Registrar, Alcohol and Gaming Commission Ontario v. Mei Juan He O/A Alfie’s Bar & Grill, 2008 CanLII 35185

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-

Mei Juan He O/A Alfie’s Bar & Grill

Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair, AGCO

Beryl Ford, Board Member

Decision Date: May 9, 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 ) Daniel Alakas, Representative

Mei Juan He, Licensee ) Jerry Levitan, Representative

Allegations

1. A hearing into Notice of Proposal number 15711 dated October 31, 2007, and Notice of Proposal (“NOP”) number 15895 dated January 9, 2008, to suspend liquor licence number 281028 (the “Licence”) issued to Mei Juan He (the “Licensee”) operating as Alfie’s Bar & Grill, 222 Queen Street East, Toronto, Ontario, M5A 1S3, on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the Liquor Licence Act (LLA), was held on April 21, 2008, in the City of Toronto.

Decision

2. After considering all the evidence and submissions, the Board DISMISSES the allegations of violations of subsection 45(1) of the O.Reg on April 21 and October 3, 2007. Reasons follow.

Preliminary Matters

3. The Board ordered the exclusion of witnesses on consent of the parties.

Registrar’s Evidence

4. Adam Strongman, an AGCO liquor inspector, attended at the licensed premises on April 21, 2007, arriving at 1:52 a.m. He was accompanied by members of the plainclothes unit of the Toronto Police Service, 51 Division.

5. Upon arrival, he observed a male showing signs of intoxication, exhibiting poor motor skills while raising a beer bottle to his lips. This individual was seated at a table, with another male.

6. He approached this male and asked him how many beers he had consumed there. The male’s speech was slurred. He could not remember how many beers he had. Their conversation lasted about one minute. The manager, Jenny He, then came to the table. She removed the beer, a bottle of Maximum Ice, from the male and passed it to his friend. The friend had red glossy eyes and poor motor skills, the latter of which was apparent as he tried to put his coat on, upside down.

7. The male called them “pigshit bastards” and staggered out of the bar, stumbling as he walked. Another male then staggered past them on his way to the washroom. He was speaking to people in the corridor as he walked past. His speech was slurred. He had red glossy eyes and an odour of alcohol. He pointed out this male to Ms. He, stating that he showed signs of intoxication.

8. Ms. He responded that she had kicked this male out earlier and that she had made a mistake by not watching him. The male, whose speech was slurred, said that he had two to three beers and that he had been there for about an hour. He was drinking from a Budweiser beer that was half full. When he told Ms. He that this male was intoxicated, she responded that he was not drunk, but on marijuana. That issue was put to the male, which he denied.

9. Before leaving the premises at 2:15 a.m., he advised Ms. He of the infractions observed.

10. Mr. Strongman next attended at the establishment on October 3, 2007, with Inspector Trevor Joseph. They arrived at 1:34 a.m. Mr. Joseph was behind him as they entered. On this occasion, before entering the establishment, while still outside, they spoke to a licensee from another establishment.

11. As he entered, he recognized a security guard from a different licensed establishment. This security person advised the manager, Ms. He, that they, inspectors, had arrived. Ms. He then yelled, “inspectors, inspectors”. Mr. Strongman observed a male sitting at a table. This male appeared to be intoxicated; he stumbled and swayed when he stood. He had trouble walking, bumping into a wall on his way out. Ms. He removed one bottle of beer and one full glass of beer from this male’s table.

12. Mr. Strongman observed a second male, who appeared intoxicated, near the rear of the establishment. This male had trouble standing unassisted; he could not walk on his own. Four friends removed him from the bar and helped him out to the street.

13. Before he left the establishment, he advised Ms. He of the infractions noted and spoke to the security person, Mr. Gary Kiepak. Mr. Kiepak confirmed that he had said, the “inspectors were here”.

14. On cross-examination, Mr. Strongman confirmed that there were no notes made by the police officers who attended with him on April 21, 2007. He did not ask the police if they had laid charges.

