Registrar, Alcohol and Gaming Commission Ontario v. 1132959 Ontario Ltd. o/a NRG/Kingdon Night Club, 2007 CanLII 47081

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-

1132959 Ontario Ltd. o/a NRG/Kingdon Night Club Licensee

DECISION

Panel: Alex McCauley, Board Member Brian J. Ford, Board Member

Decision Date: October 22, 2007

Hearing Location: Burlington, 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 1132959 Ontario Ltd., Licensee ) Robert Plouffe, Representative

Authorities

Mikos Hotels Limited v. Registrar of the Alcohol and Gaming Commission of Ontario, 2007 CanLII 16634 (ON S.C.D.C.) (Royal Hotel)

Allegations

1A hearing into a Notice of Proposal number 14335 dated August 3, 2006 to revoke liquor license number 800727 (the “Licence”) issued to 1132959 Ontario Ltd. operating as NRG/Kingdon Night Club, 1400 Plains Road East, Burlington, Ontario, L7R 3P8, on the basis of alleged violations of subsections 45(1), 45(2) and 34(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) and Supplementary Notices of Proposal dated January 12, 2007 and February 19, 2007 to revoke the Licence on the basis of an alleged violation of section 29 of the LLA, was held May 1, 2, 3, 2007 and June 28, 29, 2007 in the City of Burlington.

Decision

2After considering all the evidence and submissions the Board finds the Licensee committed numerous violations of section 29 of the LLA and subsections 34(1), 45(1), 45(2) of the O.Reg. Reasons follow.

Preliminary Matters

3The Board made an order excluding witnesses.

4The Registrar asked the Board to consider additional allegations of contravention of subsection 45(1) of the O.Reg. occurring on April 14, 2007. These allegations were not identified in either the NOP or SNOPs. The Licensee consented to the Board taking jurisdiction to consider these additional allegations. Given the parties’ consent and the fact the events on which the allegations were based had occurred approximately two weeks prior to the first day of hearing the Board permitted the Registrar to lead evidence with respect to the additional allegations as if the NOP/SNOPs had been formally amended. The allegations before the Board took place on the following dates: March 4, 2006, April 29, 2006, September 16, 2006, December 9, 2006, December 29, 2006 and April 14, 2007.

5The Licensee sought to introduce a statement by Shannon Issac which alleged misconduct by one of the Registrar’s witnesses. The Registrar moved to exclude the statement on grounds it was not material to the matters before the Board. After hearing argument from both parties the Board ruled that the statement was not relevant to the proceeding and therefore inadmissible.

6The Board reminded Licensee’s representative of the obligation to disclose all materials he intended to rely on as well as witness statements and made an order to that effect. The Licensee sought to present evidence from Wendy Marotta without having provided a witness statement. In the circumstance the Board refused to allow her testimony.

Registrar’s Evidence

7Mr. Ryan Baird has been an Inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”) for 3 years. On April 28, 2006 he arrived at NRG with Inspector Jason Thompson to conduct an undercover inspection of the premises. At 11:36 p.m. he observed an intoxicated male person in the “Rock Room” of the establishment. This person was swaying, very unsteady on his feet, bumping into friends, and had a can of Molson Canadian beer in each hand.

8At 12:22 a.m. he observed another male who appeared intoxicated. He was very unsteady on his feet, swaying, and drinking from 3 Molson Canadian beer bottles. Inspector Baird followed him through the “Rock Room” noting he spoke loudly to his friends and had to hold on to friends for balance several times. This person was observed several times between 12:20 and 2:05 a.m., he was always consuming alcohol even though he was apparently intoxicated.

9Inspector Baird went out to the smoking area. He noted a male person apparently passed out on the cement at 12:33 a.m. The patron had his head in his hands and was oblivious to everything around him. A security person was observed walking past this patron several times without making any attempt to wake him. The patron woke while the inspectors were there and had to be helped to his feet. He was extremely unsteady, had slurred speech and red glassy eyes. He was unable to walk unassisted.

10Inspector Baird went back inside. While in the “hip-hop” room they detected an odour of a marijuana cigarette but were unable to pin point the exact source. At 2:05 a.m. the Inspectors departed the premises.

11On cross-examination, the Inspector denied that the patron who was bumping into friends may have been involved in “Mosh Pit” dancing where dancers purposely crash into one another. The Inspectors did not notify management about the patron with the 3 bottles of beer because they were under cover. Inspector Baird didn’t know if the outside smoking area was licensed. The patron observed in the smoking area was 6 to 10 feet away. In the “hip-hop” room Inspector Baird reiterated he clearly smelled marijuana but could not determine the source.

12On December 9, 2006 Inspector Baird arrived at NRG at approximately 1:43 a.m. with Inspector Brad Foster. They were not undercover. The club was fairly busy. The Inspectors did a walk through of both rooms and the outdoor patio area.

13They observed a female in the “Rock Room” who appeared intoxicated. She was being assisted across the dance floor by a male patron. The Inspectors identified themselves to the couple. The female identified herself to Inspector Foster. She was glassy eyed, had difficulty keeping her eyes open, her speech was slurred and she was unsteady on her feet. She was consuming a Molson Canadian beer. She became loud when told she had to leave and was opposed to leaving.

14The Inspectors observed another female patron in the “Rock Room” being assisted by two males to walk across the dance floor. Inspector Foster identified himself to them. One male told Inspector Foster “we have to leave she’s drunk, it’s her birthday”. The female patron held on to both men for support, was very unsteady on her feet, and her eyes were half closed.

15The Inspectors spoke to Tony Marotta and staff member Ken Baker about the situation. Ken Baker had been on the floor with the Inspectors and agreed that the 2 patrons referred to were intoxicated. The Inspectors left the premises at 3:07 a.m.

16Sgt. Ed Spence has a total of 13 years as a Police Constable with Halton Regional Police and has been a Sergeant for 6½ years. On March 4, 2006 he attended at NRG with fire department officials to conduct inspections. AGCO Inspectors Crawford and Foster were also in attendance. They entered through the front door of the premises and walked through escorted by a staff member. They went out to the smoking area, an enclosed fenced-off area. He observed a male patron who appeared intoxicated. The patron was a large white male with 4 or 5 other patrons. He was loud and boisterous, babbling and looking towards the police. Sgt. Spence felt this patron needed to be watched.

17During the inspection Sgt. Spence arrested Steve Wayne Baker for possession of a narcotic. Baker surrendered a bag containing marijuana to the officer. Searches of Baker at the premise and then the police station disclosed a large quantity of cash, several clear plastic bags and white powder later identified as cocaine. Sgt. Spence stated that, in his opinion, Baker was trafficking in narcotics. Baker was charged with possession and subsequently plead guilty.

