Registrar, Alcohol and Gaming Commission Ontario v. Tinker’s Billiards & Bar Inc., 2007 CanLII 58252

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

Registrar, Alcohol and Gaming Commission Ontario

Registrar

-and-

Tinker’s Billiards & Bar Inc. O/A Tinker’s Billiards & Bar

Licensee

Panel: Eleanor Meslin, Panel Chair David C. Gavsie, Chair of AGCO

Decision Date: December 18, 2007

Hearing Location: Ottawa, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Joyce Taylor, Representative

Tinker’s Billiards & Bar Inc., Licensee ) James Arthur Barkey, sole director, ) officer and shareholder of the ) Licensee

Allegations

A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held on August 3 and October 10, 2007 to consider a Notice of Proposal number 15099 issued by the Deputy Registrar on March 22, 2007 (the “NOP”) and a Supplementary Notice of Proposal issued by the Deputy Registrar on July 5, 2007 (the “SNOP”), on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg.”) regarding the liquor licence of Tinker’s Billiards & Bar Inc. (the “Licensee”), operating as TINKER’S BILLIARDS & BAR, 17 – 19 Renfrew Avenue West, Renfrew, Ontario, K7V 2X8 (the “Premises”), licence number 805904.

Decision

The Board FINDS that a breach of subsection 45(1) of the O.Reg occurred on February 10, 2007, but DISMISSES the alleged violation of subsection 45(1) of the O.Reg on May 19, 2007. Our reasons follow.

Preliminary Matters

James A. Barkey is the sole director, officer and shareholder of the Licensee. Mr. Barkey waived the right to have legal representation.
At the outset of the hearing on August 3, 2007, some discussion took place with regard to disclosure issues. The Board’s Order dated May 8, 2007 concerning disclosure was entered as Exhibit 1.
A copy of a letter dated July 20, 2007 sent by Mr. Barkey to the AGCO Hearings Office, containing a list of witnesses and requesting summons, was made Exhibit 2.
A motion to exclude witnesses was granted on consent.

