off for seventeen years at the time of the incident on April 29, 2006. She now works at a Youth Group Home. Ms. Pearsall stated that on the morning in question and on instructions from Ms. Way she approached Mr. Scanlon near the entrance and informed him he would not be served. He pushed past her so she asked Ms. Way to deal with him. Mr. Scanlon was insisting he would not leave and wanted the police. Ms. Pearsall made the call when Ms. Way gave her the signal to do so. It was her opinion that the police arrived about 15 minutes after she placed the call.
On cross examination, Ms. Pearsall described her location at the bar and that she could clearly see what was going on with Mr. Scanlon. She observed Ms. Way take the police officers over to him and the ensuing events. She was firm in her testimony that although she was serving other patrons, she could see everything that was happening. This is not the first time Mr. Scanlon has been asked to leave the Royal and she stated that the establishment does not employ “bouncers”.
Submissions from the Registrar
Ms. Taylor withdrew the allegation of an infraction of section 29 of the LLA that liquor was permitted to be sold or supplied to a person who was or appeared to be intoxicated but submitted that there was substantial evidence for the Board to make a finding that, contrary to subsection 45(1) of the O. Reg. under the LLA, the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under control of the licence holder.
Referring to the incident involving Mr. Adams and Ms. Savoy on April 1, 2006, Registrar's counsel believes there is sufficient evidence that proves these individuals were consuming alcohol in the Royal Hotel. She relies on testimony from the Officers that both individuals stated they were drinking and arguing in that establishment and that no evidence to the contrary was presented by the Licensee. There was no evidence presented from staff witnesses that they were not in the bar on April 1, 2006. These individuals were "grossly intoxicated" according to statements by the police and since there was no direct evidence to the contrary, she believes this hearsay evidence is sufficient to find that they were there. The fact that the Licensee did not present evidence that these individuals were not drinking at the Royal, makes it clear the Board must believe that they were.
Regarding the April 29, 2006 incident, Ms. Taylor submits there was overwhelming evidence that Mr. Scanlon was in the premises and in a very drunken condition. The issue is whether or not the Licence holder "permitted" him to be there. She referred the panel to SandBar [1999] O.A.G.C.D. No. 64 at paragraphs 33 and 34 in which the Board defined "permit" as a "failure to prevent".
Ms. Taylor further suggests that the establishment in essence asked the OPP to act as "door staff" by calling them to deal with this person instead of handling the problem by having their own personnel prohibit entry to this intoxicated individual. Ms. Way's attempts to intervene are admirable but licensed establishments must be capable of ensuring drunken patrons cannot enter. Due to the failure of staff efforts, Mr. Scanlon was in the premises for 15 to 20 minutes and managed to get hold of a bottle of beer that Constable Denstead testified he removed from his hand.
Ms. Taylor stated she was not criticizing Ms. Way or Ms. Pearsall but clearly they were not physically capable of dealing with Mr. Scanlon and there was no option or other plan in place except to call police to deal with it. This is the fault of the Licence holder, not the staff.
The local OPP detachment is not large and there are other licensed establishments in the area that they must deal with. The licence holder should be prepared with appropriate staff on site to prevent drunken patrons from entering the establishment because based on testimony, this happens frequently.
Ms. Taylor submits there is sufficient evidence for the Board to make a finding relative to subsection 45(1) of the O. Reg. under the LLA.
Submissions from the Licensee
Mr. Hurley asks the Board to exercise caution in accepting only hearsay evidence about Mr. Adams and Ms. Savoy regarding April 1, 2006. He suggests that the Registrar chose not to present direct evidence regarding events leading up to this incident and reminds the panel that, when Officers responded to the call about a fight on Main Street, Mr. Adams was in fact on public property. Further, he submits testimony confirmed this is an area where patrons from other establishments wait for taxis. The two individuals arrested did not testify about their activities at this hearing. He suggests that Ms. Taylor is making assumptions not in evidence and reminds the panel that the onus of proof of an infraction is on the Registrar. He submits there is insufficient evidence that Adams and Savoy were in or served to intoxication at the Royal Hotel.
In reference to the evening of April 29, 2006, it is Mr. Hurley's submission that the Royal Hotel staff's conduct was reasonable. There was no evidence that the Licensee looked to the OPP to do anything except enforce the trespass law. Ms. Way has a standard approach to situations like this that usually works. On this night it did not. It is not the law that a doorman must be on duty and even if there had been, Mr. Scanlon probably would have entered anyway. This is a small town bar with a system to deal with problem patrons and this was an exceptional case where the police were needed.
Mr. Hurley asks the Board to decide on the facts presented whether the Licence holder acted reasonably in the circumstances. They moved quickly and attempted to remove this patron. When the police asked him to leave, he still refused. He believes the allegation of an infraction has not been proven and an attempt to revoke this licence is inappropriate.
Registrar's Reply
Ms. Taylor states that Mr. Hurley's comment about sanction in this matter is inappropriate. Further, there was no evidence given that Adams and Savoy were waiting for a cab that evening and asks the Board to decide this matter based on the evidence available from the police officers. Adams and Savoy both stated they were drinking in the Royal Hotel and the Board can and has made findings based on hearsay evidence before.
