Registrar, Alcohol and Gaming Commission Ontario v. 4050886 Canada Inc., 2008 CanLII 16843

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-

4050886 Canada Inc. O/A

Leather Works Pub & Restaurant (The)

Licensee

DECISION

Panel: David C. Gavsie, Chair, AGCO

Bruce Monteith, Chair of the Panel

Decision Date: March 17, 2008

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

4050886 Canada Inc., Licensee ) Zhengping (John) Yang, principal

) Dennis Burn, manager

Authorities

977619 Ontario Inc. (Heart & Crown) v Ontario (Alcohol and Gaming Commission), [2000] O.J. No. 5297

Horseshoe Valley Resort Ltd. v (Alcohol and Gaming Commission), 2005 CanLII 81108 (ON SCDC), [2005] O.J. No. 5895

Allegations

1. A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in Ottawa on February 21, 2008 regarding a Notice of Proposal dated December 13, 2007, being number 15853 (the “NOP”) to suspend the liquor licence of 4050886 Canada Inc., operating as Leather Works Pub & Restaurant (The) (the “Licensee”), 12 Bell Street, Carleton Place, Ontario, K7C 1V9 (the “Premises”), licence number 0023709 (the “Licence”), on the basis of alleged violations of section 29 of the Liquor Licence Act (LLA) and subsections 44(1) and 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the LLA.

Decision

2. The Board FINDS that the Licensee breached:

a) section 29 of the LLA – liquor sold or supplied to a person who was or appeared to be intoxicated;

b) subsection 45(1) of the O.Reg – Licensee permitted drunkenness on the premises; and

c) subsection 44(1) of the O.Reg – Licensee failed to ensure no one was behind the bar while liquor was being sold or served

Reasons follow.

Preliminary Matters

3. Mr. Yang, the sole director, officer and shareholder of the Licensee stated that Dennis Burn, the manager of the business at the Premises would represent the Licensee at the hearing. Mr. Yang waived his right to have counsel or other legal representative act for the Licensee at the hearing.

4. Ms. Taylor on behalf of the Registrar raised a preliminary objection to the Licensee adducing any evidence. She referred to an Order of the Board dated January 30, 2008 ordering the Parties to make disclosure pursuant to the AGCO Rules of Practice 10 days before the hearing. Mr. Burn indicated that the Licensee would call 1 witness, but Ms. Taylor said no disclosure had been made of who that person is, nor what that person will say in evidence.

5. The Board adjourned for this information to be prepared. Upon resuming the hearing, Ms. Taylor stated she was prepared to proceed having been furnished with the necessary information.

6. On consent of the parties, the Board ORDERED witnesses to be excluded other than AGCO liquor inspector Mark Lambert and Mr. Yang.

Registrar’s Evidence

7. Mr. Mark Lambert is a liquor inspector with the AGCO. He was at the Premises on October 20, 2006. On consent, he was permitted to use his notes to refresh his memory.

8. Inspector Lambert arrived at the parking lot in front of the Premises in his car at 12:39 AM on the morning of Friday, October 20, 2006. From his car, Inspector Lambert said he had an unobstructed view of the patio which starts to the left of the front entrance to the inside, and then down the left side of the building. Inspector Lambert said he stayed in his car for 3 or 4 minutes.

9. Inspector Lambert stated he noticed a female standing on the patio. She was heavy set, had short brown hair, wore glasses, and was holding a mixed drink in her left hand. He later said he could see light brown liquid, ice and lime in the glass.

10. The female was unsteady on her feet while leaning on a railing. She struggled to keep her balance and held on to a ledge. He described the railing as being waist height, about 36 inches from the floor.

11. Inspector Lambert exited his car and walked toward the front entrance of the Premises. He was approximately four feet from the female as he walked by her.

12. The female yelled at Inspector Lambert, “Hey Buddy”. She struggled with her speech and had a lethargic motion to her. As Inspector Lambert continued toward the door, the female mumbled something that was inaudible. Inspector Lambert said he only observed the female for no more that 3 minutes.

13. Once inside the Premises, Inspector Lambert said he went to the main bar, stood at the entrance to it and looked toward a karaoke area.