Registrar’s Evidence

AGCO Inspector Mark Lambert was in the Premises on both February 10 and May 19, 2007 when the events giving rise to the NOP and SNOP allegedly took place. He had made notes and, on consent, was allowed to use his notes to refresh his memory.
Inspector Lambert entered the Premises on February 10, 2007 at 12:46 a.m., by himself, to perform a spot compliance check. He was wearing a jacket with AGCO markings.
On entering the Premises, Inspector Lambert saw a male sitting at a table. The male attempted to slap Inspector Lambert. He had red eyes, a fixed stare, his head was down and he appeared sleepy. The man also appeared lethargic and slow. Other than the attempted slap, the man was not moving but his head was bobbing from side to side. There were several beer bottles in front of the man and he had a beer bottle in his hand.
Inspector Lambert proceeded to the service bar where he spoke with a female bartender, Wendy Juby. When asked if she knew the male patron pointed out by Inspector Lambert, Ms. Juby said his name was Gerald.
At that point, Gerald stood up and approached Inspector Lambert, staggering towards him. Ms. Juby motioned to Gerald to sit down, which he did.
Inspector Lambert then saw a second male in his late 50’s walk by him. He staggered continuously as he walked, coming from the back pool area and proceeding toward the front door. His eyes were half-closed, he was squinting and unsteady. As the male exited the premises he fell off of a step.
Inspector Lambert noticed a 3^rd male patron who appeared intoxicated. The man was short, about 5 feet tall, in his mid-40’s, and was wearing a dirty yellow florescent jacket. He appeared to come from the front of the Premises, staggered up to the service bar and stood there to be served. The man was swaying the whole time he stood at the bar. Inspector Lambert said his eyes were very bloodshot.
Ms. Juby noticed the man lean over to talk to a second bartender. She motioned to the bartender that he should not be served.
Inspector Lambert stated that no attempts were made by any staff to remove the male standing at the bar or any other persons he thought were intoxicated.
Inspector Lambert saw another intoxicated male, whom he recognized from another establishment, a bar called Huxley’s on Main, he had been in earlier that evening,. Inspector Lambert knew this man’s name was Ron. The bartender at Huxley’s was known to him as Shannon.
Inspector Lambert said he saw Ron at Huxley’s at 12:32 a.m., extremely intoxicated, drinking draft beer, which Shannon told the Inspector she had served to Ron. Ron went to the washroom area at Huxley’s, staggering as he walked. Inspector Lambert followed him. Inside the washroom, Ron fell into the urinal and urinated on himself.
Inspector Lambert spoke to Shannon about Ron. She told him that Ron had come from Tinker’s. Inspector Lambert exited Huxley’s to go to Tinker’s. The two bars are about a block apart. Inspector Lambert said he left Huxley’s at 12:42 a.m.
Inspector Lambert recognized Ron inside Tinker’s. Ron exhibited signs of being intoxicated, he was staggering. He was standing at the bar with the male in the yellow jacket in line to be served. Ron was not served. His speech was slurred and inaudible. Inspector Lambert was about a person away from Ron at this point.
Inspector Lambert said that Ms. Juby acknowledged Ron, and although he was not served, no attempts were made to remove him from the Premises.
Inspector Lambert then noticed an intoxicated female on the dance floor simulating sex with a 6 foot Corona blow up beer bottle. She was loud, her speech was slurred and her eyes were bloodshot. The bartender looked over at the female and told her to stop what she was doing.
Inspector Lambert spoke to Ms. Juby, who asked the patron to sit down, which she did at a table. There were 2 beer bottles in front of her. She yelled at Inspector Lambert as he was heading towards the front door “Hey, you can’t leave.” Her speech was slurred.
Inspector Lambert exited the Premises and went to his car in a parking lot close to the Premises. Gerald approached him. He appeared angry, with fists clenched. He asked the Inspector, “Did you bar me from the bar?” The Inspector told him to back away and, because of safety concerns, the Inspector left. Gerald, in turn, was approached by another person. Nothing happened out of the confrontation.
Inspector Lambert said he did identify himself to the bartender, Ms. Juby, producing his badge and his AGCO identification car.
Prior to leaving the Premises, Inspector Lambert said he spoke to Ms. Juby indicating that he would be submitting a report to his supervisor for disposition.
In the early morning of May 19, 2007 Inspector Lambert entered the Premises at 12:42 a.m. through the front entrance. He saw an intoxicated female sitting at the table talking to another female. She had a fixed stare and slurred speech. Her hand movements were lethargic.
Inspector Lambert approached the bar and spoke to the bartender, identifying himself with his badge and card. The bartender was Larry Wilson. Inspector Lambert told Mr. Wilson of his observations of the female patron, and that a report would be submitted about the infraction. Mr. Wilson said he would be asking the female patron to leave.
On his way to the exit, Inspector Lambert spoke with the intoxicated female patron. Her voice was barely audible, she had slurred speech, and she seemed to be incoherent. Inspector Lambert exited the Premises at 12:54 a.m.
Inspector Lambert said that because of safety issues in the parking lot immediately after his last visit, he entered the Premises on May 19, 2007 with three uniformed OPP Officers.
Inspector Lambert stated that the patrons in the Premises were mostly older. The lighting was low. When it is busy, people are gathered in an area to the right. The service bar faces the front door. The dance floor is to the left. There is a pool table area to the back of the dance floor.
The Premises has “regulars” who sit with each other and often walk together on the street. In Inspector Lambert’s view, the patrons are protective towards Tinker’s.
In response to questions from Mr. Barkey, Inspector Lambert indicated that he had not asked any of the intoxicated patrons for their names on either night.