15. In terms of there being some confusion between his notes, which refer to three patrons who were showing some signs of intoxication and the typewritten report which refers to two patrons showing signs of intoxication (together marked as Exhibit #1), Mr. Strongman clarified that the first patron, in his handwritten notes, did not show enough signs of intoxication to cite him as a drunken patron as per subsection 45(1) of the O.Reg.

16. The second male who had trouble with his jacket, was the one who yelled the profanity, which he, Mr. Strongman, believes was yelled because the male was drunk. He did not ask this patron how much he had to drink nor did he make any such inquiries of Ms. He. When this male left, neither he nor the police officers stopped him, nor followed him out because of any concern that he might be driving.

17. Mr. Strongman did acknowledge that this establishment is located in a tough area of the city. Many of the area residents would be low income, perhaps living on social assistance or disability benefits.

18. Regarding the male, referred to as the second intoxicated patron, Mr. Strongman stated that one of the police officers stopped him as he walked towards the washroom. He did speak to him though, asking him how many drinks he had, to which he responded two to three beer in an hour. Ms. He stated clearly that she had removed this patron earlier.

19. Regarding the October 3, 2007 attendance, Mr. Strongman did confirm that his notes indicated that the security person said “cops” were there, upon their entry. Mr. Strongman stated, however, that he knew he was referring to him and Mr. Joseph, the inspectors. Police were next door because of an incident that had occurred earlier that evening. It is Mr. Strongman’s recollection, however, that the security guard actually yelled “inspectors” fairly loudly. The establishment was not busy; about eight patrons were present.

20. As they entered, Ms. He started to remove beer from a table, at which a male was seated. He could not hear her conversation with the male. She put the glass, which was full of beer, and a beer bottle on the bar. The male left almost immediately. Mr. Strongman did not speak to the male nor did he know how much he had to drink or if he had anything to eat. He concluded that he was intoxicated from clear visual signs, specifically, the way he was walking.

21. Regarding the second intoxicated male observed that evening, he was not sure if there were four or five people at the table. The male was not carried out, but he could see that he was unsteady on his feet from where he stood, approximately five feet away from him. Mr. Strongman stated that the male did need assistance to stand. Mr. Strongman indicated that a cab wouldn’t take the male, however, clarified that he could only say that the cab did not take the male. He did not hear the conversation between the male, his friends and the cab driver.

22. Trevor Joseph has been an inspector with the AGCO for almost 15 years. He attended at the licensed premises on October 3, 2007, with Mr. Strongman. There was a police vehicle in front of the bar. He and Mr. Strongman entered the bar and identified themselves to Ms. He. When they entered, the staff seemed to him, to be in disarray. The security person announced, “Inspectors”. All but one of the patrons vacated. Mr. Strongman had a conversation with Ms. He about not permitting individuals who are intoxicated to be in the premises. Ms. He became somewhat agitated and argumentative, challenging them on Mr. Strongman’s observations.

23. While he was not with Mr. Strongman at all times, he was in close proximity. He could not remember if he was in front of him or behind him when they entered, though they did enter around the same time. His own focus was on the staff actions, and their clean up. They left the premises at 1:55 a.m.

24. On cross-examination, Mr. Joseph reiterated that there was a police cruiser and a gathering of people outside the establishment, in response to a smashed window that had occurred next door, earlier in the evening. He did not closely observe what Mr. Strongman did. He believes that Mr. Strongman had to have made his observations of the intoxicated patrons, from outside the establishment, through the front window.

Licensee’s Evidence

25. Aijuan (Jenny) He has worked as the manager at the licensed premises for almost nine years. The neighbourhood is one populated by persons with low income. On April 21^st she was working with Lisa, another employee. She recalled that Mr. Strongman, whom she knows, arrived with four police officers. Mr. Strongman asked to see the licence and two officers went into the washroom.

