Registrar, Alcohol and Gaming Commission Ontario v. 2008221 Ontario Inc. O/A Pilot Tavern, 2007 CanLII 47087

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-

2008221 Ontario Inc. O/A Pilot Tavern Licensee

DECISION

Panel: Guy Maurice, Board Member Decision Date: November 1, 2007 Hearing Location: Toronto, 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 ) Phillip Morris, Representative 2008221 Ontario Inc., Licensee ) Neal Smitherman, Representative

Authorities

Horseshoe Valley Restaurant (October 27, 2004), unreported decision of the AGCO

Allegations

1. A hearing into a Notice of Proposal number 14927 dated February 7, 2007 to suspend liquor license number 90114 issued to 2008221 Ontario Inc. operating as PILOT TAVEN, 22 Cumberland Street, Toronto, Ontario, M4W 1J5, on the basis of alleged violations of section 52 and subsection 45(1) of Ontario Regulation 719/90 ("O.Reg") made pursuant to the Liquor Licence Act ("LLA") was held on June 26 and July 23, 2007 in the City of Toronto.

Decision

2. After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg. The Registrar withdrew the allegations based on section 52 of the O.Reg. Reasons follow.

Registrar's Evidence

3. On July 8, 2006 at 11:34 p.m. Police Officer Fred Hodgson and his partner attended at the Pilot Tavern to assist ambulance attendants who claimed an intoxicated person, Mark Stevenson, had fallen downstairs. Stevenson was on the landing with a friend and displayed all symptoms of an intoxicated person. He appeared to have suffered some injuries to the head and confirmed he had fallen downstairs. Officer Hodgson obtained identification from Stevenson, made notes on the alleged intoxication and then went upstairs to speak to the staff.

4. He spoke with Hernan Bancalari, the manager, who stated that he had dealings with but did not recall having served Stevenson. In his opinion, Stevenson was not intoxicated. The officer made notes about persons in the bar, none of whom appeared intoxicated. He returned downstairs and noted that Stevenson was being prepared to be taken to hospital.

5. On cross-examination the Officer stated that Mr. Stevenson was conscious when he arrived, although this was contrary to the information he had received when dispatched. He agreed that a person may appear disoriented after regaining consciousness and this can include being unsteady on their feet. He also agreed alcohol can affect different people differently. Although Stevenson's friend had been drinking, he did not appear intoxicated. The Officer's notes did not contain the friend's name. There were no witness statements or other interviews.

Motion to Dismiss

6. After Officer Hodgson completed his evidence, Mr. Smitherman moved to dismiss the subsection 45(1) allegation on the basis it is an absolute liability offence which the Registrar must prove beyond a reasonable doubt. Mr. Smitherman was advised that the standard of proof before the Board is that of a balance of probabilities. Mr. Smitherman argued there was no evidence Stevenson was drinking at the bar or that drunkenness was allowed. There were no interviews to substantiate the allegations. He relied on Horseshoe Valley Restaurant.

7. Mr. Morris noted the officer's evidence that Stevenson had been dinking and was drunk in the establishment. The conversation with the bartender confirmed the bartender was aware Stevenson was a customer and was intoxicated. The Registrar does not have to prove he had been drinking and the Board should dismiss the motion.

8. In reply, Mr. Smitherman noted Stevenson may have just been leaving the bar.

9. The Board reserved its decision on the motion. When the hearing reconvened on July 23, 2007 the Board advised the parties that it had not decided the motion and directed Mr. Smitherman to present the Licensee's case. Mr. Smitherman made a formal objection to the Board's ruling.

Licensee's Evidence

10. Candice Nesrallait was at work at the Pilot on July 8, 2006. She is familiar with the Licensee's written policies on serving patrons. Business was fairly slow but started to pick up about 10:00 p.m. and she stopped serving to assist the bartender. She remembers Mr. Stevenson arrived about 7:00 p.m. accompanied by a male friend. He was acting normal and had not been drinking. She served the two men 10 bottles of beer. Stevenson consumed 4 and 1 shot of white tequila. They were getting louder and she told the bartender that they should be cut off. She felt their behaviour showed signs of intoxication. They were denied drinks despite their requests. She was later informed that someone had fallen in the stairwell.

