Registrar, Alcohol and Gaming Commission Ontario v. Rejeanne’s Bar & Grill Ltd., 2008 CanLII 16851

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-

Rejeanne’s Bar & Grill Ltd. O/A REJEANNE’S BAR AND GRILL Licensee

DECISION

Panel: Brian J. Ford, Board Member Decision Date: March 4, 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 ) Phillip Morris, Representative Rejeanne’s Bar & Grill Ltd., Licensee ) Gregory Burg, Representative

Allegations

1. A hearing into a Notice of Proposal number 15497 dated July 31, 2007, to suspend liquor licence number 801766 (the Licence) issued to Rejeanne’s Bar and Grill Ltd., operating as REJEANNE’S BAR AND GRILL, 700 Balmoral Drive, Unit 1, Brampton, Ontario, L6T 1X2, on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the Liquor Licence Act (LLA), was held on January 7, 2008, in the City of Toronto.

Decision

2. Based on the evidence, the Board FINDS a breach of subsection 45 (1) of the O.Reg. Reasons follow.

Registrar’s Evidence

3. Stephen Hetherington, an AGCO Liquor Licence Inspector, made a routine liquor licence inspection of Rejeanne’s Bar and Grill on April 21, 2007 at 12:01 a.m. He entered the premises, located in a small shopping complex, through the front door.

4. On entering the establishment, Inspector Hetherington noticed a male person leaning against the wall swaying from side to side in the area of the pool tables.

5. While making his way to the main bar, Inspector Hetherington felt a tap on his shoulder. It was the same male who had been swaying against the wall. The male asked if he was from Brampton and, when he replied he was not, the male apologized for stopping him.

6. The Inspector noted that the man’s breath smelled of beer and that his eyes were bloodshot. The man steadied himself by placing his hand on the Inspector’s shoulder. In cross examination, the Inspector stated the man’s speech was slurred.

7. At the bar, Inspector Hetherington identified himself to Mr. Rick Naismith who said he was in charge. The Inspector advised him that there was an intoxicated person in the bar. He pointed the male patron out to Mr. Naismith noting he was unsteady on his feet and stumbled as he played pool.

8. Mr. Naismith acknowledged the Inspector’s observations and informed the Inspector that after the patron finished his game of pool he would be out of there. Mr. Naismith did not deny the patron was intoxicated. Mr. Hetherington advised Mr. Naismith that he would be submitting a report on the incident and left.

9. In cross examination, Inspector Hetherington reiterated his observation that the male patron was intoxicated and confirmed he had been trained to recognize the signs of intoxication. He noted music was being played during his inspection. He did not speak to any other staff while he was in the premises, nor did he see the male patron being served alcohol or beer or drinking.

Licensee’s Evidence

10. Richard Naismith has been the bartender and server at Rejeanne’s for fifteen years. He has completed a recognized and required course for persons working in the liquor licence industry.

11. He was on duty on April 21, 2007 when he was approached by Inspector Hetherington shortly after midnight. The Inspector showed his identification and advised him that there was an intoxicated person in the establishment.

12. The Inspector pointed the person out to him. At the time the man was playing pool. He told the Inspector that this person was “done” and he would ask him to leave as soon as his game was done.

13. Mr. Naismith did not think this person was intoxicated. He did not see this person stumble or be unsteady on his feet. He approached the patron and advised him that a liquor licence inspector had said he was intoxicated and that he would have to leave at the end of his game. The male patron left shortly after without incident.

14. Mr. Naismith later asked the two other servers in the bar if they had served this male patron. They advised that they had not. At the time, he noted there were approximately fifty to sixty patrons in the bar.

15. During cross examination, Mr. Naismith stated that the patron had been in the bar a couple of times before this incident and had also been back since. In his opinion the patron was not drunk. He explained the patron had a strong Newfoundland accent which he felt might have been confused with slurred speech.

Registrar’s Submissions

16. Mr. Morris asks the Board to make a finding of breach of section 45 (1) of the O.Reg.

17. Mr. Morris noted that the Inspector identified a male person who was unsteady on his feet, had slurred speech, bloodshot eyes, and the smell of beer on his breath. All are signs of intoxication. He noted that Mr. Naismith never said to the Inspector at the time that the male was not drunk.

Licensee’s Submissions

18. Mr. Burd submits Mr. Naismith did not want to get into a confrontation with the Liquor Inspector and therefore did not question his observations. Mr. Burd notes that there was music in the premises during the time and that the man may have been swaying to the music. The patron was playing pool which requires motor skills and may have been lining up for a shot when he appeared to stumble. He asked that the Board not make a finding of breach of section 45(1) of the O.Reg.

Analysis/Reasons/Findings

19. Inspector Hetherington’s evidence was credible and consistent: the patron’s speech was slurred, his eyes were bloodshot, his breath smelled of beer and he was unsteady on his feet. Inspector Hetherington had a direct interaction with the patron. Mr. Naismith did not dispute or disagree with the Inspector when the patron was pointed out to him. Had there been an issue, Mr. Naismith could have raised it with the Inspector at the time so as to permit further inquiry and observation to be carried out. There is no evidence that Inspector Hetherington conducted the inspection in a way which was intimidating or would otherwise prevented Mr. Naismith from voicing his disagreement. Further there was no evidence that the patron stumbled when lining up for a pool shot. That is speculation only. In these circumstances, the Board prefers the evidence of Inspector Hetherington and finds, on a balance of probabilities, the male patron was drunk in the establishment.

Conclusion

20. Therefore the Board FINDS that there was a breach of subsection 45 (1) of Ontario Regulation 719/90 under the Liquor Licence Act.

21. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his/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/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 4th DAY OF March , 2008

BRIAN J. FORD, BOARD MEMBER

BJF/ee