Editor's Note: Addendum released November 2, 2007. Original judgment has been corrected, with text of addendum appended.

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-

6477291 Canada Inc. O/A Hooley's Restaurant

Licensee

DECISION

Panel: Guy Maurice, Board Member

Bruce Monteith, Board Member

Decision Date: November 1, 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 ) Richard Kulis, Representative

6477291 Canada Inc., Licensee ) Ainslie Dunstone, Representative

Allegations

1. A hearing into a Notice of Proposal ("NOP") number 14878 dated January 23, 2007 and a Supplementary Notice of Proposal ("SNOP") dated May 7, 2007 to suspend liquor license number 20638 issued to 6477291 Canada Inc. (the "Licensee") operating as HOOLEY'S RESTAURANT, 292 Elgin Street, Ottawa, Ontario, K2P 1M3 on the basis of alleged violations of subsection 45(2) and 29 of the Liquor Licence Act ("LLA") and subsections 20(1), 45(1) and section 33(1) of Ontario Regulation 719/90 ("O.Reg") was held on June 12 and 13, 2007 in the City of Ottawa.

Decision

2. After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 29 of the LLA and subsections 20(1), 45(1) and section 33(1) of the O.Reg. The Board DISMISSES the allegation of a violation of subsection 45(2) of the LLA. Reasons follow.

Preliminary Matters

3. As a preliminary matter Mr. Dunstone asked that SNOP be withdrawn because he did not have sufficient time to prepare. Mr. Kulis noted the Licensee had received the SNOP and relevant disclosure material at the May 7, 2007 pre-hearing and had had the material for a month which was sufficient time to prepare. Two prior requests for postponement because the Licensee was out of town had been denied. Mr. Kulis submitted this was a further attempt to delay the proceedings.

4. The Board is satisfied the Licensee had adequate notice of the issues raised in the SNOP and sufficient time to prepare for this hearing. The Board denied the request for withdrawal and ordered the hearing continue.

5. Mr. Dunstone asked for an exclusion of witnesses, there was no objection from Mr. Kulis.

Registrar’s Evidence

6. Police Officer Lee Sabourin entered Hooley’s along with Constable Ian McDonnell, both in plain clothes, at 5:17 p.m. on October 26, 2007. They saw a sign offering a bus to a Ottawa Senators game, entry to the game, and a drink after returning for $65.00.

7. At 6:30 p.m. four men, one holding a Liquor Control Board of Ontario ("LCBO") bag, entered the establishment and sat down in a booth. He heard a can being opened and saw one of men pour Coors Light into glasses. As they were drinking the Manager appeared, seized the cans and told the four to leave. They were allowed to finish the beer and left at 7:05 p.m.

8. Constable Sabourin observed the bus return from the hockey game at 11:20 pm. Six females got off the bus and entered the establishment. They went upstairs and were given an alcoholic beverage in return for a Senators ticket.

9. Downstairs he saw two females wearing T-shirts with "SOCO LIME" printed on them, offering free shots of Southern Comfort and lime. He consumed one of the shots and concluded it was alcohol.

10. In the basement area he saw a man who appeared intoxicated. He was loudly slurring his words, boisterous, unsteady on his feet and was drinking a Budweiser beer. He observed the man walk and noted he was unsteady on his feet and had to support himself by holding onto a table.

11. On cross-examination Constable Sabourin stated he considered the manager’s action in removing the cans was "definitely" appropriate. Asked why he had consumed the shot, Constable Sabourin replied that he wanted to confirm it was alcohol.

12. Constable Ian McDonnell’s testimony was consistent with Constable Sabourin’s testimony. In addition he stated he had observed a patron dancing at the bar waving a pirate type sword. The man drank one of the free SOCO shots and appeared intoxicated. Constable McDonnell also consumed one of the SOCO shots and found it to be alcohol.