11. On cross examination, Ms. Nesrallait confirmed the two men arrived at about 7:00 p.m. and had not been drinking before their arrival. She remembered Mr. Stevenson ordering l Molson Canadian and 1 Stilker and that his friend ordered more frequently. She did not serve them after 10:45 p.m. Mr. Stevenson had 5 drinks and approached the bar for another round. They were told they were cut off, that they were getting louder and becoming obnoxious. She remembers the two leaving and was informed later that the ambulance and police had arrived. Although no staff witnessed the fall, she saw Stevenson lying on the ground not responding. Staff had called the ambulance.

12. Herman Bancalari confirmed the bar was not busy initially but business increased later in the evening. He first noticed Stevenson when he approached the bar at about 10:30 p.m., and was refused more drinks. Stevenson then paid his bill and seemed fine at the time. He was not served more based on Ms Nesrallait's observations.

13. Alex Stuart has been a managing partner of the Pilot since 2002 and has been in a family business for 20 years. The Pilot is one of the oldest bars in Toronto. He described the establishment. Due to renovations he had removed the licence from behind the bar but it was available upon request. He was not present on the night in question. The bar has never been charged before and the Provincial Court charges in this matter have been withdrawn. No one has requested a statement about this case from any employee of the establishment.

Submissions

14. The Registrar withdrew the allegations relating to section 52. Mr. Morris submitted that when people come into a bar no one knows what they had to drink before they arrive. In this case the patrons were served 15 drinks in 4 hours which is a lot of alcohol. Stevenson had ordered 5 drinks and was cut off by the waitress because of his behaviour and loud voice. The Officer's evidence was that Stevenson was very intoxicated. No witness statement was taken from Stevenson because he was too drunk. This is proof beyond a reasonable doubt of a violation of subsection 45(1) of the O.Reg.

15. Mr. Smitherman submits the Registrar's case is based entirely on the police evidence. He notes signs of drunkenness are similar to someone regaining consciousness. Stevenson's symptoms could be from being rendered unconscious. The Registrar did not prove that Stevenson was drunk on the premises and that the Licensee had permitted drunkenness. The waitress's evidence was that the friend drank more rapidly than Stevenson. Stevenson consumed 5 drinks in 4 hours. Mr. Smitherman submits the evidence does not establish, on balance of probabilities, that the Licensee permitted drunkenness and without that proof there cannot be a conviction. He notes, further, the Provincial Offence charge was withdrawn.

Reasons

16. The Board carefully considered the evidence and the submissions for both parties in making its decision.

17. In reaching its decision the Board relies heavily upon the evidence of Police Officer Fred Hodgson who attended at the request of the Ambulance Attendants and discovered that Mr. Stevenson displayed all the symptoms of an intoxicated person. He attempted to question the question him as to the circumstances of his falling downstairs but concluded that he was too drunk to talk let alone understand the questions. It was established that Officer Hodgson has experience in dealing with situations of intoxication.

18. The Licensee's evidence supports the Officer's observations. Candice Nesrallait, a Smart Serve certified server, remembered Stevenson arriving with a male friend. Between 7:00 and approximately 10:30 p.m. she served Stevenson five drinks. The two men were getting louder and obnoxious. She told them that they were cut off. Stevenson then approached the bar for another drink but was not served. She was later informed that, after leaving the licensed area, Stevenson fell downstairs and was being attended by ambulance personnel and the police.

19. Herman Bancalari confirmed Stevenson had approached the bar at about 10:30 p.m. and was refused more drinks based on Ms. Nesrallait's observations.

20. The Licensee admits Stevenson was served several drinks between in a period of approximately 3.5 hours before being cut off. The Licensee's own staff had sufficient concerns about Mr. Stevenson's behaviour to refuse him further service. He had become loud and, as a responsible smart-serve certified server, Ms. Nesrallait felt he displayed signs of intoxication. This evidence, together with Officer Hodgson's evidence, leads the Board to conclude, on a balance of probabilities, that the Licensee permitted drunkenness in the premises.

Conclusion

20. For the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the O. Reg. Given this finding, it is not necessary to render a decision on the motion to dismiss and, in any event, the Board is satisfied the evidence of Officer Hodgson was sufficient to establish a prima facie case to support the allegation.

21. 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 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 1st DAY OF NOVEMBER, 2007

GUY MAURICE, BOARD MEMBER

GM/sm