Registrar, Alcohol and Gaming Commission Ontario v. 2027980 Ontario Limited O/A Jack’s, 2008 CanLII 35216

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

2027980 Ontario Limited O/A Jack’s Licensee

DECISION

Panel: David C. Gavsie, Chair, AGCO Beryl Ford, Board Member

Decision Date: April 21, 2008 Hearing Location: London, 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 2027980 Ontario Limited, Licensee: Michael Lerner, Representative

AUTHORITIES: Jack's (Re) [2005] O.A.G.C.D. No. 226

1A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in London on January 29 and 31, February 4, and March 7, 2008, regarding Notice of Proposal number 15131 to suspend a licence dated April 16, 2007 (the “NOP”) and Supplementary Notice of Proposal number 15416 to suspend a licence dated July 5, 2007 (the “SNOP”) both with respect to the liquor licence of 2027980 Ontario Limited operating as Jack’s, (the “Licensee”), 539 Richmond Street, London, Ontario, N6A 3E9, (the “Premises”), licence number 0807140 (the “Licence”), 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), and an alleged breach of conditions on the licence.

Allegations

2The NOP alleged breaches of:

a) subsection 45(1) of the O.Reg – the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder;

b) condition 5 of the Licence – the front doors facing Richmond Street must be used as the sole means of ingress and egress for patrons, with the rear door(s) used only for patrons to access the patio and as an exit in the case of an emergency; and

c) condition 6 of the Licence – should patron line-ups for entrance to the establishment occur, line-ups must be limited to the north on Richmond Street and not spill over to Kent Street or other area alleys, and such line-ups must not impede pedestrian traffic along Richmond Street.

The SNOP alleges further breaches of conditions 5 and 6 of the Licence.

During the hearing on March 7, 2008, Mr. Alton said that the Registrar was withdrawing two allegations, namely that:

a) on February 2, 2006, a male patron exited the interior premises onto the rear patio and then left the patio via the rear patio doors; and

b) on March 2, 2006, an AGCO inspector observed numerous patrons at various times entering the establishment through the rear patio doors,

both for lack of evidence.

Decision

3After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg and violated both conditions 5 and 6 of the Licence. Reasons follow.

Motions During the Proceedings

4On consent, witnesses were ORDERED excluded from the proceedings.

5During the examination-in-chief of AGCO Inspector John Purvis, Mr. Lerner made a MOTION TO ADJOURN the hearing to gain disclosure of an e-mail from an AGCO Board Member as part of the chain of e-mails Inspector Purvis referred to in his evidence, and to enable Mr. Lerner to possibly call the Board Member to give evidence in this hearing.

6Mr. Alton indicated he had not seen the e-mail message from the Board Member either.

7Copies of the relevant e-mail were made and given to both Mr. Lerner and to Mr. Alton.

8A copy of the relevant e-mail was not placed in evidence. Evidently, the Board Member expressed a view as to what a condition on the Licence meant, and answered a specific question put to him.

9The Board Member had been a member of a panel which placed the conditions on the Licence, and was asked for the Member’s opinion after the decision of the panel was made and completed.

10The Board DISMISSED the motion to adjourn on the ground that the Board Member was functus when the e-mail was sent, and that any opinion expressed in the e-mail was irrelevant to the issues before the present panel of the Board.

11At the commencement of his cross-examination, Mr. Lerner requested and MADE A MOTION to obtain a copy of Inspector Purvis’ file concerning Jack’s. Mr. Alton responded that everything relevant to the NOP and SNOP had been disclosed. Mr. Lerner argued that at the start of the hearing, he believed he had full disclosure, but in the course of Inspector Purvis’ evidence, it was apparent there was something else concerning an e-mail from a Board Member. There may be other things contained in Mr. Purvis’ file and Mr. Lerner wanted to see the whole file.

12Mr. Alton requested that the Board strike the Licensee’s evidence to the extent it did not follow the Board Order of July 3, 2007 regarding disclosure.

13For oral reasons given, at the hearing, the Board DISMISSED Mr. Lerner’s motion, and also DISMISSED that of Mr. Alton.

Registrar’s Evidence

14Constable Christopher Carne, a police officer with London Police Services (“LPS”), gave evidence. Constable Carne has been a police officer for nine years. He is familiar with the Premises. He was there on February 11, 2006. On consent, Constable Carne was permitted to refer to his notes to refresh his memory.

15On Saturday, February 11, 2006, Constable Carne said he was in plainclothes doing LLA inspections in London. He is the London Police Services liaison with the AGCO. The core unit of LPS is responsible for all issues relating to bars.

16Constable Carne was with two LPS uniformed officers, Constable Price and Constable Hutchinson. At 1:50 a.m., the three officers were in a parking lot at the rear of Jack’s. The parking lot serves other establishments on Richmond Street. There is also an establishment called the London Tap House beside the parking lot.

17Constable Carne said he observed a younger white male around 19 or 20. He was extremely intoxicated and could barely walk, certainly not on his own. He was being held up by two other males who had their arms around him.

18Constable Carne identified himself and asked what was going on. The group was uncooperative. One person responded that they had just left Jack’s where the male being supported was said to have been drinking.

19The two males holding up the third were sober. The intoxicated male was not arrested.

20At 2:10 a.m., Constable Carne went to the front door of the Premises. While standing near the front door, a male patron was being kicked out, according to Constable Carne, by a female bouncer.

21The male patron was being ignored by Jack’s staff though he was making a scene by yelling. He was upset he did not have his coat. Constable Carne and the other two officers took note of the scene because it could have led to a disturbance.

22Constable Carne described the front of Jack’s. It faces east onto Richmond Street. The nearest cross street is Kent Street to the south. There are two doors which make up the entrance. They are a step up from the sidewalk. Inside the front door, there is an eight to 10 step staircase up to the inside main level.

23Constable Carne spoke to the male patron. Constable Carne said he was intoxicated – unsteady on his feet, loud, obnoxious, and had a strong smell of alcohol on his breath. Constable Price dealt with the male. The male said: “I’m not going to lie to you. I’m drunk. I have four or five beers in me.”

24Constable Carne went inside the Premises. He observed a male near the main service bar, swaying, holding a plastic cup. The male looked intoxicated. Constable Carne said the main bar is to the left on entering the main floor. It is large and covers much of the south side wall.

25Constable Carne said Jack’s premises consists of two floors, a main and an upper floor. There is also a bottom level called “Diesel”.

26There was no one else around the male at the service bar. Staff noticed Constable Carne looking at the male. Staff knew the police were in the Premises. They asked the male to leave. Constable Carne stayed with the male while he got his coat and then escorted the male outside.

27Outside, Constable Carne identified the male as Jan Duif. His eyes were bloodshot, his speech was slurred. He said he had consumed at least 10 drinks inside, being vodka and Red Bulls. Both Constables Price and Hutchinson observed the male outside.

28At that point, Constable Carne said he and Constable Hutchinson went inside the Premises. He saw a younger female stumbling on the dance floor. She was with a male.

29Constable Carne asked the female for identification because he had a concern about her age. Her name was Karli Renaud.

30Constable Carne said Ms. Renaud was unsteady on her feet, had bloodshot eyes, slurred speech. He felt she was intoxicated. She agreed and told Constable Carne she had consumed two beers. She was holding onto the male to support her balance. The male was sober. She left with the male.

31Constable Carne separated from Constable Hutchinson. Constable Carne said Jack’s is one of the largest bars on Richmond Row, and one of the busiest.

32Constable Hutchinson went over to a male leaning on an arcade game. He identified the male as Adam Arts who admitted to Constable Hutchinson that he was drunk as he had consumed 10 – 12 beers inside Jack’s.

33Bar manager Adam Campbell approached Constable Carne within the first few minutes he was inside. The two men have a good rapport. Mr. Campbell remained very cooperative.

34Constable Carne suggested a meeting be convened with Mr. Dehu, the principal of the Licensee, to discuss issues at Jack’s, primarily chronic over-service of patrons. Constable Carne had discussed this issue with all bar managers. It was a big issue within LPS. There were a high volume of calls for police service.

35Constable Carne left the Premises at 2:40 a.m. and completed his notes.

36Constable Carne said there had been 715 calls for service since July 2004 in and around Jack’s. Most related to alcohol over-service in Constable Carne’s opinion.

37Constable Carne’s job was to process charges. In this case, the bar and owner were charged with four offences of permitting drunkenness pursuant to subsection 45(1) of the O.Reg.

38In answer to questions on cross-examination, Constable Carne said that Jack’s was on the west side of Richmond Street, north of Kent Street. It is between York Street and Piccadilly. There are numerous licensed establishments in this row – family restaurants, bistros, bars, night clubs, music clubs – a wide array. It is the highest density of any area in London for licensed establishments.

