Registrar, Alcohol and Gaming Commission Ontario v. 501250 Ontario Inc., 2007 CanLII 37843

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-

501250 Ontario Inc. O/A Wally’s Roadhouse Licensee

DECISION

Panel: David C. Gavsie, Chair Decision Date: July 27, 2007 Hearing Location: Ottawa, Ontario

Appearances

Registrar, Alcohol and Gaming Commission: Richard Kulis, Representative 501250 Ontario Inc., Licensee: Roger Button, Representative

Authorities

Commercial Tavern [2006] O.A.G.C.D. No. 580 (QL) R. v. Action Tavern Ltd. (1974), 1974 CanLII 1626 (ON PROVCT), 26 C.C.C. (2d) 127 (Ont. Prov. Ct.)

Allegations

1A hearing into a Notice of Proposal, dated March 6, 2007, to suspend the liquor licence of 501250 Ontario Inc. (the Licensee) operating as WALLY’S ROADHOUSE, 2532-2536 Innes Road, Gloucester, Ottawa, Ontario, K1B 4C5 (the “Premises”), licence number 20092, on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (O. Reg.) made pursuant to the Liquor Licence Act (LLA), was held on June 14, 2007, in the City of Ottawa.

Decision

2Based on the evidence adduced at the hearing, the Board finds that the Licensee breached subsection 45(1) of the O. Reg. on December 9, 2006 and January 5, 2007.

Preliminary Matters

3At the request of Licensee’s Representative and on consent of Registrar’s Representative, witnesses were ordered excluded, except for Bishara Elias, a director, officer and shareholder of the Licensee.

Licensee’s Evidence

4Constable Stephane Quesnel of the Ottawa Police Services (“OPS”) has been a police officer for 6 ½ years. He was in the Premises on December 9, 2006, at 2 a.m.

5OPS had received a call from the Premises that a previously barred male was trying to get into the Premises but, by the time Const. Quesnel arrived with a second officer, the male had left.

6Const. Quesnel proceeded into the Premises and noticed a male patron leaning on both arms sitting on a bar stool at the bar. The male had droopy eyes and was slouched. There was a beer mug approximately ¾ full in front of him.

7The male stood up and walked away from the glass toward the officer. He was swaying. He stopped about 10 feet away, looked at the officer from head to toe, turned around and walked back to the bar stool.

8Bishara Elias who was behind the bar told the officer he had already called a cab for the male and that he was through. The male picked up the mug and drank from it. Mr. Elias went to the male, told him he could not drink anything more, and took the glass away from the male.

9Const. Quesnel also went over to the male and saw that his eyes were glassy and watery. Const. Quesnel described the male as staggering and swaying as he walked slowly, looking down at the floor. Const. Quesnel left with the male patron still in the Premises waiting for his cab. Const. Quesnel stated that he believed the male patron was heavily intoxicated.

10In answer to questions on cross-examination, Const. Quesnel said he entered the Premises to do a compliance check to see if anyone inside was intoxicated. He did this on his own after he was informed by Mr. Elias that the initial reason for the call to police was no longer an issue. Const. Quesnel stated he entered the Premises and left 2 minutes after he entered. He conversed with Mr. Elias. Const. Quesnel said he did not speak to the male patron, nor did he obtain his name. He saw the problem was being resolved and that no further action was required. No provincial offence charge was laid. Const. Quesnel also said he would not know the male patron’s normal gait or the way he walked.

11AGCO Inspector Stephane Godard gave evidence about the night of January 5, 2007 when he was in the Premises. He had observed an intoxicated male on the patio smoking while sitting in his car. Inspector Godard had parked in front of the patio. The male was swaying from side to side, his hand movements were uncoordinated, and he had difficulty finding his mouth with a cigarette.

12Inspector Godard entered the Premises at 12:01 a.m., alone, and proceeded to the pool table area close to the entrance to the patio. The male came in from the patio, staggered across the pool table area, and had slurred speech when he spoke to some other people.

