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-

Blake Charles Wood, Wei Hu O/A Jones Bar and Grill

Licensee

DECISION

Panel: Beryl Ford, Board Member S. Grace Kerr, Board Member

Decision Date: March 31, 2008

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 ) Dan Alakas, Representative Jones Bar and Grill, Licensee ) Richard Kesten, Representative

Authorities

473954 Ontario Ltd. v. Ontario (Registrar of Alcohol and Gaming), [2001] O.J. No. 5315 (QL) Commercial Tavern, [2006] O.A.G.C.D. No. 580

Allegations

1. A hearing into a Notice of Proposal number 15712 dated October 31, 2007 to suspend for 21 days liquor licence number 280444 (the “Licence”) issued to Blake Charles Wood, Wei Hu (the “Licensee”), operating as JONES BAR AND GRILL (‘the establishment’), 1169 Queen Street East, Toronto, Ontario, M4M 1L5, on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on March 13, 2008 in Toronto, Ontario.

Decision

2. The Board FINDS the Licensee breached subsection 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3. There were no preliminary matters, except that Mr. Kesten noted that while Ms. Hu understands English she suffers from a slight hearing impairment so everyone was asked to speak loudly and slowly.

Registrar’s Evidence

4. Adam Strongman has been an inspector with the Alcohol and Gaming Commission of Ontario (AGCO) for two and a half years. He attended at Jones Bar and Grill on April 18, 2007, arriving at 11:26 p.m. Upon entering and standing about 6-8 feet from the patrons described below, he saw four patrons who showed signs of intoxication, as follows:

5. Patron No. 1, a male, was standing near the bar and talking to another patron. His speech was slurred. He staggered around the bar and showed poor balance. Inspector Strongman did not see him consuming alcohol.

6. Patron No. 2, also a male, was standing and arguing with the first patron observed. He also slurred his speech and swayed as he stood. This fellow walked over to where Inspector Strongman was standing and tried to peer at his notes. While he was there, the inspector noted a strong smell of alcohol emanating from the patron. After swearing at the inspector, he walked away.

7. Patron No. 3 was seated at the bar. This fellow’s eyes were ‘half-closed’ and his speech was slurred when he tried to order another beer. The bartender, who is also the Licensee, denied his request, saying ‘no more service for you’. The male exhibited poor balance as he arose from his seat and he then staggered out of the establishment.

8. Patron No. 4 was a female, seated at the bar, showing poor motor skills getting a beer bottle to her lips. Her speech was also slurred, although she was not really talking to anyone in particular, and her eyes were also half-closed. She was uneasy on her feet as she left the establishment.

9. Inspector Strongman proceeded to advise the Licensee of the ‘infractions of permitting drunkenness’, and told her to monitor how much the patrons have consumed before entering the establishment as well as during their time there.

10. Patrons 1, 2 and 4 all left of their own free will. Patron 3 left after being denied further service. When the inspector left the establishment, all four patrons were standing together near its front door, chatting. The Licensee denied them re-entry.

11. Inspector Strongman believes he is well-known to the licence holder as he is the inspector for the area in which the establishment is located.

12. In cross-examination, Inspector Strongman said that he left the establishment at 11:39 p.m. He was there as part of a routine check, not having had any particular complaints about the Licensee prompting his attendance on April 18th, 2007.

13. The inspector did not know whether Patron 1 suffered from a mental illness. He did not notice this fellow to have any speech impediment or a general problem with walking. He thought this patron was arguing with the second patron because his voice was raised. He did not smell alcohol on him.

14. Inspector Strongman did not see Patron 2 consume alcohol, but he smelled it on him. He did not notice a bottle or pitcher of beer in front of or in the possession of either Patrons 2 or 3. Patron 2 also had trouble walking and staggered on his way out of the establishment.

15. Inspector Strongman did not notice Patrons 3 and 4 to be seated as a couple. He did not see any injury or deformity to Patron 3’s face that might cause him speech difficulties. He did not smell alcohol on Patron 4’s breath. He could not see how much she had consumed because the beer bottle was brown in colour.

16. In answer to questions from the Board, Inspector Strongman said there were four patrons in total at the establishment when he conducted his inspection. He was not concerned about the swearing or the quarrelsome behaviour, just the drunkenness.