39The area is called Richmond Row and is frequented mainly by university and college students.

40Constable Carne said that prior to February 11, 2006, Provincial Offence Act (POA) charges were laid against the Licensee.

41In answer to a question from Mr. Lerner, Constable Carne said it would not be surprising to him if he found out that the four POA charges were withdrawn.

42Constable Carne said as far as he knows, the only AGCO action against the Licensee is the current NOP and SNOP. The Premises have been open since July 2004.

43An unblemished record would surprise Constable Carne.

44Constable Carne said the first intoxicated patron he saw was on the parking lot to the rear of Jack’s. It is a municipal lot. It has large capacity – dozens of vehicles can fit. Constable Carne said that many bars use that lot for patrons. The bars are spread out along Richmond Street. The Tap House bar is adjacent to the lot.

45Constable Carne concluded the male was intoxicated on a combination of objective and subjective factors. Constable Carne said he never saw the male on Jack’s premises, nor consume any alcohol. The other males told Constable Carne they had just left Jack’s, and said the intoxicated male had just been drinking.

46Constable Carne said he could have arrested the male but did not because he was in the care of two sober people. If there are sober friends with an intoxicated friend, they will be responsible.

47Constable Carne described the second incident where the male was kicked out. The male was left outside and created a scene. Constable Carne said the male was intoxicated. Constable Price dealt with that male.

48Constable Carne said the third person was Mr. Duif inside the Premises. He was by himself. He was escorted outside by security staff in the presence of Constable Carne. Constable Carne spoke to Mr. Duif who said he had consumed at least 10 drinks inside. Mr. Duif was somewhat upset and agitated. He was with a group of friends inside, and said he lived out of town.

49Constable Carne said that Ms. Renaud told him she had two beers. She may have had more elsewhere. She was on the dance floor and in the care of a responsible person.

50Constable Carne said there were a large number of calls for Jack’s. He has spoken to Jack’s staff regarding how to deal with problems. He said the core unit may be there three or four times a week to do regular inspections.

51Constable Carne said LPS also received regular calls regarding the Tap House and other bars on the Richmond Row.

52In answer to a question from Mr. Lerner, Constable Carne said paid duty officers stay at the front door and deal with problems coming out of the Premises. They are not supposed to be inside. Constable Carne could not recall if any paid duty officers were on duty on February 11, 2006.

53Constable Ryan Hutchinson, a member of the LPS, gave evidence. He has been a police constable since September 2005. He is familiar with Jack’s. He was there on February 11, 2006. On consent, Constable Hutchinson was permitted to refer to his notes to refresh his memory.

54Constable Hutchinson said he was on a shift from 17:45 p.m. on February 10, to 3:45 a.m. on February 11, 2006.

55He was in training and on shift downtown. Constable Carne asked for uniform help to attend Jack’s. At 1:45 a.m. on February 11, 2006, he met Constable Carne on the parking lot to the rear of Jack’s. Constable Carne was investigating over-served patrons at Jack’s.

56Constable Hutchinson saw a male being carried by two friends through the parking lot. The male fell twice. Constable Hutchinson spoke to the male. He had difficulty speaking; his speech was slurred and had a strong odour of alcohol on his breath.

57The two friends told Constable Hutchinson they were on the way home from Jack’s and would take the male home. They were sober. The male was not a danger to himself as he was with friends.

58Constable Hutchinson said he then proceeded to the front of Jack’s. He saw a male coming down the front steps who was staggering. Constable Hutchinson approached the male and asked him for identification.

59The male was identified as Steven Heywood. Mr. Heywood told Constable Hutchinson that he and his friends were taking a cab because he was too drunk.

60Constable Hutchinson said Mr. Heywood left under his own power. He did not need his friends to escort him.

61Constable Hutchinson then proceeded into Jack’s. He saw a male leaning on a video game machine for stability. Constable Hutchinson approached the male who identified himself as Adam Arts.

62Constable Hutchinson said Mr. Arts had a strong odour of alcohol on his breath, his eyes were bloodshot and he was unsteady on his feet.

63Constable Hutchinson asked Mr. Arts how much he had to drink. Mr. Arts replied 10 to 12 beers and said, “Oh yeah. I’m drunk.” Mr. Arts had friends beside him and said he would be going home with them.

64Constable Hutchinson continued his walk around the Premises. He saw a female stumbling on the dance floor. Constable Hutchinson approached the female and asked her for identification.

65The female identified herself as Karli Renaud. She told Constable Hutchinson she had five beers at Jack’s, and then she recanted and said maybe two beers. Her eyes were bloodshot, and she was unsteady on her feet.

66In answer to questions on cross-examination, Constable Hutchinson said Constable Carne had requested officers to assist him investigating over-service.

67Constable Hutchinson said Jack’s is located in the middle of Richmond Row which is a densely populated area for licensed establishments. The area attracts university and college students.

68Constable Hutchinson stated that February 10, 2006 was a Friday night. Fridays are usually crowded and there is congestion on the streets around closing time.

69Constable Hutchinson stated that the males he saw in the parking lot did not say they had consumed anything at Jack’s.

70Constable Hutchinson said it was his opinion that one of the males had over-consumed, but there was no evidence they had been drinking in Jack’s. The male was not dangerous to himself or to others, had a way to get home, and would not cause problems in the downtown area.

71Constable Hutchinson testified that the second male he saw stumbled down the steps. He staggered as he walked and was unsteady on his feet, but did not fall down.

72Constable Hutchinson said he dealt primarily with Adam Arts. Constable Hutchinson indicated he asked Mr. Arts if he drank “here,” meaning Jack’s. Mr. Arts replied that he had consumed 10 to 12 beers. He did not know over what period of time this had occurred.

73Constable Hutchinson described Ms. Renaud as being alone, having bloodshot eyes, unsteady on her feet. She had consumed a large amount of alcohol. She appeared intoxicated. As she did not appear to be a danger to herself or to others, Constable Hutchinson left her to her own devices to get home.

74Constable Hutchinson said that on Friday and Saturday nights, there are generally paid duty police officers at the front door of Jack’s. They remain outside all evening by the front door. That is the practice.

75In Constable Hutchinson’s view, the male in the parking lot, the male who had come down the front stairs (Heywood), the male leaning against the video machine (Arts) and the female on the dance floor (Renaud), were all intoxicated.

76In answer to questions on re-direct, Constable Hutchinson stated that the male who stumbled down the front stairs did so, not because of the staircase. Also, he said that Ms. Renaud was not holding on to anyone on the dance floor.

77Constable Brian Price, a member of the LPS for 12 years, gave evidence. He was at Jack’s in the early morning of February 11, 2006, made notes which he was allowed to use, on consent, to refresh his memory. He was on the 6:00 p.m. to 4:00 a.m. shift with Constable Hutchinson.

78Constable Price was on foot patrol on Richmond Street when he was contacted by Constable Carne to meet at Jack’s to do a liquor inspection. Around 2:00 a.m., they met in the back parking lot. Constable Price was in uniform.

79Constable Price explained that another bar fronts on the alleyway to and from the parking lot. It is now called the London Tap House. It was known as the Coliseum on February 10 – 11, 2006.

80Constable Price confirmed what Constable Hutchinson had said about the intoxicated male in the parking lot being carried by two friends. The friends said they had been at Jack’s, that they had not been thrown out, and they could get home on their own.

81Constable Price said Constable Carne began his inspection inside. Constable Price stayed at the front door. The door security staff escorted a male out the front door who was making a scene because he did not have his coat.

82People were crowding around the male so Constable Price said he approached the male who stated his case and explained why he was arguing with the door staff.

83The male said he was drunk, and that he had consumed four or five drinks in Jack’s. He appeared to be holding court. He was leaning on the wall to steady himself, slurring his words, repeating himself.

84The male identified himself to Constable Price as Daniel Barnes, and tried to explain why he should not be thrown out of the bar.

85Constable Price said that Jack’s hire off-duty police officers but he could not recall any being present that night. The paid duty officers are permitted inside but their policy is to remain outside the front door.

86Constable Price recalled that Mr. Barnes received his coat and he assumed that Mr. Barnes ultimately got into a cab.

87Constable Price said that Constables Carne and Hutchinson came out and brought a male with them who was complaining that his coat was inside. The male had a blank look on his face and other people were answering questions for him. He had a glazed look and a strong odour of alcohol on his breath.

88The male was identified as Jan Duif. He was not answering questions. He looked as though he did not know where he was. Mr. Duif told Constable Carne that he consumed 10 vodkas with Red Bulls. He was unsteady on his feet and swaying back and forth.

89Constable Price said he did not enter the Premises.