13Inspector Godard went to the bar and spoke to Mr. Elias. He identified himself. The intoxicated male came over to the cash where Inspector Godard was talking to Mr. Elias. The male wanted to pay his bill. Inspector Godard said the male had a strong smell of alcohol on his breath, had slurred speech, glassy eyes and a fixed stare. He fumbled for his money and bills. Inspector Godard asked for a copy of the male’s bill which was introduced as an exhibit (Exhibit 1). The bill showed some food items, 5 Budweiser, 1 Export and 1 Vodka Ice Apple. The total, including taxes, was $52.42.

14Inspector Godard identified Barry Hynes as the server. Mr. Hynes told him the patron arrived between 7 to 7:30 p.m. He was a first time customer. He was with 2 regular customers. The male looked fine when he first arrived. Mr Hynes told Inspector Godard that the male was in the Premises for about 5 hours and had consumed 5 beers which was not that much. Inspector Godard replied to Mr. Hynes that it was not the number of beers consumed, but rather the signs of intoxication shown that is important. Inspector Godard said he stood right next to the patron at the cash, and the manager was at the cash register also. Mr. Hynes agreed with Inspector Godard that the male appeared intoxicated. Inspector Godard then advised Mr. Elias that the patron could not stay. The male left on his own in any event. Inspector Godard departed the Premises at 12:35 a.m.

15On cross-examination, Inspector Godard was asked about the concept of intoxication. People react differently to different amounts of alcohol consumed. Inspector Godard said he did not speak to the patron, nor does he know anything about him. He did ask Mr. Hynes if the patron was a regular, to which the answer was in the negative. Mr. Hynes did not know his name. The patron was with 2 other people. The patron was standing and the other 2 were sitting at a table in front of the bar.

16Inspector Godard stated he could not remember if the male leaned on anything. He said he was not staring at the male because he was talking to the owner. Inspector Godard said that there was only 1 patron showing signs of intoxication and it was the male he was referring to. Inspector Godard stated that he first saw the male on the patio, observing him for 3 minutes or so. The male was swaying continually. Although his notes don’t say it, Inspector Godard remembered that.

17Inspector Godard said that he has seen a lot of people in various stages of intoxication. He remembered this patron. The patron did not fall down, and he gained entrance to the inside of the Premises without trouble and without assistance. The male went across the Premises to the end which Inspector Godard estimated to be a distance of 60 to 80 feet. The male was staggering, sidestepping as if the floor was uneven, and he was uncoordinated, not walking in a straight line.

18Inspector Godard observed the male at the cash register. He had slurred speech. He was not yelling or screaming or being disruptive. Inspector Godard said that Mr. Elias did not say much. Rather, Inspector Godard talked to the server, Mr. Hynes. Mr. Hynes agreed that the male was intoxicated.

Licensee’s Evidence

19Bishara Elias is a director and officer of the Licensee. The Licensee carries on a family restaurant and bar business in the Premises. Mr. Elias manages the business and has done so for 28 years. His two brothers are also involved.

20Mr. Elias described the layout of the Premises including the pool table area with 2 doors to the outside patio. The patio is closed in the winter but people use it to smoke.

21Mr. Elias stated that he deals with intoxicated patrons by stopping service to them and calling a taxi for them or sometimes he or his pizza delivery man will drive them home.

22Mr. Elias said that he has never had a discipline issue with his license in 28 years, since the business started on July 17, 1979.

23Regarding the incident on December 9, 2006, Mr. Elias said he met Const. Quesnel at the door at 1:15 a.m. Mr. Elias has called the OPS because a barred patron was trying to get in. Mr. Elias told Const. Quesnel that the barred patron had left.

24Const. Quesnel went through the Premises. He pointed out a customer at the bar. Mr. Elias knew him to be Scott. Mr. Elias told Const. Quesnel he had already called a cab for Scott. Const. Quesnel said that Scott, who was a regular customer, was intoxicated. Mr. Elias said Scott had been a patron of the Premises for 17 years or so who came in a couple times a week. Scott does not drink excessively. He usually sits at the bar and trades jokes. When Scott has had enough, he knows it. That night, Mr. Elias had told Scott that he had enough. From 12:30 a.m., Mr Elias had served Scott 3 bottles of Budweiser beer. Scott was sitting on a stool at the bar about 4 stools away from the cash register.