13. On cross-examination he explained he had taken the SOCO shot to confirm that it was alcohol. Asked to describe his qualifications to support this opinion, Constable McDonnell advised he was a breath technician, had tested 249 individuals, and was certified in drug related testing. He said that the patron was showing signs of intoxication, unsteady on his feet and stumbling when he walked. He also said that it was the first time he had seen trouble in Hooleys and first time charged. He left the premises along with Constable Sabourin at 11:35 p.m.

14. On March 4, 2007, Stacy Lanois, AGCO liquor licence inspector, and Detective Constable Howson, attended at the establishment. Although the dance area was empty, the rest of the establishment was packed and it was difficult to move. She observed a male drinking a ginger ale based drink who was showing signs of intoxication. He was supporting himself on the wall, his eyes were glossy and he was staring into space. Another male approached him and they both walked unsteadily towards a group of females. The first male, still swaying on his feet, began to talk to one of them. He then tried to kiss her on the neck but was pushed away. He took a sip of his drink and dribbled it down his chin on to his shirt. At 2:05 a.m. the lights went on, the music stopped and the staff began herding the patrons out. The first male walked unsteadily towards the door, he still had a fixed stare and was stumbling. She heard him speak to another male and his speech was slurred and slow.

15. On cross-examination the Inspector testified she had observed the male for about 15 minutes. The level of lighting was bright enough to see and the music was normal and allowed people to speak without yelling. Asked how many signs she would observe before she concluded that a patron was intoxicated she replied that, once they met three signs, they were intoxicated.

16. Andrew Rowntree is a liquor inspector with the AGCO. He attended at Hooley’s on several occasions. On October 12, 2006 he saw the poster advertising the bus trip to the Senator’s game and a drink for $65.00. When the bus returned he saw a female who had to be assisted into the establishment. She slurred her speech and her eyes were red and glossy. He saw another female come off the bus and tuck a bottle of Coors under her coat then enter the establishment. There was no security at the door and once inside the female began to drink from the bottle. He went downstairs and saw another female speaking on a telephone, he could hear that she had slurred speech and saw that her eyes were red and glossy. The female put her head in her hand and leaned on the bar where she sipped on a Corona beer that was not hers. The Inspector saw a male get up from the bar and walk unsteadily downstairs then come back up again. He had a red face and red glossy eyes. The Inspector concluded that he was intoxicated. He did not see free alcohol offered.

17. On October 26, 2006 Inspector Rowntree entered Hooley’s at 17:17 p.m. There were about 40 patrons inside. He was undercover and ordered a Labatt's beer. At 18:30 he saw 4 males enter the bar, one carrying an LCBO bag, and go to a booth near the fireplace. One of the males opened a tall can and poured beer into three glasses. The Manager picked up an empty can from the floor of the booth, placed it in the garbage, and then told the men to leave. Three full cans were replaced in the bag and the males left the premises.

18. When the hockey bus returned at 11:25 p.m., a male exited the bus who was unsteady on his feet, had red glossy eyes and very loud slurred speech. The male took 2 free shots of SOCO and drank them. Inspector Rowntree went upstairs and met with Constable Sabourin. He saw patrons give the bartender hockey tickets and receive alcoholic beverages. No money was exchanged. He then went back downstairs and received shots of SOCO from the female reps who told them there was no limit on the number of shots as they were free. As he was leaving at 11:35 p.m. he saw another patron with a red face and very loud slurred speech.

19. On October 29, 2006 Inspector Rowntree returned to Hooley’s with the Fire Prevention Officer checking fire safety issues. The doorman had no counter or any method of counting capacity.

20. On February 3, 2007 Inspectors Rowntree and Inspector Goddard entered Hooley’s at 12:59 a.m. and went to the downstairs area. He saw a male at the bar showing signs of intoxication and trying to sit upright. The male drank some beer and then spat it out on the bar. He got up and was staggering, had trouble walking, and his speech was slurred.

