ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: [Liquor Licence Act, R.S.O. 1990, c. L.19](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html), as amended
B E T W E E N:
Registrar, Alcohol and Gaming Commission Ontario
Registrar
-and-
2078841 Ontario Ltd. O/A Airport Motor Inn
Licensee
DECISION
Panel: Eleanor Meslin, Board Member Guy Maurice, Board Member
Decision Date: May 22, 2008
Hearing Location: Sarnia, 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 2078841 Ontario Ltd., Licensee ) Ray Daniels, Representative
Authorities
Voodoo Nightclub, [2006] O.A.G.C.D. No. 392 Solid Gold Adult Entertainment, [2005] O.A.G.C.D. No.351
Allegations
- Hearings into a Notice of Proposal (NOP) number 15339 dated June 7, 2007 and Supplementary Notice of Proposal (SNOP) number 15500 dated August 8, 2007 to suspend liquor licence number 11363 (the “Licence”) issued to 2078841 Ontario Ltd. operating as AIRPORT MOTOR INN, 1716 London Line Road, Sarnia, Ontario, N7T 7H2 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, were held on September 19, 2007 and April 22 and 23, 2008 in the City of Sarnia.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated section 29 of the LLA and subsection 45(1) of the O.Reg on March 25, 2007. The Board DISMISSES the allegations regarding violations of section 29 of the LLA and subsections 44(1) and 45(1) of the O.Reg on March 2, 2007. Reasons follow.
Preliminary Matters
At the outset of the hearing on September 19, 2007, Mr. Alton informed the Panel that the Licensee had not complied with the Board Order dated July 30, 2007 regarding disclosure.
The Board ordered disclosure to be made during the lunch break.
A motion to exclude witnesses was granted on consent.
Registrar’s Evidence
Alcohol and Gaming Commission of Ontario (AGCO) Inspector Kevin Holman attended the premises with Constable D. Whelply on March 2, 2007 at 11:00 p.m. for a routine inspection.
As he approached the entrance door he observed a male, with glassy red eyes, odour of alcohol on his breath and staggering as he exited. This male went to speak to another male on the bar’s front porch and his speech was slurred. The Inspector concluded that the first male was intoxicated.
Inspector Holman entered the bar and spoke to two doormen inside the lounge area. He did not identify himself since the doorman knew him and Const. Whelply from previous visits.
They completed their inspections and found no problems.
As they were leaving they noticed the male they had seen outside was now behind the bar talking to a female bartender. The male then went into the kitchen area.
Inspector Holman pointed the male out to the doorman and asked the doorman if he was employed by the bar and also informed him that the male was intoxicated. The doorman identified the male as Larry Brann agreed that he was intoxicated and told the Inspector that he had been cut off earlier, was not an employee and lived in the motel portion of the establishment. The doorman also indicated that often when Larry Brann was cut off he would go to his room, continue to drink and then return to the bar.
Inspector Holman advised the doorman that Larry Brann should not have been allowed to return to the bar, and asked to speak to the owner. The owner told the inspector that Larry Brann did not work at the bar and then told his manager to remove Larry Brann from the premises.
He and Const. Whelply also observed 2 other males drinking beer at the bar. One, who asked Const. Whelply if he needed help, had slurred speech, heavy eyes and swayed as he stood. When asked how many beers he had consumed he said three and that he was leaving. Inspector Holman told the owner he believed the man was intoxicated and the owner had both males removed.
On cross-examination by Mr. Daniels, Inspector Holman admitted he had not spoken to Larry Brann or seen him drinking alcohol. Nor did he ask the bartender how many drinks the other male had consumed.
Constable Dwayne Whelply with the Sarnia Police Service attended the bar in plainclothes with Inspector Holman on March 2, 2007.
He also observed the intoxicated male behind the bar and indicted that when Inspector Holman had asked for the owner, the male walked behind the bar to the kitchen to look for him. He did not recall if Inspector Holman had spoken with Larry.