The officers who dealt with Mr. Scanlon on April 29 were enforcing the LLA and the only reason he was asked to leave is because he was drunk. There are many establishments that do need doormen and some even search patrons before allowing them entry. The Board can and often does impose conditions on a licence that requires such security. Mr. Hurley's submission that the Board not make findings because they had a system in place at the establishment to deal with these problems is inappropriate. Ms. Taylor referred the Board to its decision in Shooters Sports Bar [2006] O.A.G.C.D. No 288 regarding due diligence and submits that Mr. Hurley's suggestion that Scanlon would have entered even if there was a doorman is just speculation.
She concludes by affirming her submission that there is sufficient evidence for a finding in this matter.
Decision
The Board has carefully reviewed the evidence and submissions presented at this hearing as well as the cases referenced by Registrar's Counsel.
Evidence shows that two severely intoxicated individuals were arrested on public property outside the Royal Hotel which is next door to another licensed establishment. Many bystanders were present and Officer Noack suggested that he did not enter the Royal Hotel to investigate because of concern that the situation with the crowd might get out of hand. They wanted to remove these individuals from the scene as quickly as possible. Yet according to the Officers' testimony, it was only after Adams and Savoy had been taken to the detachment that they both stated they were in the Royal Hotel that night. There was no evidence as to when the two were in the hotel although Constable Caissie stated that he did not see them when he was in the establishment at 10:45 p.m. on March 31, 2006.
There is no doubt that Adams and Savoy were intoxicated based on their actions. In addition to causing a public disturbance and interfering with an arrest, Mr. Adams could not provide the correct telephone number for his sister and Ms. Savoy apparently urinated in Sergeant Noack's vehicle. But there is no evidence before the panel about where and how they became intoxicated. Did they drink at home, at the Royal, at one or more of the other bars near the Royal or some combination of these three? Evidence from the Police Officers is that Ms. Savoy admitted to having a few beers at the Royal and Mr. Adams admitted he had been drinking there that night. There was no evidence that either Adams or Savoy were questioned in any serious way about their activities or whereabouts that evening. Even accepting they drank at the Royal that night, there is no evidence to connect their intoxication with the Royal. Evidence on that critical point had to come from either Savoy or Adams.
The Registrar did mail a summons to Adams and Savoy to appear at this hearing. Service of a summons is the responsibility of the party seeking to ensure the attendance of a witness. Summons issued by administrative tribunals in Ontario, such as the AGCO Board, are governed by the requirements of the Statutory Powers Procedures Act and are not enforceable unless served personally with the appropriate conduct monies (SPPA ss. 12(3), 12(3.1). Upon application to the Superior Court, a bench warrant may be issued for a witness who fails to attend before a board or tribunal after being properly served (ss.12(4)). The Board will not second guess the Registrar's litigation strategy or decision not to serve the summons on Adams and Savoy.
We agree with Mr. Hurley that the onus rests with the Registrar to establish the elements of the alleged offences. Absent testimony from either Savoy or Adams, there is insufficient evidence to permit the panel to determine on a balance of probabilities they became or were intoxicated in the Royal Hotel contrary to ss. 45(1) of the O. Reg.
In evaluating the evidence presented about the incident of April 29, 2006 the Board has carefully considered the testimony of Constables Denstead and Staley and Royal Hotel employees Way and Pearsall. All four witnesses were credible and except for the discrepancy about whether or not Mr. Scanlon had a bottle in his hand, their testimony describes the incident in a similar fashion.
It would appear that these seasoned employees chose to involve the police because they believed it was the appropriate thing to do in that particular circumstance. There was no evidence that the Royal Hotel uses the police detachment to regularly enforce the LLA and Constable Staley testified they were enforcing a trespass law when they removed Mr. Scanlon from the premises. He specifically asked Ms. Way to once more request that they leave in his presence so he could do so.
In reviewing the two cases referenced by Registrar's Counsel, the Board notes that Shooters Sports Bar is currently under appeal but has reviewed it as well as Sandbar relative to the April 29, 2006 incident and finds that both cases are entirely distinguishable on their facts. Moreover, the panel is of the view there was no "failure to prevent" in these circumstances: The actions of the Royal Hotel employees were reasonable and appropriate. Immediately upon entering the establishment it was determined that Mr. Scanlon was intoxicated, advised he would not be served and asked to leave. Ms. Way, an experienced bartender, recognized that on this particular night, something different was appropriate. In his testimony, Officer Staley also stated his impression was that Scanlon was looking for a confrontation. If the staff had attempted to physically remove him, there may have been a more serious result.
There is no way for us to know if a doorman stationed at the entry would have prohibited Mr. Scanlon from entering the establishment, but in any event there is no condition on this licence requiring one. Testimony from the two Royal Hotel employees suggests there is an effective system in place to deal with difficult patrons that usually works.
ORDER
- For these reasons, the Board DISMISSES the alleged breaches of subsection 45(1) of the O. Reg. under the LLA relative to the incidents of April 1 and April 29, 2006.
DATED AT TORONTO THIS 26th DAY OF JUNE, 2007
DIANNE AXMITH, BOARD MEMBER BRIAN J. FORD, BOARD MEMBER
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