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-
2097997 Ontario Ltd. O/A HEAT NIGHTCLUB
Licensee
DECISION
Panel: Patricia McQuaid, Vice-Chair
Decision Date: April 10, 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
2097997 Ontario Ltd., Licensee ) Randall Barrs, Representative
Allegations
- A hearing into a Notice of Proposal number 15714 dated November 15, 2007, to suspend liquor licence number 807295 (the Licence) issued to 2097997 Ontario Ltd., operating as HEAT NIGHTCLUB, 129 Brock Street North, Whitby, Ontario, L1N 4H3, on the basis of alleged violations of section 29 of the Liquor Licence Act (LLA) and subsection 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the LLA, was held on February 13, 2008, in the City of Toronto.
Decision
- After considering all the evidence and submissions, the Board DISMISSES the alleged breaches of section 29 of the LLA and subsection 45(1) of the O.Reg.
Registrar’s Evidence
AGCO liquor inspector Neline Fernando attended at the licensed premises on April 29, 2007 for a routine liquor inspection, arriving at 12:41 a.m., accompanied by Amanda Higuera, also an AGCO inspector, P.C. Scott Robertson and P.C. Terry Rayner of the Durham Regional Police. They identified themselves to security upon entry.
Ms Fernando was in the premises for approximately 10 minutes when she noticed a female (later identified as Tammy Noakes) exhibiting signs of intoxication. Her attention was drawn to Ms. Noakes because she was staggering, swaying into the other patrons standing near her, and generally exhibiting poor balance. Music was playing. Ms. Noakes was not on the main dance floor, but standing, in a circle of friends, about 5 – 7 feet from the bar area.
While standing about 2 – 3 feet away from Ms. Noakes who was yelling to her friends, Ms. Fernando could clearly hear her slurred speech. She watched Ms. Noakes approach the bar. Although she did not see her being served, she stated that she did see Ms. Noakes subsequently drink from a bottle of Coors Light.
P.C. Robertson approached the group and asked for Ms. Noakes’ identification. Ms. Fernando did not hear that conversation although P.C. Robertson subsequently told her that Ms. Noakes was drunk.
Mr. Samoodi, the manager of the establishment, approached her. She told him Ms. Noakes was drunk and was being escorted out of the premises. Mr. Samoodi went outside to speak to Ms. Noakes. He returned and advised her that Ms. Noakes denied being drunk. Mr. Samoodi did not offer an opinion about Ms. Noakes’ condition.
Ms. Fernando went outside and spoke to Ms. Noakes. Ms. Noakes said she had 8 drinks. During this exchange, Ms. Noakes lost her balance twice, falling off the curb of the sidewalk. Her eyes were glassy, droopy and bloodshot. She was swaying and staggering though was unsupported by anyone else. Ms. Fernando concluded that these were all consistent with the classic signs of intoxication, and concluded that Ms. Noakes was extremely intoxicated.
On cross examination, Ms. Fernando confirmed she had been a liquor inspector for about three months at the time of this inspection. She had completed a week’s training course on identification of intoxicated patrons the month before. She confirmed approximately 300 people were in the premises and she saw no other intoxicated patrons. Ms. Noakes was the one person she focussed on.
Amanda Higuera has been a liquor inspector since May 2004. She was in the bar a short time when advised a female had been removed from the premises. She went outside and engaged Ms. Noakes in conversation. The conversation lasted between 2 – 4 minutes during which they were no more than an arm’s length apart. Ms. Noakes’ eyes were red and bloodshot, her speech was slurred and there was a strong odour of alcohol on her breath.
In Ms. Higuera’s opinion Ms. Noakes was intoxicated and should have not been in the establishment. On cross-examination, Ms. Higuera confirmed she had not observed Ms. Noakes inside the establishment and did not see her walk. Ms. Noakes seemed fine standing on her own and was not observed swaying. Ms. Higuera acknowledged that between midnight and 1:00 a.m. most people in a bar have been drinking; she looks for signs of intoxication such as limited motor skills, slurred speech or indications that a person could hurt himself or herself.
Scott Robertson has been a police constable with Durham Regional Police for almost five years. On April 29, 2007, he was in the licensed premises with Ms. Fernando when they both noticed Ms. Noakes stumbling around in front of the bar area. She appeared unsteady on her feet. She was standing in line to get a drink. He saw her receive two bottles of Coors Light. When she turned around, he identified himself to her and asked for her identification. He recalls that she thought it odd, rather funny, that he was asking her for identification.
Ms. Noakes had red glassy eyes and an odour of alcohol on her breath. He concluded that she had too much to drink and told her that she had to leave. He did not see her drink from the bottles of beer. He did not speak to Ms. Noakes outside or to Mr. Samoodi.
