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-
Lighthouse Cove & District Lions Club
Applicant
DECISION
Panel: David C. Gavsie, Chair, AGCO S. Grace Kerr, Board Member
Decision Date: April 25, 2008
Hearing Location: Windsor, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative
Lighthouse Cove & District Lions Club, Applicant ) Andrew Bradie, Representative
Calabria Restaurant, unreported decision of the Liquor Licence Board of Ontario, April 3, 1990
Allegations
- A hearing into the Alcohol and Gaming Commission of Ontario’s (the “AGCO”) refusal to issue a Special Occasion Permit No. 16017 (the “SOP”), dated January 18, 2008, to the Applicant, LIGHTHOUSE COVE & DISTRICT LIONS CLUB (the “Applicant”), 999 Quenneville Drive, R. R. #5, Tilbury, Ontario, N0P 2L0, on the basis that the Applicant is on a ‘refuse to issue list’ was held on March 20, April 7, and April 11, 2008, in the City of Windsor, Ontario.
Decision
- The Board APPROVES the Application for a SOP by the Applicant for an event to be held on Saturday, June 21, 2008, on certain conditions. Reasons follow.
Preliminary Matters
- An order to exclude witnesses was made on consent.
Registrar’s Evidence
The Registrar’s sole witness was Kevin Holman, who has been employed by the AGCO as a liquor licence inspector since January, 2006. Prior to that, he was an officer with the Windsor Police Service for thirty-four years. Together with his supervisor, Detective Sergeant Mike Burton, who is with the Ontario Provincial Police (the OPP), Inspector Holman attended an SOP event held on June 23, 2007, (the event) by the Applicant in the Lighthouse Cove Lions Club Park, located at 999 Quenneville Dr., Tilbury, Ontario. They were at the event from approximately 10:05 p.m. until 10:30 p.m.
Inspector Holman produced a hand-drawn (not-to-scale) ‘map’ of the SOP area (Exhibit 2). Generally described, parking for the event is in the north end of the site. Entrance to the event is from one large (i.e. two car-widths’ wide) main gate at the southeast end of the parking lot. Within the event area, a pavilion sits atop a raised hill, a docking area for boats lies to the west of the pavilion and the barbeques for cooking food for the event as well as the motorcycle display lie on a grassy area to the pavilion’s east. All sides of the SOP area were fenced, except for the boat docking area.
The year 2007 was the 12th time the annual event has been held. The event culminates in a 10:00 p.m. draw for a Harley motorcycle (the Harley draw).
When Inspector Holman and Det. Sgt. Burton arrived at the event, there was an OPP cruiser in the parking lot. The men conversed with the officers in the cruiser for about one to one and a half minutes before making their way into the SOP area. A large number of people were exiting the event at the time because the Harley draw had been made about five minutes earlier. He and Det. Sgt. Burton decided that he would stand at the main gate and observe the people leaving the SOP area, while Det. Sgt. Burton would enter it.
Two people manned the main gate, one of whom was Mr. Vogler, who later testified at the hearing. These men were not dressed distinctively; Inspector Holman could not readily identify that they were part of the event staff, but determined it eventually by their actions. Particularly, they told people to get rid of their drinks before exiting the event and parted the crowd to let the motorcycles out.
During his 10-15 minute observation of the main gate, Inspector Holman:
observed three motorcycles exit, bearing female passengers who were still consuming cans of beer;
pointed out to Mr. Vogler a man who put two cans of unopened beer into the rear pockets of his jeans, drinking a third beer, and who tried to leave the event. Mr. Vogler took no action but told the Inspector, “Don’t worry. There’s OPP out there. They’ll get him.” After finishing his beer, this man left the event with the beer still in his pockets;
saw two men leave through the main gates, still consuming unconcealed drinks and laughing after being told that they could not take them out;
noted attendees on four different occasions walk out while still drinking beer; and,
observed discarded beer cans along the side of the parking lot ‘roadway’.
Inspector Holman believed that the men posted to the main gate were trying to stop the behaviours described in paragraph 9 above, but just were not forceful.