Const. Whelply observed another male drinking at the bar, who appeared highly intoxicated with glassy eyes, slow movements and slurred speech. This male asked the constable, in an aggressive manner, if he was a police officer. Const. Whelply and Inspector Holman advised the bartender that the male was intoxicated and was not to be served anymore. The constable saw the patron being escorted out.
Constable Shawn Munro attended the bar on March 25, 2007 with Staff Sergeant J. Hodgson.
At this point the Licensee’s representative, Mr. Daniels, indicated he had not received Const. Munro’s notes nor the SNOP. He requested and was granted an adjournment peremptory on the Licensee.
The hearing resumed on April 22, 2008.
Constable Ivan Skinn attended the bar at 2:08 a.m., in plainclothes on March 25, 2007 as a result of a dispatched call regarding a fight on the premises.
He observed a large number of people leaving and about 50 people outside the entrance. He was advised by radio call that an incident had occurred at the back of the bar and that there were injured parties. Const. Skinn made his way through the bar, with difficulty, because of the large crowd inside.
At the back he observed 2 people on the floor attended by medics and firemen. Because of the crowd around the bodies he was concerned for their safety. One patron, who appeared very intoxicated, lunged at another and Const. Skinn escorted him outside. He noted there were no security people there to assist him.
When he met with the other officers present they decided, for safety reasons, to remove all patrons. When ordered to leave the patrons did so without problems. He observed several patrons still sitting at the bar with alcohol, who appeared extremely intoxicated when they were asked to leave.
The male he had escorted out at the back was now causing problems at the front. He was arrested and put into a police vehicle.
Const. Skinn returned to the bar and spoke to the manager, Raj Sodhi, about the lack of sufficient security, with only four on duty and about the overcrowding and over-service. He had observed 2 injured patrons, 10 drunken patrons and many others who appeared intoxicated.
Because of his experience in inspections and as a toxicology technician he believed there were many intoxicated patrons being over served in the bar. In particular a number seated at the bar with alcohol in front of them. He also observed that the injured men and some of their friends were extremely intoxicated.
Staff Sergeant Jeffery Hodgson arrived, in uniform, at the bar on March 25, 2007, at approximately 2:00 a.m., after receiving a disturbance call.
On entering he saw a large crowd and one male on the floor, unconscious.
Another disturbance was taking place on the other side of a bar partition where security staff were involved.
Because of safety concerns, he requested additional officers. Const. Skinn, Munro, Viney and Amlin attended and assisted in removing approximately 200-300 patrons, many who were intoxicated. The 4 security staff was unable to control the crowd and the fighting. As the crowd was leaving, Sgt. Hodgson observed an extremely intoxicated male, later identified as Kevin Banks, staggering in the parking lot and refusing to leave. He was detained in a police vehicle.
In response to questions by Mr. Daniels, Sgt. Hodgson indicated he believed many bar fights were the result of intoxication. People were slow to leave and did not respond quickly, which he believed was because they were intoxicated.
Constable Shawn Munro was recalled to complete his September 19, 2007 testimony.
He arrived, in uniform, on March 25, 2007, as a result of a dispatched call regarding a bar fight. He found one unconscious male at the scene surrounded by a crowd of people, and many others milling about inside and outside.
The Officers decided to clear the bar and the D.J. made the announcement.
One of the fights was as a result of a verbal altercation between 2 males over a female, resulting in one male being punched to the ground by the other male. He refused to lay any complaint with police. There was evidence of several other assaults, one of a father and daughter.
In response to Mr. Daniels’ question, Const. Munro indicated that no one was served alcohol after he arrived, although several patrons had drinks in their hands.
Licensee’s Evidence
Lawrence Brann, earlier referred to as Larry, is currently employed at the bar and resides in the motel adjacent to the premises.
Mr. Brann testified that on March 2, 2007 he was in the bar at about 9:30 p.m., had consumed one Bacardi and club soda and had ordered another when his lady friend arrived. He was not on duty at the time, although he often helped out with odd jobs to offset his rent.
He indicated that he usually consumes 2-3 beers daily and had not had any alcohol prior to arriving at the bar.