14. Inspector Lambert said he saw a male seated at a table. The male was 20 to 25 years old. He had an orange hat on, and was wearing a black jacket and green cargo pants. The male’s head was down as if he was sleeping. It was bowed but not touching the table. Inspector Lambert saw the male slowly lift his head, and it bobbed slowly as the male talked to friends.

15. The male stood up and walked to the bar area, a distance estimated by Inspector Lambert to be about 9 feet. It was not congested, but the male continuously bumped into people. He was staggering.

16. When the male arrived at the bar, he walked around the end of it, and walked behind it into the bartender’s space, and stood there leaning on the bar waiting to be served. Inspector Lambert said that the manager had a hard time getting past the male. The manager succeeded, but made no attempt to remove the male from being behind the bar.

17. The male then had interaction with the bartender, Meaghen Buttemer. The male purchased 3 alcoholic beverages from her – 2 Coors Light beer and 1 Mikes Hard Lemonade.

18. Inspector Lambert said that the male was unsteady and showing signs of advanced intoxication when buying the 3 drinks.

19. The male went with the bartender to an Interac machine. The machine was located near the front door. Inspector Lambert said the male had trouble with the PIN pad, holding it very close to his face. The bartender had to help him. After paying, the male took the 3 drinks back to the table.

20. Inspector Lambert said there was a small dance floor close to the male’s table covered by regular carpet. The dance floor was 7 or 8 feet in front of the bar. The male walked to the dance floor to dance with a female. While walking, Inspector Lambert said he was unsteady. On the dance floor, the male staggered twice into the female.

21. Inspector Lambert then approached the manager, Dennis Burn, to tell him of the infractions, namely the intoxicated female on the patio, and the male inside who was served 3 drinks and who was standing behind the bar.

22. Inspector Lambert said that Mr. Burn told him that the intoxicated patrons would be cut off, but did not have them removed.

23. Inspector Lambert stated he had an educational discussion with Mr. Burn about when an intoxicated patron is found on any licensed premises, it is contrary to the LLA to have them remain on the premises. Mr. Burn said he would look into it.

24. Inspector Lambert asked Mr. Burn to have the owner contact him so he could advise the owner of the infractions. Inspector Lambert said he was never contacted by the owner.

25. Inspector Lambert left the Premises and went back to his car in the parking lot where he stayed for about 5 minutes and completed his notes. He left the parking lot at 1:03 a.m. He said that he saw no one being removed from the Premises.

26. Inspector Lambert said while in his car, he noticed that the same female on the patio he saw earlier on his arrival was being loud and boisterous, struggling with her speech, incomprehensible in some of her speech, and rocking back on her heels while talking to friends.

Licensee’s Evidence

27. Dennis Burn with his wife owns the heritage building in which the Premises are situated. He used to own the business too but sold it to Mr. Yang, the principal of the Licensee, 6 years ago. Mr. Burn came back to manage the business for the Licensee about 2 ½ years ago.

28. Mr. Burn is a town councillor in Carleton Place and a member of the town’s police services board. He stated he wants to run only a good operation to keep public opinion about the business high.

29. Mr. Burn said he has been in the hospitality service business for 26 years, and this particular business for almost 17 years. He supports a zero tolerance policy for intoxicated drivers. Mr. Burn stated that judgement calls are not always 100% correct.

30. He said he does not dispute most of Inspector Lambert’s evidence. He said there was an intoxicated female on the patio. It was her birthday. She had arrived intoxicated with other people. She asked if she could have something to eat. Mr. Burn told her “yes” but that she could not have any more drinks. Mr. Burn said he gave the female a pop and something to eat.

31. Mr. Burn stated he realized he must send an intoxicated patron out of the Premises, but that this is difficult. If they remain on the Premises, it is better for them because if they leave, they could go elsewhere to drink. Now, he will send any intoxicated patron home by cab.

32. Mr. Burn said it is true that a male patron was behind the bar as stated by Inspector Lambert. However Mr. Burn explained that the first 6 to 12 feet or so of the long service bar, where the male stood, has no alcohol below the counter or in coolers. It is common for people to stand there and ask for drinks from the bartender who stands further down the bar where the alcohol is kept.