90In answer to questions on cross-examination, Constable Price confirmed that the stretch along Richmond Street called Richmond Row has the highest density of licensed establishments in London. The bars are mainly frequented by students. It is a very, very busy area with both pedestrians and vehicles.

91The municipal parking lot behind Jack’s contains lots of cars. People park there to go to establishments all along Richmond Row.

92Regarding the intoxicated male, in the parking lot, being carried, Constable Price said he looked as though he had been in a fight and would have had to go to a hospital. The males with him said they were coming from Jack’s.

93Constable Price said he did not know if the males had been drinking in Jack’s, nor how much they had consumed.

94Constable Price stated that Jack’s staff were good in that if issues were brought up, staff for the most part would try to fix the problem.

95Constable Price said that the door staff brought Mr. Barnes out, not Constables Carne or Hutchinson. Constable Price overheard Mr. Barnes say he had four or five beers in there. He was definitely being ejected from the Premises. He was loud and obnoxious, but responding to questions. He wanted his coat.

96Constable Price stated that Mr. Duif was in worse shape than Mr. Barnes because he said he had consumed 10 vodka and Red Bull drinks, though he did not know over what time frame.

97AGCO liquor inspector Daniel Deslippe was called to give evidence.

98Inspector Deslippe was familiar with Jack’s. He was there on September 30, 2006. He had made notes which, on consent, he was allowed to use to refresh his memory.

99Inspector Deslippe was doing bar checks with fellow AGCO inspector Purvis along Richmond Row. He observed a line-up at Jack’s on the north side of an alleyway which he realized was a breach of a condition on the Licence.

100Through Inspector Deslippe, two exhibits were produced. The first – Ex. 1 – is the AGCO profile for the Licence and the Licensee. The second – Ex. 2 – is a three page floor plan for the Premises, one for each of the floors.

101Inspector Deslippe said under a condition on the Licence, any line-up must be on Richmond Street going north. He pointed out on Ex. 2, the public lane on the north side of the building, and two doors into the Premises about one-third of the way up the alleyway from Richmond Street.

102Inspector Deslippe stated he saw two line-ups to enter these side doors, one for Diesel in the basement and the other being a V.I.P. line-up for Jack’s. There was a female inside the door for the Jack’s line-up collecting a cover charge of $10.00 for entry to Jack’s. Two security people were posted there looking at identification.

103Inspector Deslippe said that the manager, Mr. Campbell, showed up and he started asking him a few questions.

104Inspector Deslippe said that condition 5 on the Licence provides that the Richmond Street doors are the sole patron ingress and egress points. These are the front door on Richmond Street. There are rear doors to the patio, and there are doors off the alleyway – the west door being an entrance to Jack’s, the line-up running west to east, and the east door being an entrance to Diesels in the basement, the line-up running east to west.

105Inspector Deslippe said that the female taking the $10.00 cover charge told him that by paying the charge, patrons by-passed any line-up on Richmond Street and got inside the bar right away.

106Inspector Deslippe asked Mr. Campbell why these doors in the alleyway were being used. Mr. Campbell said Mr. Dehu told him it was alright to use them.

107Inspector Deslippe said that the conditions placed on the Licence were imposed as a result of a public interest hearing. Inspector Purvis told Mr. Campbell he would be cited for violations.

108In answer to questions on cross-examination, Inspector Deslippe said he was unaware if conditions 5 and 6 were agreed to by the Licensee and objectors. He stated that the parties would know the intent behind the conditions, but he did not.

109Through Inspector Deslippe, the original Licence dated September 22, 2004, was placed into evidence – Ex. 3. Asked to look at the AGCO profile (Ex. 1), Inspector Deslippe said that conditions 1 and 2 related exclusively to the patio. Conditions 3 and 4 could relate to the patio. Condition 5 contains a reference to the patio.

110Regarding condition 6 relating to line-ups, Inspector Deslippe agreed with Mr. Lerner that any line-up for the patio would have to be inside Jack’s.

111Inspector Deslippe said that condition 7 relates solely to the patio.

112Inspector Deslippe said that after the inspection on September 30, 2006, there was a discussion in the AGCO regional office in London about the conditions. A recommendation was made to ask the Registrar or legal counsel for an interpretation.

113Inspector Deslippe was shown the following photographs which he identified and which were made exhibits:

a) two doors off of the alleyway with the name “Diesel” above one (Ex. 4);

b) picture of the door on the right facing the Premises (Ex. 5); and

c) picture inside the Premises looking out toward the alleyway (Ex. 6).

114Inspector Deslippe said if he was enforcing conditions on a liquor licence, he would not go back to find out from previous objectors what their concerns were.

115Inspector Deslippe stated he was standing out front and noticed a line-up in front of the building and on the side of the building. Inspector Purvis told him there should not be any line-up in the alleyway. Inspector Deslippe said he used his AGCO IPAC to look up the licence conditions. Finally, he said that the use of the alleyway doors contravened another condition of the licence.

116In answer to questions on re-direct, Inspector Deslippe said the breaches of the conditions were concerns. He had no problem interpreting the conditions.

117AGCO liquor inspector John Purvis gave evidence. He has been an AGCO inspector since May 2001. Inspector Purvis is familiar with Jack’s. He was there on February 2, 2006, March 2, 2006, September 15, 2006, September 30, 2006 and March 17, 2007. On consent, Inspector Purvis was allowed to use his notes to refresh his memory.

118On February 2, 2006, Inspector Purvis said he was conducting investigations in downtown London, and ended up at Jack’s. He parked his vehicle in the parking lot to the rear of Jack’s and watched the patio.

119Inspector Purvis said he was aware of the conditions attached to Jack’s licence which restricted access to the patio to the front door off of Richmond Street.

120Prior to February 2, there were concerns and questions regarding the conditions. Inspector Purvis said he looked into the matter and was told that the conditions restricted access.

121Inspector Purvis stated that he had had a conversation with Mr. Campbell, the manager. They discussed the use of the front and side doors. Inspector Purvis then looked into the matter. He sent an e-mail up the chain of command, and received clarification confirming his position, namely that the front doors were to be used as the only patio entrance and exit.

122Inspector Purvis stated it was clear in his mind how to apply the conditions to the infractions he noted.

123At this point, Mr. Lerner made his motion to adjourn referred to in paragraph 5.

124Inspector Purvis said at 20:35 on February 2, 2006, while sitting in his car on the rear parking lot, he saw a male exit the establishment through the rear doors. The male came out the door onto the patio, walked through the patio, exited the patio, got into a car and drove off. The male was carrying a briefcase.

125Inspector Purvis said this was a breach of condition 5 on the License. He also said he had no idea if the male was a patron or an employee.

126Inspector Purvis said the patio was raised, but had no doors. For ingress and egress, the condition says that patrons must use the front doors, which means they then go on to the patio from the inside of the Premises.

127Inspector Purvis was at Jack’s on March 2, 2006, arriving at 21:00. He was in his car on the rear parking lot. He saw a male park his car on the parking lot, enter on to the patio, knock on the door to the inside of the Premises, the door opened, and the male entered.

128Inspector Purvis stated that at 21:45, a further two males entered the inside of the establishment through the back doors off the patio. He was not sure where they came from.

129Inspector Purvis said that about 22:00, three females wearing a Coors Light promotional costume went up the stairs to the patio, walked across the patio, and entered the inside of the establishment through the door that opened on to the patio.

130Inspector Purvis said that he started a shift on September 14, 2006 which continued into the early morning hours of September 15. He arrived at the front door of Jack’s at 1:45 a.m.

131Inspector Purvis stood on the sidewalk watching patrons exit the Premises. A female exited, having trouble negotiating the stairs. She wore blue jeans and a golf shirt. She stumbled and was unsteady on her feet. At the bottom of the stairs she came outside, stopped, adjusted her clothes, was unsteady on her feet and swaying. She also had bloodshot eyes.

132Inspector Purvis said he was about three feet away from the female. She walked north on Richmond Street, staggering as she walked.

133Inspector Purvis left Jack’s at 2:20 a.m. He went back to work at 8:15 p.m. on September 15, and went back to Jack’s at 11:55 p.m.

134Inspector Purvis observed a line up outside the side entry doors to Diesel and to Jack’s. People were entering and exiting through both side doors which are located off an alleyway. The alleyway is wide enough for a vehicle. The line-ups were in the alleyway.

135Inspector Purvis said the line-ups in the alleyway were contrary to condition 6 on the Licence which he read.

136Inspector Purvis stated that over one of the side doors is a sign for “Diesel”. The other door leads into Jack’s. Condition 6 applies to both doors.

137Inspector Purvis said he concluded that the line-ups in the alleyway were contrary to condition 6. People entering and exiting the Premises through the side doors was contrary to condition 5.