25When Const. Quesnel pointed Scott out to Mr. Elias, Mr. Elias said that Scott had no beer in front of him. There was a glass of beer on the counter from another customer. Possibly Scott reached for this glass, but it was not his. Eventually the cab came, but it took a while.

26According to Mr. Elias, Scott was fine, i.e. he was not intoxicated. Mr. Elias estimated there were 50 to 60 people in the Premises while Const. Quesnel was there.

27On cross-examination, Mr. Elias said he had no notes from the evening of December 9, 2006. However on receipt of the NOP, he recalled the evening. That was probably the last time he saw Scott who was leaving for Florida. Mr. Elias said he has not discussed this with Scott. Mr. Elias stated that Scott pays for each beer individually.

28When Const. Quesnel entered, Scott was sitting at the bar 4 stools away from the cash register. Const. Quesnel was inside for 3 to 5 minutes. Scott was on the stool when the officer entered and when he left. He may have gone by the officer to go to the bathroom. Scott did not have anything to eat. There were 4 or 5 patrons sitting on stools around the bar.

29That night, Mr. Elias was working alone behind the bar. Two other staff were working the tables. Const. Quesnel entered the Premises around 1:15 a.m. Scott had arrived after midnight, perhaps around 12:15 a.m. Within an hour, Mr. Elias served Scott 3 beers, but nothing to eat.

30Mr. Hynes has worked for the Licensee as a server at the Premises for 9 years, working 30-35 hours a week. He took the Smart Serve course 4 years ago. He has learned to deal with intoxicated patrons. He notices how much they consume, if they sway when they walk, if they are loud or belligerent – all of which are signs of intoxication. If Mr. Hynes feels a customer is intoxicated, he will cut the customer off from further service. If the patron is a regular, Mr. Hynes will take his car keys and will offer him coffee, or a drive home, or both.

31Mr. Hynes was working both of the nights when the alleged violations in the NOP took place. However he had no recollection of the events on the early morning of December 9, 2006.

32Mr. Hynes said he started a shift at 5 p.m. on January 4, 2007. His shift ended at 2 a.m. the next morning. Mr. Hynes was working with Mr. Nehme Elias. There were about 50 patrons in the Premises that night.

33Mr. Hynes recalled speaking with Inspector Godard around midnight who said to him that a patron who had just left appeared to him to be intoxicated. Inspector Godard had entered the Premises about 30 minutes before. Mr. Hynes did not know the patron. The patron had come in to the Premises around 7 or 7:15 p.m. and had left around midnight. Inspector Godard said he had seen the patron swaying, but Mr. Hynes had not seen that. Mr. Hynes did not see the patron’s bloodshot eyes, which Inspector Godard had apparently seen. Mr. Hynes tried to make sure he and Inspector Godard were talking about the same patron.

34The group of 3 seemed fine to Mr. Hynes when they arrived at the Premises. One of the 3 had an Export beer, one had a Smirnoff Ice, and the third person had 4 beers and bought a 5th beer for someone in the bar that he recognized. The last one was the person pointed out by Inspector Godard. Mr. Hynes sated that this patron had 4 beers from 7 p.m. to midnight. The group of 3 shared a large pizza around 9:30 or 9:45 pm. All 3 ate. The group was quiet and talked.

35Mr. Hynes said he talked to Inspector Godard twice. He said he disagreed with Inspector Godard’s assessment that the patron was intoxicated. Mr. Hynes believed the patron was fine. Inspector Godard asked for a copy of the bill for the group of 3. Mr. Hynes was shown Exhibit 1 and agreed that was their bill. Mr. Haynes took their payment in cash. The supposedly intoxicated patron paid the bill and left a nice tip. Nothing seemed out of the ordinary to Mr. Hynes.