Licensee’s Evidence

Shannon Logan was working at Huxley’s in the early morning of February 10, 2007. Ron McInnes was in Huxley’s before he left to go to Tinker’s. Ms. Logan, the bartender, felt he was not intoxicated. She did serve him one bottle of beer but took it away after the Inspector spoke to her.
Ms. Logan said she tried to tell the Inspector that Ron had just recovered from a car accident which was the reason why he walked and talked funny.
Ron did not return to Huxley’s after he left for Tinker’s.
On cross-examination, Ms. Logan stated she was cautioned by the Inspector about Ron. Inspector Lambert told her Ron was highly intoxicated. To avoid an infraction, Ms. Logan said she knew she had to get Ron out of the bar.
Ms. Logan said Ron could have come to Huxley’s from any other establishment. She said she saw Ron walk, not stagger, toward the washroom.
On re-direct, Ms. Logan said that Inspector Lambert told her if Ron did not leave, there would be an infraction. She said she never agreed with the Inspector that Ron was intoxicated. Ron was in Huxley’s for about 15 minutes.
Mr. Lewis Ambrose Johnson was at the Premises on Friday night and early Saturday morning on February 9 and 10, 2007. He does not drink alcohol.
Mr. Johnson was sitting at a round table just to the right of the front entrance. Several other people were sitting at the table, including a female named Faith, but who was known as “Candy.”
People were coming to and going from the table. Mr. Johnson denied anyone at the table slapped or attempted to slap at the Inspector as he passed by the table.
Mr. Johnson was with the Canadian Forces in food catering and has been around alcohol for 40 years. In his view, there was no one in the bar that night that should not have been there. There was no one who was intoxicated and should not have been served.
Mr. Johnson said that the bartender asked some people to leave the Premises after the Inspector left. He went to Huxley’s with them. They were all served at Huxley’s without any issues from the bartender there.
On cross-examination, Mr. Johnson agreed he is a regular at Tinkers. He goes there to socialise every Thursday, Friday, and Saturday. He is not Mr. Barkey’s friend but agreed he knows him fairly well. Candy is his daughter. She has dated Mr. Barkey.
Ms. Jennifer Fridgen was at Tinker’s in the early morning of February 10, 2007. She had been at work for 9 ½ hours leaving her job at 10:00 p.m. to arrive at the bar with Gerald Kehoe around 10:30 p.m. Ms. Fridgen had just gotten her 3^rd bottle of beer when seen on the dance floor dancing with the inflatable Corona bottle.
Ms. Fridgen wears contact lens which might have caused her eyes to appear bloodshot. She denied Gerald was intoxicated that night. She said Ron McInnes was drinking ginger ale and stated that she does crazy and silly things when she has had a drink or two.
Gerald did not approach the bar when the Inspector was in the Premises. She did see a man in a yellow jacket, Max Briscoe, come into the bar. He was told he could not be served, so he left.
No one was aware that an Inspector was in the Premises until after he left. She called after him not to leave because he was cute. The Inspector was only in the Premises for a few minutes. After the Inspector left, she was told to leave because she was intoxicated. She was one of five people who then left Tinker’s and went to Huxley’s. There was no problem with anyone in the group getting served at Huxley’s.
In her view, no one was intoxicated in Tinker’s. She has worked in bars and restaurants for a long time and has a Smart Serve certificate.
On cross-examination, Ms. Fridgen confirmed that when the Inspector entered she was dancing with the blow-up bottle. She had been in the Premises for about 2 ½ hours and was holding her 3^rd beer at the time. She has diabetes so she does not drink much alcohol. At the time she was a regular at Tinker’s where she went to socialize, not to “pound back booze.” She left Tinker’s when told to so as not to cause any trouble.
Mr. Ronald McInnes was at Huxley’s in the early morning of February 10, 2007. He had nothing to drink that evening. He said he was served, but did not drink, one beer at Huxley’s. The bartender was informed that he was intoxicated and, as a result, his beer was confiscated.
Mr. McInnes said he left Huxley’s before the Inspector and went to Tinker’s. He was not served alcohol at Tinker’s. Instead, a trainee bartender served him ginger ale. Mr. McInnes denied being intoxicated that night.