Licensee’s Evidence

17. Wei Hu testified on her own behalf. She has operated the establishment since January 1, 2005 and knows Inspector Strongman from his having attended from time to time for inspections at her establishment before the night of April 18, 2007. All four patrons in question are known to her.

18. Patron 1 is named ‘Andy’. She never serves him alcohol. He talks loudly, does not walk like a ‘normal person’, and steals things. Ms. Hu does not want him to come into her establishment and whenever he does she tells him to leave. He just happened to be there when Inspector Strongman arrived, and walked out shortly thereafter.

19. Ms. Hu does not know Patron 2’s name, but he attends the establishment regularly. She remembers that on April 18th he was served and had consumed a 30 ounce jug of beer before the inspector arrived. He had asked for another beer, but she had denied him service and told him to go home.

20. Patron 3, named Darryl, and Patron 4, named Tracy, came in together. Darryl was served and had consumed a 30 ounce jug of beer and Tracy had consumed one beer plus half of a second one before the inspector arrived. Tracy had been crying following an argument between her and Darryl. Ms. Hu did not notice Darryl having any trouble walking when he went outside to smoke. She says he has trouble talking since he had an operation to the right side of his face when a plate was put in. Ms. Hu denies that Tracy’s eyes were half-closed and that she had any trouble lifting the beer bottle to her lips.

21. Ms. Hu has taken the Smart Serve course and knows the signs of intoxication. She denies that any of these patrons were drunk.

22. In cross-examination, Ms. Hu stated that nobody likes Patron 1. On April 18th, 2007, it was just a coincidence that he was there when Inspector Strongman arrived; she had asked him to leave the establishment, which he did shortly after the Inspector’s arrival. She had not served him alcohol. Ms. Hu refused to serve Patron 2 any more alcohol because “the liquor laws don’t allow more than the 30 ounces” and “he had had enough”. She did not serve Patron 3 any more alcohol for the same reasons.

23. In response to questions from the Board, Ms. Hu said Patron 2 had been at the establishment for about one hour, Patrons 3 and 4 for about 45-50 minutes.

Registrar’s Submissions

24. The Registrar’s representative relies upon the detailed evidence of Inspector Strongman regarding the four patrons in the establishment on April 18, 2007, detailed above. The inspector is experienced in detecting the signs of intoxication and, while other conditions can impair one’s motor skills, they do not mimic signs of intoxication. The inspector was clear that these patrons showed the signs of intoxication.

25. The fact that Inspector Strongman did not witness Patron 1 consume alcohol in the establishment is not germane to the fact he could have been intoxicated when he entered the establishment and the Licensee did not take any steps to determine the level of intoxication upon his entry there. The inspector was not present when Patron 2 was refused service by the Licensee. The third patron was not asked to leave; he was just refused further service.

26. The AGCO inspector’s evidence is credible, but the same does not attach to the Licensee’s suggestion that other causes (i.e. mental illness, facial impairment, crying) gave rise to those observations in Patrons 1, 3 and 4. The amount of alcohol that admittedly was served to and consumed by Patrons 2, 3 and 4, combined with the Licensee’s failure to assess the patrons’ levels of consumption prior to entering the establishment, could lead to a conclusion that these patrons were intoxicated.

Licensee’s Submissions

27. The Licensee takes considerable care in dealing with her customers. She watches carefully what and how much they are drinking.

28. Patron 1 was not served and it cannot be assumed that he was served elsewhere. The benefit of the doubt must fall to the Licensee. There are reasons other than intoxication to explain Patron 3’s speech impediments and for Patron 4’s half-closed eyes.

29. The Licensee denies that Patrons 2, 3 and 4 showed signs of intoxication that could be interpreted as drunkenness. Furthermore, there is no evidence before the Board that having 30 ounces of beer in 45-50 minutes leads to intoxication; the Board should not make that assumption.

Registrar’s Reply

30. Patron 1 may have mental impairment but it is difficult to believe these signs can mimic the signs of intoxication, including slurred speed and difficulties ambulating. Patrons 2, 3 and 4 were not present to testify on the Licensee’s behalf.

Analysis and Findings

31. The Board must determine whether the licence holder ‘permitted drunkenness’ on the licensed premises on April 18, 2007, contrary to subsection 45(1) of the O. Reg.