36On cross-examination, Mr. Hynes said the evening of January 4-5, 2007, was the first time he was involved with Inspector Godard. He has a good memory of the evening. Of the group of 3, 1 was a regular by the name of Joey. Mr. Hynes has seen Joey recently in the Premises. He comes in once every week or so. Mr. Hynes said he has never discussed the events of January 4-5, 2007, with Joey or anyone else. He has not seen the other 2 people in the group.

37Mr. Hynes stated that his conversations with Inspector Godard were brief. Both parts of their conversation did not take more than 5 minutes. Mr. Hynes said he was too busy for a longer chat. There was no reason for him to do so in any event because he did not see anything out of the ordinary regarding any patron that night.

Registrar’s Submissions

38Mr. Kulis began his submissions by saying that the evidence of the Registrar’s witnesses was precise. Inspector Godard’s notes were prepared immediately after he left the Premises on January 5, 2007. Const. Quesnel prepared his report sometime after he was in the Premises on December 9, 2006. The Licensee’s witnesses had no notes or report to assist them.

39Const. Quesnel’s evidence was concise and clear. He arrived at the Premises at 2 a.m. The reason for the original call had disappeared. He entered the Premises. He saw a male leaning on the bar. The male was sitting in a droopy position. When he stood up, the male swayed. He had glassy eyes. The male continued to consume. Then the person in charge took the alcohol away from the male. The male appeared obviously intoxicated to Const. Quesnel. Mr. Elias said he had already called a cab for the male. There is no reason for the officer to lie. His story is not concocted. Mr. Elias has an interest in the business. Mr. Hynes said he had no recollection of the incident which is very strange.

40On January 5, 2007, Inspector Godard saw a male patron outside on the patio smoking. The patron was uncoordinated getting the cigarette to his mouth. Inspector Godard went into the Premises and waited for the patron to come inside from the patio. When the patron came in, he was staggering, his speech was slurred. Inspector Godard talked to Nehme Elias regarding the December 9 incident, and observed the same male patron paying his tab. He smelled of alcohol, his speech was slurred, his eyes were glossy and he fumbled for his money in paying the bill.

41The evidence of Inspector Godard is much more precise than that of Mr. Hynes. Mr. Hynes said he was only serving tables and that he was busy that night. Perhaps, Mr. Kulis said, Mr. Hynes was too busy to notice what state patrons were in.

42Mr. Kulis continued that Mr. Elias’ memory was flawed during his evidence as to what transpired on December 9, 2006. Mr. Elias could not remember what time the patron – Scott – was there. His other evidence was not precise. He had made no notes or reports. Mr. Elias said Scott left around 1:30 a.m. Const. Quesnel said he arrived at the Premises at 2 a.m. This was a discrepancy. Within the time he was in the Premises, Scott was served 3 bottles of beer by Mr. Elias. This may not be excessive, but it was quick.

43In Mr. Elias’ evidence, there were discrepancies and he could not remember the particulars. The police officer, on the other hand, was trained to do so and gave higher credibility to his version of what happened than an owner of the Licensee or an employee.

Licensee’s Submissions

44Mr. Button began his submission by referring to the wording of subsection 45(1) of the O. Reg. which the Licensee is alleged to have violated in the NOP on the 2 nights. There are 2 issues with the wording. The first is “permit” and the second is “drunkenness”.

45There were 2 incidents and 2 versions for each. The Registrar’s witnesses rely on notes and on an occurrence report. The witnesses for the Licensee did not. Mr. Hynes said it was the first time he dealt with an inspector, so the incident of January 5, 2007 was firm in his mind. Mr. Elias, the owner, has had no previous incidents. He recalled the police officer talking to him on December 9, 2006. His memory could be better than the police officer.

46Mr. Button said that regarding the December 9 incident, the police officer’s description of the individual’s attention leaves some doubt. The amount of time the officer was in the Premises was very short and the circumstances he described would not necessarily lead one to conclude that the patron was intoxicated. The state of drunkenness is not black and white – it is a continuum. It will vary and is very much a test in the eyes of the beholder.

47It is an objective test for the Licensee. There must be some leeway for the licence holder to appreciate whether a patron is drunk. Mr. Button referred to Commercial Tavern at paragraph 37, where the Board said:

It is the view of the Board that it is virtually impossible to scrutinize patrons to the point that someone will not slip through. When this happens, it becomes incumbent upon licensees to ensure that they are prudent in their oversight in the premises, and when a problem is discovered, it is handled promptly and appropriately (...)