18On cross-examination, Sgt. Spence confirmed he noticed patrons with alcoholic beverages in the enclosed smoking area. He was not aware if the area was licensed. He could not state whether the gate to the smoking area was locked but, in his view, access to the area was through NRG.

19D/Cst. Sonya Siebert is a Detective Constable with the Ontario Provincial Police. She has been a police officer for 17 years and seconded to the AGCO for the past 3 years. On April 29, 2006 she arrived at NRG at 1:13 a.m. She was in plain clothes and teamed with D/Sgt. O’Halloran. She was aware that there was an undercover AGCO operation underway at NRG.

20Upon entering the establishment the officers identified themselves to a security person although she couldn’t recall who. They walked through the premises and out to the enclosed smoking area. She could detect the odour of marijuana and noticed a female, subsequently identified as Jennifer Copeland, holding a marijuana cigarette (joint). She identified herself as a police officer. Copeland dropped the joint and was subsequently escorted from the premises by NRG security.

21Inside the bar, she observed female patron, later identified as Tina Goodale, by the stairs in the dance floor area. She was swaying and appeared intoxicated. The officers spoke to Goodale.

22The Inspectors spoke with management in regards to the noted infractions and left the establishment at 2:20 a.m.

23D/Cst. Donna Barrick is a Detective Constable with the OPP. She has been a police officer for 11 years, the last 2½ on secondment to the AGCO. She attended at NRG on September 16, 2006. She arrived at 2:10 a.m. with AGCO Inspectors Brad Foster and Joe Bourgoin. All were in plain clothes.

24Upon entering the hallway area she observed Inspector Foster speaking to a male patron who appeared intoxicated. She stood beside Inspector Foster. The patron had bloodshot eyes and was drooling. He swayed into the wall twice while walking to the washroom.

25She observed a male security officer pursuing another male patron, later identified as Mathew Weglarz. Weglarz had glossy, bloodshot eyes, was unsteady on his feet, had slurred speech and she could detect the odour of alcohol on his breath. He was belligerent and called the officer a “bitch”. He appeared ready to fight and security had to restrain him. He was escorted from the premises and left by taxi.

26She left with Inspector Foster at 2:52 a.m. after speaking with Mr. Marotta about the infractions.

27On cross-examination, she confirmed she did not observe the allegedly intoxicated patrons consume alcohol.

28Ms. Jade Leadbetter has been an AGCO Inspector for 3 years. She attended NRG on December 29, 2006 accompanied by Inspector Devin Sookdeo. They were in an undercover capacity. They arrived at 10:12 p.m. and remained primarily in the “Rock Room”. At 12:20 a.m. they noticed a male person in the “Hip-hop Room” showing signs of intoxication. He staggered while walking, bumping into other patrons, had droopy eyes which were closing often, and was observed spitting on the floor several times. He took a bottle of beer and stuffed it into the back pocket of his pants.

29At approximately 12:42 a.m., they observed a male patron in the Rock Room who appeared intoxicated. He was staggering and bumping into patrons on the dance floor. He had red glossy eyes. His motor skills were slow and poor as observed when he attempted to drink from a bottle of beer. His speech was loud and slurred when speaking to a friend.

30At 1:06 a.m. they entered the “Hip-hop Room” and detected a strong odour of marijuana. They could not locate the source of the odour.

31At 2:08 a.m. the Inspectors noted another male patron in the Rock Room who appeared intoxicated. He was also staggering and bumping into patrons. He had loud speech.

32At 2:14 a.m. Inspector Leadbetter noted a patron smoking a cigarette by the washroom in violation of the Smoke Free Ontario Act. Security personnel were close by but took no action.

33Patrons were observed carrying alcoholic beverages up and down stairways. Security did not attempt to stop them. The Inspectors left the premises at 2:40 a.m. They noticed the male observed at 12:42 in the Rock Room was outside and having obvious difficulty walking.

34On cross-examination, Inspector Leadbetter stated that she could not locate the source of the odour of marijuana because the Hip-Hop room was very crowded. She did not advise management of the infractions because she was in an undercover capacity.

35Mr. Devin Sookdeo has been an AGCO Inspector with the AGCO for 9 years. He attended NRG with Inspector Leadbetter on Dec. 29, 2006. His evidence was consistent with Inspector Leadbetter’s. He had no additional evidence. On-cross examination, Inspector Sookdeo confirmed he was with Inspector Leadbetter throughout the inspection except when he entered the washroom. He confirmed that none of the allegedly intoxicated patrons were involved in “mosh” dancing.

36Mr. Brad Foster has been an AGCO inspector for 3 ½ years. He testified with respect to events at NRG on March 4, April 29, September 16, and December 9, 2006.

37Mr. Foster described the layout of NRG and its outside smoking area. There are two main rooms in the club: a larger room, the “Rock Room”, a smaller room, the “Hip-hop Room”, and an upper level balcony which is the d.j. stage area. There are licensed areas in the rooms off the balcony as well as the larger rooms downstairs. There is no outdoor licence, so the smoking area is not licensed. Photos of the smoking compound were introduced by Inspector Foster. They were Exhibit numbers 3A,B,C and D. Inspector Foster advised that access to the smoking compound is controlled by the Licensee. There are gates at each end of the smoking compound. The smoking compound is not accessible except from the licensed areas. In cross examination Inspector Foster reiterated that the smoking compound was under the exclusive control of the Licensee. He stated he could not recall if the gates were locked, but he had never observed them open.

38He arrived at NRG on March 4, 2006 at 12:24 a.m. with AGCO Inspector Crawford, Sgt. Spence and members of the Burlington Fire Department to conduct an inspection. Inspector Crawford and Sgt. Spence did a walk through. They approached a youthful female standing by the main bar to determine if she was of age. She displayed several signs of intoxication: slurred speech, a strong odour of alcohol on her breath, red glassy eyes and an unsteady balance. She stated that she was drunk and used profanity toward the Inspectors. They advised security of the situation and continued their walk through.

39While walking through the smoking compound Inspector Crawford heard and saw a male person, attempting to sell drugs. Sgt. Spence was advised and Baker was arrested.

40Inspectors Foster and Crawford continued their walk through and observed a female patron sitting on the ground with her back to the fence, curled up with her head between her knees. The Inspectors approached her and noticed signs of intoxication: glossy eyes and slurred speech. She stated she had been drinking at home prior to coming to the bar and had been consuming beer at NRG. Due to her state of intoxication she was escorted to the NRG office by the Inspectors.

41While walking through the premises Inspector Foster was grabbed by a male patron, who started speaking incoherently to him. The male was pushed away from him and security personnel escorted the male person to the front main entrance. Inspector Foster followed in order to further assess the person’s state of intoxication. He noted that the male was aggressive, had slurred speech and red glassy eyes. The patron was left with a security person named Cody whose last name was unknown.