Inspector Holman noticed the following signs of intoxication in certain persons, as described below, while he was observing at the main gate:
A female was being held up by two males. She was waving her arms, spilling a beverage which she held in one hand. She was singing, although her speech was heavily slurred;
One male had his arm around the waist of another male, apparently holding up the second man who was holding a can of beer and slurring his speech.
Two other men, individually, staggered out of the SOP area, unable to ‘walk a straight line’. Each was consuming a beverage and slurring his speech.
He rejoined Det. Sgt. Burton at about 10:15 p.m. and walked into the SOP area. In the area where the motorcycles were parked, he noticed people sitting atop the motorcycles as well as a number of people who were drinking beer and what appeared to be mixed drinks milling around them. He also smelled marijuana and saw some attendees openly passing a cigarette amongst them. The people who were smoking the marijuana were in view of the three persons manning the barbeque where the food was being cooked; they did not attempt to intervene.
Next, he travelled into the pavilion, where four people were serving alcohol as fast as possible. Making his way over to the ticket sales’ area, a Bristol board or cardboard sign advertised what was being offered for sale. The sign originally said Beer/Food, but the word ‘food’ had been crossed out and the word ‘liquor’ had been written above it. It also said “6 for $20.00; 1 for $3.50; Pop/Water $1.00”. He noted that sales by the two persons working that table were still occurring.
In the liquor service area, Inspector Holman noticed an intoxicated male, who was staggering back and forth, bumping into guests, and showing other “classic” signs such as red, watery eyes and clothing in disarray.
Moving to the boat docking area, Inspector Holman observed three boats docked, and saw a male get off one of the boats while drinking a bottle of beer and proceed up to the service area in the pavilion. After a few minutes, the man returned to his boat carrying four cans of unopened beer, where he proceeded to consume them.
Upon returning to the pavilion, Inspector Holman was bumped into by a heavily intoxicated male, who was unsteady on his feet and was consuming a can of beer.
He was inside the SOP area for about 10-12 minutes and saw about 350 people attending the event and 10-11 staff. No other persons stood out to him as “staff or security”.
Inspector Holman and Det. Sgt. Burton discussed their observations with each other and considered ‘pulling the permit’. They decided against doing so given the type of crowd, the degree of consumption that had already occurred, and “as a safety issue”. Inspector Holman felt “Something would have happened. Persons wouldn’t have been pleased”. He felt that 8 – 10 police officers were needed to shut it down but “that was not going to happen”, coming to this conclusion because Det. Sgt. Burton “knew how many people were available and (the police) would have had to shut down the entire county to get that many people there”. He and Det. Sgt. Burton expressed their concerns to the two OPP officers still in their cruiser in the parking lot and left the park about 20 minutes after leaving the SOP area (or, at about 10:50 p.m.).
In Inspector Holman’s opinion, five conditions, as follow, are necessary if an SOP is to be awarded the Applicant, and for these reasons:
i. Four (4) paid duty officers, at a minimum, should be required for this year’s event. The paid duty officers hired would be fully outfitted and be there to act in the public’s safety. These officers would be over and above the ‘normal complement’ of officers working the county on June 21, 2008. In consultation with Det. Sgt. Burton, Inspector Holman determined that requiring only two duty officers would not be enough for this event;
ii. The SOP end time should be one hour after the Harley draw. Assuming the Harley draw occurs at 10:00 p.m. again this year, as it has in all previous years, service of alcohol would end at 11:00 p.m. and all signs of service must be cleared by 11:45 p.m.;
iii. A six-foot or double snow fence be erected around the perimeter of the SOP area to prevent people from climbing over it or passing alcoholic beverages through it. The fencing presently surrounding the SOP area on its east, north and south sides is adequate, according to Inspector Holman (meaning that fencing is required only on the south side).
iv. The attendee to event staff ratio should be 50:1, excluding the paid duty officers. The event staff should be readily identifiable and should not consume alcohol while on duty or volunteering. Two staff, at a minimum, should be posted at point(s) of entry. The remainder should be engaged in patrolling the crowd and ensuring that there is no over-consumption; and,
v. No motorcycles should be allowed inside the SOP area. This would lessen the chances of impaired driving and removal of liquor from the event by the motorcycle riders. The motorcycles could be displayed outside the SOP area.