21. The Inspector saw another male falling asleep while sitting at the bar. Friends spoke to him and when he got up he was unsteady on his feet and his head was bobbing back and forth. His pupils were dilated and he had trouble putting on his jacket. The Manager agreed that he was intoxicated and had him removed from the premises. The Manager was then advised that there would be a report.

22. In cross-examination the Inspector advised he had been trained to detect signs of intoxication in Orillia. He confirmed approximately 60 patrons were in the bar and that the lighting was good. He saw a female, whom he had seen before, going downstairs. A male escort was holding her to prevent her from falling downstairs. Another male patron at the main floor bar was observed and found to have the same symptoms as the female going downstairs. Another male patron bumped into him as he was walking to the washroom, he was unsteady on his feet, his eyes were red and almost closed in a fixed stare. Another male brought attention to himself by slamming his hand on the table, he was seen having more than one shot of SOCO. With respect to October 12, 2006 Inspector Rowntree noted he had seen a poster advertising free beverage but could not seize it because it was in a glass case.

23. AGCO Liquor Inspector Stephan Goddard testified with respect to the inspection on February 3, 2007. His evidence was consistent with the testimony of Inspector Rowntree.

Licensee’s Evidence

24. Tim Carmichael is the Manager of Hooley’s Restaurant and has been in the hospitality industry since 1993. He no longer works at Hooley’s as he has purchased his own bar further down the street. He has had previous inspections.

25. The employee, Christina, had been drinking and was cut off. Her husband was telephoned and arrived 30 minutes later.

26. On October 26, 2006 he saw the males sitting at a booth drinking beer that they had brought into the restaurant. He instructed them to finish the beer and leave. This was the appropriate action.

27. Mr. Carmichael explained that during the Southern Comfort promotion patrons had to exchange a bead token for a shot of SOCO. This was intended to control the amount consumed. However He said he noticed that the servers stopped observing the rule of one token for one drink and began giving patrons as much as they asked for.

28. On October 29, 2006 he was asked to accompany the Inspector on a head count. A mechanical counter was not used. During the count he observed a possible infraction when about 20 patrons decided to come downstairs and so increase the capacity. He told the Inspector he would return and continue the count after he had resolved the possible overcrowding issue. When he returned about 4 minutes later the Inspector was angry and told him he could be charged with failing to facilitate. The Inspector did not resume the count.

Registrar’s Submissions

29. Mr. Kulis submitted the evidence disclosed 5 incidents of drunkenness contrary to s.45(1) of the O.Reg. In addition, the Restaurant was advertising and giving away free alcohol contrary to subsection 20(1). The SOCO reps were giving unlimited free drinks to patrons permitting immoderate consumption with no supervision by Mr. Carmichael. Two violations of subsection 33(1) occurred when a female patron was allowed to carry a bottle of beer into the restaurant and consume it inside the premises and when the four patrons carried cans of beer into the restaurant and were allowed to consume it on the premises by the Manager. As well, the Manager failed to facilitate a head count when he left Inspector Rowntree during a head count of patrons.

30. Mr. Kulis asked that findings be made on all violations as stated in the Notice of Proposal dated January 23, 2007 and the Supplementary Notice of Proposal dated March 7, 2007

Licensee’s Submissions

31. Mr. Dunstone argued the three allegations of promoting immoderate consumption should be disregarded because Inspector Rowntree’s evidence was vague and there was no follow up where a reason may have been found. Inspector Lanois' evidence could not be corroborated: the patron in question was dancing and not swaying from intoxication. The Inspector made vague references to slurred speech but could not hear what was said and did not ask the patron how much he had to drink. A patron should not be considered drunk until spoken to. The inspection standards were beyond what a licensee could comply with.

32. With respect to the subsection 45(1) allegations he submitted Inspector Rowntree’s observations were vague and his evidence was in conflict with Mr. Carmichael. Mr. Carmichael agreed that the female employee was intoxicated but said he sent for her husband.