42Inspector Foster spoke with Mr. Marotta and then left the premises with Inspector Crawford at 1:06 a.m.

43On April 29, 2006 Inspector Foster attended NRG at 1:13 a.m. accompanied by Inspector Sam Marji, D/Cst. Siebert and D/Sgt. Brian O’Halloran. They walked through the licensed area out to the smoking compound where they detected an odour of marijuana and observed a female patron with a “joint”. D/Cst. Siebert dealt with the situation.

44They also observed a male drinking from 2 Corona beer bottles and a female with a vodka cooler in her possession in the unlicensed outside area. Security was advised and dealt with the issue.

45Inside the premises Inspector Foster noted a female patron by the staircase who appeared to be intoxicated. A male patron was assisting her with her balance. She told Inspector Foster it was her birthday and she had consumed a large amount of alcohol. Inspector Foster noted that she had red glassy eyes.

46The Inspectors left the premises at 2:14 a.m. While walking to their vehicles they observed a male exit from the premises via the emergency door on the west side of the premises. He stumbled and swayed and appeared intoxicated. They identified themselves to him and noted he had slurred speech and an odour of alcohol on his breath. Security was advised and indicated a cab would be called for this person. The Inspectors left the area at 2:20 a.m.

47On September 16, 2006 Inspector Foster attended NRG at 2:10 a.m. with Inspector Joey Bourgoin and D/Cst. Donna Barrick to conduct a routine liquor inspection.

48Inspector Foster noted a male patron, later identified as John Faddies, in the hallway who was obviously intoxicated and stumbling into the wall on the way to the washroom. Inspector Foster approached him. Faddies had slurred speech, impaired motor skills, and an odour of alcohol on his breath. He told the Inspector he had been drinking in the bar, that he was drunk and would not drive home.

49Security staff apprehended a male patron, later identified as Matthew Weglarz, in the hallway. Inspector Foster spoke with security, Darren McCarty, who recognized the Inspector. Mr. McCarty stated the male was drunk and he wanted to ensure he left the premises. The Inspector identified himself to Weglarz who admitted being drunk. Weglarz became verbally abusive when asked for identification and swore at the D/Cst. Barrick. Weglarz displayed signs of intoxication, disorderly behaviour and had an odour of alcohol on his breath. Security had to continually calm him down and he was eventually escorted out of the premises.

50Tony Marotta was advised of the infractions. When Mr. Marotta asked what he could do about the problems he was told he must have high standards of due diligence. The inspectors left the premises at 2:52 a.m.

51Inspector Foster attended at NRG on December 9, 2006 at 1:43 a.m. with Inspector Baird for a routine liquor inspection. They observed a female, later identified as Stephanie Willing, who appeared to be intoxicated and requiring assistance to get off the dance floor. The Inspectors followed her and noted she had difficulty walking. The Inspectors identified themselves to Willing. They noted she had slurred speech, glossy eyes and heavy eyelids. A male patron stated they were leaving because Willing was drunk and was having difficulty walking. She was drinking from a Molson Canadian beer bottle. Security was advised of the situation and asked her to leave. At this point Willing became loud and refused to leave although was eventually convinced to do so.

52The Inspectors continued their walk through. By this time the lights in the establishment were up. Inspector Foster observed another female patron who was very unsteady on her feet and had to be assisted to walk. Security officer Ken Baker was with Inspector Foster but took no notice or action with respect to the patron until directed to by Inspector Foster. In conversation with the patron he observed she had slurred speech, red glassy eyes and was very unsteady on her feet using a male companion for support. Her male friend told Inspector Foster that it was her birthday and she was drunk. Security escorted them from the premises. Inspector Foster departed at 3:07a.m.

53Inspector Foster attended NRG alone on April 14, 2007 arriving at approximately 1:59 a.m. While still in the parking lot he observed a male patron walking toward his vehicle. This person was followed and apprehended by an NRG security person later identified as Gord Huff. Huff appeared angry. He grabbed the patron, called him a “fucking asshole”, knocked him to the ground and struck him in the face. When a crowd gathered Huff backed away. In a subsequent conversation with Huff he was advised that the confrontation had been precipitated when the male patron verbally insulted a female patron and was belligerent with security staff. Inspector Foster saw a police officer in the parking lot. He told the officer who he was and what he had witnessed. He then entered the club.

54During his walk through Inspector Foster observed a male patron, later identified as Jeremie Downie, in the west side of the club who appeared intoxicated. Downie was unsteady on his feet and stumbling. He crossed to the east side where he was approached by Inspector Foster. Downie had red glossy eyes, slurred speech and an odour of alcohol on his breath. He said he had been drinking in the establishment since 10:30 p.m. and was celebrating a friend’s birthday. Security was notified and escorted him from the premises.

54Upon leaving the premises Inspector Foster observed other altercations, one involving an off-duty employee he knew as Cody. Cody and another male were shouting at and shoving each other. Inspector Foster described Cody as moderately intoxicated. The police were in the area standing by and Inspector Foster waited as well to ensure that police did not require assistance. He left at 3:27 a.m.

55Inspector Foster testified he had made attempts to meet with Mr. Marotta’s staff in order to provide some advice and instruction. An agreed date was cancelled by Mr. Marotta. Mr. Foster was unable to attend on other suggested dates so the lectures never took place.

56On cross-examination, Inspector Foster agreed he had inspected NRG approximately 10 times and on at least half of those inspections found no infractions. Inspector Foster explained that inspections may be generated by complaint or randomly and may also depend on the nature of the establishment. In his view, NRG is a problematic establishment. He attends NRG later in the evening because offences usually occur later. He is Smart Serve trained and has other AGCO training in order to be able to identify intoxicated patrons. Inspector Foster confirmed he always presents his identification on entering a licensed establishment.

57On cross-examination, Brad Foster agreed he did not personally know Mr. Huff but indicated Mr. Huff was wearing a security shirt. In his opinion Cody was intoxicated but not as intoxicated as Jeremie Downie. He confirmed the police officer spoken to prior to entering NRG was Cst. Larson of the Halton Regional Police.

58Inspector Foster stated that the smoking area was under the exclusive control of NRG Inspector Foster agreed he discussed problems with Mr. Marotta in person and by telephone. He stated no deals had been offered to Mr. Marotta to avoid a hearing.

59On redirect, Inspector Foster clarified he had attended at NRG on nine occassions and found no infractions on five of those visits.

60Mr. Sam Marji was an AGCO inspector and is now a police constable with the Toronto Police Service. On April 29, 2006 he was still an AGCO Inspector and attended NRG with Inspector Foster, D/Sgt. O’Hallaron and D/Cst. Siebert. Mr. Marji’s testimony was consistent with the evidence of Inspector Foster and D/Cst. Siebert.

