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-

1639857 Ontario Inc. O/A Fubar Nightclub

Licensee

DECISION

Panel: Beryl Ford Board Member

Eleanor Meslin, Board Member

Decision Date: April 3, 2008

Hearing Location: Kitchener, 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 ) Brad Alton, Representative

1639857 Ontario Inc., Licensee ) David McCarthy, Representative

Allegations

1. A hearing into Notice of Proposal (“NOP”) number 15413 dated July 5, 2007 to suspend liquor licence number 802685 (the “Licence”) issued to 1639857 Ontario Inc. (the “Licensee”) operating as FURBAR NIGHTCLUB, 140 University Avenue West, Campus Court, Waterloo, Ontario, N2L 6J3, on the basis of alleged violations of section 29 of the Liquor Licence Act (“LLA”) and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on December 4, 2007 in the City of Kitchener. During the hearing the Licensee informed the Board it conducts its business and is known as Fubar Nightclub. Although, no amendment to the NOP was requested, we have used Fubar Nightclub throughout these reasons.

Decision

2. The Board FINDS a violation of section 29 of the LLA and subsection 45(1) of the O.Reg. Reasons follow.

Registrar’s Evidence

3. Constable Melanie Schmidt testified that on January l7, 2007 at 9:00 p.m., Ms. Kavanaugh entered the local community police station. Ms. Kavanaugh reported an incident at the Fubar Nightclub the previous evening and the events leading up to the incident.

4. Ms. Kavanaugh stated she had arrived sober at the bar and had not been drinking prior to her arrival. She gave a statement to Officer Schmidt describing the number of alcoholic beverages she had consumed while at the establishment. Ms. Kavanaugh showed the officer an injury to her head that she had sustained when she fell from the dance floor while inside the establishment on January 16, 2007.

5. Constable Schmidt took notes of the report made by Ms. Kavanaugh and had police photographs taken of the injury. Cst. Schmidt then requested Ms. Kavanaugh provided a written statement to supplement the verbal statement she had provided to the officer (Exhibit #2).

6. In Ms. Kavanaugh’s written statement, she identified her friend as Christine Peterson, who had driven her and another friend to the bar on January l6, 2007.

7. Ms. Kavanaugh described how the evening had progressed from the time of arrival at approximately 11 p.m. until they left around 2:30 a.m., including how much alcohol she consumed while at Fubar.

8. Ms. Kavanaugh reported to Constable Schmidt that she had danced most of the time she was at the bar and occasionally went outside to smoke. She also stated that she had been drinking alcohol throughout the evening. She further stated that she had consumed 7 beers, 6 shots of tequila and two shooters, the shooters were served by a ‘Shooter Girl’. When asked by Constable Schmidt if she could describe on a scale of 1 – 10 her level of intoxication, she estimated that it was probably 7 – 8.

9. Ms. Kavanaugh reported that while she was dancing a female pushed another female into her causing her to fall off the dance floor and hit her head on the corner of a step. She didn’t remember much else after the fall. She recalled being outside the establishment, but couldn’t recall getting there.

10. She stated she didn’t want to leave the establishment but Ms. Peterson who had gone outside with her said she was not allowed back inside the premises. Ms. Peterson told the security guard that Ms. Kavanaugh had fallen because she was pushed and not because she was drunk. However, the security guard insisted she was intoxicated and must leave. Ms. Peterson, the friend and Ms Kavanaugh decided to leave to avoid a fuss.

11. Although her head hurt, Ms. Kavanaugh didn’t realize her head was bleeding until she put her hand to it and discovered blood. She and her friends returned to her home. After discussion with a roommate, who thought she should go to the hospital, Ms. Peterson and the friend dropped her off at the emergency department of the hospital. She received medical treatment for the gash to head which required three staples to close the cut.

12. She believed that she had been served too much alcohol. She recalled being told by the security guard to leave because she had too much to drink.

13. During the interview Ms. Kavanaugh, indicated that she had reported the incident to the police at the insistence of her friends who thought that it was the responsibility of the Licensee to ensure that patrons were not over served and to ensure safety for patrons.

14. Cst. Schmidt contacted Christine Peterson by telephone. Ms. Peterson corroborated the information and provided a written statement to the Officer. After reviewing the statements Constable Schmidt proceeded to lay charges under the Provincial Offences Act (“POA”) of over service and permit drunkenness against the Licensee. These charges were laid in February 2007.