33. Mr. Burn said some people came on karaoke night and have had drinks before entering the Premises.

34. Mr. Burn said that the male seen by Inspector Lambert behind the bar was Ted Ferrill who is 20 – 25 years old. That night he was served 2 beers and paid by Interac. He did not have his glasses with him. Mr. Burn said people have trouble using the Interac system, so staff has to assist them.

35. Mr. Burn said that after Inspector Lambert left, a cab was called for the lady on the patio. Mr. Ferrill did leave before Inspector Lambert left because Mr. Burn remembered talking to Meaghan the bartender about who the man was being referred to by Inspector Lambert.

36. In answer to the questions on cross-examination, Mr. Burn said he did see Mr. Ferrill and that Inspector Lambert had pointed Mr. Ferrill out to him. In discussions with Meaghan, she confirmed it was Mr. Ferrill.

37. Mr. Burn said he did not see Mr. Ferrill being served.

38. He also said that he was aware it is an infraction to allow an intoxicated patron into the establishment. He knew about the female on the patio. She arrived intoxicated. Mr. Burn said he allowed her to stay, sober up and have something to eat.

39. Through Mr. Burn, a letter he and Mr. Yang wrote to Ms. Taylor dated January 11, 2007 was placed into evidence (Ex. 1). The letter gave the Licensee’s response to the position of the Registrar that infractions had occurred. Mr. Burn said that Mr. Yang was the principal author of the letter. He agreed that the letter did not state that the female was intoxicated when she arrived. In fact the letter indicated others were serving her and that she had to be cut off.

40. Mr. Burn said that the female did arrive intoxicated and that others in a party were buying drinks for her. The patron was there at 12:20 A.M. Mr. Burn said he should have asked the whole party to leave the Premises.

41. Mr. Burn said he has been in the business for 26 years and thought it was an infraction to serve an intoxicated patron, not just to allow them to stay in the Premises.

42. Mr. Burn said that the service bar is 20 to 25 feet long, the first section being 10 to 12 feet. It is all one bar surface and it is all one continuous bar.

43. Meaghan Buttemer testified. She worked in the Premises on October 20, 2006 as a bartender. She remembers a male patron that night, Ted Ferrill, whom she has known for years.

44. Mr. Ferrill met friends in the Premises and ordered 2 bottles of beer while standing at the bar.

45. Ms. Buttemer said that Mr. Ferrill wanted to pay using Interac. It has a time limit on the debit machine. Mr. Ferrill did not complete it on time so he had to do the transaction twice.

46. After paying, Mr. Ferrill put the beer down and joined friends on the dance floor.

47. Ms. Buttemer said Mr. Ferrill had 2 beers and left. She did not think he was intoxicated.

48. On cross-examination, Ms. Buttemer said her “best guess” was that Mr. Ferrill drank Canadian beer.

49. Ms. Buttemer stated that she did not serve Mr. Ferrill any Mikes Hard Lemonade. Also, Mr. Ferrill was not the only patron who used Interac.

50. Ms. Buttemer said Mr. Ferrill stood near the stools and ordered his beer from there. Both proceeded around the corner to the Interac machine which is located near the entrance to the Premises. Ms. Buttemer stated that Mr. Ferrill was not behind the bar.

51. Ms. Buttemer said that it was a busy night. She was serving patrons. It was possible that she did serve 2 Coors Light and a Mike’s Hard Lemonade to another patron. Ms. Buttemer said that both she and Mr. Burn were serving.

52. Ms. Buttemer described the service bar area. There are bar stools along the patron side the full length of the bar. Patrons stand and order. It does not matter where they stand.

53. In answer to a question from the panel, Ms. Buttemer said she knew Mr. Ferrill. She had worked with him at a previous job. When he was intoxicated he was loud, obnoxious and rude. He was not that night.

54. Ms. Buttemer said that Mr. Ferrill got the Interac machine to work on the second try. He did not get it the first time because he and Ms. Buttemer were socializing.

Registrar’s Submissions

55. Ms. Taylor began her submissions by referring to the 3 allegations in the NOP, namely, breaches of:

a) subsection 45(1) of the O.Reg – permitting drunkenness in the Premises;

b) section 29 of the LLA – permitting liquor to be sold or supplied to an intoxicated person; and

c) subsection 44(1) of the O.Reg – permitting a person behind the bar while liquor was being sold or served

56. Ms. Taylor said the Licensee has admitted a female patron was drunk in the Premises – on the patio. Initially Mr. Burn said she was never served anything. However in Ex. 1, the Licensee’s explanation in its letter of January 11, 2007, the female patron was said to have been consuming drinks bought for her by other people.