61On cross-examination, Mr. Marji testified their inspection of NRG was part of a general sweep of the area and that NRG was not specifically targeted. Mr. Marji noted that the smoking area, while not licensed, was under the control of the Licensee.

62D/Sgt. Brian O’Halloran has extensive police experience with the OPP and has been seconded to the AGCO for the past 7 years. D/Sgt. O’Halloran attended NRG on April 29, 2006. His evidence was consistent with the testimony of D/Cst. Siebert.

63On cross-examination, D/Sgt. O’Halloran testified that the liquor he observed being consumed in the smoking compound did not come from the parking lot.

64Mr. Anthony Crawford was an AGCO inspector and is currently a police officer with the Toronto Police Service. He attended at NRG as an Inspector on March 4, 2006 with members of the Burlington fire service, Inspector Brad Foster and Cst. Spence. His evidence was consistent with the evidence of Inspector Foster and Sgt. Spence.

65In cross examination, Mr. Crawford confirmed he heard Spencer offering drugs for sale and was approximately 10 feet away from Spencer at the time.

Licensee’s Evidence

66Cst. Michael Larson of Halton Regional Police was in the NRG parking area on April 14, 2007. He recalled speaking to Inspector Foster and that Foster mentioned an incident with a door-man over-reacting with a patron. Foster then told him he was going into the bar “to pick off a couple of drunks”. Cst. Larson stated that it was close to closing time.

67Cst. Larson stated that he had not seen any instances of excessive force used by security persons. He was very supportive of the efforts of the Marotta family to improve the situation around NRG. He could not recall seeing anyone who was so intoxicated that they would warrant being arrested.

68In cross examination, Cst. Larson admitted seeing patrons displaying with some degree of intoxication. He has been a police officer for 29 years. He agreed that, on April 14, 2007, he was not in NRG. With regard to the incident involving Mr. Huff, Cst. Larson testified he had seen the beginning of the incident and Inspector Foster had not. In his opinion, the patron was being escorted from the premises of NRG after being in a fight. Part of the incident was out of his view and he agreed he could not see whether the patron was struck when on the ground. The incident involving Cody was, in fact, two ex-employees in a confrontation. Cst. Larson knows Cody and, in his opinion, Cody was not intoxicated. Cst. Larson was sure that he heard Foster state that he was “going in to pick off a couple of drunks”. He had no notes of that night.

69Mr. Kumar Sharma is employed at NRG as security consultant and head doorman. He has been employed at NRG since 1988. He was on duty at NRG on Sept 16, 2006 having started his shift at 8:30 p.m. Inspector Foster, 2 police officers and another liquor inspector arrived at 11:30 p.m.

70A doorman advised him Inspector Foster wanted the police called to verify identification of an intoxicated patron. He went to investigate and saw Darren McCarty, Inspector Foster, and a female escorting a patron out. Foster wanted this patron detained but didn’t give a reason. The patron was angry because he was being asked to leave and, in Sharma’s opinion, was not intoxicated. The patron left in a cab. Mr. Sharma could not recall any other incident from that night.

71In cross-examination, Mr. Sharma denied the problem with the intoxicated patron had been instigated by Darren McCarty chasing this person in the establishment. He admitted he came upon this situation in the middle and did not know whether the patron had been aggressive prior to his arrival on scene. Mr. Sharma did not hear Darren McCarty say the patron was drunk.

72Cody Weston was held the position as head of security at NRG for 8 years. He was working on March 4, 2006 when Inspector Foster, fire officials and police officers attended at NRG. He had typed notes which he was permitted to use.

73Mr. Weston was with Inspector Foster and another liquor inspector when they encountered the first allegedly intoxicated female. She was standing by the bar sipping a drink. The Inspectors approached her but did not identify themselves immediately. They only did so when the patron began to get annoyed. The Inspectors grilled the patron regarding her identification. They advised him she had too much to drink and got her a bottle of water and carried on the inspection with the Inspectors.

74They went out to the smoking area. Someone approached the Halton police officer about the patron offering to sell drugs. The officer arrested a male person. Mr. Weston continued his rounds with the Inspectors. Mr. Weston stated that the club has a no tolerance policy when it comes to the use or dealing of illegal drugs

75Mr. Weston was with the Inspectors when the female patron was found sitting on the steps. She told them security had gone to get her water. She was taken inside and asked for identification. She explained her friend had it because she had no pockets. She was asked what she had drunk that night and stated she may have had a couple of beers before attending at NRG. The Inspectors felt she was intoxicated. She was escorted to the office and her friend was paged. The friend became upset because the Inspectors were harassing her and she had done nothing wrong. Both females left the club with one of their boyfriends who was a designated driver.

76On April 29, 2006 Mr. Weston escorted AGCO inspectors and police officers conducting an inspection. He noted that he initially observed and called attention to the female patron smoking marijuana in the smoking area. As well, he observed the patron with two bottles of beer and took the beer away.

77Mr. Weston saw a female dancing with her boyfriend in the “Hip-Hop room”. They were “grinding”. The Inspectors were of the opinion that the two were intoxicated and asked them for identification. They returned and told him the female was intoxicated and had to leave. The female patron was angry and embarrassed and left reluctantly. Her boyfriend, who had not been drinking, left as well.

78Mr. Weston stated it is possible to gain access to the smoking compound from the parking lot area or a place other than the club and it is possible to bring alcohol into the smoking compound from outside the club. He stated they have 4 stationary security personnel in the smoking compound as well as persons who roam.

79Mr. Weston testified that Inspector Foster and his partner returned that night after leaving the establishment to tell him an intoxicated male had exited out an emergency side door. Mr. Weston spoke with this patron who advised he exited that door because he had seen the sign “exit”.

80On cross-examination, Mr. Weston denied that the entry gate to the smoking compound was difficult to open. When he removed the liquor from the person in the smoking compound he treated that person as a patron not as someone who had come into the area from somewhere else. Mr. Weston agreed that, in most cases, patrons are upset when asked to leave the premises.

81With respect to the incident on March 4, 2006 Mr. Weston stated it was possible that the female patron found on the steps in the smoking area may have said she had 4 shots and a couple of beers here and a couple of shots at home. He wasn’t sure exactly what she had said.

82Mr. Weston was also present when the patron put his arm on Inspector Foster. Mr. Weston thought this patron may be under the influence of drugs not necessarily alcohol. He agreed he had not disclosed this suspicion to the inspectors.

83Mr. Andrew Barry is an employee of NRG and is Smart Serve trained. With respect to April 29, 2006 he testified the female and her partner were doing a grinding form of dance on the dance floor. Inspector Brad Foster approached the female patron and had words with her. Inspector Foster then told Cody Weston that the female was intoxicated and could not remain in the club. Mr. Barry was asked to escort the female out. He stated she was very embarrassed. In his view, she showed no signs of intoxication. He apologized to her on behalf of the club and invited her to return at another time, an invitation she declined. In his view, the patron was not intoxicated and Brad Foster did not understand the type of dancing that was going on.