32. Inspector Strongman gave credible evidence of the signs and symptoms of alcohol intoxication. The Board accepts his evidence in that regard with respect to Patrons 2 and 3 and finds that these patrons were drunk in the establishment on the night in question. However, it believes the evidence in that regard to be insufficient for Patrons 1 and 4, and therefore declines to make a similar finding, regarding them.

33. The Board believes the Licensee when she testified that she never serves Patron 1 alcohol and promptly asks him to leave when he attends at the establishment. Further, no alcoholic beverage was seen to be consumed by or smelled on him by Inspector Strongman on the night in question. Therefore, the Registrar has failed to meet its onus on the balance of probabilities and the Board accordingly cannot find that Patron 1 was drunk.

34. In the case of Patron 2, there are more and clearer signs of intoxication to which Inspector Strongman testified: this patron was arguing with Patron 1 and then came over and swore at the inspector; he swayed while standing; he staggered when walking out of the establishment; and, he smelled strongly of an alcoholic beverage. The Board accepts this evidence, which when taken together with the Licensee’s evidence that this patron was served and had consumed 30 ounces of beer in the hour before the inspector’s arrival and had “had enough”, establishes on the balance of probabilities that Patron 2 was drunk.

35. While Patron 3 was refused further service by the Licensee in Inspector Strongman’s presence, the Board also accepts the inspector’s evidence as to the signs of intoxication in this patron: his eyes were half-closed, his speech was slurred when he asked for more service; and, he staggered when he left the establishment. Patron 3 also was served and had consumed 30 ounces of beer in the 45-50 minutes before the AGCO inspection, the Licensee’s evidence being that she had refused further him further service because he had “had enough”. Taken all together, this evidence also establishes on the balance of probabilities that Patron 3 was drunk.

36. Inspector Strongman testified that Patron 4 had half-closed eyes, that she had difficulties raising the beer bottle to her lips, and that she staggered out of the establishment, all of which are signs of possible intoxication. However, the Board believes the Licensee’s testimony that this patron had been crying following her quarrel with Patron 3 that took place in the establishment. This could account for her eyes being swollen or appearing half-closed to the inspector who stood a distance of 6-8 feet away from her. The Board also accepts that Patron 4 had consumed one bottle and half of another bottle of beer in the 45-50 minutes she had been at the establishment before the inspection. Further, unlike Patrons 2 and 3, whom the Licensee denied further service because she concluded they “had had enough”, there is no evidence that the Licensee denied this patron further service for that reason. In the whole, therefore, the Board is unable to find on the balance of probabilities that Patron 4 was drunk.

37. Next, in each case the Board must determine whether the Licensee permitted the drunkenness in the establishment. The patron need not become intoxicated in the premises before a finding of a breach of ss. 45(1) can occur. Drunkenness simpliciter is a breach of the regulation (see 473954 Ontario Ltd (Wilder’s and the Zoo), supra). Even if the patrons found drunk in an establishment entered it already intoxicated (which the Board does not accept or find in this case), the Licensee (or the staff member designated to be in charge of the establishment) should have, at the first reasonable opportunity, assessed and removed any person appearing to be intoxicated promptly and appropriately. There is an onus on all Licensees to, at all times, not only prevent but also to deter drunkenness on their premises (see Commercial Tavern, supra).

38. Following the principles enunciated in the Commercial Tavern case, the Board finds the Licensee’s response was inadequate to the problem of drunkenness that existed in the establishment that night. By the Licensee’s own evidence, it was a very “slow night” the night the inspector attended. In fact, there were only four patrons present at the time of his arrival. Thus, it should have been easy in the first instance for the Licensee to avoid any of her patrons becoming drunk, as is her responsibility at law. Upon that happening, while the Board believes that Ms. Hu refused Patrons 2 and 3 further service. She did not take any steps to promptly remove them from the establishment. The Board concludes that the patrons only took their leave of it in response to the inspector’s presence.

Conclusion

39. Based on the evidence and for all of the reasons described above, the Board FINDS a breach of subsection 45(1) of the O. Reg occurred on April 18, 2007.

40. 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 a file a written response. Registrar’s representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rule of Practice.

DATED AT TORONTO THIS 31st DAY OF MARCH, 2008

S. GRACE KERR, BOARD MEMBER BERYL FORD, BOARD MEMBER

SGK/sm