48Mr. Button said that in the present case, the problem was handled properly by the Licensee. When the police officer brought the patron sitting at the bar to the attention of Mr. Elias, the latter said he had already both called a cab and cut the patron off from service. The officer said it was being handled properly and as a result, no provincial offence ticket was issued.

Mr. Button then referred to the Provincial Court’s decision in R. v. Action Tavern Ltd. at page 9 where the Court states:

What I have said about my view of the law with respect to the charge under s. 56(5) applies as well with respect to the charge against the accused of suffering or permitting drunkenness to take place contrary to s. 56(4)(b). In the latter case, I might add, that the Crown, in order to secure a conviction, must show that the licensee knew or should have known because of the conduct of the patron, that he was drunk.

49In the next paragraph of the same decision, the Court said:

With respect to the charge of suffering or permitting drunkenness, and again dealing with the question of intent, I must conclude that where the words “suffer” or “permit” are found in the statute, it must be shown that (1) the licensee actually knew or should have known that the patron was drunk, or in the alternative that (2) he was wilfully blind or in the alternative that (3) he was careless.

50Mr. Button argued that, even if the Board makes a finding that the Licensee knew or ought to have known, the Licensee was not negligent or wilfully blind. In the December 9, 2006, incident, Mr. Elias had already called a cab and cut the person off from further drinking.

51Turning to the incident of January 5, 2007, Mr. Button said that the signs of intoxication stated by Inspector Godard are not those that would lead a reasonable person to conclude that the patron was in fact intoxicated. Inspector Godard said he was staggering and swaying. These are signs, yes, but not conclusive. In looking at subsection 45(1) of the O. Reg., other than drunkenness, Mr. Button urged the Board to look at what kind of behaviour the regulation is trying to get at. None of that behaviour was here.

52Going back to Action Tavern, Mr. Button said there was no disturbance of other customers. The 3 men in the group were sitting in a corner, and they were not loud. Further, the condition of the person is more important than the number of beers bought or the time period during which the beers were consumed. Mr. Hynes testified that he had no reason to believe that the man was intoxicated. Nothing led Mr. Hynes to that observation.

53Inspector Godard said the man had slurred speech. He should have been able to elaborate, but he did not speak to the man directly. Inspector Godard said his breath smelled of alcohol. Mr. Button said people’s breath smell of alcohol when they drink.

54In Mr. Button’s view, there was not enough evidence to have the Board make the conclusion that the patron was drunk, or that the Licensee permitted the patron to be there. There was no breach of subsection 45(1) of the O. Reg.

Registrar’s Reply

55In reply, Mr. Kulis said that in Commercial Tavern the patron came in and the problem happened almost immediately. Here, a person sits for 4 or 5 hours and the manager calls him a cab. It would open things up if the Board applied the Commercial Tavern rationale to this situation.

56In the December 9, 2006 incident, even though a cab was called, the patron was permitted to drink. In Mr. Kulis’ view, the situation must have been one of “permitting”. The patron was only cut off when the police officer pointed out to Mr. Elias that the patron was drinking.

57Regarding the January 5, 2007 incident, the patron was there a long time. Mr. Hynes was busy. He had an opportunity to, but could not, make the observation he should have regarding the intoxicated patron.

58The slurred speech of the patron could possibly be explained as arising from another factor. But in this case there were broad indicators, all of which point to the patron being intoxicated. The accumulation of the indicia supports that conclusion.

59As for Mr. Button’s argument about subsection 45(1) of the O. Reg. that no patrons were dangerous, Mr. Kulis argued that a passive drunk is just as dangerous as an aggressive drunk. Such a person could just as easily hurt themselves, or worse, inadvertently hurt someone else. There is no distinction.