84On cross-examination, Mr. Barry admitted he did not hear the conversation between the female patron. She was loud and angry when speaking but Mr. Barry could not hear the conversation. He agreed he had not expressed his opinion with respect to her sobriety to the Inspectors. Mr. Barry stated the patron was not unsteady on her feet, swaying or staggering.

85Ms. Natalie Doyle was employed at NRG as a security officer on March 4, 2006. She was on washroom checks and had noticed a female patron who appeared ill. The female patron was taken outside to get some air. When Ms. Doyle returned the Inspectors confronted her and asked how much she had to drink. She replied nothing and that she was working. At the time she was attired in a security shirt. The female who appeared to be ill was escorted to the office by the Inspectors. Ms. Doyle left to locate this female patron’s friend. When she returned the Inspectors were quizzing the female patron about her level of intoxication. Ms. Doyle told them she is not intoxicated. She is sick. The Inspectors asked Ms. Doyle to leave the office.

86Ms. Doyle stated in her view signs of intoxication are slurred speech, staggering, vomiting, being incoherent when speaking. Ms. Doyle stated this patron was not displaying these symptoms and in her opinion was not intoxicated. Ms. Doyle does not know what transpired after leaving the office.

87On cross-examination, Ms. Doyle agreed Mr. Marotta had asked her to prepare a statement regarding these events. She contradicted the Inspector’s evidence stating the patron standing in the smoking area, not sitting. She agreed that it was not unusual for an intoxicated person to feel unwell. Ms. Doyle could not say how long the female patron was in the office with the Inspectors. Ms. Doyle denied interrupting the Inspectors, she waited until they stopped talking before offering her opinion. She was then told to leave.

88Cst. Earl Fletcher has been with the Halton Regional Police for 33 years. He testified that Mr. Marotta was very co-operative when Cst. Fletcher was involved in a project to develop safe bars. Cst. Fletcher’s evidence did not address the specific allegations in this proceeding but was more in the nature of character evidence.

89On cross-examination, Cst. Fletcher stated he was acting on his own when he prepared two letters of support to the AGCO on behalf of Mr. Marotta. Cst. Fletcher was not aware of the matters before the Board.

90Mr. Mark Tiley is the owner and operator of “Safe Bars Inc.”. Mr. Tiley has worked in the gambling/casino industry and was a former Liquor Inspector with the AGCO for 4 years. He offers training to bars and agencies regarding the proper operation of licensed premises, compliance with the Liquor Licence Act and its regulations and crime prevention techniques. He selects clients based on good character and does not represent known criminals. He provides ongoing consultation and training.

91NRG was a client. Mr. Tiley trained NRG staff and has attended staff meetings. He stated that Mr. Marotta is a hands-on owner, who requires staff training. He is aware of the allegations in these proceedings. Yet, considering its high volume, the NRG operation is impressive. He does his own site visits to clients, on busy nights these are usually brief because he has clients across a wide area in the Niagara and Hamilton area. Mr. Tiley stated he has a good informal network with area police services.

92Mr. Tiley was at NRG during at least 2 or 3 AGCO inspections. He stated he does not follow the inspectors around while they are doing their inspections. He was present at NRG when the inspectors dealt with the intoxicated patron coming out of the emergency exit. From where he stood the patron did not seem intoxicated.

93He stated that the smoking compound is not owned by Mr. Marotta. It is a fire route.

94Mr. Tiley testified that identifying intoxicated persons can be difficult. Two obvious signs are if the patron is sick and staggering. He stated everyone has their own standard. In his opinion, the major issues for bars are narcotics, weapons, gang activities and crowd control. In his opinion NRG is not a problem in the community. NRG’s drug problems are no greater than other bars they all have problems. It is impossible to keep drugs and intoxicated persons out of bars. In regard to smuggling alcohol in or out, Mr. Tiley testified this is not a big problem and only happens on occasion.

95He stated it was his practice to always show his AGCO identification prior to entering a licensed establishment to conduct an inspection.

96Mr. Tiley testified that intoxication in clubs, as viewed by AGCO inspection teams, is somewhat soft. If patrons were puking or out of control then he would be giving evidence for the AGCO.

97Asked what he would do to prevent the kinds of problems facing Mr. Marotta, Mr. Tiley testified that you take action if patrons are vomiting, doing lines of “coke” at the tables or smoking drugs. However, in a club like NRG with 1000 patrons, he could not guarantee they could be compliant if all they are seeing is someone with slurred speech or red glassy eyes.

98On cross-examination, Mr. Tiley admitted that instances of drunkenness in bars have improved over the years since the AGCO has taken a more aggressive approach to enforcement. He further agreed that the AGCO was doing a good job.

99Mr. Tiley would not comment on the inspections at NRG because he was not there for all of them. He testified that 4 intoxicated patrons in one evening was not an unusually high number for a large establishment on a busy night. With respect to the April 29, 2006 inspection Mr. Tiley estimated he was 45 feet from the person the Inspectors considered intoxicated. In his opinion this person was not intoxicated but he was unable to provide reasons to support his opinion or counter the Inspectors’ observations.

100In his opinion, the AGCO, specifically Inspector Foster, was targeting NRG and wanted the bar closed. Bar owners have a difficult time refuting the evidence of a liquor inspector and he implied they may stretch the evidence if they do not like the bar owner. Mr. Tiley stated it was his opinion that Inspector Foster did not like the owner of NRG.

101This opinion was based on the number of visits that Foster made to NRG. He had no other evidence to substantiate his opinion. He was unable to explain how Inspector Foster could involve several other Inspectors as well as the police and fire departments in his campaign against this Licensee.

102Mr. Tiley admitted telling clients they could not expect a fair hearing before the Board of the AGCO. Mr. Tiley stated he felt the hearing system was slanted in favour of the AGCO. He never heard of a bar being successful at an AGCO hearing. This opinion was expressed in a letter to Tony Marotta dated December 15, 2006 (Ex. 4). Mr. Tiley’s company was no longer engaged by NRG at this time and Registrar’s counsel suggested that this letter was an attempt to get NRG’s business back.

103To questions from the panel Mr. Tiley responded that observations of intoxication are somewhat subjective and different inspectors may differ as to the degree of intoxication. Mr. Tiley admitted he had no evidence that Inspector Foster was doing anything but his professional duty.