138Inspector Purvis was shown photographs which he identified. He identified a picture of the Diesel door – Ex. 4, a picture of the door facing east, looking toward Richmond Street – Ex. 5, and a picture of the inside of the Premises – Ex. 6.

139Inspector Purvis stated that people were entering Jack’s through the front and side doors.

140Inspector Purvis proceeded from the side door area to the Richmond Street doors. There were two line-ups – one running south and one running north. The former was contrary to condition 6 on the Licence.

141Inspector Purvis spoke to Mr. Campbell regarding the infractions and how they violated the conditions on the Licence. Mr. Campbell told Inspector Purvis that Bob (Mr. Dehu) told him to do it that way.

142At 12:30 a.m., Inspector Purvis left.

143On September 30, 2006, Inspector Purvis, who was doing inspections with Inspector Deslippe, arrived at Jack’s at 12:45 a.m. There was a line-up in the alleyway at the side doors. People were entering the establishment through the side doors.

144Inspector Purvis met and spoke with Mr. Campbell. Mr. Campbell told him about the VIP entrance to Jack’s where patrons could enter by paying a cover charge of $10.00.

145Inspector Purvis checked the Licence conditions on his AGCO IPAC and determined they were still on the Licence. Inspector Purvis spoke to Mr. Campbell about the violations, telling him that a report would be submitted for a Deputy Registrar review.

146Inspector Purvis said he had warned Mr. Campbell and Mr. Lerner before not to use the side door. He had exchanged e-mails with Mr. Lerner on this subject.

147On March 17, 2007, Inspector Purvis again attended at Jack’s as part of a joint forces operation involving LPS and the Fire Department. He arrived at 23:00.

148Inspector Purvis said there was one line-up outside the Diesel door in the alleyway. People were entering and exiting through the two side doors. Inspector Purvis checked his AGCO IPAC and determined that the same conditions were still in place.

149A photograph from the parking lot behind Jack’s looking east down the alleyway was produced and placed into evidence (Ex. 7).

150Inspector Purvis described the lane as being a public one, about 12 to 14 feet wide, capable of having a car go through. The line-ups did not impede traffic, but could have.

151Inspector Purvis estimated the line-up to have consisted of about 50 people on September 30, 2006. At other times, he could not estimate the number.

152Inspector Purvis left at approximately 23:15.

153In answer to questions on cross-examination, Inspector Purvis said he had been an AGCO inspector since May 2001. Before that he had worked for the Metro Toronto Housing Authority for 20 years.

154Inspector Purvis said he had no formal training before working for the AGCO. Since 2001, his AGCO training consists of a week a year on a variety of topics.

155Regarding inspections, Inspector Purvis said that he was taught in a general way how to conduct them. An inspector has discretion.

156Inspector Purvis said he was not advised of an apparent problem about conditions on the Licence. He first became aware of the issue in late 2005. He went to Jack’s one night and saw someone exit the back door. He looked at the conditions on his AGCO IPAC, and spoke to the manager who at the time was not Mr. Campbell.

157At some point later, Inspector Purvis said he spoke to Mr. Campbell. He also talked with Pat Morrisey, the manager of the AGCO’s regional office in London. Mr. Campbell did not agree that entry to the Premises was restricted to the front door facing Richmond Street.

158Inspector Purvis told Mr. Campbell that, to be fair, he would send it “up the line” to find out what the conditions meant.

159Inspector Purvis stated that the conditions were either imposed by the Board or agreed to by the Licensee. They could be a response to public interest concerns of people who saw the placard. He was not at the hearing. He did not make enquiries as to what happened at the hearing.

160In answer to questions from Mr. Lerner, Inspector Purvis said there had been no complaints from residents about the use of the patio, nor about the use of the north doors.

161Inspector Purvis said that access to and egress from the Premises is restricted to the front doors on Richmond Street. The Licensee’s position is that, notwithstanding condition 5, they can use the north doors. Further, it was the Licensee’s position that the conditions were imposed in response to its application to licence the patio and the conditions had to be read that way, i.e. for the patio.

162Inspector Purvis was shown Ex. 3 which is Jack’s licence dated September 22, 2004. It had one condition referring to a server training course. The application for a patio licence was made in March 2005.

163Inspector Purvis said the basement of the Premises was licensed on the September, 2004 licence – Ex. 3. On Ex. 3, the capacity of the Premises for all three floors was shown as 1,186.

164Inspector Purvis was shown a letter to him from Mr. Lerner, dated January 26, 2006 (Ex. 8). Inspector Purvis’ name was on the letter but he could not remember it. Inspector Purvis said the AGCO district office in London is located at the address on the letter. The letter related to the use of the side doors. Inspector Purvis said it is possible he saw the letter.

165Inspector Purvis was shown an e-mail from him to Mr. Lerner dated January 31, 2006 (Ex. 9). Mr. Purvis recalled then that he had in fact seen Ex. 8, and this – Ex. 9 – was his response. His conclusion was that the north entrance doors were not included in the condition regarding entry, and that all entries and exits must be made through the Richmond Street door.

166Inspector Purvis was shown a letter from Mr. Lerner to Mr. Kulis, senior counsel to the AGCO, dated February 14, 2006, and a reply letter from Mr. Kulis dated February 20, 2006, the latter showing a copy was sent to Inspector Purvis, (Ex. 10).

167Inspector Purvis said the Licensee was trying to deal with a problem the Licensee thought existed.

168Inspector Purvis said there was a meeting involving himself, Constable Carne, Mr. Lerner, Mr. Dehu and Mr. Morrisey concerning the use of the north doors and condition 5 on the Licence. The meeting was called to discuss the large number of police calls to the location but the doors issue was discussed.

169Inspector Purvis stated that the Licensee is conscientious. If problems are pointed out, they are corrected. Mr. Dehu is a responsible owner and is community-minded.

170Inspector Purvis indicated he was at Jack’s on five different occasions – February 2, March 2, September 15 and September 30, all in 2006, and on March 17, 2007.

171On February 2, 2006, Inspector Purvis said he arrived at 8:25 p.m. He parked in the rear parking lot and observed the patio. It appeared closed. He did not get out of his car.

172He was looking at the doors to see if they were being used. He saw a male exit the Premises with a briefcase. Inspector Purvis could not tell if the male was a patron.

173On March 2, 2006, Inspector Purvis arrived about 9:00 p.m. in his car in the parking lot. He watched the door from the patio to the inside of the Premises. He saw a male park a car on the parking lot, walk on to the patio, knock on the door, the door opened and the male walked in. Inspector Purvis said he could not tell if the male was a patron.

174Around 9:45, two more males came onto the patio, knocked on the door leading to the inside of the Premises and were let in right away. Inspector Purvis said he could not tell if these two males were patrons.

175Around 10:00 p.m., three females dressed in Coors Light female costumes entered the inside of the Premises through the patio door. Inspector Purvis did not speak to any of them. He could not tell if they were patrons. He assumed they were there to promote the product and if so, they would not be patrons.

176Inspector Purvis left at 10:30. Before that, he got out of his car to speak to Mr. Campbell regarding the people using the back door for entry. Mr. Campbell did not know if these people were patrons.

177On Friday, September 15, 2006, Inspector Purvis said he visited the Premises twice, once at 1:00 a.m., and again later that evening.

178On his first visit, Inspector Purvis saw a female descending the stairway towards the street. She was alone. She stopped at the sidewalk and adjusted her clothing. Inspector Purvis did not speak to the female. She looked like she would fall. She was stumbling.

179Inspector Purvis said he believed the female was intoxicated. He observed her for about 15 minutes.

180That evening, Inspector Purvis returned. He was alone. He observed the laneway to the north of the building. There was a curb opening on the Richmond Street sidewalk to permit cars to use the laneway. He observed a line-up outside the north doors. He assumed people were there to go in and out. The number of people was substantial, more than two. Inspector Purvis considered this to be a violation.

181Inspector Purvis said there were two line-ups on Richmond Street, one going north and one going south. There were perhaps 10 people in the latter. They were waiting to get into Jack’s. The south line-up did not spill on to Kent Street. Inspector Purvis said he spoke to Mr. Campbell regarding the line-ups in the alleyway and the one going south on Richmond Street.

182Mr. Lerner asked Inspector Purvis if the conditions were written and drafted by the Licensee and objectors, would their intentions be important. He replied: “Yes, they would”.

183On September 30, 2006, Inspector Purvis met Inspector Deslippe at their office to discuss where they should go. The violations at Jack’s had been the use of the north alleyway doors, and the line-ups outside those doors.

184An application dated December 4, 2006 was submitted for removal/change of conditions. Section 4.2 of the application referred to conditions 5 and 6, and requested a change in wording. A copy of the application was produced in evidence (Ex. 11).

