Registrar, Alcohol and Gaming Commission Ontario v. 1252378 Ontario Inc. O/A SIN, 2007 CanLII 41541

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-

1252378 Ontario Inc. O/A SIN

Licensee

DECISION

Panel: Beryl Ford, Board Member Alex McCauley, Board Member

Decision Date: September 28, 2007

Hearing Location: Ottawa, 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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Joyce Taylor, Representative 1252378 Ontario Inc., Licensee ) Ainslie Dunstone, Representative

Allegations

1. A hearing into a Notice of Proposal number 15118 dated April 12, 2007 to suspend liquor license number 202703 issued to 1252378 Ontario Inc. (the “Licensee”) operating as SIN, 378/380 Elgin Street, Unit E, Ottawa, Ontario, K2P 1N1 (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 July 19, 2007 in the City of Ottawa.

Decision

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

Preliminary Matters

3. Mr. Dunstone requested an adjournment on the basis a key witness, P. Koustahtin the person identified by the Inspectors as being intoxicated on the premises, was not available and he wished to present evidence about the attempts to locate him. A previous request for an adjournment to locate Mr. Koustahtin had been denied. Although Mr. Dunstone presented a letter, dated July 12, 2007, advising that the Licensee intended to commence an accelerated formal search for Mr. Koustahtin, there was no evidence a company had been retained to carry out the search. In the circumstances, the Board was not satisfied the Licensee had made real and serious efforts to locate the witness and denied the request for adjournment.

4. A motion to exclude witnesses was granted.

Registrar’s Evidence

5. Andrew Rowntree a Liquor Licence Inspector, visited the premises with Inspector S. Godard on February 3, 2007 at 2:11 a.m. He observed a male person in the bar area about 6 – 8 feet from his observation point. The male appeared to be headed for the stairs leading to the exit. He was unstable on his feet and narrowly avoided colliding with a wall. The male had great difficulty in keeping his balance, his eyes were glazed and his face was red.

6. Inspector Rowntree told the doorman Jim Goddard that the male who was leaving was intoxicated, Mr. Goddard followed the patron down the stairs past the coat check and out to the sidewalk, the patron was dressed in a t-shirt without a coat or jacket.

7. Through a window Inspector Rowntree observed that Mr. Goddard and the patron, identified as Privlo Koustahtin, appeared to be speaking outside the premises. Mr. Goddard and the patron re-entered the premises and approached the coat-check. The patron was leaning his head against a wall while Mr. Goddard attempted to find his jacket. After approximately 5 – 10 minutes, Mr. Goddard escorted the patron to the main bar area in an attempt to locate his jacket.

8. Inspector Rowntree made it clear that he did not have difficulty with Mr. Goddard escorting the patron into the establishment to retrieve his jacket because of the severe weather conditions.

9. The Inspector informed Mr. Goddard that he had observed a jacket left near the dance floor. The patron identified the jacket as his. He had no recollection where he had left it, or if he retrieved it from the coat check earlier. The patron left the premises.

10. Stephane Godard is a Liquor Inspector with the AGCO. He arrived at the premises with Inspector Rowntree for a routine inspection. He identified himself to the doorman, Jim Goddard, on arrival.

11. On his arrival he observed an intoxicated male near the bar area close to the dance floor. The male was unsteady on his feet, had glossy eyes, and a fixed stare. He appeared to be lost and walked aimlessly towards the stairs leading to the exit. He pointed out the intoxicated male to the doorman.

12. Inspector Godard corroborated Inspector Rowntree’s evidence with respect to the doorman bringing the patron back inside the premises in an attempt to find his jacket. Inspector Godard testified that the doorman was concerned that the patron was outside without a coat, however, agreed that the patron was intoxicated and should be removed from the premises.

13. Inspector Godard advised the Manager, Mr. Allan Ahmaezadeh, of the violation of serving an intoxicated patron. Mr. Ahmaezadeh agreed that the patron was intoxicated and should be removed from the premises. He did not mention the patron was removed earlier in the evening.

Licensee’s Evidence

14. James Michael Goddard has been in the hospitality business for the past 15 years and currently holds a Smart Serve certificate. Mr. Goddard testified that he was on duty on February 3, 2007. Earlier in the evening the manager on duty asked him to escort a male patron out of the establishment. The patron did not appear intoxicated but left the premises on request without comment.

15. About 2:05 a.m. two Inspectors arrived on the premises. He was at the top of the stairs in the bar area. He asked the Inspectors “how are things” and Inspector Andrew Rowntree pointed in the direction of the stairs leading to the front door. Mr. Goddard observed a person “who looked lost”. On closer inspection he recognized the individual as the patron he had asked to leave earlier that evening, approximately 45 minutes before the Inspectors arrived. He asked the patron what he wanted. The patron replied that he didn’t have a ticket and wanted his coat.