104Mr. Ken Baker has been employed at NRG as a doorman for 9 years. He escorted Inspector Foster and another Inspector during the December 9, 2006 inspection. Inspector Foster observed a female on the dance floor being held by a male person. Inspector Foster felt she was intoxicated, approached her and checked her identification. The female patron admitted having had 3 or 4 Coronas and the beer in her hand was ¾ full. She surrendered this to Inspector Foster at his request. He returned her identification and she and her escort left. In Mr. Baker’s opinion the female patron was not intoxicated.

105They went into the small room and, in front of the main bar, he heard Inspector Foster state to his partner, “we have to go to the other room, we have to get one more before we go home”. In the big room Inspector Foster observed a female patron in a chair whom he stated was intoxicated. This patron was approached by the Inspectors and another doorman. Mr. Baker was 25 feet away and didn’t speak with the patron nor did he observe any signs of intoxication on the part of this patron.

106On cross-examination, Mr. Baker agreed he made no notes in his statement with regard to the alleged comment by Inspector Foster in relation to looking for one more. He couldn’t recall to whom Inspector Foster had made the statement. He admitted that, with respect to the second patron, the Inspectors could have seen her walk or perform some other action that he did not observe.

107Mr. Tony Marotta has owned NRG since 1995. He operates the business with help from his family, his wife, son and daughter. NRG operates Friday and Saturday nights only and he is on the premises at all times.

108He has a good working relationship with the local police. He had a good relationship with the AGCO Inspectors but this has soured since Brad Foster became responsible for this area. He attempted to engage Mr. Foster to speak to his staff. Appointments were made and cancelled and he has not heard from Mr. Foster in this regard since the last appointment was cancelled. He let Mark Tiley’s firm go after he thought he could get training from Mr. Foster, when that didn’t materialize he retained Mr. Tiley’s firm again.

109When police or liquor inspectors attend at NRG security personnel accompany them on their inspection. He stated that on average they have 25 to 30 security staff on duty, twenty-four inside and the rest out in the smoking area. When asked about the smoking area Mr. Moratta stated the area was owned by CN Rail. He had developed the compound as a smoking area. He had paid for the fencing of the area. There were gates located at each end of the compound and this was due to a fire access requirement. Mr. Marotta had applied to have the area made into an outside patio but his application was refused because of the issue of fire access. The gates at either end are closed but not locked due to fire restrictions. He keeps security in the area to ensure proper compliance with the smoking area rules. Mr. Marotta stated he paid $70,000.00 for the fencing. The area is 20’ x 80’ and can accommodate up to 500 patrons. In cross examination Mr. Moratta stated that persons in the smoking compound are assumed to be patrons of the club NRG. In answer to a question by Board member B. Ford, Mr. Morotta stated the smoking compound was under the control of NRG. If a person other than someone authorized by NRG were in the compound security would have them removed.

110The music played in the club is rock music in the large room and hip-hop in the smaller room. The music is rather loud and conversation unless you are close to the person is difficult. They have “Mosh Music” which is played 3 times a night. It is a take off from punk rock where dance participants crash into one another.

111Mr. Marotta described the smoking area. The area is fenced with unlocked gates at either end because it is a fire route.

112On March 4, 2006 Inspector Foster advised he smelled someone smoking dope. The patron was removed. No charges were laid.

113On April 29, 2006 4 or 5 inspectors along with police came in to conduct an inspection. He heard yelling out by the bar area where the police and inspectors were in a discussion with an allegedly intoxicated female patron. She was brought into his office. He didn’t think she was intoxicated when he observed her. She was seated on the couch in his office crying.

114On September 16, 2006 there was a commotion out front with security. Inspector Foster was attempting to enter without showing his identification. Once he produced his identification he was permitted in. There was an altercation at 3:00 a.m. when security was taking a guy out. They came to see me before they left and told me they had observed one maybe two intoxicated persons

115On December 9, 2006 Inspectors barged into the premises at 1:45 a.m. and Ken Baker took them through. They advised that there were intoxicated persons or smoking up on the premises. He spoke to Inspector Foster at that time about needing to do something and they decided on the staff meetings.

116On April 14, 2007 he was advised that Inspector Foster was in the parking lot. Inspector Foster did inspections in the club escorted by Darren McCarty. He found one intoxicated female. There had been a fight outside involving security in which Inspector Foster thought the security person overreacted but he only saw half of it. The police said there was no problem. He spoke to the police that night and the officer repeated Inspector Foster’s remark about going in to get a couple of drunks. Inspector Foster spoke to him for ½ an hour. He asked Inspector Foster what he could do and was told to try to get a deal.

117On cross-examination, Mr. Marotta denied making up much of his testimony concerning Inspector Foster or that he was prepared to say or do anything to tar the reputation of Mr. Foster.

118Mr. Marotta was questioned about excerpts from the club’s log book (Ex. #7) which indicated that many intoxicated persons were removed from the premises by staff. Mr. Marotta replied that staff was just doing their job. In response to the suggestion that these persons should be screened before they enter and get to the point of intoxication, Mr. Marotta stated often patrons entered under the influence of alcohol already.

119Mr. Cody Weston was recalled to testify regarding the events of April 14, 2007 in the parking lot at NRG. He testified he was in the parking lot that evening. He had not been in NRG and no longer was employed there. He did not see Inspector Foster there that night. He had an argument with an acquaintance. A Halton Regional Police officer came on scene and told them to move on. He had arrived in the parking lot at 2:00 a.m. and left at 2:15 a.m.

120On cross-examination, he denied being intoxicated that night. He also denied speaking with Inspector Foster and telling him that he was at NRG as a patron.

121Mr. Tyler Marotta is the son of Tony Marotta. He has been employed for 4 years as a door person and patrols the parking lot along with other security duties. If they find intoxicated patrons on the premises they offer them water take them out and ensure they get safe transport home. He testified that, unlike other Inspectors, Inspector Foster never shows his identification when entering the premises.

Registrar’s Submissions

122Mr. Morris submits the Licensee has exclusive control over the outdoor smoking compound. The smoking area is a fenced off area, with no access from other establishments. The Licensee’s photos of the area are misleading as they show the gates at the end of the compound open. This is not the norm. The Inspectors’ evidence was clear the gates were always closed. The Licensee exercises exclusive control of this area, therefore making it an unlicensed part of the premises, as was the smoking room in the Royal Hotel case.

123The evidence that prohibited drugs were offered for sale in the smoking compound on March 4, 2006 is irrefutable. Inspector Baird also smelled the marijuana in the “Hip-hop Room”. The Licensee therefore has breached subsection 45(2) of the O.Reg .