185The application followed a meeting of Inspector Purvis and Mr. Lerner, and followed attempts to clarify the conditions.

186Inspector Purvis said he knew the bar off of the parking lot, Bacchus Lounge (formerly Tap House, and Coliseum) created a problem for some residents in the area. There was an issue with line-ups which, Inspector Purvis said, could have gone up the alleyway.

187Inspector Purvis pointed out on Ex. 2 the location of Bacchus. Also, he pointed this out on Ex. 7. He said the line-ups for Bacchus would have come out its front door.

188On March 17, 2007, a joint forces operation was held. The patio was not open. In fact, Inspector Purvis said he did not recall ever seeing anyone consuming alcohol on the patio.

189The police were looking for some things – capacity, over-service. Inspector Purvis was only concerned with the north doors to the Premises, and line-ups in the alleyway.

190Inspector Purvis saw a line-up in the alleyway from the north door to Richmond Street. That was a violation of a condition on the Licence.

191Inspector Purvis agreed with Mr. Lerner’s statement that short of not using the north doors, the Licensee has done everything to resolve issues.

192On re-direct, Inspector Purvis said that on March 17, 2007, the conditions on the Licence had not been altered.

193In answer to a question from Mr. Alton, Inspector Purvis said yes, that if conditions on a Licence are imposed by the Board, they may not be in the best interests of a Licensee.

Licensee’s Evidence

194Martin Dol was called as a witness. Mr. Dol had appeared before the Board in March 2005 when he represented objectors regarding the addition of a licensed patio at the rear of Jack’s. The proximity of the proposed patio to residences was an issue. Other issues were noise, loitering, broken glass, people urinating.

195Mr. Dol lived in 155 Kent Street in March 2005. It is a 14 floor condominium building about 100 feet away from the proposed patio.

196Mr. Dol said he saw the placard about the patio licence. Jack’s was up and running at the time. He represented the objectors in his building. Witnesses called at the hearing spoke of noise at night, post-closing loitering, garbage, urinating. At least some of those responsible for the problems came from Jack’s. The patio would have increased the noise level from the back of Jack’s, across the parking lot, to the two residential buildings on Kent Street.

197Mr. Dol said at the hearing he probably represented in excess of 125 people. After the hearing, he had to get out of the area because of the problems. He moved out on October 31, 2005.

198When shown Ex. 1, Mr. Dol said he has seen those conditions. They were generated at the hearing, but he never received the final wording.

199The conditions were put on the Licence to address line-ups going into the establishment. They were meant to address noise in the back, and the direction of the line-up at the front door was made so as not to have a line-up on Kent Street nor to impede sidewalk traffic on Richmond Street.

200When asked about the doors on the alleyway, Mr. Dol said at the hearing was the first time he became aware that Jack’s would create a basement establishment. The question of the doors was not ready to be discussed. The objections were to the patio application.

201In looking at Ex. 2, Mr. Dol said the conditions were meant to try to prevent people from entering the patio from where residents lived – in other words entrances could not be permitted from Kent Street, from the rear parking lot, nor from the alleyway. All of these conditions were meant to apply to the patio licence.

202In answer to questions from Mr. Alton on cross-examination, Mr. Dol said that he needed to move because of the noise at 3:00 to 4:00 a.m., hooting and hollering, intoxicated voices, bottles being smashed. A security camera in the vestibule of his building showed people calling for cabs. It was a warm place to wait for a cab.

203Regarding the March 17, 2005 hearing, Mr. Dol said that Jack’s had been Sebastian’s before which served breakfast and dinner and fine desserts. It was not frequented after dinner. Mr. Dol said he thought Jack’s would be a bar, although initially he thought it was to be a roadhouse. When it opened as a bar, noise was a problem after 11:00 p.m. Mr. Dol thought that a patio would exacerbate the noise.

204Mr. Dol said that the basement was not being used in March 2005. There was no sign outside. It was at that hearing that Mr. Dol heard the basement would become a licensed establishment.

205At the March 17, 2005 hearing, Mr. Dol attended to represent the objectors. They expressed issues about noise, hours of operation, egress and ingress at Jack’s, people loitering. The noise the objectors complained about was coming from outside the buildings, from Jack’s or Bacchus Lounge.

206An agreement was reached at the hearing. Mr. Dol felt confident that the patio issues had been taken care of.

207After the hearing, Mr. Dol said there were line-ups on Richmond Street. Jack’s used stanchions to control the line-ups. There were no people in the alleyway. Mr. Dol said he did not know when the north doors started to be used.

208Mr. Dol said that he would see cars in the laneway from time to time. Cars cannot turn left at Kent, so they use the laneway. This laneway leads to the parking lot behind Jack’s.

209In answer to questions on re-direct, Mr. Dol said that at the conclusion of the hearing, he was satisfied the concerns of the objectors had been met. He was happy with the conditions.

210Mr. Dol could not recall why condition 5 was put on the Licence. As for condition 6, the objectors did not want people in the alleyway. They did not want people lining up in any direction.

211Dr. Trevor Smith gave evidence. Dr. Smith lived in a smaller building beside 155 Kent Street.

212Dr. Smith said he was concerned about the proposed Jack’s patio, and also about the line-ups at the front door which at night came around on Kent Street.

213Dr. Smith said there was no discussion about the two doors off of the laneway at the March 2005 hearing. He was concerned with line-ups, whether people would access the patio through the front door.

214Dr. Smith owned the building he lived in. He had his medical office there. He left the area because of what happened to Richmond Row. It became a large student-age bar area, not as quiet as before. Noise became an issue.

215Dr. Smith said that line-ups created noise. People urinated in the parking area behind Jack’s. There were safety issues. Dr. Smith said he feared walking around the area. It was noisy before but safety was not an issue for he and his wife.

216Dr. Smith stated that noise was created from a line-up coming down Kent Street. There was little noise from the parking lot. Jack’s was not overly noisy. In Dr. Smith’s opinion, the Tap House was noisier.

217Dr. Smith had a concern with the proposed patio. Young people on it late at night would be noisy, and he would not be able to sleep.

218At the March 2005 hearing, conditions were discussed, e.g. service hours, close down time – things like that.

219When shown Ex. 1, Dr. Smith said it was the first time he has seen the actual conditions. He recalled talking about them.

220Dr. Smith stated he moved away in August or September 2005, soon after the March 2005 hearing. The clincher was the bass music coming from Bacchus. Bacchus did not display public mindedness like Jack’s did.

221At the March 2005 hearing, Dr. Smith expressed concern about an unbridled patio and uncontrolled line-up of kids. At the hearing, Dr. Smith said he was not aware there would be a door off the alleyway. These doors were not open when he moved away.

222Constable Chris Ross, a member of LPS, was called to give evidence. Constable Ross said he has done paid duty work at Jack’s. He was there on February 11, 2006. He saw Constables Carne, Price and Hutchison there.

223Constable Ross explained that, when on paid duty, if something significant happened, it would be brought to his attention. He would then pass on the information to officers on the street.

224For that evening, Constable Ross said there is no entry in his duty book. Had something occurred, he would have made an entry. As far as he was concerned, nothing out of the ordinary occurred that night.

225Constable Ross said that the staff at Jack’s is friendly. He rarely went inside the Premises. Other officers may go inside to walk about. He used to, but no longer does that.

226Constable Ross said he has been called about noise complaints from the apartment buildings on Kent Street regarding noise emanating from Richmond Street. However, no one place is singled out.

227Constable Ross stated that if someone is drunk or if there is a disturbance while he is on paid duty, he would hand off the issue to street unit officers.

228In answer to questions on cross-examination, Constable Ross said that if someone had to be taken to police cells, he would call for a police cruiser. He has done this before at Jack’s.

229Constable Ross said he is paid by the station for his paid duty work. Jack’s may pay the station but he was not sure how that worked.

230Constable Ross explained that when on paid duty, 99% of the time he stands at the front door. He is paid for his presence there, not to deal with what is going on in the bar. He did not look at the Licence because it is not his duty to enforce compliance with conditions by the Licensee.

231In answer to a question on re-direct, Constable Ross said he was on duty from 23:30 to 02:30 on February 10/11, 2006.

232Robert Dehu was called as a witness. Mr. Dehu is the sole director, officer and shareholder of the Licensee. He has been in the food and beverage industry for 12 years. He also owns establishments in Guelph.

233Mr. Dehu said he has only been involved in one notice of proposal before this, in 1997 or 1998 when he was the manager of The Palace in Guelph. He was not the manager of record when violations were alleged to have occurred.

234Mr. Dehu stated that no provincial offence convictions have been made against any licensee that he has been involved with.

235Mr. Dehu said in June or July 2004, Jack’s was licensed. There are three areas, but it opened with only two areas operating, namely, the main and the second floors. In June 2005, the basement was opened.