Mr. McInnes testified that he had recently been in an accident where he fractured 7 ribs, his shoulder, knee, and skull. On cross-examination, Mr. McInnes confirmed the accident happened on October 12, 2006. He takes Tylenol 3’s as a result and has not returned to work since the accident.
Mr. McInnes said he limps when he walks, has no problem with his balance but has lost his coordination a little bit. If he was seen staggering in Huxley’s, it could well have been because he was still injured from his accident. The night of the incident he had probably taken a couple of Tylenol’s and an anti-inflammatory pill and he has trouble using his left arm. This could have caused him to urinate over himself. That has happened before, but not because he had had too much to drink.
Mr. McInnes did not speak to the Inspector. In any event, he denied his speech was so slurred as to have been incomprehensible. He remembers that night very well.
Ms. Wendy Juby has worked in the hospitality industry for over 20 years. She has both Server Intervention Program (“SIPS”) and Smart Serve certificates. She works as a bartender at Tinker’s. Ms. Juby was training a new bartender that night, Donna McAllister. Inspector Lambert did not question Ms. McAllister.
In the early morning of February 10, 2007, Inspector Lambert walked into Tinker’s. He did not look around. Inspector Lambert identified himself as an AGCO Inspector when he approached the bar but did not give his name. He came to the bar and asked Ms. Juby if she knew that permitting intoxicated patrons in the Premises was illegal. When she replied “yes” Inspector Lambert said there were intoxicated patrons in the Premises. Ms. Juby was shocked.
Inspector Lambert pointed to Gerald, no one else, and said there were 5 possible infractions. Ms. Juby said she did not know of any. Inspector Lambert did not speak to any patrons.
Max Briscoe was obviously intoxicated when he came in the Premises. Ms. Juby denied him service and he left while Inspector Lambert was still in the Premises.
Gerald Kehoe was standing at the horseshoe bar in the Premises putting in a song request. His back was to the door. As Inspector Lambert walked in the front door, Mr. Kehoe turned around to look at him. Jennifer Fridgen was being “Jennifer” and joking around with the blow-up bottle. She had consumed 2 beers after arriving, with Gerald, around 10:00 p.m. Gerald had just come from work. Ms. Juby did not believe that either one had been drinking before coming to Tinker’s.
Inspector Lambert talked to Ms. Juby about Ron McInnes. She said when he came in she motioned to the other bartender to hold off serving Mr. McInnes alcohol. He was served a ginger ale.
In Ms. Juby’s opinion Inspector Lambert performed an incredibly cursory examination. She thought he was a customer until she saw the AGCO markings on his jacket. She did not feel anyone was intoxicated when Inspector Lambert was in the Premises. She told one patron to leave without serving him. Everyone else was fine.
She answered Inspector Lambert’s questions but said nothing more. She was shocked at what he had to say. She did not agree when he expressed his opinion about intoxicated patrons. Inspector Lambert did not ask for the names of patrons during the inspection.
On Saturday Inspector Lambert returned with a police officer. Inspector Lambert asked her if Gerald Kehoe was aware that he was a liquor inspector. Ms. Juby answered yes. Mr. Lambert stated that Ms. Juby had jeopardized his position. Ms. Juby said that was unintentional on her part. The others at the table wanted to know why Gerald had to leave and she told them the Inspector wanted Gerald to leave.
Inspector Lambert said Ms. Juby could be fined $10,000 and implied he would do so. Inspector Lambert told Ms. Juby that there was an incident with Gerald outside in the parking lot early Saturday morning and asked Gerald’s last name. She told him.
In cross-examination, Ms. Juby agreed that Inspector Lambert did pass in close proximity to Mr. Kehoe on his way from the front door to the bar.
Regarding Ms. Fridgen, Ms. Juby said she served the first beer to her around 10:15 to 10:30, served her a second beer just after 11, and she was on her 3^rd beer when Inspector Lambert entered. Ms. Juby said she had to be aware of the pace at which people are consuming.
As for Ms. Fridgen and Mr. Kehoe, Ms. Juby said there was no reason to think either was under the influence of alcohol. She had a conversation with them and assumed that they had had nothing to drink before they arrived at Tinker’s.
