Registrar, Alcohol and Gaming Commission Ontario v. 1157056 Ontario Limited O/A Ein-Stein Café & Pub, 2007 CanLII 58223

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-

1157056 Ontario Limited O/A Ein-Stein Café & Pub Licensee

DECISION

Panel: Dianne Axmith, Board Member Patricia McQuaid, Vice-Chair

Decision Date: November 20, 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 ) Sujin Chan, Representative 1157056 Ontario Limited, Licensee ) Jerry Levitan, Representative

Allegations

1. A hearing into a Notice of Proposal number 15412 dated July 10, 2007 to suspend liquor licence number 804736 issued to 1157056 Ontario Limited operating as EIN-STEIN CAFÉ & PUB, 229 College Street, Basement Level, Toronto, Ontario, M5T 1R4, on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 ("O.Reg") made pursuant to the Liquor Licence Act ("LLA"), was held on October 15, 2007 in the City of Toronto.

Decision

2. After considering all the evidence and submissions the Board DISMISSES the allegation of a violation subsection 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3. The Board ordered that witnesses be excluded.

Registrar’s Evidence

4. Tuesday Lyn Sandiland, an Alcohol and Gaming Commission of Ontario ("AGCO") inspector attended at the licensed premises on March 18, 2007 at 12:23 a.m. She was accompanied by Inspector Jade Leadbetter. St. Patrick's Day was being celebrated at the establishment.

5. Upon entering, Ms. Sandiland did a count of the premises which indicated it was under-capacity. She observed a young male who appeared to be under age. She approached him and requested his identification. That identification confirmed that he was of legal age.

6. Ms. Sandiland testified that she observed four people who appeared to be intoxicated. The first was a female, wearing a long brown shirt with multi-coloured flowers. The female was dancing. She was unsteady on her feet, swaying and appeared not to be in control. At one point, the female was on the small stage singing, though really seemed to be screaming. Her words were slurred. Her eyes were glossy and unfocused.

7. The second apparently intoxicated person was also female with shoulder length straight blonde hair. She was unsteady on her feet and was leaning against the wall for support. Her eyes were glossy with an unfocussed look.

8. The third person was also female. She was swaying from side to side and back and forth. Patrons were bumping into her and she seemed to have difficulty maintaining her balance.

9. The fourth person was a male who Ms. Sandiland was told was a staff member, though he was not working at the time. His eyes appeared drowsy and out of focus. As well, his eyes were blinking slowly. She observed him staggering throughout the premises, banging into patrons and hanging on to chairs and tables for support.

10. Ms. Sandiland conferred with Ms. Leadbetter who told her that she had reached the same conclusion about the four patrons and had observed a fifth person who also appeared intoxicated. Ms. Sandiland then spoke to the manager, Kirstin Purc and Mr. Kness–Knezinskis, the owner, and advised them of their observations regarding the five patrons. She spoke to them for five minutes or less. They were cooperative and said they would have the individuals removed. The patrons were pointed out to them. She advised Ms. Purc and Mr. Kness-Knezinskis of their responsibility not to allow intoxicated persons to be or remain in the establishment and of their liabilities in that regard. She also told them that she would be submitting a report and a determination would then be made regarding action on the infractions.

11. She and Ms. Leadbetter left at 12:45 a.m. She recalled that there was music in the establishment though not so loud that you had difficulty communicating. She did not speak to the patrons, but stated that she could hear them speaking. She was, at various times, standing 3-5 feet from the patrons in question. Ms. Sandiland stated that she did not feel the need to speak to them; she was satisfied with her observations.

12. On cross-examination Ms. Sandiland stated that she did not inquire as to how much any of the patrons had to drink. While the manager and owner did not take issue with her comments about the patrons, they did not specifically agree that they were drunk. She did not see Ms. Purc ask them to leave nor did she wait to see the patrons leave the premises.