236Mr. Dehu said he applied to have the rear patio licensed. That application came before the Board in March 2005. Mr. Dehu was at that hearing. There were objectors, most represented by Martin Dol. Seven to 10 objectors attended the hearing. Mr. Alton represented the Registrar at the hearing.

237Before the hearing, Mr. Dehu said he received a form of signed petition from the AGCO. He was told that there would be a hearing.

238Mr. Dehu stated he called Mr. Lerner who contacted objectors to get their concerns. Mr. Lerner met with the objectors. Mr. Dehu did not. They came to a consensus about most of the concerns. The hours of operation was the primary concern.

239Mr. Dehu said that with regard to condition 7, he and the objectors agreed to this. The Registrar took no position. It was the only condition that the Board had to decide because the other conditions were agreed to.

240Mr. Dehu stated that all of the conditions were related to the patio. The basement was licensed. He was renovating the front entry doors and Diesel’s in the basement at the time of the hearing in 2005.

241The conditions were not, Mr. Dehu said, intended to apply to the north door entrance. He would not have signed off on them if that was the case.

242Just prior to signing the agreement, Mr. Dehu said he told the objectors he was renovating the basement as Diesel and that he needed the north door as a main entrance to it. There was no reference to the north doors in the negotiation with the objecting neighbours. The objectors were concerned about noise from the patio and from line-ups extending down to and on Kent Street.

243Mr. Dehu was shown Ex. 2. He pointed out where Kent Street was and the laneway to the north of the Premises. He said the objectors were concerned with a line-up in the laneway for the patio, and with line-ups south on Richmond Street which would go down to and on to Kent Street.

244A copy of the current Licence was placed into evidence (Ex. 12). Mr. Dehu said the conditions apply to the patio, no other part of the Premises. The original Licence only had one condition about server training. That condition is also on the current Licence at the bottom of the conditions. It is unnumbered and in bold font.

245Mr. Dehu became aware of problems with the conditions when Inspector Purvis spoke to Mr. Campbell, the manager, regarding the north doors and condition 5. There was no complaint from the residential neighbours, nor from the public.

246Mr. Dehu’s response was that the conditions had no bearing on the north doors. He called Inspector Purvis but they could not agree.

247Mr. Dehu said he spoke to AGCO inspector Lorraine Simpson, asking her for her opinion. He had not used the patio and asked her how he could get back to the original terms of the Licence, i.e. only a server training condition. Inspector Simpson was present at the March 2005 hearing.

248Inspector Purvis thought that the patio door is a restricted entrance. Mr. Dehu said it is locked with a panic bar on the inside. The patio door can only be used for exit and for an emergency.

249Mr. Dehu said after repeated attempts to get clarification or change, he was told to file an application which he did (Ex. 11). He was told the application would be stayed until completion of this hearing.

250Mr. Dehu stated that the NOP and the SNOP were both received after he filed the application which he did in December 2006 or early 2007.

251Mr. Dehu said he was not in the Premises during any of Inspector Purvis’ inspections.

252Mr. Dehu stated that some provincial offence charges were laid by Constable Carne but they were all dismissed without Mr. Dehu having to attend court and give any evidence.

253Mr. Dehu repeated that the seven conditions on the Licence apply to the patio. Mr. Dol’s concerns at the 2005 hearing were access to the patio. The basement was then being completed. The north door did not form any part of the 2005 application or objections. There was no evidence about the use of the north door.

254Mr. Dehu said there has never been a line-up in the alleyway for the patio. There has never been a line-up from the north door going away from Richmond Street. Any line-ups run toward Richmond Street.

255In answer to questions on cross-examination, Mr. Dehu said he tries to be at Jack’s once a week from 4:00 or 5:00 p.m. to 1:00 a.m. It is open seven days a week. He has video camera access from his home, and speaks to Mr. Campbell once a night. There are 16 cameras in Jack’s covering the three floors. Mr. Dehu lives in Guelph and spends most of his time there.

256Mr. Dehu said he has never had problems with drunks at Jack’s. He said that patrons have been removed for apparent intoxication.

257Mr. Dehu said the north doors provide entry into the building. The easternmost is the main entrance to Diesel’s. The westernmost north door is direct entry to Jack’s. The only doors that open on the north wall are those two and a service door in the northwest corner. There are no doors on the south wall.

258Mr. Dehu reiterated that the conditions all relate to the patio and the March 2005 hearing and objections. Mr. Dehu did not know who drafted the conditions. The conditions were signed at the end of the hearing.

259A copy of the Board decision dated June 24, 2005 was placed into evidence (Ex. 13). Mr. Dehu said the wording of the conditions was the subject of disagreement. He did not draft the conditions. He does not know who did.

260At this point, the Board asked Mr. Alton to obtain copies of the exhibits referred to in the June 24, 2005 decision (Ex. 13), and circulate copies to the Board and Mr. Lerner.

261Mr. Dehu said Diesel’s was opened in June 2005. He telephoned Inspector Purvis when he pointed out the infractions. Inspector Purvis gave him warnings about the use of doors and line-ups.

262The north door was used as a V.I.P. entrance for Jack’s. A cover charge is levied for which a patron gets a wrist band entitling them to go to any of the three floors. It is quicker for a patron to go through the north door. This is important for his business.

263Mr. Dehu said if patrons for Diesel had to come through Jack’s, it could cause a capacity issue for Jack’s. The best way to maximize capacity is to use the north doors.

264Mr. Dehu stated the patio has never been used. It could create a noise issue for the neighbours which Mr. Dehu does not want to do.

265In answer to questions on re-direct, Mr. Dehu said that if he only uses the main entrance to allow patrons in who want to go down to Diesel or up to the 2nd floor, he would violate his capacity. He has no policy regarding the order of filling up any of the three areas. Patrons are free to go where they please.

266Regarding the line-ups in the alley way, Mr. Dehu said the objectors in 2005 were concerned about noise from a line-up to a patio. They wanted to keep people from congregating in the parking lot.

267Since June 2005 when the north doors started being used, no one from the municipality has ever complained about them or their use.

268Mr. Dehu said if the condition meant what Inspector Purvis says it does, it would impair the use of the basement and the second floor. Mr. Dehu would not have agreed to this. It makes no common sense.

Registrar’s Submissions

269The exhibits from the March 2005 hearing were sent to the Board and Mr. Lerner by Mr. Alton, as requested. On consent, these were filed as an exhibit (Ex. 14).

270Mr. Alton said that the NOP and SNOP allege the following violations:

a) subsection 45(1) of the O.Reg on February 11 and September 15, 2006;

b) condition 5 of the Licence on February 2, March 2, September 15, September 30, 2006 and March 17, 2007; and

c) condition 6 of the Licence on September 15 and September 30, 2006 and on March 17, 2007.

271Mr. Alton said that Registrar is withdrawing the alleged breach of condition 5 of the Licence on both February 2 and March 2, 2006 for lack of evidence.

272Regarding the alleged violation of subsection 45(1) of the O.Reg on February 11, 2006, Mr. Alton said several LPS officers arrived and found numerous drunks – one being carried by two friends in the rear parking lot. The friends admitted they had been drinking.

273There was the patron at the front door being removed. Inside, Constable Carne located several more drunk patrons. One admitted to being drunk. Constable Carne is in charge of the LPS core unit, is formerly a breath technician, and is well aware of intoxication conditions. Constable Carne said the patrons were drunk and other LPS officers backed up his findings. There is no evidence to prove otherwise.

274Constable Carne said there were hundreds of calls of service – 715 – between July 2004 and February 2006. This was way out of proportion for similar establishments.

275Constable Ross was not involved in liquor infractions, only as a paid duty officer. There were no notations about drunks in his notes because he was not personally involved.

276Regarding the alleged violation of subsection 45(1) of the O.Reg on September 15, 2006, Inspector Purvis observed a drunk female patron exiting the Premises. He said she was having trouble navigating six or seven stairs inside the Premises. There were no signs she was escorted out or asked to leave. She had been inside for at least 15 minutes. This was more than enough time for security to turn her away, but there was no evidence of this. She stumbled down the outside stairs. Inspector Purvis said she had bloodshot eyes, she was unsteady on her feet and she staggered up Richmond Street.

277Mr. Dehu on cross-examination admitted Jack’s has had a problem with intoxication. He is there only once a week. Things go on there of which he is not aware.

278Mr. Dol said that he used to be awakened in his apartment on Kent Street at 3:00 a.m. by a group of drunken patrons from Jack’s, trespassing in his building, calling a cab.

279On the balance of probabilities, the Board should find there were drunken patrons in the premises on both days, breaches under subsection 45(1) of the O.Reg.