15. Cst. Schmidt confirmed that she had asked Ms. Kavanaugh why there was a time delay in reporting the incident as the time from her leaving the establishment to reporting the incident to police was approximately 18 hours. Ms. Kavanaugh had told her she was confused about what she should do as she had never had anything like this happen to her before. Her friends had encouraged her to report the incident to the police.

16. Cst. Schmidt testified that she did not know why Nicole Kavanaugh was not present for the hearing, but had heard that she had moved to Newfoundland.

17. On cross-examination, Mr. McCarthy referred to the General Occurrence Report (Ex #3). Officer Schmidt confirmed this was an accurate report of the information provided to her.

18. Cst. Schmidt stated that she had not gone to Fubar and had not spoken to any staff person from the establishment. Cst. Schmidt agreed she had no first hand knowledge of what happened on the evening in question as she was not present. She further confirmed the amount of alcohol Ms. Kavanaugh had told her she had consumed while at Fubar. She stated that Ms. Kavanaugh smelled of alcohol when she came into the police department to report the incident.

19. The officer stated that to her knowledge the hospital had treated Ms. Kavanaugh for the head injury and she had no evidence of Ms. Kavanaugh being treated for anything other than the head injury.

20. Although Cst. Schmidt agreed she had spoken to Ms. Peterson on the telephone, she stated she did not take notes of the conversation but had asked Ms. Peterson to provide her with a written statement of her recollection of what happened on the evening of January l6th 2007 at the Fubar Nightclub (Ex. 4).

21. Christine Peterson testified that on the evening of January l6, 2007, she, Nicole Kavanaugh and another female friend went to Fubar Nightclub to celebrate her birthday. She was the designated driver for the evening they arrived around 10:45pm.

22. On arriving, they went to the centre bar and ordered one alcoholic beverage each. They sat at a corner table. A female approached them who appeared intoxicated, she was yelling and screaming and drawing attention to herself, she tried to converse with their group but they laughed at her and paid no attention.

23. Eventually the loud female and Ms. Kavanaugh went to the bar for a tequila drink then went outside together to smoke. When Ms. Kavanaugh returned she told her friends that the security guard would not allow the other female back into the establishment.

24. Ms. Peterson recalled seeing Ms. Kavanaugh obtaining a shot from a ‘shooter girl’. They sat around talking until about 12:30 a.m. She wasn’t sure but thought Ms. Kavanaugh bought another beer and they all went onto the dance floor at that time. Ms Kavanaugh began dancing with a male, she left to go to the washroom and when she returned he had left so she began dancing with another male. The first male returned to the dance floor and gave Ms. Kavanaugh a beer. She also started to drink his drink through a straw, very quickly. Ms. Kavanaugh continued dancing with the second male.

25. The witness estimated Ms. Kavanaugh was on the dance floor approximately 90 minutes leaving to go outside to smoke from time to time she estimated she was dancing for about 45 to 50 minutes in total. When last call was made, Ms. Peterson and another friend went to the bar to purchase a drink. A male standing near the bar purchased them both a tequila shooter. They went back to the dance floor where they met Ms. Kavanaugh and told her it was last call. Ms. Peterson observed Ms. Kavanaugh go to the bar and order two shots of tequila and a beer. Ms. Kavanaugh drank the tequila while standing at the bar and then returned to the dance floor.

26. The person dancing with Ms. Kavanaugh indicated to friends that he no longer wanted to dance with her and gestured to his friend to come over. The female friend bumped into Ms. Kavanaugh, then this girl’s friend purposely pushed her friend into the male Ms. Kavanaugh was dancing with, causing Ms. Kavanaugh to fall off the elevated dance floor onto the floor, causing her to strike her head on the step.

27. Ms. Peterson rushed over to Ms. Kavanaugh; a male security guard was present and together they lifted Ms. Kavanaugh up. The security guard told Ms. Kavanaugh she must leave the establishment as she was intoxicated.

28. Ms. Peterson told the security guard Ms. Kavanaugh had fallen because she was pushed not because she was ‘drunk’, but the security guard said, “she was too intoxicated and must leave”.

29. Ms. Peterson said, “they would leave because they didn’t want trouble, but Ms. Peterson fell because she was pushed”. The security guard left them at that point.

30. While outside the premises, Ms. Kavanaugh had no recollection that she had been ‘kicked out’ and wanted to return. Ms. Peterson told Ms. Kavanaugh several times they were not allowed back inside. Ms. Peterson observed the girl who had pushed Ms. Kavanaugh in a rage outside the premises; it appeared she had also been kicked out.