13. Regarding the first patron who appeared to be intoxicated, Ms. Sandiland reiterated that she was unsteady on her feet. The patron was dancing, though it was at the times that she was not dancing that she appeared to be swaying. She was dancing normally. This patron was also singing or screaming, along with the songs. Her words were inaudible. At this point, she was standing 2 to 3 feet from the female patron. At no time was she face to face with the patrons so as to be able to detect any smell of alcohol from them. Ms. Sandiland could not recall if there was live music, a d.j. or a combination of the two.

14. Ms. Sandiland stated that it was her observations of the patrons' appearance, in particular, the classic signs of intoxication that led her to believe that the patrons were drunk.

15. Jade Leadbetter stated in her testimony that the bar was busy but not at capacity. Upon entering, she began making observations of the patrons. She observed a male at the bar area, consuming from a pint glass of beer and a shot glass of liquor. She was standing approximately three feet away from him. He was exhibiting signs of intoxication: loud slurred speech, eyes were unfocussed and droopy. He was leaning heavily against the bar for support.

16. She next observed a female who, by description, appeared to be the first female noted by Ms. Sandiland. This patron was dancing erratically, bumping into patrons, several of whom had to hold her up for support. She was unsteady on her feet with loud slurred speech and her eyes unfocussed.

17. A second female was described in terms similar to the second patron noted by Ms. Sandiland: leaning against a wall for support, staggering and with unfocussed eyes. The third female patron she observed was also described similarly to Ms. Sandiland: she was unsteady on her feet, swaying back and forth and eyes repeatedly closing.

18. The fifth patron observed by Ms. Leadbetter was a male standing at the rear of the establishment. He was very unsteady on his feet and was staggering so that he had to use the backs of chairs and table tops to guide him. Again, his eyes were unfocussed and repeatedly closing. He appeared disoriented.

19. Ms. Leadbetter assisted in pointing out the intoxicated patrons to Ms. Purc. She was unable to locate one of the female patrons at this time. The other four patrons were still in the establishment. Aside from the first male patron she observed, she did not see any of the other patrons consuming alcohol.

20. Ms. Leadbetter stated that she was no more than five feet away from any of the patrons. She did not speak to any of the patrons as she was 100% confident in her observations. The patrons exhibited more than one sign of intoxication and therefore she felt no need to talk to them.

21. On cross-examination, Ms. Leadbetter conceded that her observations could be wrong, however, if she had any doubt in her conclusions, she would have done more investigation. She too, could not recall if there was a live band.

Licensee’s Evidence

22. Kirstin Purc is the manager at Ein-Stein. She has worked there for seven years. Bar policy is that if a person is intoxicated upon arrival, they are not allowed in; if they become intoxicated, they are asked to leave.

23. Ms. Purc was also bartending on March 17th. She arrived at 5 p.m. On arrival, she was told by the bartender who had been working during the day that a liquor inspector had been in earlier and that they were told an inspector would also be in later. Liz, the bartender, gave her a description of who was there and what they were drinking, as is their practice. This is one of their busiest nights of the year. It is a casual environment and the crowd is boisterous. There was live music and the crowd was encouraged to sing and dance on St. Patrick's Day.

24. Ms. Purc spoke to Inspector Sandiland. Ms. Sandiland noted that they were under capacity, but that there were five people in the bar who were visibly intoxicated and would need to be removed from the premises. The inspector pointed out the patrons. She, Ms. Purc, told them to leave because she was told to do so by the inspector.

25. Ms. Purc knew these patrons, though did not know their last names before this incident. She had not served all of them, but was aware of what they had to drink. She works with one other bartender, Brendan. One of the persons alleged to be intoxicated is an employee. He had finished a show at another establishment and had come by after it. She had served him a pint of Guinness.

26. The blonde patron described by the inspectors had shared a pitcher with another friend. They also ate at the bar. She had been dancing, through not staggering. They had been there for about two hours.

27. Jen, the patron described as wearing the flowered tunic, was there with her boy friend, Aris. They were seated at the bar and had been there for approximately five hours. Jen had three glasses of wine. She was singing, dancing and was boisterous. Patrons try to sing along to the traditional St. Patrick's songs as loud as they can. In her view, Jen was not intoxicated. Aris had three pints of dark lager. He too, was yelling to the music, but was not intoxicated. Ms. Purc had no recollection of a third female patron as described by the inspectors.