Security staff and 2 other men were asking for the owner. He indicated that he worked there and would get the owner for them. They did not identify themselves.
He walked into the kitchen through a common walkway used by employees to avoid walking through the bar area. The owner was not there. He also looked in the hallway, then returned and told security he could not find the owner.
The owner then appeared from a side door into the kitchen. Mr. Brann then told him 2 men wanted him and returned to his seat, without walking through the bar area.
The owner, Raj Sodhi, spoke to them and then Larry was told to leave by security because he was intoxicated. One of the security staff apologized to him saying they knew he wasn’t intoxicated but had been told to remove him. He left without a problem and returned to his room.
Mr. Brann indicated that he had been charged in 2001 with drunk driving and sometimes overindulged in his room, but never in the bar.
In response to Mr. Alton’s questions, he said that prior to arriving at the bar he had been at his bowling league then returned to his room to change before going to the bar. He had not consumed any alcohol before going to the bar.
Mr. Brann did not know why the police officer testified that his speech was slurred or had trouble walking. His eyes may have been bloodshot because he had worked at his other job (Jiffy-Lube) before going bowling and was tired when he arrived at the bar. His slurred speech could have been caused by his forgetting to put in his front false tooth. On March 2, 2007 he was not a full-time employee but did renovation work at the bar to offset his rent. He is currently full-time.
Mr. Raj Sodhi manages the bar, owned by his brother.
On March 2, 2007 at about 11:30 p.m. Larry Brann found him in the kitchen and told him there were 2 men to see him.
One of the men, Officer Holman, told him that Larry had been behind the bar and was intoxicated. He told Mr. Sodhi to tell Larry to leave, which he did, without any problems.
Mr. Sodhi testified that he had seen Larry earlier and he was not drunk, but often slurred his words when his false tooth was out.
Then, Officer Holman and another officer inspected the storage room and the kitchen, without finding anything.
When they returned there were 2 patrons at the bar talking very loudly. One named Steve accused Officer Holman of staring at him, and said “Do I look drunk, I only had 2 beers”. Officer Holman told Mr. Sodhi to tell Steve to leave because he was drunk. Mr. Sodhi did so and Steve left without a problem. Mr. Sodhi testified that he was not drunk, he just speaks loudly and is often quarrelsome. He is a regular customer and Mr. Sodhi would know if he was drunk and he was not.
Mr. Sodhi testified that all staff used the walkway to clear dishes, bottles, etc., including Larry, who works for the bar helping clean up. Larry never enters the bar area. He was not drunk that night, but when Officer Holman told Mr. Sodhi that Larry had to leave the premises, Mr. Sodhi complied.
Mr. Sodhi was not told that night that he would be charged. The next night Officer Holman returned and said he was filing a report.
In response to Mr. Alton, Mr. Sodhi indicated that security had asked Larry where the owner was, because Larry been there for 3 years and always knew where to find Mr. Sodhi. Mr. Sodhi said that he had no knowledge that Larry had been cut off service and he did not believe Larry was drunk. He had no idea if door security had ever refused entry to Larry.
On March 25, 2007, Mr. Sodhi testified he saw 2 men arguing and asked security to talk to them. Both were sober. Before Mr. Sodhi left for 5-10 minutes, security had separated them. When he returned, one of the men was on the floor, unconscious. He called 911 and an ambulance took the man to hospital. He later heard about 2 other fights on the premises.
When police ordered the bar cleared his D.J. made the announcement. He did not believe there was a safety issue or that the bar was overcrowded. He saw no one drunk that night.
Gordon Bellamy was a security guard on March 25, 2007 and is experienced in dealing with fights and drunken patrons.
On that night he saw a dispute, removed one of the fighters to the back door and was trying to get the other out the front when he was grabbed from behind by 2 of the fighter’s friends. The fighter at the front then ran to the back, punched the first fighter on the head and fled. The injured person was unconscious when removed by medics. Neither patron appeared to be intoxicated.