Ms. Juby stated that Max Briscoe came to the bar when she was talking to Inspector Lambert. She told Donna not to serve him. Mr. Briscoe comes into Tinker’s from another bar and he is not served. He does not walk straight and is very loud, almost aggressive. Mr. Briscoe is short and wears a yellow florescent jacket.
Ms. Juby said that she always wants to speak with Ron McInnes before serving him because of his accident. He walks funny and she wants to check him out. In fact, Ms. Juby said she likes to speak to everyone before serving them.
Ms. Juby’s incident report for the early morning of February 10, 2007 was made Exhibit 3. In it she wrote in part: “The only one who was staggering – a little was James. Heft and when he cam back he should have been asked to leave.
Mr. Larry Kenneth Wilson has been in the food and hospitality industry for many years. He has taken a server intervention program and he also has a SIPS certificate.
In the early morning of February 10, 2007, Mr. Wilson was in the Premises as a patron. He did not think that anyone was intoxicated and felt that Ms. Juby handled the situation professionally.
No one knew who Inspector Lambert was when he entered. Although he was wearing a jacket with the letters “AGCO” on the back, he did not identify himself. Mr. Wilson did not see Inspector Lambert talk with any patrons.
Mr. Wilson said he was one of the patrons who went to Huxley’s. Others were Mr. Johnson, Candy, Jen Fridgen and Gerald. No one was refused service at Huxley’s.
With respect to the May 19, 2007 incident, Mr. Wilson was on duty as a bartender in the Premises. Inspector Lambert entered the Premises with 3 uniformed OPP officers. There were less than 15 people in the Premises none of whom were intoxicated. He did not know why the Inspector was concerned for his safety. Mr. Wilson denied arguing with Inspector Lambert about whether an intoxicated patron was in the Premises that night.
Inspector Lambert was in the Premises less than 10 minutes. He and Mr. Wilson had a short conversation at the side of the service bar. The SNOP was not received until July. He had no reason to believe the alleged infraction had occurred. If anything like that had happened he would have called Mr. Barkey right away. Mr. Wilson did make an entry into the report book. The incident log book for May 19, 2007 was made Exhibit 4. Mr. Wilson identified the last 7 lines on the page as the relevant entry.
On cross-examination, Mr. Wilson said he had been talking to the person beside him at the table for half an hour. Mr. Wilson did not know he had been cut off because he had too much to drink. He admitted having a couple of beers but did not think he was intoxicated. He was not working at Tinker’s at that time but out having a drink with friends. Mr. Wilson estimated he was in Tinker’s for about an hour before Inspector Lambert entered. Even when he is socializing, Mr. Wilson says he tends to notice what is happening.
He agreed that, as he works for Tinker’s, he would lose income if the licence was suspended. He denied agreeing with Inspector Lambert that a female was intoxicated.
On re-direct, he confirmed he had not been drinking on May 19. He said he has ability to judge intoxication. On October 9, 2007 he gave notice that he was leaving his job as a bartender at Tinker’s to Mr. Barkey.
Mr. James Arthur Barkey is the sole director, officer and shareholder of the Licensee. It is standard operating practice for him to be notified of any incidents or infractions at Tinker’s.
Ms. Juby called him at home just after 12:30 a.m. on February 10, 2007. The Inspector had just left and she was shaken. She said she could not keep the bar open.
Mr. Barkey told Ms. Juby to close the bar down. She kept saying that she was not told who the 5 intoxicated patrons were, and that there was no one in the bar who should not have been served.
Prior to February 10, Mr. Barkey had never had any contact with Inspector Lambert. Neither he nor Ms. Juby knew who to contact about the February 10 inspection. They had a business card of a former inspector. When he called that number, he reached Inspector Lambert, who told him Ms. Juby had been rude to him.
Regarding the May incident, the bartender on duty knows to call Mr. Barkey if there is an incident. He had no prior knowledge of the allegations contained in the SNOP received on July 11. He had no names of witnesses. He believed it was a routine inspection and nothing was said. The AGCO Inspection Reports of February 10, 2007 and May 19, 2007 were made Exhibit 5 and 6 respectively.
On cross-examination, Mr. Barkey confirmed he was not in the Premises during the February 10 and May 19, 2007 inspections. He only knows what people told him including Inspector Lambert and the bartender at Huxley’s.