28. On cross-examination, Ms. Purc stated that she did not dispute, in conversation with Ms. Sandiland the inspectors’ conclusions or direction. Her view is that if inspectors tell you to do something, you comply. She told the patrons they had to leave, and they agreed though one of the males was upset that someone had concluded he was intoxicated.

29. Ms. Purc was confident of her ability to observe the patrons in the bar and stated that she was good at her job. Between herself and the other bartender they track what people are drinking, who is running a tab or paying with their drink. She does not ask patrons how much they had to drink before coming to the bar, but will not serve them if they seem intoxicated.

30. Aris Lagzdins was at Ein-Steins on March 17th with his girl friend Jen Baldin. They arrived at about 7:30 p.m. and left around 12:30 a.m. when Jen was asked to leave. When Kristin Purc first asked Jen to leave, they thought she was joking. They were surprised, but because they respected the establishment, they complied. He described himself and Jen as regulars at the bar.

31. He and Jen had a cider with dinner, at home, before going to Ein-Stein's. At the bar, he had a Guinness, two Waterloo Darks and shared a pitcher of beer with about four others. Jen had three glasses of wine, all of which was on a tab. Neither of them was intoxicated. He described Jen as free-spirited; she was dancing and singing. The crowd was in good spirits with lots of singing and shouting to the music.

32. Mr. Lagzdins stated on cross-examination that he knew others had been asked to leave. Several of them stood outside the bar for a short time chatting about the incident. He and Jen had been seated at the bar and it was Ms. Purc who, for the most part, served them.

33. Jennifer Baldin confirmed her attendance at the establishment with her boyfriend, Aris. It was her recollection that they arrived about 7:30 p.m. There was live music, people were singing and dancing to Irish songs. She was probably yelling and was having a good time. She had three glasses of red wine. Ms. Baldin stated that she was offended when told that she had to leave, and disappointed that no inspector came to talk to her about it.

34. On cross-examination, she stated that people did not have to hold her up. She may have bumped into someone, but was not relying upon anyone to hold her up. She queried how, if an inspector did not speak to her, they could have determined that her eyes were red or glossy, from a distance. She believes that she did ask to speak to an inspector but was told that they had left. She left the premises when asked because she was not going to argue with Kristen about the issue.

35. Beverly Yap is a server at Ein-Steins and has worked there for over a year. She is Smart Serve certified. Patrons were having a good time on March 17th, singing and shouting. She was present when the patrons were asked to leave. She did not serve Aris and Jennifer, but she did see them there and from what she observed, they were not intoxicated. She is aware of what is going on around her when she is working and she did not observe anything out of the ordinary that evening.

36. Ms. Yap described, in cross-examination, her understanding of the signs of intoxication: slurred speech, inability to balance, redness in the cheeks, and speech that does not make sense.

37. Alexandria Petryga is an employee of Ein-Stein's and on March 17th was working behind the bar with Kristen. She arrived at 5 p.m. She was told by the bartender who had been working earlier that a liquor inspector had been in that day. It was one of the nights of the year that they would expect inspectors to come round. It was a happy, jovial crowd that night.

38. Ms. Petryga recalled what the various patrons were served, corroborating Ms. Purc's testimony. She was behind the bar when the inspectors spoke to Ms. Purc, who then asked the particular patrons to leave. She thought three males and three females were asked to leave.

39. Ms. Petryga stated, on cross-examination, that some of the patrons, and in particular Aris, kept a tab. She and Ms. Purc worked from the same computer at the bar. She stated that none of the patrons were being given drinks purchased by others. Slurred speech, walking not in a straight line, are further signs of intoxication to watch for. Shouting and singing, on St. Patrick's Day, does not mean patron is intoxicated though it may not exclude it either.