In cross-examination, Inspector Holman clarified that Det. Sgt. Burton is an OPP officer seconded to the AGCO, acting on the night in question as an AGCO OPP officer. He is, in fact, Inspector Holman’s supervisor. As a result of meetings held with the Lakeshore OPP prior to the event, it was determined that he and Det. Sgt. Burton would attend the event. Neither he nor Det. Sgt. Burton was in uniform.
He made his notes in the car, while travelling back to Windsor and consulting “a bit” with Det. Sgt. Burton who was driving. He completed his inspection report the next day.
Although he was introduced by Det. Sgt. Burton to the two OPP officers in the cruiser, Inspector Holman did not make note of their names because he did not think it pertinent. He did not ask the OPP officers why they were there
From where the cruiser was parked, the OPP officers would not be able to see main gate, but could observe the people leaving the parked area as there was only the one laneway into and out of the parking lot. The OPP cruiser could have moved closer to the main gate to gain a better observation of it.
Inspector Holman did not see any fighting or otherwise pugilistic behaviour, or argumentative or disorderly conduct.
Inspector Holman had his cell phone with him, but “although he considered it” he did not call law enforcement authorities with concerns arising out of his observations. He said this was because he was “only there to observe” and out of concern for the public’s as well as his own safety. To the best of his knowledge, Det. Sgt. Burton did and said nothing either.
No charges were laid against anyone arising out of the event by either Inspector Holman or any other authorities in relation to this inspection.
In Exhibit 3, a photograph brief, Inspector Holman identified some persons with ‘Lions Club’ logos but no other identification on their shirts and confirmed that a sign affixed to the main gate reads: ‘No alcoholic beverage beyond this point’.
There is no concern of outlaw motorcycle gang involvement in the event.
Inspector Holman approached Mr. Vogler as a “concerned citizen” to point out the man trying to sneak the two beer out in his back pockets. Mr. Vogler made no effort to stop him, instead saying “Don’t worry. The OPP will get him”. He would have been able to hear Mr. Vogler confront the fellow about it. No one asked Inspector Holman if he was going in or leaving as he stood directly behind Mr. Vogler to conduct his observations of the main gate.
On the second day of the hearing, Inspector Holman was called in reply, out of order but on consent, and gave the following evidence.
Inspector Holman had several days off following the event and a couple of days after returning to work he attempted to contact Mr. Vogler. He left a total of three messages with Mr. Vogler’s assistant at work, leaving his name and business number only. He also tried Mr. Vogler’s home a couple of times without success, but left no message.
Inspector Holman telephoned the Lakeshore OPP and was informed that no undercover (or plainclothes) off-duty or on-duty officers were assigned to the event.
In cross-examination, Inspector Holman said he had made an effort to contact Sgt. John Collins (of the Lakeshore OPP) but he was not there when he called and he had not spoken with him. He spoke with Officer Gorchinsky only, who “straight-off” told him that no undercover officers had been assigned the event. No one offered to look into it and get back to him.
Applicant’s Evidence
Kenneth Dame testified on behalf of the Applicant. He attended the event every year since its inception, including last year, and has never seen any problems with drunkenness. The average age of the crowd is about “45 – 50 to upwards of 80” years of age. At the event last year, he saw the police cruiser parked in the parking lot but, unlike past years where they would come in and walk around the event and leave in about 10 – 12 minutes, they did not do so. The police have never had to attend the event for rowdiness.
In cross-examination, Mr. Dame said he signed a typewritten copy of the statement he gave to a Mr. K. Kimmerly, made with respect to the event, on March 8, 2008. He had not made any notes of what happened on June 23, 2007. He sells a lot of tickets to the event as a favour to Mr. Vogler, who is a friend. He does not belong to the Lions Club. He attended the event as a patron, joined by his son and daughter-in-law. Over the 5 – 5.5 hours he was there, in total, he consumed “probably 4 beer” while moving around the SOP area. The crowd grew as the time for the Harley draw approached. He left after the draw. He did not see anyone remove liquor while exiting the main gate. Neither did he see any people staggering or needing to be held up as they walked out of the event, while acknowledging that he was not there looking for that type of issue. He also did not see an OPP cruiser when he left, although he had seen one earlier that evening.