31. The witness drove Ms. Kavanaugh home. When they arrived Ms. Kavanaugh told her “her head hurt”. Ms. Peterson didn’t see anything initially until Ms. Kavanaugh touched her head and they saw blood on her hand. The witness then checked and found a gash on Ms. Kavanaugh’s head; she did not know the severity of the injury and suggested that Ms. Kavanaugh check with her older roommate about what they should do. Ms. Peterson did not know if Ms. Kavanaugh had spoken to her room-mate but she stumbled back outside about l5 minutes later. Ms. Peterson and the other friend decided to take her to the emergency room of the Grand River Hospital. They drove up to the hospital emergency room door. They did not enter the hospital with Ms. Kavanaugh, but watched a triage nurse approach Ms. Kavanaugh and they then left. After dropping her other friend home, she then went home herself.

32. Ms. Peterson testified that Ms. Kavanaugh had at least three beers before going onto the dance floor, and then she saw a male give her a beer. Each time Ms. Kavanaugh came from the dance floor she was holding a beer.

33. On cross-examination, Ms. Peterson stated that she thought Ms. Kavanaugh was intoxicated because of her behaviour which was more “outgoing” and not her usual quieter self. Ms. Peterson confirmed she was not aware of the head injury until she had arrived at Ms. Kavanaugh’s home and had not considered calling police after the fall.

Licensee’s Evidence

34. The Licensee elected not to call any evidence regarding the allegations in the Notice of Proposal. He stated that the Licensee had been caught completely off guard. The Licensee had checked with staff and they had no recollection of any incident on the date in question. Therefore he called no evidence.

Registrar’s Submissions

35. Mr. Alton submitted that Ms. Kavanaugh was unable to testify before the Board as she has moved to Newfoundland, however, in her signed written statement she had stated that she had about 7 beers and 6 shots of tequila between the time she arrived around 11:00 p.m. and her departure at 2:30 a.m. Ms. Kavanaugh had not been drinking prior to arriving at the bar and had consumed the liquor while at the establishment. She had become drunk over a period of 3 - 4 hours while at the bar. Mr. Alton submitted at the very least she was intoxicated when she purchased her drinks at last call and should not have been served.

36. Mr. Alton referred to the two signed statements by Ms. Kavanaugh and Ms. Peterson each saying that Ms. Kavanaugh had consumed approximately 7 beers and 6-7 shots of alcohol between the hours of 11 p.m. and 2 a.m. These statements were consistent with each other.

37. By Ms. Kavanaugh’s own admission in her written statement, she was intoxicated and should not have been served. In addition, Ms. Peterson observed how intoxicated Ms. Kavanaugh was and saw her get served repeatedly. In her written statement (exhibit #4) Ms. Peterson estimated that Ms. Kavanaugh had been served approximately 8 beers, 6-7 shots of tequila and 2 shots of something in a glowing tube.

38. Mr. Alton highlighted Ms. Peterson’s evidence. Ms. Kavanaugh was stumbling, which is an indication of intoxication. Her demeanour was the same before and after she was pushed and hit her head, thereby negating any chance that the fall and injury to the head could be responsible for Ms. Kavanaugh’s drunken stumbling and confusion.

39. Mr. Alton submitted the bar staff never cut Ms. Kavanaugh off from service or the consumption of alcohol until after the fall when she was told by the security guard to leave because she was intoxicated. Further, at 7:00 p.m. the following evening a police officer taking a statement from Ms. Kavanaugh recalled she could still smell alcohol on her breath.

Licensee’s Submissions

40. Mr. McCarthy submitted that the standard of proof is the balance of probabilities and it is his opinion that the Registrar has not met the standard. The term “appeared intoxicated” in section 29 is the test for the license holder. He used the Oxford Dictionary to define “intoxicate” and submitted that there must be some knowledge of the person or scientific testing before making the determination of intoxication, and that there needs to be other indicia such as bloodshot eyes, slurred speech, aggressive behaviour and stumbling. The Registrar did not present any such evidence.

41. Mr. McCarthy submitted that Ms. Kavanaugh did not appear before the hearing. He was unable to cross-examine her and asked that no weight be given to Ms. Kavanaugh’s statements because they are entirely hearsay. He argued that there was no evidence of an assault and that Officer Schmidt did not investigate the claim or attend the establishment to question staff.