He was told about another fight near the bathroom, where an elderly man and his daughter were both struck. The girl’s boyfriend had been very agitated and angry. He was escorted out by 2 plainclothes officers.
Mr. Bellamy did not believe that emergency personnel were restricted by the crowd.
In response to Mr. Alton’s questions, Mr. Bellamy said he had removed 5-6 patrons for drunkenness earlier. Four security guards monitored the doors and the premises. He did not believe alcohol was a factor in the fights that night.
Registrar’s Submissions
On March 2, 2007 Inspector Holman and Constable Whelply saw a male drunken patron leaving the bar and later saw the same man behind the bar speaking to the bartender. Security confirmed that he was not an employee and had been cut-off earlier.
Const. Whelply spoke to another male at the bar who showed all the signs of intoxication and he advised the bartender to stop serving him. When Inspector Holman asked how many beers he’d had, he became very confrontational.
There is clear and compelling evidence of 2 drunken patrons being sold alcohol while intoxicated – violations of subsection 45(1) and section 29.
Larry Brann had been behind the bar while liquor was sold, even though, as Mr. Sodhi confirmed, he was not an employee. This was a violation of subsection 44(1).
On March 25, 2007 police were called because of fights in the bar. They believed the bar was overcrowded and found it difficult to get through the crowd. Officer Skinn testified he’d never been in a bar as crowded, with so many drunken patrons and only 4 security guards. He is a qualified liquor technician.
Officer Skinn removed one drunken patron and saw a group of people at the bar, with drinks, who appeared so intoxicated they were almost passing out. He believed that alcohol had played a role in the disturbances.
Officer Munro identified one of the fighters who was very intoxicated.
Sgt. Hodgson felt the situation was so unmanageable that he had to call for back-up. He spoke to many patrons who were highly intoxicated.
Since there was clear and compelling evidence of multiple violations of subsection 45(1), including 3 fights, the Registrar requests a subsection 45(1) finding.
The Registrar’s representative raised credibility issues between the police officer’s testimony and that of the Licensee’s witnesses. There was no evidence that the police acted with malice or to persecute the Licensee. Of the Licensee’s 3 witnesses, 2 were directly tied to the establishment and the other works and lives there. Therefore, the Board must consider the financial interests of the parties weighing in the evidence (see Voodoo Nightclub).
The Registrar’s representative also questioned the credibility of Larry Brann’s evidence. He had no notes of the events. He said he was often in the common walkway, even during inspections, although Mr. Sodhi said Inspector Holman had never inspected the bar before March 2, 2007. He could not explain why Inspector Holman and Officer Whelply said he was drunk or why the doorman said he had been cut-off.
Mr. Alton questioned Mr. Sodhi’s credibility that he only saw one fight on March 25, 2007. He raised concerns about a manager not being aware of serious goings-on at the bar, and having no notes.
Mr. Alton pointed out that Gordon Bellamy, the only Licensee’s witness with no financial interest, admitted to removing 5-6 drunks and not knowing if there had been other drunken patrons elsewhere in the bar. That with only 2 servers and 2 bartenders in a crowded bar, they could not monitor how much alcohol each patron had consumed. That alcohol was often a factor in bar fights. He questioned Mr. Bellamy’s statements that the crowd disbursed quickly and emergency crews had no trouble getting through the bar.
Mr. Alton submitted that the Licensee had permitted the problems to occur and cited the Solid Gold Adult Entertainment for the Board’s definition of “permit” as failure to prevent. Also, that the Licensee permitted drunkenness on March 2 and 25, 2007 and fights and drunkenness on March 25, 2007.
Licensee’s Submissions
Mr. Daniels pointed out that, although Inspector Holman claimed he smelled alcohol on Larry Brann’s breath and that his eyes were red, he did not speak to him to determine if he was intoxicated. Mr. Brann’s evidence was credible when he explained he had worked all day, gone bowling, then to the bar and was tired. He said he had only ordered 2 drinks, finished the first and only had 2 sips of the second when he went to look for the owner. If he had been drunk he would not have been asked by security to look for Mr. Solhdi. Insp. Holman confirmed that Larry had gone to look for Mr. Solhdi and had used the common walkway. Mr. Brann described why he regularly used the walkway – helping remove empties and re-stock the bar – and never went behind the service bar.