280Regarding the conditions, Mr. Alton said this hearing is not a review or refusal to remove them. It is a disciplinary hearing. Conditions were placed on the Licence by the Board at a hearing in 2005, and there have been breaches since that time as alleged by the Registrar.

281Mr. Alton said that the Board can impose conditions to carry out the objectives of the LLA. This is referenced in its 2005 decision – the reference is to subsection 23(12) of the LLA.

282The Board imposed a number of conditions, all of which had been consented to by the Licensee and the objecting residents, except for the patio closing time.

283As can be seen from Ex. 14, the residents were concerned with noise from the patio and from the establishment as a whole. A meeting was held before the hearing at Mr. Lerner’s office. The conditions were presented there. Legal advice as to wording was available to the Licensee that day.

284The hearing was about the patio, but conditions could be placed on other areas.

285Mr. Dol testified that the residents had concerns with noise, urinating, littering and loitering. They were having problems and they feared the patio would make it worse. Mr. Dol agreed that Jack’s with just the front entrance was noisy enough. Most of the conditions were about noise. In fact, Mr. Dol moved away because of noise in the whole area.

286Mr. Dol said if the basement of Jack’s was to be used, increasing its capacity by one-third, he would have had more concerns.

287Dr. Smith said the residents concerns were with noise and line-ups.

288Mr. Alton said that condition 6 on the Licence reads quite clearly. It is worded this way for two reasons. There is no mention of the patio because it had nothing to do with the patio. Condition 5 relates to the patio as do the other conditions. Condition 6 uses the word “establishment” and the patrons line-up for the entire building not just the patio. This was due to the neighbours’ concerns over noise. This would deflect noise away from the building.

289Mr. Dehu said the neighbours were concerned with noise and line-ups down Kent Street. The condition regarding line-ups in the alleyway makes sense. Mr. Dehu admitted Jack’s has had some problems with complaints regarding noise. The north lane is a public lane. Mr. Dehu has no authorization to use it. The lane was used for cars. Line-ups in it would impede traffic. It is not suitable for line-ups.

290Mr. Alton submitted that the front door was to be the sole means of ingress and egress. Condition 5 says “must be used”. There is no equivocation as to what the condition means. Use of any other doors is a breach of the condition.

291Inspector Purvis said that it was clear the condition applied to the infractions he noted. Jack’s had been warned and continued to breach the condition. After discussions with Jack’s staff, Inspector Purvis requested clarification to make sure he was enforcing the condition properly.

292Mr. Dehu said he wished he never agreed to the condition. Hindsight is 20/20 vision. Mr. Dehu had competent legal advice. There is a suggestion that the conditions should be interpreted differently from the way they were drafted. Mr. Dehu signed off on the conditions to get the patio licence.

293On September 15, 2006, Inspector Purvis observed patrons lined up and down the alleyway, a breach of condition 6. Patrons were entering Jack’s through the north door, a breach of condition 5.

294On September 30, 2006, Inspector Deslippe said he saw two line-ups in the alleyway, one for the basement (Diesel) and the other being a V.I.P. entrance to Jack’s. A female was collecting a $10.00 cover charge for the latter.

295These were clearly breaches of conditions 5 and 6 according to Inspector Deslippe.

296On March 17, 2007, Inspector Purvis was at Jack’s as part of a joint task force. He observed patrons lined up in the alleyway and entering the Premises through the north door.

297As for the conditions and their effect on capacity as raised in Mr. Dehu’s testimony, there can’t possibly be one exit. The rear patio doors are used for patrons to exit. Mr. Alton said that just because there are three licensed floors and each has a capacity, there is no need for the AGCO to tell the Licensee how to best use its capacity. It’s the Licensee’s choice how he does it.

Licensee’s Submissions

298Mr. Lerner commenced his submissions for the Licensee by stating that Mr. Dehu is no rookie. He is an experienced operator. He has never been before the Board in a discipline matter, nor before Provincial Offences Court.

299In the NOP and SNOP, no fights are alleged to have occurred, there has been no disturbance of the peace, no public complaints.

300The alleged breaches have been brought through the obstinance of inspectors to respond to obvious confusion. It is easy to say Mr. Dehu thumbed his nose at them, but Mr. Dehu tried to have the matter determined. He spoke to and e-mailed Inspector Purvis. He requested a meeting. There was correspondence with senior counsel. An application to amend the conditions was filed with the AGCO. All of this was done before the NOP and SNOP were issued.

301Mr. Dehu has been ignored.

302Mr. Lerner said there is little significant difference between the parties on the facts. The facts are more or less agreed upon. People use the north doors. There are line-ups in the alleyway. The observations about patrons – there is little difference from what the inspectors saw.

303In referring to the March 2005 hearing, Mr. Lerner said the objecting residents had two issues in mind – noise and hours of operation. So what did the parties intend by the conditions?

304The alleged use of the rear patio is an example of the inspector’s attitude and how his mind works. He goes to observe the patio in February and March when he knows the patio is not of concern to the neighbours in the area. He is in his car in the parking lot. A person exits with a briefcase. Inspector Purvis does nothing to find out if this person is a patron. He does not go inside to speak to management. Perhaps it was an emergency.

305On March 2, 2006, Inspector Purvis parked his car and made observations about a male, two males and three females in Coors Light costumes. He did not get out of his car to find out anything about these people. It did not appear that any were patrons.

306This is indicative of an attitude, said Mr. Lerner. One should look as the experience of the operator in London. The operator does not want to fight with the police or the AGCO. He works with authorities and neighbours. Dr. Smith said that Jack’s was a good neighbour.

307Mr. Lerner said the Mr. Dehu wants to peacefully co-exist and run a smooth operation.

308Mr. Lerner stated the residents concerns were with the patio when the conditions were put on the Licence. The patio has not been used at all. Mr. Dehu said that the use of the patio would have required him to force things with the residents and he was conscious of them.

309As for the line-ups, both Mr. Dehu and Dr. Smith were concerned about line-ups to the patio, and line-ups along Kent Street. Mr. Lerner said Mr. Dehu would not have agreed to condition 6 if he thought it would prohibit any line-ups in the alleyway.

310Mr. Lerner said Inspector Purvis’ position was absurd if one takes the main floor at capacity, and no one is upstairs or downstairs. To get a patron upstairs or downstairs through the use of the front door means that the main floor would be over capacity while the patron proceeds to the up or down stairway. The other floors would have to be filled up first.

311Mr. Lerner said there is no due diligence defence in this discipline hearing as to findings. But the Board should look at the bigger picture. When it became apparent there was a misunderstanding, the Licensee did everything possible to resolve it.

312Aside from something recently, there have been no noise complaints about Jack’s. Mr. Dol’s concern was with potential patio noise. He said that he had known the Licensee intended to licence and use the basement, he would have objected. However, the basement was already licensed when the patio application was filed.

313Mr. Lerner said that Mr. Dol was not concerned with the use of the north doors or the alleyway.

314The parties did not intend or mean to use “establishment” in condition 6. They should have used “patio”. The parties should have spent more time preparing the conditions. They thought they knew what was intended and were satisfied with the wording.

315The question for the Board is, on the balance of probabilities, whether the Registrar established that there have been violations.

316Mr. Lerner dealt with the alleged violations of subsection 45(1) of the O.Reg.

317Mr. Lerner recounted the evidence of Inspector Purvis regarding the September 15, 2006 date. He did not stop the female patron or question her. He did not find out where she had been. Inspector Purvis did not know why she left, or whether she had anything to drink inside. His investigation was lacking, especially if he intended to allege a violation.

318Mr. Lerner said that the Board should deal with what it has from the evidence. It is not odd that patrons would show signs of alcohol consumption.

319But, Mr. Lerner said, fault or blame is being attributed to Jack’s with much information missing and the Board is being asked to decide that a violation of subsection 45(1) of the O.Reg took place.

320Inspector Purvis was asked if he know who owned the laneway, to which he responded “no”. Mr. Lerner said the laneway belongs to Jack’s.

321Regarding February 11, 2006, the Board heard evidence from Constables Carne, Price and Hutchison. As to the men in the parking lot being carried by two others, before the Board can make a finding, it has to know how long he was in the Premises, what did he consume. There must be evidence as to what they did inside such as credit card receipts, tapes, evidence about how long they were in there, what they drank. There was none. Therefore, there cannot be a violation.

322There was a male forcibly removed from the Premises. Constable Carne said he quickly determined that male was intoxicated – he was visibly upset, yelling that he had no coat. Constable Price and Hutchinson attributed the male’s conduct to the fact he had been removed without his coat. The evidence on this, Mr. Lerner said, was confusing. There was some evidence that the male had four or five beers, but none about where, nor how long he had been in the Premises.