57. If the patron came into the Premises in an intoxicated state as Mr. Burn said in Ex. 1, that now means that the patron was served liquor while showing signs of intoxication.

58. According to Ex. 1, Mr. Burn cut the patron off from further service at 12:20 AM, but more than 20 minutes later when Inspector Lambert arrived, the female patron was still on the patio. In fact, the patron was there when Inspector Lambert left the Premises at 1:03 AM, 40 minutes after she had allegedly been cut off.

59. Ms. Taylor referred to the male patron inside the Premises. Inspector Lambert saw him go behind the bar where Ms. Buttemer was. She handed the male 2 Coors Light and a Mike’s Hard Lemonade.

60. According to Inspector Lambert, the male was exhibiting strong signs of intoxication when he first noticed him. The male’s head was bowed, when he lifted his head it bobbed, when he stood up and walked, he staggered and bumped into people.

61. Behind the bar, the male patron stood leaning on the bar. He was unsteady on his feet.

62. At the Interac machine, the male held the PIN pad close to his face and had to struggle with what to do. Ms. Buttemer was seen by Inspector Lambert as assisting the male with the PIN pad.

63. The male patron took the drinks he purchased back to a table, left the drinks on the table, went to the dance floor with a woman, staggering twice as he danced with her.

64. Ms Taylor said that Ms. Buttemer talked about Ted Ferrill, but it is the Registrar’s position that the male patron seen and described by Inspector Lambert was not Ted Ferrill.

65. Ms. Buttemer said she served Ted Ferrill 2 bottles of Canadian beer. Inspector Lambert saw 2 Coors Light and a Mike’s Hard Lemonade served to the male patron he saw.

66. Inspector Lambert said he saw the male patron being served behind the bar. Ms. Buttemer testified she served Mr. Ferrill 2 beers across the service bar. Therefore, Mr. Ferrill was not behind the bar and someone else, another male patron, was.

67. Inspector Lambert testified he saw the male patron dance with one woman on the dance floor. Ms. Buttemer said she saw Mr. Ferrill dance with 2 women on the dance floor.

68. Inspector Lambert said he saw the male struggling with the Interac Pin pad. Ms. Buttemer said Mr. Ferrill ran out of time because he was socializing with her, and had no problem doing the Interac purchase the second time.

69. Ms. Buttemer testified that Mr. Ferrill was loud and boisterous when drunk. Inspector Lambert did not see a male like this. The male patron he saw had no motor skills.

70. Ms. Buttemer did not talk to Inspector Lambert. Only Mr. Burn did. Mr. Burn assumed that Inspector Lambert was talking about Mr. Ferrill.

71. Ms. Taylor said there is a gap here. The most logical explanation is that we are talking about 2 different people. If not, Ms. Taylor said that Inspector Lambert’s evidence should be preferred over that of Mr. Burn and Ms. Buttemer.

72. There were inconsistencies in the evidence of Mr. Burn and Ms. Buttemer. Mr. Burn testified that the female patron on the patio was not served any liquor. Yet, in Ex. 1, Mr. Burn and Mr. Yang said the female was consuming drinks bought by others.

73. Mr. Burn testified that Mr. Ferrill had problems at the Interac machine because he did not have his glasses with him. Mr. Ferrill was 20 – 25 years old and most people that age do not need reading glasses.

74. Ms. Buttemer said the difficulty was caused because they were socializing and Mr. Ferrill “timed out”.

75. In Ex. 1, Mr. Burns talked of a person being behind the bar. Ms. Buttemer did not mention anyone being behind the bar.

76. Regarding subsection 44(1) of the O.Reg, Ms. Taylor said that exceptions are set out, but none apply to this case. The bar is one long bar. People can sit all the way along and can be served alcohol.

77. The evidence was that a patron was served behind the bar. Mr. Burn admitted going around the patron. He did not identify that person as Mr. Ferrill.