Recall of Inspector Lambert

Inspector Lambert denied there had been a discussion of a fine with Ms. Juby. No monetary amount was mentioned.

Registrar’s Submissions

Ms Taylor said Inspector Lambert identified 5 intoxicated persons in Tinker’s in the early morning of February 10, 2007:

a)Gerald Kehoe;

b) a male in his late 50’s who appeared to come from the back pool table area, staggering and fell off a step;

c) Max Briscoe – wearing a yellow jacket, refused service;

d) Ron McInnes who was seen at 2:00 a.m. by Inspector Lambert at Huxley’s and was intoxicated there. He fell into the urinal in the washroom there. At the bar in Tinker’s, his speech was slurred and he was incomprehensible. Ms. Juby did not serve him, but she made no attempt to remove him from the Premises; and

e) Jen Fridgen who was dancing with a blow-up bottle in a very suggestive manner. Her speech was slurred, her eyes were bloodshot, she was loud. When told to stop her lewd dancing, she went back to the table to sit with 2 beer bottles in front of her.

Ms. Logan, the bartender at Huxley’s, did not know if anyone had come from Tinker’s.
Mr. Johnson did not remember where Gerald and Jen were inside Tinker’s. Also, while he said he did not see any intoxicated patrons, he was not really looking out for this. He was there to socialize and was not drinking.
Mr. McInnes, though intoxicated, admitted he was at Huxley’s and was served one beer but did not drink it. He could not explain why he urinated on himself in the washroom at Huxley’s.
Ms. Fridgen admitted to being diabetic and therefore could be more subject to the effects of alcohol.
Ms. Juby told Gerald to leave the Premises because he had had enough. The same happened for James. This is confirmed by her entry at page 3 of Exhibit 3. Ms. Juby admitted that James showed signs of intoxication. She also admitted, by saying he was in the same state as Jennifer, that Gerald was intoxicated.
Ms. Juby also admitted that Maxie Briscoe was not fit to be served, but she took no steps to remove him from the Premises after denying him service.
Ms. Juby denied in her evidence that Mr. McInnes showed signs of intoxication, but she cut him off from service.
Regarding Mr. Wilson’s evidence, Ms. Taylor said he indicated no one was intoxicated in the early morning of February 10. He claimed he had talked to James sitting at the same table for half an hour and that he was fine. Notwithstanding Mr. Wilson’s view, Ms. Juby cut James off from further service. Then Mr. Wilson backed up and said he was drinking in the Premises as a patron and could not make a reliable assessment of whether a person was intoxicated or not.
Ms. Taylor said that Inspector Lambert’s evidence is more credible and is to be preferred if there is a conflict.
As Mr. Barkey was not present in the Premises during either inspection, all of his evidence was hearsay and of little assistance.
Regarding the May 19, 2007 inspection, Inspector Lambert testified he spoke to Mr. Wilson, the bartender, and identified himself. He told Mr. Wilson of his observations and that a report would be submitted. The report is before the Board as Exhibit 6. The information on that report speaks to the intoxicated state of the female patron.
Inspector Lambert said that the same patrons were in the Premises each time he has been there. They form a close knit community and appear to be protective of the establishment.
Ms. Taylor said that both inspections were overt. Inspector Lambert identified himself to the person in charge. He conducted himself in a professional manner. Inspector Lambert did not have his mind made up before he went into the establishment on February 10, 2007.
In conclusion, Ms. Taylor said the evidence shows on more than a balance of probabilities that there were 5 intoxicated patrons in the Premises in the early morning of February 10 and that there was one intoxicated person in the Premises on May 19, 2007. Therefore, the Registrar was seeking a finding of a breach of subsection 45(1) of the O.Reg.