On cross-examination, P.C. Robertson denied hearing Ms. Noakes say how much she had to drink. He could not recall if she was wearing stilettos.
Terry Rayner is a police constable with Durham Regional Police. He observed Ms. Noakes at the bar, and saw her obtain a Coors Light. She appeared impaired. He advised P.C. Robertson and Ms. Fernando and they took over the investigation.
Ms. Noakes was unsteady on her feet and upset that she was asked to leave. She denied being drunk. Because it was loud inside, P.C. Rayner asked her to step outside. In their conversation outside, Ms. Noakes was very emotional, explaining that this was a night out for her and she had not been out for a long time. She did not say how many drinks she had. He could smell alcohol on her breath. P.C. Rayner concluded the physical unsteadiness and emotional response were signs of someone who had a lot to drink. On cross-examination, P.C. Rayner stated he was not sure what Ms. Noakes was wearing on her feet.
Licensee’s Evidence
Tammy Noakes was almost 25 years old when she attended at the licensed establishment on April 29, 2007. She has a 6 year old daughter and is expecting a second child. She works as a personal trainer.
That day, she had spent the afternoon and evening with two friends for a birthday celebration. They met at about 1:00 p.m. at a friend’s house and she estimated they started drinking between 3 and 4 p.m. Among the three friends they consumed about eight daiquiris. They did not eat much.
They took a cab to Heat Nightclub at about midnight, approximately a fifteen minute drive. She was wearing a new pair of stilettos for the first time. Her shoes affected her walking and she was wobbly on her feet.
There was security at the door of the club. ID was checked. They then went to check their coats and walked around a bit before going to the bar for a drink. The music was loud. A police officer approached her and asked her age. Her friend had ordered drinks and she grabbed hers, a Coors Light. Amir Samoodi, the manager of the club, came up behind her and took the bottle from her hand and said she had to leave. When she asked why, he said they (the police) thought she had too much to drink.
Ms. Noakes denied that she was intoxicated. She had just arrived and had not had a chance to drink her beer. She was tired, and was having some difficulty walking in her shoes. Her speech was not slurred. She was, however, a little bit upset, and embarrassed, at being asked to leave. She went home in a cab, where she watched a movie with her boyfriend. She did not get a ticket for intoxication.
On cross-examination, Ms. Noakes stated that she drinks, to the point of feeling “pretty good” maybe a couple of times a year. She may have been feeling “buzzed” by the time they left for the club. She described the events at the club as happening within a very short period of time. She had very little discussion with the police officers beyond the exchange over her identification.
Amir Samoodi is the manager of Heat Nightclub; his sister is the licence holder. Patrons are asked for identification at the door. If someone is visibly drunk, they are not allowed in. On April 29th, he was at the door when the inspectors arrived. They identified themselves and he walked in with them, through the crowd. It was a busy Saturday night.
Mr. Samoodi recalls that someone pointed out Ms. Noakes and Ms. Fernando stated that she thought she was drunk. They approached Ms. Noakes; he grabbed the beer from her hand and said she could not drink the beer and would have to leave. He spoke to Ms. Fernando and said that Ms. Noakes did not sound drunk, to which Ms. Fernando responded that she was, and she had to leave. If an inspector says someone has to leave, then he is not going to interfere.
On cross examination, Mr. Samoodi stated that the inspectors were there about ten minutes when they noticed Ms. Noakes. He recalled that Ms. Fernando’s words were “get her out of here.” He repeated that he did not think Ms. Noakes was drunk; she was standing on her own, appeared to be walking fine and was able to give the required information to the police and inspectors.
The licensee’s final witness was Valentyna Panchenko, a bartender at the licensed premises, and the person who served Ms. Noakes’ friend two beer. She did see Ms. Noakes with a group of women at the bar. She did not speak to Ms. Noakes, nor did she take particular note of her.
Analysis/Reasons/Findings
On a busy Saturday night, with about 300 patrons in the club, 2 inspectors and 2 police officers identify one patron as drunk. The NOP alleges breaches of section 29 of the LLA and subsection 45(1) of the O.Reg. A five day suspension is sought. The Registrar’s witnesses’ evidence regarding Ms. Noakes’ state of drunkenness is not identical, but three gave consistent testimony that she seemed to have poor balance and was unsteady on her feet. Ms. Higuera made no observations about Ms. Noakes’ balance, unsteadiness or swaying. Both Ms. Fernando and Ms. Higuera described slurred speech, though neither police officer made note of this.
Ms. Fernando was the only witness to ask Ms. Noakes how much she had drunk. Her evidence was that the answer was eight. Ms. Noakes’ evidence is that the three friends had approximately 8 drinks between them over an eight hour period. The inspectors and P.C. Robertson described red glossy eyes. P.C. Rayner made no such observations, though he did describe her as emotional and upset.