26. That evening, one of the males present was “Adam” who, she said, is “crazy”. She does not serve him and had kicked him out earlier that day. The police talked to Adam, who started to swear at them. Adam had entered just before Mr. Strongman and the police arrived. He wanted a beer. She did not serve him and tried to talk him into leaving. His friend, with whom he was sitting, said he would take him out when he, the second male, finished his beer, a Maximum Ice. Adam did talk to the police, telling them that he was drinking an apple juice. Mr. Strongman did not speak to Adam.

27. As the police were talking to Adam, another male, “John”, walked past them to the washroom. He is a regular patron. She noticed that his eyes were red. He had come in after work and had two beer. He had left one of his beer, an “Export”, by the front door, about half full, and appeared to leave for a bit. She confronted him and “told” him he had been smoking marijuana. He denied it. The police did not lay any charges that evening.

28. October 3, 2007 was a very slow night. At about 1:00 a.m., Lisa had cooked a cheeseburger for a customer, Raymond. She, Ms. He, was talking to Raymond at his table and was putting his beer on the bar as he was about to leave, when the inspectors arrived. She saw Adam and said to Lisa, “the inspectors are coming.” Raymond stood up and left. Mr. Strongman said to her that the “old guy”, Raymond, was drunk. She denied it. Mr. Strongman never asked her anything about the group of four, who were also regulars, nor did he speak to the patrons themselves.

29. Ms. He stated that she has learned a lot since her early days working at the bar. She may have served a drunk then, not now. She has a sign in the front of the bar indicating that she has video cameras and that if illegal activity is seen, she will call police.

30. On cross-examination, Ms. He stated that she is referred to as the “tiger” on the street, because she will not serve everyone. She never serves Adam; he is “crazy”. He always seems drunk, but he takes pills. He was in earlier that day, on April 21^st, and when he returned the bar was busier. He sat down with a friend who had had two beer. She did not remove a beer from “Adam” nor did she see him drink. Adam was the one swearing at police. When the friend finished his beer, he left, as did Adam. The police told Adam he had to leave.

31. Regarding the patron, “John”, he had ordered one beer, then another. He drinks “Export” not Budweiser. He left the bar for almost 20 minutes and when he returned she asked him if he had been smoking marijuana.

32. On October 3, 2007, the security guard from New Moon, a nearby establishment, was in the premises. That establishment had closed early and he came in for a drink, just before the inspectors arrived. The first “intoxicated” patron was already standing up to leave when the inspectors arrived. Mr. Strongman told her that he believed that individual to be intoxicated only after he left.

33. With respect to the party of four on that date, Lisa had served them. The male drinks Export and his wife, Genuine Miller Draft. The other two in the party had soft drinks. They had been there about a half hour and the patrons drinking beer each had one beer. There were perhaps two other patrons in the bar.

Analysis and Reasons

34. There are two Notices of Proposal before the Board, each alleging drunken patrons in the licensed premises and each seeking a suspension of fourteen days.

35. The first NOP relates to the April 21, 2007 inspection, attended by Mr. Strongman and four police officers from 51 Division. The Board is being asked to make findings on the basis of Mr. Strongman’s evidence only, there being no notes from the police officers and no viva voce evidence from them.

36. Three patrons were observed by Mr. Strongman to be exhibiting signs of intoxication, however, the NOP makes reference to two drunken patrons. At the conclusion of the evidence, it was far from clear which of the first two patrons was the alleged first drunken patron, whether it was “Adam” or his friend. The two were seated at a table. Ms. He stated that she does not serve Adam, and that he had been told to leave earlier. She noticed that he was back, wanted him to leave, and the friend said he would get him to leave with him when he finished his beer. One of the two men, and the evidence points to “Adam”, yelled “pigshit bastard” to the inspector and police.

37. Belligerence and profanity alone does not indicate drunkenness. But Mr. Strongman also testified he observed Adam’s slurred speech, red glossy eyes and unsteadiness on his feet. The other male exhibited poor motor skills and also had red glossy eyes. Mr. Strongman did not ascertain from either man how much they had to drink nor did he make inquiries of Ms. He. At best, there is evidence of one beer being consumed at that table.