40. Finally, Mr. Ojars Kness-Knezinskis, the owner of Ein-Stein's, gave evidence regarding the manner in which transactions are recorded on their system. In response to questions of the Licensee's witness as to the amount of Mr. Lagzdins' tab, he advised that the system tracks 400 transactions, after which those transactions get replaced on the system. In effect, he could not trace the transactions for that evening months later, and in any event, the transaction would not record who the purchaser was, only, for example that a beer or glass of wine was sold.

Analysis & Reasons

41. The Registrar is seeking a finding of a violation of subsection 45(1) of the O.Reg in respect of five patrons, observed by Inspectors Sandiland and Leadbetter, and about whom they reached conclusions of intoxication. In submissions, Ms. Chan stated that issues of credibility are foremost. In this instance, the inspectors are extremely confident of their observations, indicating that more than three signs of intoxication were noted in each of the patrons, standing at distances of 3 to 5 feet from the various individuals.

42. Ms. Chan submits that it was not necessary for the inspectors to ask the names of the individuals, and, indeed, there seems to be no dispute as to the identity of the persons alleged to be intoxicated.

43. The signs of intoxication observed were red glossy eyes, in some instances unfocussed eyes, swaying, unsteadiness on their feet, and loud slurred speech. The inspectors did not speak to any of the patrons though they testified that they heard them speak. These may be indicia of intoxication. However, as Ms. Leadbetter acknowledged in cross-examination, she was describing how things appeared to her, a subjective, though experienced, evaluation.

44. In this instance, a St. Patrick's Day celebration was in full swing when the inspectors arrived. The crowd was boisterous, live music was being played, though this was not noted or recalled by the inspectors, and the crowd was encouraged to sing loudly, and to dance. In this context, the Board cannot conclude on the basis of swaying on the dance floor, and loud singing, perhaps screaming, that these are solid indicia of intoxication. What was perhaps necessary in this situation was to engage with these patrons. The inspectors chose not to do so. They advised Ms. Purc of their observations and stated that the patrons should be asked to leave. They made no inquiries of Ms. Purc about the patrons beyond determining that Chris, though an employee, was not working at that time. They did not ask how long patrons had been there nor how much they had to drink. Ms. Purc did not contest their comments; she complied with their directions. The inspectors, however, did not wait to ensure the patrons left.

45. The evidence, as a whole, suggests that this is a well run establishment. A good time was being encouraged but that does not imply drunkenness. Licensee's witnesses were credible. They gave their evidence in an honest and straight-forward manner. Mr. Lagzdins and Ms. Baldin, gave evidence as to how much they consumed. There is nothing in the evidence to suggest other than that to which they testified. While offended that the inspectors had concluded she was drunk without speaking to her, Ms. Baldin left, not wanting to create an issue for the bar.

46. There was, in the evidence, some confusion as to whether five or six patrons were asked to leave, and whether they were male or female. However, the evidence of the Licensee’s witnesses was for the most part credible and any differences between it and the evidence of the inspectors were minor and do not undermine its overall believability.

47. This is not a case where the issue is whether the patrons were served despite the appearance of intoxication, the allegation here is that the Licensee permitted drunkenness. The inspectors observed multiple signs of what they believed to be intoxication among the five patrons: speech, stance, gait, behaviour, appearance. Having heard the Licensee’s evidence, however, we are not satisfied the Inspectors’ observations alone provide a sufficient basis to find, on a balance of probabilities, the Licensee permitted drunkenness in the establishment contrary to subsection 45(1) of the O.Reg. In some contexts, observations of patrons from a distance may be sufficient to establish the Registrar’s case. In others, such as this one, observations alone are completely insufficient to determine whether a patron is intoxicated or merely having a very good time. On those occasions, the inspector will need to either speak directly to the patron or make more probing inquiries of the servers. There is insufficient evidence to enable the Board to conclude, on a balance of probabilities, that the patrons in question were drunk.

Conclusion

48. Therefore, for the reasons given, the Board DISMISSES the alleged violation of subsection 45(1) of the O.Reg.

DATED AT TORONTO THIS 20th DAY OF NOVEMBER, 2007

PATRICIA MCQUAID, VICE-CHAIR DIANNE AXMITH, BOARD MEMBER

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