Mr. Daniels argued that Inspector Holman did not speak to Steve but only appeared to be staring at him when Steve became agitated. When Steve was escorted out he went without incident.
Mr. Daniels submitted that if the establishment was acting contrary to subsection 45(1), 44(1) or section 29 then more violations would have been noted by Inspector Holman. He argued that although Larry Brann was a temporary employee at the time, he enjoyed the same rights regarding the walkway as other employees.
Regarding March 25, 2007, Officer Skinn said it was over-crowded, Officer Munro said people were milling around trying to see what was happening. However, Gordon Bellamy said people were leaving quickly, as soon as they were told the bar was shut down. Even Sergeant Hodgson said there were no incidents with people leaving.
Mr. Daniels argued that the fights were not caused by alcohol over-consumption, that Gordon Bellamy, as security, was doing his job since he removed 5-6 drunks, earlier, tried to break up one of the fights and assisted patrons to leave, when the bar was shut down.
He submitted that Inspector Holman had frequented the bar many times and acted prejudicially towards the bar, intimidating Mr. Sodhi.
He asked that the charges of March 2 and 25, 2007 be dismissed because:
the allegations of Inspector Holman were contradicted by Officer Whelply;
the Inspector and Officer Whelply failed to verify that Larry Brann was intoxicated; and
drunkenness was not the cause of the fights on March 25, 2007 according to the direct evidence of Gordon Bellamy.
Reply Submissions
Mr. Alton pointed out that Inspector Holman had heard Larry Brann’s slurred speech, seen his glassy eyes and smelled alcohol on his breath. Inspectors do not speak to drunks.
He indicated that Mr. Daniels was incorrect in submitting that Inspector Holman had been in the establishment before, when Mr. Sodhi’s evidence was that he had never been there before March 2, 2007. Therefore, Inspector Holman could not have known about the employees’ use of the walkway. In addition, both Larry Brann and Mr. Solhdi testified that Larry was not on the payroll on March 2, 2007, therefore he should not have been in the walkway.
The Licensee has not denied that 3 fights took place on March 25, 2007, which are clear violations of subsection 45(1)
Reasons
- This case is highly dependent upon a determination of credibility given the opposing and often different evidence of the Registrar’s and Licensee’s witnesses. The onus for establishing that the alleged violations did in fact take place is on the Registrar based on a balance of probabilities.
March 2, 2007
Both Inspector Holman and Const. Whelply referred to an intoxicated male who went behind the bar, at the request of security, to look for the owner, whom they had asked to see. Neither of them attempted to speak to him or stop him, to determine if he was an employee and intoxicated. It questions the credibility of their testimony that they would wait patiently for a drunken male to go into the back, return and tell them that the owner was not there. It is also unlikely that a security guard would ask the male to do so, if he was intoxicated.
Larry Brann, in his testimony, indicated he’d finished one drink earlier and had just started on a second when he was approached by security to look for the owner, which he did. After Mr. Solhdi arrived and spoke with the Inspector, Mr. Brann was told by Mr. Solhdi to leave because he was intoxicated and he did so without a problem. Mr. Solhdi testified that he did not believe Larry Brann was drunk, but felt intimidated by Inspector Holman. Inspector Holman’s evidence regarding Mr. Brann’s intoxication was that his speech was slurred and Mr. Brann’s testimony was that a false front tooth often made his speech sound slurred and he was not drunk that night.
The Board accepts Mr. Brann’s evidence and DISMISSES the allegations of violations under subsection 45(1) of the O.Reg and section 29 of the LLA.
As to the Inspector’s and Constable’s allegations that Mr. Brann entered behind the bar, both Mr. Brann and Mr. Sodhi testified, he was working for the bar part time in return for a rent reduction on his motel room. Although Mr. Sodhi testified that Mr. Brann was not on the payroll he considered Mr. Brann an employee, as he received a rent reduction in lieu of wages.
