Registrar, Alcohol and Gaming Commission Ontario v. 4840985 Manitoba Ltd., 2007 CanLII 37846

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-

4840985 Manitoba Ltd.

O/A Winston Motor Hotel

Licensee

DECISION

Panel: Kirsti Hunt, Vice-Chair Guy Maurice, Member

Decision Date: July 30, 2007

Hearing Location: Sioux Lookout, Ontario

Appearances

Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative

4840985 Manitoba Ltd., Licensee ) Boris Kravets, on behalf of the ) Corporate Licensee

Allegations

1. A hearing into a Notice of Proposal (“NOP”) dated January 23, 2007, to suspend the liquor license of 4840985 Manitoba Ltd. operating as WINSTON MOTOR HOTEL, 31 Koval Street South, P.O. Box 298, Township of Pickle Lake, Pickle Lake, Ontario, POV 3AO (the “Premises”) licence number 11167 (the “Licence”) on the basis of alleged violations of section 29 of the Liquor Licence Act (“LLA”) and subsection and 45(1) of Ontario Regulation 719/90 (the “O. Reg.”) under the LLA, and a Supplementary Notice of Proposal dated May 7, 2007, to suspend a licence, was held on June 21, 2007, in Sioux Lookout.

Decision

2. After considering all the evidence and submissions the Board finds the Licensee violated section 29 of the LLA and subsection 45(1) of the O. Reg. under the LLA.

Registrar’s Evidence

3. Constable Paul Howarth, a Constable with the Nishnawbe –Aski Police Service gave evidence that on January 21, 2007, he was called by Mr. Kravets to assist the OPP because intoxicated and unruly patrons were fighting at the Winston Motor Hotel after they had come from the dance at the community hall. He arrived at 1:30 a.m. and assisted other officers in arresting intoxicated persons from the dance. The Police then noticed the front door of the premises was smashed and the owner opened the door and allowed the officers inside the premises. They observed a patron, identified as Bern Mishenene, who was intoxicated and was trying to fight with other patrons. His mother was trying to hold him back. The officers asked him to leave but he refused. He was then escorted outside. The owner then asked them to remove an extremely intoxicated patron, Donny Nayatchekeesic and then Bernard Ketash both of whom were refusing to leave. He were removed and charged with trespass to property. Police described these intoxicated persons as having blood shot eyes, slurred speech, being unsteady on their feet and having a strong odor of alcohol on their breath.

4. The officers returned inside and were advised that a young person, identified as Samson Skunk, was starting fights inside the Premises. Police advised him to leave and he refused. He displayed all the symptoms of an intoxicated person. He was charged with Trespass to Property and taken into custody for breach of recognizance. He was extremely resistant when arrested and assaulted Police. While being lodged, he was using profanity and made some threats towards officers. His father, Simon Skunk, who had been observed intoxicated while sitting at a table and who had a bottle of beer before him, tried to intercede and in doing so punched an officer in the face. It took 3 officers to subdue and handcuff the father.

5. The officer agreed that police were also removing intoxicated patrons from the dance which was attended by 75 to 100 people and which ended at 1 a.m.

6. OPP Constable Andrew Both testified that on January 21^st 2007, he entered the building and the owner said that intoxicated people were coming in both of the entrances. The inside was heavily occupied with patrons. He noticed the mother of a patron, Bern Mishenene, holding back her son preventing him from fighting. Mr. Mishenene was escorted out. The officer then observed Donny Nayatchekeesic passed out in his chair and the bartender asked to have him removed and advised that he had not been served in the premises but had arrived drunk. He was then arrested and charged with Public Intoxication and lodged until sober. The officer assisted in the arrest of Bernard Ketach, which was described by Constable Howarth, and he confirmed the same signs of intoxication. On reentering, Constable Bernst pointed out a male, later identified as Samson Skunk, on the dance floor who was agitated. When asked to leave, Samson refused and when told he was under arrest he resisted police. A struggle ensued and it took 3 officers to subdue and handcuff him. While on the floor, Samson kicked at Constable Both and tried to hit Constable Howarth. Samson was drunk.

7. Samson’s father, Simon, came over to help his son or to calm him down but the father was out of control. The officer had seen Simon Skunk earlier with a bottle of beer in front of him and told the owner that he should not be drinking. His eyes were red, he was not moving much and seemed on the point of passing out. The owner said that he had not been served that beer but someone had given it to him. He punched Constable Bernst in the face. While three officers were trying to control the son, Constable Bernst was trying to control the father. Both father and son were arrested.