323As to the people inside, Mr. Lerner said that one person who was swaying said he had 10 to 12 drinks. Constable Hutchison was specific that his duty was to ensure that the male did not present a danger to himself or to others. The male had a cup in his hand. Constable Hutchison did not ask him to leave or to put the drink down.

324Constable Hutchison’s conduct suggests that the male may have been impaired but not intoxicated. A violation under subsection 45(1) of the O.Reg has not been proved.

325Regarding the female, the evidence is confusing and contradictory. There was no evidence of consumption or the length of time in the Premises. She may have shown signs of consumption, but perhaps the officer who thought she was alone did not feel she was a danger. This is not a breach of subsection 45(1), Mr. Lerner said.

326There was a male with friends close by. The situation is the same for him. There is no evidence how long he was in the Premises nor how much he consumed. If he was intoxicated, Mr. Lerner asked, why did the police officers not respond regarding the danger. He was cut off from service and the police let him go.

327Mr. Lerner said there were no fights, no disorderly conduct. The patrons were enjoying themselves. There was nothing unusual. No officer was concerned about any patron. No steps were taken by police.

328Constable Ross said nothing out of the ordinary occurred.

329Mr. Lerner said this is a regrettable “us versus them” situation. It is adversarial from the Inspectors’ viewpoint.

330The majority of alleged violations relate to the interpretation of conditions. If there was no confusion regarding them, then why did Inspector Purvis seek clarification. Mr. Dehu gave his interpretation, but the inspectors did not acknowledge that his was even possible.

Reply Submissions

331Mr. Alton, in Reply, said the conditions mean what the parties intended. The residents were concerned with noise. Mr. Dol and Dr. Smith both said they did not draft the conditions. Mr. Dehu said the same. One cannot interpret conditions other than based on what they say. These conditions were clear and easy to understand.

332The inspectors are not, in most cases, party to conditions put on a licence. They enforce what is on the licence. They thought it was clear.

333It is not the inspectors’ fault that the conditions were poorly drafted. Inspector Purvis sought clarification, out of fairness.

334On September 30, 2006, for a violation of subsection 45(1) to occur, it is enough that the Board finds drunks in the Premises. It is not important how long they are there or how much they had to drink. If patrons were drunk, that’s all that is required.

335Patrons were asked to leave. Once police pointed them out, bar security did ask them to leave.

Reasons for Findings

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

336Subsection 45(1) of the O.Reg reads as follows:

“45(1) The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violet or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”

337Constable Carne identified Jan Duif inside the Premises in the early morning of February 11, 2006. Constable Carne said he was intoxicated. Mr. Duif told Constable Carne that he had consumed 10 vodkas with Red Bulls in Jack’s.

338Constable Price confirmed Constable Carne’s opinion that Mr. Duif was intoxicated when he was brought out of the Premises by Constables Carne and Hutchison. Constable Price said Mr. Duif was so intoxicated he did not know where he was. Mr. Duif also told Constable Price that he had consumed 10 vodkas with Red Bulls.

339Constable Carne saw Adam Arts and Karli Renaud in the Premises the same early morning. Both, in his opinion, were intoxicated.

340Mr. Arts told Constable Hutchison he had consumed 10 to 12 beers. Mr. Arts admitted to Constable Hutchison that he was drunk.

341Ms. Renaud had consumed a large amount of alcohol. She appeared intoxicated to police.

342Based on the uncontradicted and credible evidence of the three LPS officers, the Board FINDS, based on a balance of probabilities, that there were intoxicated patrons permitted in the Premises in the early morning of February 11, 2006.

343The evidence both with respect to the male in the rear parking lot on the early morning of February 11, 2006 being supported by two friends and the evidence regarding Mr. Heywood was inconclusive. On the balance of probabilities, the Board cannot conclude that there was a breach of subsection 45(1) of the O.Reg regarding them.

344Similarly, the state of the female patron exiting the Premises as observed by Inspector Purvis on the early morning of September 15, 2006 was inconclusive.

345It is difficult, in general, for the Board to reach a conclusion that a breach of subsection 45(1) of the O.Reg occurred with respect to a patron exiting an establishment, or one who has exited the establishment based solely on observations by a police officer or AGCO inspector, in the absence of any evidence as to what happened inside the establishment.

B) Condition 5 of the Licence

346Condition 5 was placed on the Licence by the Board in its decision dated June 24, 2005. (Ex. 13) It reads:

#5. The front doors facing Richmond Street must be used as the sole means of ingress and egress for patrons, with the rear door(s) used only for patrons to access the patio and as an exit in the case of emergency”. (Underlining added.)

347The wording of condition 5 remains unchanged today.

348There is ample uncontested and credible evidence from AGCO Inspectors Deslippe and Purvis that multiple breaches of the condition occurred through the use of the doors off of the lane-way into the Premises on the north wall. These happened on September 30, 2006 (Inspectors Deslippe and Purvis), September 15, 2006 (Inspector Purvis) and March 17, 2007 (Inspector Purvis).

349Mr. Dehu admitted in his evidence that the north doors were in fact used. One door was used as a V.I.P. entrance for Jack’s. Patrons could enter this door by paying a $10.00 cover charge.

350The other door was used as an entry for Diesel, the basement bar, which is part of the Licence.

351Much was made by Mr. Lerner in his argument that condition 5 was not meant to apply to the two north doors. Rather, condition 5 was only intended to apply to the patio so that there would be no direct entry on to the patio. Instead, egress and ingress from and to the patio would have to be made from the inside of Jack’s.

352As Mr. Alton said in his submissions, this hearing was not convened to amend the wording of condition 5. The wording is quite clear. The fact that the Licensee agreed to the wording of condition 5, having access to legal counsel, is important, as is the fact that in a number of letters of objection to the patio licence (part of Ex. 14), all dated October 12, 2004, the wording of one of the conditions being sought by objectors is verbatim that of condition 5.

353Mr. Dehu had plenty of time between his receipt of the objection letters and through his counsel to discuss a change to the wording of this condition with the objectors before and at the Board hearing in March 2005, but obviously did not.

354Understandably, everyone was concentrating on the patio application at the March 2005 hearing, not on Diesel.

355What strikes the Board as peculiar is that a basement capacity of 426 is shown on the licence dated September 22, 2004. Mr. Dehu testified that renovations were being made to the basement area – Diesel – at the time of the patio application hearing in March 2005. Diesel subsequently opened.

356No evidence was heard by the Board regarding London by-laws, building code or fire department pronouncements with respect to any need for doors, or their use, on the north wall of the Premises.

357It appears to the Board that everyone was focussed on the patio and access to it, and paid no attention to either the need or desire to use doors on the north wall of the building housing the Premises.

358Certainly the submissions of Licensee as to findings should be taken into account in the penalty phase of this hearing, but they do not alter the fact that the wording of condition 5 is very clear. The Board FINDS that breaches of condition 5 of the Licence occurred on September 15 and September 30, 2006, and on March 17, 2007.

C) Condition 6 of the Licence

359Condition 6 of the Licence which was attached in the same manner as Condition 5, reads as follows:

“#6. Should patron line-ups for entrance to the establishment occur, line-ups must be limited to the north on Richmond Street and not spill over to Kent Street or other area alleys, and such line-ups must not impede pedestrian traffic along Richmond Street.”

360The exact wording for this condition was also contained in letters of objection filed by objectors to the patio licence application in October 2004. Like condition 5, it was placed verbatim on the Licence as the result of the March 2005 hearing.

361Condition 6 is clear. It contains the words “or other area alleys”. The Board heard no evidence of any alleyway other than the one running along the north side of the building from Richmond Street to the rear parking lot.

362The AGCO inspectors testified they saw line-ups in the alleyway along the north side of the building for people waiting to get into either Jack’s or Diesel. The line-ups were seen on September 30, 2006 (Inspectors Deslippe and Purvis), September 15, 2006 (Inspector Purvis), and March 17, 2007 – Diesel entry door only (Inspector Purvis).

363Inspector Purvis testified that in the evening of September 15, 2006, he saw two line-ups in front of Jack’s on Richmond Street – one running north and one running south. The latter was contrary to condition 6.

364Mr. Lerner’s submissions that condition 6 should be read as dealing with line-ups for the patio is not in line with the wording of condition 6 which, in the Board’s view, is quite clear.

365First, no line-ups are permitted in the alleyway running along the north wall of the building housing the Premises. Second, no southward line-up in front of Jack’s is permitted.

366Based on the uncontested and credible evidence of Inspectors Deslippe and Purvis, the Board FINDS there were breaches of condition 6 of the Licence.

Conclusion

367For the reasons given, the Board FINDS the Licensee violated subsections 45(1) of the O.Reg and violated both condition 5 and 6 of the Licence.

368The 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 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.