Mr. Sodhi’s evidence was that the area where Mr. Brann walked was not the bar service area but a common walkway used by employees to take empties into the kitchen and re-stock the bar. It was not part of the bar service area.
The Board accepts Mr. Sodhi’s evidence regarding the walkway and DISMISSES the allegation of a violation of subsection 44(1) of the O.Reg.
Regarding the other male (Steve) that Constable Whelply testified was intoxicated and spoke to him in a belligerent tone, Mr. Sodhi’s evidence was that Steve was a regular customer who always spoke in a loud voice, and that he had accused Officer Holman and Constable Whelply of staring at him, saying he’d only had 2 beers. Mr. Sodhi testified that Steve was not drunk and left the bar when ordered to without a problem. He believed that if Steve had been drunk, he would have been very belligerent about leaving.
The Board accepts Mr. Sodhi’s evidence and therefore DISMISSES the allegations of a violation under subsection 45(1) of the O.Reg, regarding “Steve”.
March 25, 2007
Three Officers, Skinn, Hodgson, and Munro were on the premises as a result of disturbance calls. Const. Skinn witnessed 2 patrons on the floor attended by medics, another patron attacking someone and several patrons drunk at the bar. Many others in the crowded premises also appeared intoxicated. Const. Skinn, as a toxicology technician, is a highly credible witness regarding his observations of many drunken patrons on the premises.
Staff Sergeant Hodgson testified to witnessing two disturbances, one where a male was unconscious on the floor. The other, an extremely intoxicated male, Kevin Banks, in the parking lot who was refusing to leave and had to be detained in a police vehicle. He testified that in his experience the fights were as a result of intoxicated patrons.
Const. Munro’s evidence was on finding one unconscious male on the floor, surrounded by patrons, a verbal altercation between 2 males resulting in one being punched to the ground and evidence of assaults of a father and daughter.
All three officers appeared to be highly credible.
Mr. Sodhi testified that he witnessed only one altercation which he said security was handling, before he left for 5 to 10 minutes. On his return, he saw an unconscious male on the floor, later taken to hospital. His evidence was that he heard about two other fights later, but did not witness them. It stretches Mr. Singh’s credibility when he testified that he was not aware of the number of fights taking place or of the intoxicated condition of many of his patrons. There is no evidence that Mr. Singh took any action to control the disorderly, violent conduct on the premises or to refuse to permit liquor being sold or supplied to intoxicated patrons.
Gordon Bellamy, one of the security guards, gave credible evidence that although he had removed 5 or 6 intoxicated patrons, he was not aware of other drunken patrons in the bar. He had witnessed one fight and was told about another. He also agreed with the testimony of the police officers that alcohol was often a factor in bar fights.
Conclusion
- The key word in subsection 45(1) of the O.Reg is “permit” which has been defined and applied in many Board decisions, including Solid Gold Adult Entertainment. The term “permit” relies on a 2 part test:
was there drunkenness, disorderly conduct, etc; and
did the licensee permit it.
In the case of the March 25, 2007 situation, Const. Skinn, Munro and Staff Sgt. Hodgson all testified to witnessing numerous intoxicated patrons and a number of fights where at least 2 intoxicated patrons were ordered to leave. This satisfies part 1 of the test. Officer Skinn also testified that a number of intoxicated patrons were seated at the bar with alcohol in front of them, which satisfies part 2 of the test. These facts are sufficient to constitute a breach of subsection 45(1) of the O.Reg and the Board makes that FINDING.
In addition, although Officer Skinn testified that he did not see alcohol sold to the bar patrons, they had unfinished glasses of alcohol in front of them and all appeared to be intoxicated. Because of Officer Skinn’s expertise, the Board accepts his testimony, which is sufficient to constitute a violation of section 29 of the LLA and the Board so FINDS.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his 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 22nd DAY OF MAY, 2008
ELEANOR MESLIN, BOARD MEMBER GUY MAURICE, BOARD MEMBER
EM/sm