38. The Panel agrees with Mr. Alakas that a bar situated in a neighbourhood where the clientele might present more challenges than others does not lessen the licensee’s obligation under the LLA and its regulations, but equally, in such a neighbourhood where the licensee, or its manager, knows the clientele and offers plausible and believable explanations for events observed, that explanation must be given some weight. Ms. He was, though excitable and eager, also very straightforward and honest, acknowledging that she has made mistakes in the past regarding service of alcohol, but after nine years, has learned much. She did not present as a passive licensee with little or no control over her patrons, or one with much fear of confronting her patrons when appropriate.

39. Regarding the third patron, referred to as “John”, the second “drunk”, the evidence is that he had two beers. His eyes were red and glossy and he was unsteady on his feet. Mr. Strongman was close enough to hear him speak. Ms. He suggests that he had smoked marijuana, outside the establishment. His symptoms, she suggests, were not signs of drunkenness. Once Ms. He observed him upon his re-entry to the bar, she confronted him about his state.

40. Taking the evidence in its entirety, we are not satisfied that the inspector’s observations alone provide sufficient basis to find, on a balance of probabilities, that the patrons in question were drunk on the night of April 21, 2007. The Board notes that while Mr. Strongman and Ms. He’s evidence was not inconsistent, Ms. He’s evidence provided additional credible and cogent details and explanations for the events so that the Board cannot conclude, on the facts before it, the patrons were, more likely than not, drunk. Further, though not necessarily fatal to the Registrar’s case, the Board notes that none of the four other law enforcement officers gave evidence, and their notes were not produced in support of the Registrar’s case, though, to his credit, Mr. Strongman did attempt to obtain any notes if they existed. No charges were laid by police. These are, legitimately, factors to be consider in assessing and weighing the totality of the Registrar’s evidence.

41. Therefore, for these reasons, the Board DISMISSES the alleged violation of subsection 45(1) of the O.Reg on April 21, 2007.

42. Regarding the allegation of a violation of subsection 45(1) of the O.Reg on October 3, 2007, the evidence from the inspectors is problematic for the Board. There is no allegation of a breach of subsection 45(1) of the LLA though Mr. Strongman seemed to hint at it. He testified at some length about both the security guard from New Moon and Ms. He yelling that inspectors were there and further that Ms. He seemed to quickly remove a beer from a male. Ms. He does not deny that she advised Lisa, the only other employee present, that the inspectors were there. Indeed she knows Mr. Strongman. It was a slow night with no more than eight patrons present.

43. In this context, it is not clear what Mr. Joseph meant when he referred to staff disarray. Mr. Strongman did not comment on this point. The inspectors’ observations differ in several important respects. Although there were few patrons in the premises, Mr. Joseph did not observe the drunks noted by Mr. Strongman and, in particular, one man allegedly so drunk that he could not walk out unassisted. Questioned in cross-examination on this point, he posited that Mr. Strongman must have made these observations from outside the premises, where, from all accounts, there was a degree of chaos. In the circumstances, after weighing the inspectors’ evidence given this conflicting testimony on these important points, together with Ms. He’s credible and reasonable description of the events on October 3, 2007, the Board is not satisfied the Registrar has established, on a balance of probabilities, the Licensee violated subsection 45(1) of the O.Reg occurred on this occasion.

44. Therefore, the Board DISMISSES the alleged violation of subsection 45(1) on October 3, 2007.

Conclusion

45. Therefore, for the foregoing reasons, the Board DISMISSES the alleged violations of subsection 45(1) of the O.Reg as contained within the Notices of Proposal.

DATED AT TORONTO THIS 9^th DAY OF May , 2008

PATRICIA MCQUAID, VICE-CHAIR BERYL FORD, BOARD MEMBER

PM/ee