Reasons for Decision

December 9, 2006

60The evidence of Const. Quesnel was clear and concise, given in a candid, forthright and objective manner. Const. Quesnel upon entering the Premises noticed the male patron who had both arms on the bar and he was slouched over. He had droopy eyes. When the male stood and walked toward Const. Quesnel, he was staggering and swaying. The male’s eyes were glossy and watery. The male walked slowly with his eyes lowered, looking at the floor. Const. Quesnel said that, in his view, the male was heavily intoxicated.

61Mr. Elias’ evidence concerning the patron was more of a general than specific nature. According to Mr. Elias, the patron Scott knew when he had enough and that he did not drink excessively. That night, however, Mr. Elias said he had to cut him off but notwithstanding Mr. Elias’ statement, Scott was seen drinking beer from a glass. Mr Elias also testified that from 12:30 a.m. on, he had served the patron, Scott, 3 bottles of beer.

62Const. Quesnel said he saw the patron drink beer from a beer mug in front of him on the bar. Mr. Elias said the patron only drinks bottled beer and that the glass must have been from another patron. Although Mr. Elias said he had cut off the patron, it was Const. Quesnel who had to tell Mr. Elias that the patron was still drinking beer, and only then did Mr. Elias take the beer away from the patron.

63The Commercial Tavern decision is distinguishable on its facts. In that situation, a patron entered the premises, walked towards a back door, stopping to sit at a table. She slipped or fell to the floor and was seen by an inspector who had just entered the premises. She was intoxicated before entering and did not order or drink in the premises. In this case, the patron had been in the Premises for 1 ½ to 2 hours, and had ordered and consumed several alcoholic beverages in the Premises. This is differs significantly from the facts in Commercial Tavern. In this situation, there can be no question the Licensee both knew of the patron’s presence and condition and permitted him to remain despite this.

64Action Tavern is also distinguishable on the basis it involved a provincial offence charge where mens rea was required to be proven beyond a reasonable doubt. The issue there was proof of age of a patron. By contrast, in this matter the Registrar is only required to establish the alleged violation occurred on a balance of probabilities.

65Based on the clear and concise evidence of Const. Quesnel, the Board FINDS that the Registrar has proven, on a balance of probabilities, that the Licensee permitted intoxication to occur in the Premises contrary to subsection 45(1) of the O. Reg.

January 5, 2007

66The evidence of Inspector Godard was also given in a clear, concise, forthright and objective manner. He drove into the parking lot in front of the Premises. He noticed a male smoking on the front patio. The male was having trouble getting the cigarette to his mouth. The male was swaying from side to side.

67Inspector Godard entered the Premises and went to an area close to the patio doors to wait for the male on the patio to come inside the Premises. When the male did, he staggered across the area where Inspector Godard was and exhibited slurred speech when speaking to people.

68While Inspector Godard was speaking to the manager near the cash register about the male patron, the patron came over to pay his bill at the cash. The male had a strong smell of alcohol on his breath, had slurred speech, glassy eyes and a fixed stare. He fumbled for money to pay his bill. Inspector Godard said when he spoke to the server, Mr. Hynes, shortly after midnight he told him the male was fine when he came in at 7 or 7:30 p.m. Inspector Godard also said that Mr. Hynes agreed with him that the male was intoxicated.

69Mr. Hynes, in giving his evidence, said the male patron was fine when he came in, and appeared fine to him all evening. He also said he was busy that night. The Board surmises that Mr. Hynes did not pay much attention to this particular patron who was sitting in a corner with 2 other patrons, but really only observed him closely when Inspector Godard pointed him out to Mr. Hynes.

70Based on the clear and concise evidence of Inspector Goddard, the Board FINDS that the Licensee permitted intoxication in the Premises to occur on January 5, 2007, contrary to subsection 45(1) of the O. Reg.

Conclusion

71The Board invites written submissions on penalty from the respective parties. The submissions are to be provided to the Hearings Section of the Alcohol & Gaming Commission of Ontario, at the address on the front of this decision. Registrar’s representative shall serve and file his written submissions in seven (7) days from the date of this decision. Licensee’s representative shall have seven (7) days thereafter to serve and file a written response. Registrar’s representative shall have an additional three (3) days to serve and file a reply, if any.