8. The officer agreed that the owner told him that while he was at the front door someone let others in the back door. He also agreed that there are two licensed establishments in the community but one is 4 km away while the Winston Motor Hotel is 300 to 400 yards away from the dance. The officer also agreed that after this incident, the owner had asked police to be close to the bar so intoxicated people from the dance would not arrive at the premises.

9. OPP Constable Jason Bridle stated that on November 19, 2006, he was patrolling at 2:30 a.m. when he was waived down by a bartender, Chantal Isaak, at Winston Motor Hotel who wanted him to assist with 2 persons fighting. Inside he observed a male patron, Ivan Mishenene, demanding that his female friend, Glenda Masakeyash, hit him again. He had blood on his nose and his hands. He was sitting at a table on a bar stool with an empty glass in front of him. Glenda was standing beside him with a Smirnoff Ice cooler in her hand. When asked what was going on, Glenda said that she had hit him. Both were intoxicated. She was unsteady on her feet and both had glassy eyes and slurred speech. Once Ivan got off the chair, he was unsteady on his feet. They had an odor of alcohol on them and he watched Glenda finish her bottle of cooler before they left. The officer did not see Ivan drinking. Two people in the lobby told the officer that they had seen her hit him. Ivan was transported to his home as an alternative to arrest. When asked how much he had had to drink, Ivan replied that that he had more that 5 to 10 drinks, and later that he did not even know how many he had. As he entered the house, he stumbled on the way to the door and fumble with his keys.

10. The officer indicated that police had had problems with him and alcohol at the Winston in the past. Force had to be used on him because he was so intoxicated and would not comply. The bartender advised him that Glenda had consumed 8 coolers and Ivan had consumed 8 ryes. He had arrived about 10 p.m. and she had been there before that. The fight took place moments before the police arrived. She also said that the female has been violent previously but they can control her without police intervention. The male was a regular customer and she has been required to cut him off in the past but had not done so this night.

11. On Saturday February 10, 2007 Constable Bridle was on patrol with another police officer and was called over by people in front of the Winston. Paul Spivak, the assistant manager, complained that he had been pushed by a female while trying to intervene in an argument between her and another female. Some of the people exiting advised the officers that they should go inside because that was where the action was. Upon entering the Premises, they observed a female bartender physically removing a former employee. Their attention was drawn to two male persons, Ivan Mishenene and his brother Bern, yelling at each other. While attempting to calm them down, officers observed that both were intoxicated and displayed glassy eyes, slurred speech, an odor of alcohol on their breath and were unsteady on their feet. To avoid further incident, the officers escorted them out the back door and drove them home.

12. After leaving them at their house, the officers were called back by the mother who was concerned that a younger son was very intoxicated. She did not want him in the house and wanted him removed for his own safety. She was not able to contain him and feared that he would return outside. She had found him passed out in a snow bank outside the Winston Hotel and brought him inside. The officers found him passed out in the washroom. It took him up to 20 minutes to become conscious and two officers had to assist him to the police cruiser because he couldn’t walk or stand and he was semi-conscious. Based on a statement from his sister and another person, he had been at the hockey dance and was drinking there but left before her. He was at the Winston when she arrived there. She did not know how much he had to drink but indicated that his brothers were feeding him drinks. She saw Bern at the bar buying rounds, 4 at a time on 4 occasions.

13. At the police station, this younger brother had to be physically forced into a cell while resisting, he was very argumentative and threatened to accost one inmate and did swat another. He did not stop until officers threatened to use pepper spray on him.

Licensee’s Evidence

14. Mr. Kravets introduced the statement of Shawna Leflur and it was made Exhibit 1.

15. Paul Spivak is the Manager of the Windsor Motor Hotel and stated that on November 19, 2006, he observed Glenda and Ivan in the premises. Both were playing pool and drinking from about 8:00 p.m. and were behaving normally. He saw no aggressive behavior. He explained that he cannot tell if Ivan or Glenda are drunk but the bartender can. He then went to his room because there were only a few people in the Premises so he was not expecting any problems. Later he stated that around 12:30 to 1 a.m. he asked the bartender how many drinks Ivan had been served. He asked for no reason. He is always concerned about Ivan because he drinks a lot and they stop him if he is intoxicated. If he sees people staggering and really drunk, he does not serve them. It is the bartender’s job to know if people are drunk.