78. Mr. Burn did nothing to remove the male patron. Mr. Burn admitted that subsection 44(1) of the O.Reg was breached.

Licensee’s Submissions

79. Mr. Burn said there have been some technical violations.

80. There was a male behind the bar, but in Mr. Burn’s view, “bar” means only that portion of a service bar where alcohol is served or where it is within arm’s reach. If it is any other part, it is not a violation under subsection 44(1) of the O.Reg.

81. Mr. Ferrill said that the male patron described by Inspector Lambert and by Ms. Buttermer was the same person. The events took place a year and a half ago – a long time ago, and there could be a memory lapse.

82. Ms. Buttemer knows the male. When intoxicated, the male is loud, obnoxious and rude. Inspector Lambert did not say he was any of these.

83. Mr. Burn said that with regard to the Interac PIN pad problem the male had, anyone can have a problem with it.

84. As for the lady who was intoxicated on the patio, Mr. Burn said she arrived that way. She was not served directly by staff, but she did get alcohol. A taxi was summoned for her, but there was a delay in it arriving.

Registrar’s Reply

85. In reply, Ms. Taylor stated that “service” as used in section 29 of the LLA does not mean only direct service. That was held by the Divisional Court in the Heart and Crown decision, a decision made in 2000.

86. In that case, Ms. Taylor said a minor came into the establishment. An “of age” member bought a pitcher of beer. The pitcher was placed on a table, and the minor consumed beer from the pitcher. Inspectors saw the minor consuming. The Court held that there was a breach of the LLA because the liquor was provided by the Licensee. That case pertained to a violation of subsection 30(4) of the LLA.

87. Ms. Taylor stated that in this case, the Licensee failed to prevent liquor being supplied to a person who was intoxicated. Another person bought the drink. Ex. 1 states that.

88. Regarding the male patron, Ms. Taylor said that in Mr. Burn’s submission, both Inspector Lambert and Ms. Buttemer talked about the same person.

89. Ms. Taylor said the evidence was that more than one person used the Interac PIN pad that night. Also, Mr. Ferrill was not the only person on the dance floor that night. Finally, Ms. Taylor said that Ms. Buttemer stated it was possible she served someone else 2 Coors Light and a Mike’s Hard Lemonade.

Reasons

a) Section 29 of the LLA

90. Section 29 of the LLA provides:

“29. No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.”

91. The evidence clearly shows that the female patron on the patio was intoxicated. Inspector Lambert testified to that when he described her before entering the Premises, and then later after exiting the Premises while sitting in his car writing his report.

92. In Ex. 1, a letter dated January 11, 2007 sent by Mr. Burn and the principal of the Licensee, Mr. Yang, the following is stated:

“In response to Mark’s (Inspector Lambert) observation regarding the female: This individual was celebrating her birthday and was consuming drinks bought for her by other people. At approximately 12:20 AM, I informed her that she was “cut off” and that she would need to go home.”

93. In his viva voce evidence, Mr. Burn agreed that the female was intoxicated.

94. Mr. Burn in his viva voce evidence and in Ex. 1 indicated that the female patron was consuming drinks bought by others.

95. Ms. Taylor argued that the Divisional Court decision in Heart and Crown affirming the Board’s decision, applies here. In that case, a person “of age” bought a pitcher of beer, placed it on a table, and an underage person consumed some. The Licensee was held to have breached subsection 30(4) of the LLA on those facts, namely permitting a person under 19 to have or consume liquor in the licensed Premises.

96. At the hearing, the Board referred to another decision of the Divisional Court – Horseshoe Valley Resort Ltd. which pertained to section 29 of the LLA.

97. The facts in Horseshoe Valley were straight forward. William Carley and his wife held a banquet followed by a reception at Horseshoe Valley Resort to celebrate their wedding several months after it had taken place. After that, some guests joined the hosts in the bar of the resort. Carley ordered a tray of shooters. A guest, Julie Strachan, had been “red-lighted” on entering the bar meaning no one from the bar staff should serve her any alcohol. In fact it was suggested to friends of Ms. Strachan that they get her out of the bar. The Board of the AGCO found in its decision that the evidence pointed to “Ms. Strachan, while intoxicated, was given the opportunity and was supplied with a shooter from the tray ordered by Mr. Carley at the licensed premises.” The Board found a breach, inter alia, of section 29 of the LLA.