124Also on March 4, 2006 Inspectors Foster and Crawford observed a female patron on the ground in the smoking compound. Both Inspectors described her actions and demeanour and concluded she was intoxicated. The female did not mention having stomach cramps to the inspectors which casts doubt on Natalie Doyle’s testimony with respect to her condition. The Inspectors also spoke to a female patron in the “Rock Room” who displayed obvious signs of intoxication and admitted being drunk. Further, Inspector Foster’s evidence was that he had been grabbed by an intoxicated male patron in the “Rock Room”. The patron displayed obvious signs of intoxication by his actions and slurred speech. Sgt. Spence’s evidence was that he encountered an intoxicated male patron in the smoking area. Mr. Morris submitted the presence of four intoxicated persons on the licensed premises was contrary to subsection 45(1) of the O.Reg.

125On April 29, 2006 the evidence is clear Jennifer Copeland was in the smoking compound with a marijuana cigarette in her hand. Mr. Cody Weston, NRG security on duty, admitted it was open and obvious usage. This is a further breach of subsection 45(2) of the O.Reg.

126Inspector Marji’s evidence was that two patrons had alcohol in the unlicensed smoking area. Cody Weston admitted to having observed one patron with beer. D/Sgt. O’Halloran testified the alcohol could not have been brought into the smoking area from the parking lot. This evidence establishes a breach of subsection 34(1) of the O.Reg..

127The Inspectors also observed two persons in the “Rock Room” displaying obvious signs of intoxication. Inspector Baird’s evidence was the behaviour of the first patron was attributable to intoxication and not “mosh” dancing. The second patron was observed in the establishment 1 ½ hours later still consuming beer. A third patron was observed in the smoking area apparently passed out. Security staff ignored him. When he awoke he displayed signs of extreme intoxication. Cst. Siebert observed a female patron being assisted by a male friend in the “Hip hop Room” displaying signs of intoxication. Inspector Foster interviewed her and she admitted she had a lot to drink. Finally, Inspectors Marji and Foster observed a male patron exit the premises via a side door who displayed obvious signs of intoxication. He admitted to Inspector foster that he had been drinking in the premises. Mark Tiley’s evidence that the patron did not appear to him to be intioxicated is of no value. Mr. Tiley was a considerable distance away and made no attempt to interview or approach him. The presence of 5 drunken patrons in the premises on April 29, 2006 is contrary to subsection 45(1) of the O.Reg..

128On September 16, 2006 Inspector Foster and D/Cst. Barrick gave evidence with respect to the presence of two intoxicated patrons, John Faddies and Matthew Weglarz, in the establishment. It is extremely unlikely Inspector Foster would speak to a drunken and aggressive stranger in such a confrontational and abusive manner. The presence of these two intoxicated patrons in the establishment on September 16, 2006 is contrary to subsection 45(1) of the O.Reg .

129The evidence with respect to the incident of December 9, 2006 confirms two female patrons, Stephanie Willing and a black woman, were in the premises and both displayed obvious signs of intoxication. The evidence of Ken Baker that Willing was not intoxicated, just irritated because she was asked to leave, is not credible. Both Ken Baker and Tony Marotta agreed with the Inspector Baird that the second patron was drunk. The presence of two drunken patrons in the licensed premises on December 9, 2006 was contrary to subsection 45(1) of the O.Reg..

130On December 29, 2006 Inspector Leadbetter testified she observed an intoxicated male in the “Hip-hop Room”. Inspectors Leadbetter and Sookdeo observed two intoxicated males in “Rock Room” and noted a strong odour of marijuana coming from the “Hip-hop Room”. The NRG logbook for that date indicates that there were drunken patrons on the premises that night. The 3 intoxicated patrons on the premises on December 29, 2006 was contrary to subsection 45(1) of O.Reg.

131Inspector Foster observed an intoxicated male person in the “Rock Room” on April 14, 2007 contrary to subsection 45(1) of the O.Reg. He also testified with respect to an assault on a patron by an NRG security person, Gord Huff. Cst. Larson’s evidence was not of assistance because he did not see the incident. Mr. Morris submits that security staff acted in a violent and disorderly manner contrary to subsection 45(1) of the O.Reg.

132Finally, Mr. Morris submitted the Licensee has attempted to tarnish the reputation of Inspector Brad Foster. The allegations are not substantiated by any credible evidence substantiated by any credible evidence. By contrast, virtually all of Inspector Foster’s evidence is corroborated by the testimony of other AGCO Inspectors or police officers. This attempt at character assassination is collateral to the issues which the Board must decide.

Licensee’s Submissions

133Mr. Plouffe submits that the area known as the smoking area is CN property. He takes exception to anyone allegedly having committed offences in the smoking compound because he submits this area is not the responsibility of the Licensee.

134With respect to the alleged trafficking of narcotics he submits no actual sale was observed. Further, the suspected trafficker, Steve Wayne Baker, ought to have been subpoenaed to attend the hearing. The Board cannot find Baker was trafficking on the “premises” because the Registrar has failed to establish the smoking area was the Licensee’s premises.

135With respect to the evidence of an odour of marijuana, Mr. Plouffe submits this can be confused with other brands of cigarettes. Further, if Cst. Siebert found Jennifer Copeland in possession of marijuana cigarette she had a duty to affect an arrest. This was not done.

136The evidence that patrons consumed beer in the smoking area is unreliable. There is no evidence to show the alcohol originated from the licenced premises rather than the parking lot. Mr. Plouffe dismisses D/Sgt. O’Halloran's assertion that alcohol could not be imported into the smoking area from the parking lot.

137Mr. Plouffe suggests that when persons are cited for intoxication they should be charged formally and issued a provincial offences ticket for their own safety and protection. He disputes the observations of looking for an intoxicated person while an inspector was undercover. Mr. Plouffe is critical of the fact police were not called or Inspectors did not break cover to ensure allegedly intoxicated persons were secured.

138With respect to the March 4, 2006 allegations Mr. Plouffe states that Natalie Doyle was berated by Liquor Inspectors when she interjected with the allegedly intoxicated female patron. Inspector Foster was not assaulted by the patron who grabbed him. All this person wanted was change. If Inspector Foster had been assaulted the patron involved should have been charged.

139With respect to the September 16, 2006 allegations Mr. Plouffe submits that if Inspector Foster and D/Cst. Barrick noted intoxicated patrons should have arrested them or assured they got home safely.

140Mr. Plouffe challenges the observations of the liquor inspectors regarding the December 9, 2006 allegations.

Reasons

141The Board has carefully reviewed the evidence and the submissions received.