16. February 10 was a dance night at the community hall. He went out for a smoke and saw two people arguing outside and when they would not stop and one kept attacking him, he called the police over. They were not drunk, just arguing. He saw Ivan Mishenene inside and he was in his normal state, nothing out of the ordinary. He did not see the other brothers come in and did not think he saw the youngest brother Silas at all. He saw Shawna physically remove the former employee who was trying to break into the argument between Ivan and his brother. He was looking after Ivan and the police were already there.

17. Mr. Spivak explained that the dance finishes at 1 a.m. He is always present because the Premises are open until 2 a.m. and they get a lot of people from the dance who come in all at the same time around 1:15 a.m. He is at the front door to makes sure that drunk people do not come in. The other entrance is watched by the bartender. People walk in that door because it is closest to the dance. On dance nights he tries to watch both doors.

18. On questioning by the Board, Mr. Spivak indicated that only he and a bartender work on dance nights. He helps her and does some cooking because people order food and he also picks up empties. They do not have extra staff on dance nights because they have a problem getting staff and 99% of the time they have to bring in people from Winnipeg.

19. Mr. Spivak also worked on November 8, 2006 from 7 a.m. to 3 a.m. Around 11 p.m. he went to his room and checked the premises probably 3 times after that. He could not remember if he was in the premises for closing. He did not see Ivan come in but saw him 4 to 6 times with a drink on the table but did not know how many he had after 11 p.m.

20. Mr. Spivak also explained that the bartender makes the rules about who is served or not. If the bartender asks him to remove someone, he does so. However, when it is extremely cold outside, they try not to evict anyone because they would freeze to death but give them water and sit them down in the bar for their own safety. They try to look after them even if they come in drunk from the dance. No other place is open at that hour of the night with washrooms and a telephone.

21. Mr. Boris Kravets stated that the problem at Winston is based on a few factors. Over the past 3 years there has been a large turnover in staff with over 60 cooks having been replaced, 36 waiters, and that bartenders are doing the best they can. During the first 2 years of operation, the Winston never opened after 1:00 a.m. The whole town goes to the dance and he did not want to take the risk of staying open that last hour because he did not have the manpower. He tried to clear the place of drunks and trouble makers and sent 18 letters to people in town saying they could not come to the hotel and registered the letters with the police. As a result, people called him racist. He was pressured to stay open until later as before.

22. He has been caught between a rock and a hard place in the last 2 years because if he removes people himself, he is a racist and if he calls the police, the police reports are filed with the AGCO. Liquor sales are not his main revenue but the rooms and restaurant are and he has a licence for the convenience of his customers. He has never pushed bar sales nor pushed drinks on people with a drinking problem. He has other liquor establishments in Winnipeg and has had no problems there. In Winnipeg, he works with the Liquor Board and the police but in Pickle Lake it is different for everybody works against him. In Pickle Lake, he is trying his best despite the racist accusations. Most people drink considerably but do not always obtain all of the alcohol from the Winston Hotel.

23. The hotel is conditionally sold on September 8, 2007. He is selling because the town is getting smaller, the hotel is making less and less money and he cannot handle things any more. Reference was made that his staff served a patron 4 double shots in 4 hours but that would not be too much for a big guy like Ivan. He was not present on February 10 or on November 19. He agreed that his licence was suspended for 14 days in early 2004. The Board’s decision (cite as Winston Motor Hotel [2003] O.A.G.C.D. No. 804 (QL)) was made Exhibit 2.

Registrar’s Submissions

23. Registrar’s Representative is seeking findings under section 45(1) of the O. Reg. and section 29 of the LLA for November 19, 2006 when alcohol was served to two intoxicated patrons, Glenda and Ivan. The bartender stated that she had served 8 ryes in 4½ hours to Ivan and 8 coolers to Glenda who was allowed to finish her cooler even after punching her partner. These patrons were served to intoxication. If the Board does not make a finding under section 29 under the Act, a finding can be made, in the alternative, under subsection 45(1) of the O. Reg. for permitting drunkenness in the premises. A finding can be made under section 45(1) of the O. Reg. for disorderly conduct for these two patrons based on the fact the she punched him and he was asking her to hit him again.

24. For February 10, the Registrar is seeking the findings under section 45(1) under the O. Reg. for the two brothers, Bern and Ivan, for permitting disorderly conduct; section 29 of the Act for Ivan for service to intoxication or in the alternative under 45(1) of the O. Reg and subsection 45(1) of the O. Reg. for permitting drunkenness for other two brothers.