33. Concerning subsection 33(1), he submitted there was no doorman on duty when the female concealed the bottle of beer under her coat and brought it into the restaurant because the restaurant had financial constraints. Mr. Carmichael saw the four patrons with the cans of beer but, to avoid conflict, he allowed them to finish the beer.

34. With respect to subsection 20(1) Inspector Rowntree failed to follow through with his investigation to ascertain whether alcohol was supplied in exchange for hockey tickets.

35. Mr. Carmichael’s evidence differs from Inspector Rowntree regarding the lighting in the restaurant. Where Carmichael said dim, the Inspector said bright enough to see a patron’s eyes from 16 feet. He noted Inspector Rowntree was fresh out of college and so could be unsure of actions taken

Reply

36. Mr. Kulis submitted that hearing slurred speech and taking observations of manner are sufficient to make a conclusion. Inspectors and police officers do not speak to patrons for safety reasons. Although Inspector Rowntree was fresh out of school, he gave credible evidence.

Reasons & Findings

36. The evidence given by the Police Officers and the Liquor Licence Inspectors is credible and believable. The Board notes that, with respect to most of the allegations, there was no real dispute as to the facts. Rather, the parties disagreed on the conclusions to be drawn from the facts.

37. We are satisfied the Registrar has established the Licensee encouraged immoderate consumption contrary to subsection 20(1) of the O.Reg when the SOCO representative, with Mr. Carmichael’s knowledge, allowed patrons to consume unlimited shots of the promotional alcoholic drink. Although Mr. Carmichael testified he was upset at this he nonetheless allowed the promotion to continue and made no efforts to enforce the bead for a drink practice. Further, we are satisfied, on a balance of probabilities, the evidence of Inspector Rowntree and Constable MacDonell establishes the SOCO representatives supplied alcohol to intoxicated patrons contrary to section 29 of the LLA.

38. With respect to the subsection 33(1) of the O. Reg. Mr. Carmichael does not dispute the four men were permitted to enter the premises with cans of beer in an LCBO bag and consume them in the Premises before leaving. The decision to allow the men to remain on the Premises while finishing their off licence beer is a clear breach of the Regulation.

39. The evidence of the Inspectors and Police Officers was consistent and not effectively challenged on cross-examination. While it might have been preferable to engage patrons in conversation to absolutely confirm intoxication, we are satisfied, on a balance of probabilities, the evidence supports finding the Licensee permitted drunkenness to occur on the premises on October 12, 26 and 29, 2006, February 3, 2007 and March 4, 2007 contrary to subsection 45(1) of the O.Reg.

40. We do not find the Licensee breached subsection 45(2) of the LLA when Mr. Carmichael left the Inspector briefly during the inspection. His decision to do so was for a legitimate purpose, he informed the inspector of his intentions at the time, and returned approximately 4 minutes later. There was no evidence this brief interruption had any adverse consequences on the inspection.

Conclusion

41. We therefore FIND that the Licensee breached section 29 of the Liquor Licence Act and subsections 20(1), 45(1) and section 33(1) of Ontario Regulation 719/90.

42. We DISMISS the alleged breach of subsection 45(2) of LLA.

43. 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/her 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 DAY OF ,2007

BRUCE MONTEITH, BOARD MEMBER GUY MAURICE, BOARD MEMBER

BM/sm

Re: Hooley's Restaurant, Licence Number 20638, Decision of November 1, 2007.

Based on the Board’s Decision of November 1, 2007, the Board found that the licence holder violated section 29 of the Liquor Licence Act and subsections 20(1), 45(1) and section 33(1) of Ontario Regulation 719/90. The Board also dismissed the allegation of a violation of subsection 45(2) of the Liquor Licence Act.

On page 7 paragraph 41, due to a clerical error, the Board misstated the Findings.

Pursuant to Rule 17.1 of the Board’s Rules of Practice the decision has been corrected to read as follows:

“We therefore FIND that the Licensee breached section 29 of the Liquor Licence Act and subsections 20(1), 45(1) and section 33(1) of Ontario Regulation 719/90.”