16. He escorted the patron to the coat check but could not find the coat. They went back to the main bar area, walking past the Inspectors who were about 8 – l0 feet away. He took information on the lost coat and they were walking back towards the front door when the patron saw his coat near the bar. He retrieved his coat and was escorted out by the doorman.

17. On cross examination, Mr. Goddard stated that it was possible that the patron had been in the establishment before he had seen him for the second time although he did not know how he could have re-entered as the doorman would not allow anyone in after 2:00 a.m. He denied having a conversation with the Inspectors and agreeing the patron was drunk. Although Mr. Goddard could not recall the temperature that night, he speculated the patron had gone into a diner when he left the establishment.

18. Mr. Goddard agreed his signed, written statement (Exhibit #2) prepared by Mr. Dunstone states that the Inspectors had “pointed out the same patron and felt he was intoxicated”. However, he had not intended the statement to be interpreted that way.

19. Mr. Alan Ahmadzadeh is the Manager of Sin, a position he had held for 8 months on February 3rd 2007. At l: 30 a.m. he overheard patrons in the men’s washroom having a loud discussion on their plans after they left the establishment. He advised the doorman, Mr. Goddard, of his concern and said that he wanted one individual to leave the establishment. The patron offered no resistance when Mr. Goddard escorted him out of the establishment.

20. The Inspectors arrived before 2:00 a.m. Although he was not monitoring the entrance, he was sure the Inspectors arrived at approximately l:45 a.m. He had a discussion with Inspector Godard for over 20 minutes with regard to public safety. Inspector Rowntree was speaking with Mr. Goddard at the time.

21. Mr. Ahmadzadeh recalled a patron coming to the top of the stairs to say he had forgotten his coat. He estimated Mr. Goddard and the Inspector were about 10 – l5 feet away from the patron. The noise level was loud and the lighting level was low making it difficult to see or hear clearly. The patron did not exhibit signs of intoxication. The Inspector did not speak to the patron. Mr. Goddard went over to him. It was not possible that the patron was in the establishment before the Inspector had pointed him out.

22. On reflection, Mr. Ahmadzadeh testified his signed statement (Exhibit #3) prepared by Mr. Dunstone was not accurate as he could no longer recall the Inspectors walking over to question the patron and making the judgment that he was intoxicated.

Submissions

23. The Registrar’s representative argued that the Licensee’s witnesses were not credible. Claiming that the patron was escorted out of the establishment without his coat, approximately 45 minutes prior to the Inspectors’ arrival on a very cold night in February was unlikely. Even if the patron was escorted out earlier, he was still permitted back into the premises before the Inspectors arrived. Furthermore, the witnesses’ oral evidence was inconsistent with both their written statements and each other.

24. The Licensee’s representative noted the patron was removed from the premises at approximately 1:30 a.m. and was not exhibiting signs of intoxication at that time. The registrar produced no evidence to counter this testimony. Given the span of 40 minutes before the patron’s return to the premises, the Licensee cannot be found to have caused or permit the patron to become drunk on the premises.

Reasons

25. The Board carefully considered the evidence presented. The Board finds the evidence of Mr. J. Goddard and Mr. A. Ahmadzadeh was not credible. Both witnesses had provided signed written statements, prepared by the Licensee’s representative, in which they clearly recorded the events on the evening in question. Yet, at the hearing they both claimed these prior statements were not accurate. They were unable to explain why the earlier versions of the events were wrong. In addition, their oral evidence was inconsistent with respect to important points including the time the Inspectors arrived, how the patron conducted his search for his coat, and the nature and duration of their discussions with the Inspectors.

26. By contrast, the evidence of the Inspectors was concise and consistent. They both independently saw the patron inside the establishment in the area of the bar when they arrived at approximately 2:11 a.m. The patron was dressed in jeans and a t-shirt. Both inspectors observed that the patron was showing signs of intoxication. Given the credibility flaws apparent in the Licensee’s evidence, the Board accepts the evidence of the Inspectors concerning the events in question.

27. Futhermore, even without these obvious credibility problems, the Board finds the Licensee’s version of events unbelievable. That management would remove an individual dressed only in jeans and a t-shirt on an extremely cold night in February in Ottawa is both highly irresponsible and potentially negligent. It is most improbable that the individual would leave willingly or remain outside for 45 minutes under those conditions before returning to retrieve his jacket.

Conclusion

28. For the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg.

29. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within ten (10) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a 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 SEPTEMBER, 2007

BERYL FORD, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER

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