25. The evidence is that Bern was drunk when he arrived in the premises and was in ongoing arguments until police arrived. If Ivan was not drunk when he came in, he became drunk and disorderly after being served 4 double ryes despite the signs of intoxication he exhibited. The evidence is that Silas was drunk on arrival, proceeded to drink someone else’s beer, fell asleep and was allowed to stay in the premises. He was found passed out outside the premises and later was seen drunk by police at home.

26. On the January 21, 2007, the Licensee permitted drunkenness which is contravention of section 45(1) of the O. Reg. in the case of Bern Mishenene, Donny Nayatchekeesic, Bernard Ketash., Samson and Simon Skunk. There is evidence that Samson was drinking in the premises and there is no evidence that the other 4 had just walked into the premises.

Licensee’s Submissions

27. The licence holder submitted for November 19that a glass of alcohol is the same as a glass of water to Ivan. He was cut off and a taxi called. The bartender waved police in so things did not escalate into something bigger. The incident was not a fight. It was 1 punch between two people who had been together all night playing pool.

28. On January21 the front door of the Premises was broken. None of the people mentioned were served in the Premises. He called police 4 times because he needed help. He closed the front door so he could be at the back door. He had been asking police to be present when people were coming from the dance but it was not happening.

29. On February 10, when the brothers were fighting, he called police. He did not want to kick these people out because of the extreme cold weather conditions. After a dance, people have to get to Osnabourg which is 40 kilometers away. They ask to call a taxi and use the washrooms. He agreed that he could not physically keep all those people out and that is why he has asked police for help.

30. His first suspension involved the cook who opened the premises after it had closed. He fired this person. He concluded that he should not have listened to the community and stayed open until 2 a.m. but should have thought about his business. That was his mistake. However, he never pushed liquor in his Premises for that is not where he makes his living. He is financially losing money and is trying to sell the business.

31. In reply, Registrar’s counsel submitted the Board’s 2003 Decision suspending the licence for 14 days refers to 4 dates of drunkenness and nothing about a cook staying open after hours.

Conclusion

32. For the November 19, 2006 incident, there is clear evidence from police and it was not disputed that Ivan and Glenda were drunk in the Premises. Based on the amount of alcohol they had been served and their condition when police arrived, the Board concludes they were drunk when they were served at least the last drinks they had. Therefore, the Board FINDS a breach of section 29 of the LLA.

33. There is also clear evidence that Glenda had punched Ivan in the face and he was asking her to do it again when police arrived. Therefore, the Board FINDS a breach of subsection 45(1) of the O. Reg. for permitting disorderly conduct.

34. For January 21, 2007, there is clear and uncontested evidence that Bern Mishenene, Donny Nayatchekeesic, Bernard Ketash, Samson and Simon Skunk were in the licensed Premises and were intoxicated. Therefore, the Board FINDS a breach or subsection 45(1) of the O. Reg. for permitting drunkenness.

35. For February 10, 2007, the evidence of police is clear and the Licensee admits that Ivan and Bern were fighting in the Premises. Therefore, the Board FINDS a breach of subsection 45(1) of the O. Reg. for permitting disorderly conduct in the licensed Premises. Also, there is clear and uncontested evidence from police that the three brothers were drunk. There is evidence from the sister that Bern bought a round of 4 four drinks four times but, given the absence of any time frame or to whom the drinks were served, the Board is not satisfied there is sufficient evidence to find a violation of section 29 of the LLA in respect of this event. However, there is evidence the Licensee permitted drunkenness in the premises in the case of all three brothers contrary to subsection 45(1) of the O. Reg. By having only two people working on dance nights, staff was not able to deal with the influx of people coming from the dance and thereby permitted drunk people to enter the premises and needed the help of police to remove them. Therefore, the Board FINDS a breach of subsection 45(1) of the O. Reg for permitting drunkenness.

36. Given the findings above, the Board invites written submissions on penalty from the parties. The Registrar’s representative shall serve and file his written submissions within seven (7) days of the date of this decision. The Licensee 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 of Hearings of the Alcohol & Gaming Commission of Ontario at the address on the front of this decision.

DATED AT TORONTO THIS 30^th DAY OF JULY, 2007.

GUY MAURICE, BOARD MEMBER KIRSTI HUNT, BOARD MEMBER

GM/rb