Licensee’s Submissions

Mr. Barkey said that only once in giving his evidence did Inspector Lambert say he had spoken to an unidentified female patron. The music was loud in the premises on karaoke night, and yet Inspector Lambert said he heard a patron slurring his words. He did not walk around the Premises.
Mr. Barkey pointed out several apparent inconsistencies in Inspector Lambert’s evidence:

he did not see Max Briscoe leave after having been refused service;
he did not observe Ron McInnes drinking in the Premises. Rather he asked for a ginger ale and was not refused service; and,
at Huxley’s, Inspector Lambert did not witness Mr. McInnes in the washroom. In any event, Mr. McInnes explained his handicap.

The bartender at Huxley’s, Ms. Logan, did not remember people coming in from Tinker’s but all of them were served. She said there was no reason not to serve them.
Mr. Johnson was not consuming alcohol. He felt everyone was fine. Mr. Wilson was in the Premises both nights and indicated that there were no particular problems on either night.
Mr. Barkey then said that Tinker’s is a small bar (capacity is 40 people), solely owned by him, having middle-aged clientele. They never would serve a minor or permit drugs inside. They would not exceed capacity. They have shown their due diligence by putting people out in a timely fashion. There is no reason to serve drunks. The staff report incidents and he speaks regularly to staff about rules.

Registrar’s Reply

Ms. Taylor said that due diligence is not a defence to findings and is only relevant to sanctions.
Ms. Taylor said that there was no evidence as to what Ms. Juby did during the inspection of February 10. She said she stopped her conversation with Inspector Lambert to stop Maxie Briscoe from being served. Exhibit 3 did not indicate that Ms. Juby was upset by Inspector Lambert.
As for Max Briscoe, there was no evidence when he left. There was no action taken to remove him or Mr. McInnes.
Inspector Lambert was close to Gerald and to the second man who came from the back pool area. Both Maxie Briscoe and Ron McInnes came up to the bar where Inspector Lambert was standing.
Ms. Fridgen called out to Inspector Lambert to get him to stay, unaware he was a liquor inspector, despite him having a large AGCO emblem on his back.
Inspector Lambert may not have spoke to patrons directly, but he could easily overhear their conversations with others, and therefore could readily assess their condition.

Reasons

This case is highly dependant upon a determination of credibility giving the opposing and often different evidence of Inspector Lambert, on the one hand, and the witnesses for the Licensee, on the other hand. The onus for establishing that the alleged violations did in fact take place is on the Registrar based on a balance of probabilities.

May 19, 2007

Regarding the May 19^th inspection, Inspector Lambert said he entered the Premises with 3 uniformed OPP officers. Yet only Inspector Lambert gave evidence for the Registrar. His evidence was that he saw an intoxicated female sitting at a table talking to another female. The first had a fixed stare, her voice was barely audible, she had slurred speech and she seemed to be incoherent. Inspector Lambert was in the Premises for 12 minutes from 12:42 to 12:54 a.m.

116 Larry Wilson was the bartender in the Premises that night. He testified he was surprised to receive the SNOP in July alleging a violation had occurred on May 19. He had not mentioned anything about Inspector Lambert’s attendance in the Premises on May 19 to Mr. Barkey. Mr. Wilson, a person well experienced in the food and hospitality industries, said there were no intoxicated patrons in the Premises that night.