Exclusive Control of the Outdoor Smoking Compound

142The smoking compound was developed and paid for by the Licensee. CN rail does not have use of the property. The Board finds that the gates are not locked. This is to ensure a safe fire route. However, the Board satisfied based on the evidence the gates are closed at all times the bar is in operation. NRG has invested several thousand dollars in this compound and also has a number of security personnel on duty at all times to ensure order and that no one sneaks on to the property thereby avoiding cover charges etc. Given these facts, the Board is satisfied, on a balance of probabilities, the outside smoking area is under the exclusive control of the Licensee. This conclusion is consistent with the Board’s analysis in Royal Hotel as upheld by the Divisional Court. (see Mikos Hotels Limited (Royal Hotel)

March 4, 2006

143The Board accepts the evidence of Inspector Crawford and Constable Spence that Steve Wayne Baker was offering drugs for sale in the smoking area on March 4, 2006. To suggest this was not the case because a formal charge of trafficking in a narcotic was not laid by the police is absurd. Baker was in possession of narcotics, drug paraphernalia, and large amounts of cash. He was overheard offering drugs for sale. In the circumstances the Board is satisfied and FINDS, on a balance of probabilities, a contravention of subsection 45(2) of the O.Reg .

144The Board is also satisfied the evidence of Cst. Spence, Inspector Foster and Inspector Crawford established, on a balance of probabilities, the Licensee permitted 4 intoxicated patrons in the establishment on March 4, 2006. Cody Weston did not contradict the Inspectors’ assessment of the young female patron’s condition. Further the Board is satisfied the evidence with respect to the female patron found on the ground in the smoking area is consistent with her being intoxicated contrary to Natalie Doyle’s testimony that the patron was ill. This patron was found sitting on the ground with her head in her lap, she had slurred speech, glossy eyes and was unsteady while standing and walking. She admitted consuming alcohol at home prior to attending at the bar and to having consumed beer at the bar. Finally, the Board accepts Inspector Foster’s testimony he was grabbed by an intoxicated patron. The patron was described as incoherent with slurred speech, unsteady on his feet and belligerent. NRG security intervened and escorted him. In the circumstances, the Board FINDS the Licensee breached subsection 45(1) of the O.Reg.

April 29, 2006

145D/Cst. Siebert testified she observed Jennifer Copeland holding a marijuana cigarette in the smoking compound. Cody Weston’s evidence confirms this testimony. Therefore, the Board FINDS the Licensee breached subsection 45(2) of the O.Reg.

146Inspector Marji testified he observed a male patron in the smoking compound with two bottles of Corona beer. This evidence was corroborated by Cody Weston. The Board is also satisfied Inspector Marji’s testimony with respect to observing a female patron with a bottle of alcohol in the smoking compound was credible. The Board rejects the Licensee’s contention alcohol could be imported from the parking lot based on D/Sgt. O’Halloran’s evidence. Therefore, the Board FINDS the evidence establishes, on a balance of probabilities, the Licensee breached subsection 34(1) of the O. Reg.

147The evidence of Inspectors Baird and Foster establishes, on a balance of probabilities, five patrons in the premises on this date exhibited signs of intoxication. The evidence with respect to the first two patrons is that both men were unsteady on their feet and bumping into others. The Board rejects the Licensee’s suggestion the first patron was “mosh” dancing. There is no evidence other patrons were mosh dancing or engaging in the same type of behaviour. Inspector Baird noted the second patron was still in the premises 1 ½ hours later still consuming beer. Inspector Baird’s evidence respecting the male patron who was virtually passed out in the smoking area, ignored by security, and who showed extreme signs of intoxication when he woke up was credible and trustworthy. The evidence of Cst. Siebert, D/Sgt. O’Halloran, Inspector Foster and Inspector Marji all supports the allegation the presence of an intoxicated female in the “Hip-hop Room”. Finally, the evidence of Inspectors Marji and Foster with respect to the intoxicated condition of the male patron who exited from the side emergency exit was credible and trustworthy. Mark Tiley’s evidence is not of assistance as he had no clear view of the incident and had no interaction with the alleged intoxicated person. In the circumstances the Board FINDS, on a balance of probabilities, the Licensee breached subsection 45(1) of the O. Reg.

September 16, 2006

148The Board is satisfied Inspector Foster and D/Cst. Barrick observed a male patron in the “Rock Room” who displayed all the signs of intoxication and, further, stated to them he had been drinking beer on the premises and was drunk. In the circumstances the Board FINDS the Licensee breached section 29 of the LLA and subsection 45(1) of the O. Reg. The evidence also establishes the Inspector and D/Cst. Barrick observed security staff apprehend an intoxicated male patron in the hallway and that this person was very belligerent. The Board FINDS that in this matter the Licensee breached subsection 45(1) of the O. Reg.

December 9, 2006

149The Board accepts the evidence of Inspectors Baird and Foster that Stephanie Willing was intoxicated. The Board rejects Ken Baker’s evidence Willing was simply agitated because she had been asked to leave given Willing’s partner’s admission they were leaving because she was drunk. With respect to the second female patron the Inspectors’ evidence was that she displayed the classic symptoms of intoxication and, in addition, her boyfriend told them they were taking her home as she was drunk because it was her birthday. The Board FINDS a breach of subsection 45(1) of the O. Reg.

December 29, 2006

150The Board accepts the evidence of Inspector Leadbetter that a drunken male with all the all the classic symptoms of intoxication in the “Hip-hop Room” on this date. The Board FINDS that the Licensee in this matter has breached subsection 45(1) of the O. Reg.

151The Board is satisfied, on the evidence of Inspectors Leadbetter and Sookdeo, they observed two intoxicated male patrons in the “Rock Room” The first displayed classic symptoms of intoxication and, in addition, was speaking loudly. The second was staggering and bumping into patrons, had loud and out of context speech, and was later observed staggering outside the premises on the street. There is no evidence the patron was “mosh” dancing and his later behaviour supports rejecting the Licensee’s contention in this regard. The Board notes as well that the NRG log book records intoxicated patrons were in the premises that night. The Board FINDS the Licensee breached subsection 45(1) of the O.Reg.

April 14, 2007

152Inspector Foster’s evidence supports finding an intoxicated male patron in the “Rock Room”. The patron was unsteady on his feet, swaying, and had difficulty communicating and and identifying himself to Inspector Foster. The Board FINDS the Licensee breached subsection 45(1) of the O. Reg.

153There is conflicting evidence concerning the incident involving Gord Huff. The Board notes Cst. Larson had no notes of events of that evening and his memory of those events appeared to be selective. However, after reviewing all of the evidence the Board is not satisfied a breach of the LLA occurred and DISMISSES this allegation.

154Finally, the Board has not addressed Mr. Plouffe’s submissions with respect to allegations about Inspector Foster’s conduct. The “evidence” on which they are purportedly based is not before the Board. As Mr. Plouffe is aware, at the outset of this hearing the Board refused to admit the statement of Shannon Issac in which these claims are made. The allegations are irrelevant to this proceeding nor were they subjected to examination and cross-examination under oath. The Board will not consider them or Mr. Plouffe’s submissions regarding them.

Conclusion

155Having made the above findings, the Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) 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 22nd DAY OF OCTOBER, 2007