98. On appeal, the Divisional Court held the Board made errors of law, and reversed the decision. First, the Court held there was no evidence before the Board that the shooter consumed by Ms. Strachan contained alcohol.

99. Second, the Court made the following comments at paragraph 13 of the decision:

“13. As well, the uncontradicted evidence was that the shooters were ordered by William Carley and supplied to him by the appellant’s employees and the only reasonable inference that could be made was that Julie Strachan had obtained the shooter that she consumed from him. It was, therefore, William Carley, if anyone, who supplied the shooter to Julie Strachan. There was no evidence that the appellant’s employees did or that any of them know or should have known that one of the shooters on the tray brought to William Carley would be given to her. It follows that there was no evidence on which the Board could properly have found that Julie Strachan “was given the opportunity and was supplied with a shooter from the tray ordered by Mr. Carley” as found by the Board.”

100. The Board would distinguish the facts in this case from that of Horseshoe Valley in that Mr. Burn, as set out in Ex. 1 which he co-authored, knew the female was consuming drinks bought for her by other people.

101. The Board presumes that since the female was cut off, as Mr. Burn also stated on Ex. 1, the drinks being consumed by the female contained alcohol.

102. The Board therefore FINDS that a violation of section 29 of the LLA did occur in the Premises on the patio on October 20, 2006.

b) Subsection 45(1) of the O.Reg

103. Inspector Lambert gave clear and unmistakable evidence to the effect that the female on the patio was intoxicated. He observed her twice: once when he entered the Premises at about 12:42 AM and when he was in his car after exiting the Premises at approximately 1:00 AM.

104. Mr. Burn in Ex. 1 wrote that at approximately 12:20 a.m., he told the female she was “cut off” allegedly because she was intoxicated, yet at 1:00 a.m., the female was still on the Premises, on the patio.

105. Mr. Burn in Ex. 1 said the female called a friend to take her home and was waiting. In his testimony at the hearing, Mr. Burn said she was waiting for a cab. Mr. Burn made it clear to the Board that he ensures patrons have a safe ride home which is admirable.

106. However to allow an intoxicated patron to remain in the Premises on the patio for 40 minutes or longer after being “cut off” by staff does constitute, in the Board’s opinion, a violation of subsection 45(1) of the O.Reg, and the Board so FINDS.

107. The male inside the Premises about whom Inspector Lambert gave evidence, was not the Mr. Ferrill that Ms. Buttemer gave evidence about. There were 2 different people for the reason that the male referred by Inspector Lambert ordered 2 Coors Light and a Mike’s Hard Lemonade from the bartender, whereas Mr. Ferrill ordered 2 bottles of beer which Ms. Buttemer believed were Canadian beer.

108. Inspector Lambert’s evidence as to the purchase by the male were clear, unequivocal and forthright, both on direct and cross-examination. Ms. Buttemer was not sure if there might have been another patron who ordered 2 Coors Light and a Mike’s Hard Lemonade from her.

109. The male seen by Inspector Lambert had a hard time using the Interac PIN pad, he was unsteady on his feet, he staggered into his dance partner twice on the dance floor. Inspector Lambert gave this evidence clearly in a forthright and credible manner. The Board accepts his evidence and as a result, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg regarding this patron.

c) Subsection 44(1) of the O.Reg

110. The male patron seen by Inspector Lambert was behind the service bar. On the other hand, Mr. Burn explained that the service bar is long, that the first part of 6 to 12 feet or so, does not have any alcohol anywhere behind it, on it or under it, and that it is not uncommon for patrons to stand behind that area to be served by a bartender who stands further down the service bar where alcohol is located.

111. Evidence was given that the bar stools are along the full length of the service bar.

112. A service bar is a service bar and one cannot divide a portion and argue successfully that the portion is not part of the “bar at the premises” as that phrase is set out in subsection 44(1) of the O.Reg.

113. Based on the uncontested evidence presented by Inspector Lambert which the Board accepts, the Board FINDS that a violation of subsection 44(1) of the O.Reg did occur.

Conclusion

114. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file her 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 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 17th DAY OF March , 2008

DAVID C. GAVSIE, CHAIR BRUCE MONTEITH, BOARD MEMBER

DCG/ee