42. Her evidence as to intoxication was essentially personal in nature. There was no evidence that Ms. Kavanaugh would have appeared intoxicated to bar staff. There is also no evidence of the standard signs of intoxication that could be observed by bar staff.

43. Licensee’s counsel submitted that the failure of the police to investigate and the time frame between the complaint, the police laying charges (which were subsequently withdrawn), and the NOP leaves the licence holder defending this NOP blind. There was nothing objectively outstanding about the incident.

Registrar’s Reply

44. Registrar’s counsel agrees that the standard of proof is on a balance of probabilities, and that is more likely than not that the incident occurred.

45. Registrar’s counsel submitted that there was clear and compelling evidence that Ms. Kavanaugh was intoxicated and was served liquor while she was intoxicated. The Licence Holder’s own staff determined that Ms. Kavanaugh was drunk and ordered her to leave the premises.

46. Registrar’s counsel submitted it is significant that the Licensee did not deny that the assault took place in the establishment. Ms. Peterson was clear in her testimony that the assault was deliberate. The Licensee is required to prevent violent conduct from occurring in his establishment. Something he clearly failed to do on the evening in question.

47. Registrar’s counsel submitted that the Licensee’s claim that he was totally unaware of the incident and caught off-guard was not in evidence. While it is true the NOP was not issued until July 5, 2007, the Licensee was charged in February 2007, under the POA for the infractions that occurred based on the General Occurrence Report (Ex #3). So the Licensee was aware of a problem in February 2007.

48. The Licensee chose not to present evidence, therefore, there is no evidence that the night in question did not stand out, or that staff were not aware of the incident. As the Licensee did not present any evidence, the Registrar was denied the opportunity to cross-examine on what the Licensee is now purporting to be evidence.

49. The Registrar is asking the Board to make findings under ss. 45(1) of the O.Reg and that the uncontested evidence is that the victim, Nichole Kavanaugh, was drunk in the licensed premises and while in that intoxicated condition was assaulted in the licensed premises.

50. Further, the Registrar submits that there is more than enough evidence to support a finding under s. 29 of the LLA.

Analysis & Reasons

51. Licensee’s counsel submission that there should be some scientific analysis before concluding there is intoxication is rejected. This is not required by the jurisprudence.

52. The Board has considered Mr. McCarthy’s submissions with respect to the hearsay nature of Ms. Kavanaugh’s statements. Although hearsay evidence is admissible before the Board, the Board is satisfied it is not necessary to rely on either Ms. Kavanaugh’s written statement or her oral statements made to Constable Schmidt to reach its decision. Ms. Peterson’s eyewitness evidence of the events of the evening was subjected to a full and complete cross-examination. Her evidence was given in a coherent and credible manner. It was not inconsistent with Constable Schmidt’s testimony of their conversation or her written statement. The Licensee offered no evidence in response. On a balance of probabilities, the Board is satisfied Ms Peterson’s evidence is sufficient to support the Registrar’s allegations.

53. Ms. Peterson testified she observed Ms. Kavanaugh drink at least 6 shots of alcohol and a number of beers in less than 4 hours. Ms. Peterson’s written statement confirms Ms. Kavanaugh consumed approximately 15 – 16 alcoholic drinks in the period of 4 hours. Ms. Peterson testified that Ms. Kavanaugh was stumbling and her behaviour was out of character. Ms. Kavanaugh had become intoxicated and her friends were required to take her to hospital because of a head injury caused by a fall while at the Fubar Nightclub.

54. Ms. Peterson also testified that the security guard told her that Ms. Kavanaugh was intoxicated and must leave the establishment. It was not until she fell from the dance floor that the security guard noticed Ms. Kavanaugh.

55. It is the opinion of the Board that any person consuming the amount of alcohol as reported by Ms. Peterson would be extremely intoxicated and would appear intoxicated. It appears to the Board that, had Ms. Kavanaugh not fallen, her intoxicated state would have gone undetected by staff.

56. There is more than enough evidence to conclude that, on a balance of probabilities, Ms. Kavanaugh was both intoxicated and was served liquor while intoxicated while at the Fubar Nightclub.

Conclusion

57. Based on the evidence, the Board FINDS a violation of section 29 of the LLA and subsection 45(1) of the O.Reg.

58. 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 3rd DAY OF APRIL, 2008

BERYL FORD, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER

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