117 There was a complete difference of opinion between the witnesses as to whether or not Mr. Wilson told Inspector Lambert he did or did not agree that a patron was intoxicated as alleged by Inspector Lambert. The latter said Mr. Wilson agreed. Mr. Wilson denied that categorically. Mr. Wilson made an entry in Tinker’s log book for the night of May 19 (Ex. 4) which reads in part “…(Inspector Lambert) looked around and left.”

118 Inspector Lambert was in the Premises for a short 12 minutes. During that time he spoke to no patrons, just to the bartender Mr. Wilson. Mr. Wilson denied Inspector Lambert’s assertion that he agreed with him that a patron pointed out by Inspector Lambert was intoxicated.

119 Mr. Wilson made a run of the mill notation in the bar book and did not call the owner, Mr. Barkey, about it. This suggests he thought nothing untoward had occurred during the inspection. He was then very surprised when the incident became an alleged breach of subsection 45(1) of the O.Reg on receipt of the SNOP in July.

In circumstances where credibility is such a determinative issue, given the completely opposing evidence of the witnesses, the Board draws an adverse inference from the fact none of the 3 OPP officers who attended the Premises with Inspector Lambert were called to give evidence as to what any of them saw or heard.
The Board therefore DISMISSES the alleged violation of subsection 45(1) of the O.Reg. in the early morning of May 19, 2007.

February 10, 2007

With regard to the early morning of February 10, 2007, there was evidence from Inspector Lambert that at least 3 patrons who were at the service bar to order drinks were refused service. However, no attempts were made to have these patrons removed from the Premises. In addition, he gave evidence about other patrons who he said were intoxicated.
Inspector Lambert testified about the female patron, Jen Fridgen, dancing in a sexually suggestive manner with a blown-up plastic Corona bottle on the dance floor. Ms. Fridgen explained her conduct with a shrug and said she always acts crazy and silly when she has a drink or two. In her testimony, she admitted she had consumed two beers from 10:30 p.m. and was on her 3^rd bottle when the Inspector saw her on the dance floor.
As to credibility, the evidence of Inspector Lambert is to be preferred over the employee of the Licensee, Mr. Wilson, who was not working that night, but consuming alcohol in the premises, and the evidence of other patrons who, except for one, Mr. Johnson, were all drinking that night. Mr. Johnson testified that the bartender asked some people to leave the Premises after Inspector Lambert had gone.
Exhibit 3 is the log book written by Ms. Juby for February 10. In it she noted that Gerald had enough to drink and so Ms. Juby asked him to leave. Mr. Lambert’s evidence was that he did not see Gerald being asked to leave, just being refused service. Also in Exhibit 3 is Ms. Juby’s notation that when James came back, he should have been asked to leave. This leaves the Board with the impression that he was permitted to remain in the Premises in an intoxicated state.
Ms. Juby gave evidence that Ron McInnes and Gerald were refused service because of their intoxicated conditions. Her evidence was that she asked Gerald to leave, but there is an issue as to when that occurred. There is no evidence that Ms. Juby asked Ron McInnes or Max Briscoe to leave the Premises.

Conclusion

The key word in subsection 45(1) of the O.Reg is “permit” which has been defined and applied in many Board decisions. In this case 3 patrons were in the Premises on February 10, 2007 and inebriated to the point where the bartender cut them off from service of any more alcohol. One – Gerald – was asked to leave, but two others – Ron McInnes and Max Briscoe – were allowed to remain. This is sufficient to constitute a breach of subsection 45(1) of the O.Reg, and the Board makes a FINDING to that effect.
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 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 18^th DAY OF DECEMBER, 2007

DAVID C. GAVSIE, CHAIR OF AGCO ELEANOR MESLIN, CHAIR OF PANEL

DCG/ee/sm