There is no evidence Ms. Noakes had consumed alcohol in the establishment when first observed. Mr. Samoodi’s evidence was that he took the beer from Ms. Noakes upon approaching her inside the club and Ms. Noakes testified this happened immediately after receiving the bottle from her friend. On this point, the Board, looking at the evidence in its entirety, concludes that Ms. Noakes did not drink in the establishment. It must be noted, however, that a patron need not become intoxicated in the establishment before a finding of a breach of subsection 45(1) can occur.
Ms. Noakes denies being drunk. She agrees she may have been unsteady on her feet but attributes this to new stiletto shoes. Mr. Samoodi testified Ms. Noakes did not appear drunk to him. The Board, given conflicting evidence, must weigh the individual pieces of evidence against each other. Two of the Registrar’s witnesses testified that Ms. Noakes was swaying and staggering on her feet. Even accepting Ms. Noakes evidence of new stilettos, the evidence went beyond occasional imbalance. Her physical demeanor was such that it attracted the attention of Ms. Fernando and P.C. Robertson’ and both of these witnesses observed further signs of intoxication. On a balance of probabilities, the Board concludes that the signs of drunkenness were present, though the Board notes that some of these further signs of intoxication were gleaned outside, in one on one conversations with Ms. Noakes.
The Board, upon determining that there was drunkenness, must conclude that on the balance of probabilities the proscribed behaviour was permitted. Mr. Alakas asks the Board to conclude that the licensee permitted the proscribed behaviour by “failing to prevent” it when the Licensee permitted Ms. Noakes to enter the premises and to be supplied with alcohol. Mr. Barrs urges that to define “permit” as a “failure to prevent” is an unfair interpretation as there was nothing in any way remarkable about Ms. Noakes behaviour during her short time within the establishment.
This is not a situation in which the patron became intoxicated in the premises. There was no dispute that Ms. Noakes and her friends were recent arrivals. Their ID was checked and Mr. Samoodi testified that security checks both for ID and the level of intoxication. There was no evidence that Ms. Noakes was unable to communicate coherently with the inspectors and officers and therefore, by inference, she was able to communicate coherently with the security at the door. The women checked their coats, walked through the club to the bar where Ms. Noakes’ friend ordered two beer. She was then approached by P.C. Robertson and asked to leave the premises.
The Board is satisfied on the evidence that the most obvious sign of intoxication, swaying and unsteadiness, while it may have been in some part of a consequence of the new shoes, was also not observed, for example, by Ms. Higuera. Ms. Noakes would not likely have appeared intoxicated to a casual observer or to someone with only short exposure to her. She was not, on the evidence, in any way incoherent and a heightened emotional reaction would not have been triggered by the ID check at the door. Ms. Higuera, the most experienced inspector, admitted most people in a bar at the time of the inspection have been drinking and therefore she focuses on limited motor skills, slurred speech or indications that a person could hurt himself or herself in assessing patrons. Ms. Noakes would reasonably have passed the ID check on that basis. The Board cannot, on these particular facts, conclude that this was a situation in which the licensee permitted the proscribed behaviour at the point of entry.
Further, though Mr. Samoodi disagreed with Ms. Fernando’s assessment, he was not about to interfere with their decision that Ms. Noakes must leave. He took the beer from her immediately and assisted in escorting her outside. The licensee cannot be said to have permitted a drunken patron to remain on the premises. There is here, no evidence that the establishment’s response was inadequate to the problem of drunkenness on the premises. In the twenty minutes the Registrar’s witnesses were in the establishment, Ms. Noakes was the only person identified by them as intoxicated.
Regarding section 29 of the LLA, Ms. Noakes was supplied with a beer through her friend’s purchase though the evidence is that she did not drink it. Ms. Panchenko took no particular note of Ms. Noakes, though she was aware of the group of women at the service bar. As indicated above, there was sufficient evidence that the inspectors and police concluded, in particular following their close security outside the establishment, that Ms. Noakes appeared to be intoxicated though not to an extent that, for example, she appeared so to security or Mr. Samoodi. On these particular facts, the Board given its reasons in respect of the subsection 45(1) allegation, cannot conclude that the facts support a finding under section 29 of the LLA. However, the Board notes that the bartender, Ms. Panchenko, did not make a great deal of effort to ascertain Ms. Noakes’ condition as she stood at the bar with her friends. The Board reminds the licensee that vigilance is required in the sale and service of alcohol. There is a significant responsibility upon a licensee to ensure continual compliance with its obligations under the LLA and its regulations.
Conclusion
- For the reasons given, the Board DISMISSES the alleged breaches of section 29 of the LLA and subsection 45(1) of the O.Reg.
DATED AT TORONTO THIS 10th DAY OF April , 2008
PATRICIA MCQUAID, VICE-CHAIR
PM/ee