Usually, it is a “very organized function”, according to Mr. Dame. He had not had any conversations with the other witnesses about what happened at the event, but gave his witness statement on the same day as Mr. Jacques, whom he knows only “to speak to”.
William (Bill) Stewart also testified for the Applicant. He owns the Lighthouse Cove variety store and, from it, also operates an LCBO agency store. For the past two years, has been President of the Lighthouse Cove Chamber of Commerce. While not a member of the Lions Club, he has attended their annual event for the past nine years and has never seen anyone intoxicated at those events. On June 23, 2007, he “popped in” twice to ensure that their supplies were fine and, during that time, did not observe anyone to whom he would not have sold alcohol. He has never heard of any incidents at this annual event where the police have had to be called in. After the draw, it “basically empties out”.
In cross-examination, Mr. Stewart said he has not been involved in discussions with respect to attaching any conditions to the SOP in order for the event to continue, notwithstanding his Chamber of Commerce involvement. He made no notes with respect to the event and signed his witness statement on March 10, 2008.
Mr. Stewart was aware of problems involving “the Township, the lease agreement (between the township and the Applicant regarding their parkland), and the OPP” that has been “going on for years” but only “coming to a head” now. Specifically, Mr. Stewart believes that the Lakeshore Council and the OPP want the Applicant to hire paid duty officers for “all (SOP) events” and not just the Applicant’s event. He believes the policy is there so the police will “make more money” and, to this end, he believes both the OPP and the AGCO Inspector are prepared to lie (that is, by making accusations that people at the event were rowdy). He thinks the Lakeshore Township council, the Lakeshore OPP and the AGCO are all in “on this hoax”.
Mr. Stewart sold $5,000 worth of liquor arising from the event’s SOP. He attended at the event, first about 5:30 p.m., and later, about 8:30 p.m., staying for about 10 minutes each time.
The next witness for the Applicant was Margaret Rose Dixon. Ms. Dixon has attended the Applicant’s annual event for the past 5 years, accompanied by her husband. She arrived “early”, had supper there, and left around 10:30 p.m., after the last draw and by which time the “place clears out”. She described the crowd as “mature”, saying the people are there to have fun, are not loud or rowdy, and enjoy listening to music and “maybe dance”. The crowd is drawn to the motorcycles: “everyone looks at them”. She saw no signs of intoxication, fights or rowdiness. She smelled marijuana faintly once, but never saw anyone smoking it.
In cross-examination, Ms. Dixon said she is not a Lions Club member. She does not socialize with Mr. Vogler. She signed her witness statement on March 5, 2008, having made no notes about what happened on June 23, 2007. From where she was seated in the pavilion that night, she could see people sitting and drinking by the canal. Guests buy tickets which, in turn, can be used for both food and liquor. She did not know exactly what the tickets sold for, just that they were “a good deal”. The motorcycles were parked along the fence and if she owned an expensive motorcycle, she would want it parked where she could see it. Some people were standing around and drinking, but not while seated on the motorcycles. She did not see anyone being held up by other people. One fellow got bumped and was made to stagger by an “over-anxious” female dancer as he was going to dance.
Mr. Victor Vogler testified for the Applicant as well. He has resided in Lighthouse Cove for the past 30 years and is a charter member and a charter president of the Applicant club, which was founded in 1983. Currently, he is its Treasurer and is in charge of getting SOPs and for running the “Harley Draw” event, which has taken place for the past 12 years and tends to get the “same people” coming out annually. Over the years, the value of the Harley motorcycle that is raffled off has increased as has the ticket price, while the number of tickets offered for sale has decreased. For example, originally 2,000 tickets at $20.00 per ticket were sold; this year (assuming an SOP is approved), they aim to sell 500 tickets at $100.00 per ticket.
The event is always held at the Lighthouse Cove & District Lions Club Park, which is a 4-acre parcel of land the Applicant has leased from Lakeshore Township since 1987. The Applicant is a charitable organization: money is raised and given away, back into the community. Some of the improvements made by the Applicant include adding a fenced in playground, pavilion, tennis court, asphalt walkway, and boat dock at the park. Trees have also been planted around the park, and the lands are maintained. A bus shelter for school children has been built. The park is used by the general public. Some of these improvements are shown and were identified by Mr. Vogler in the photograph brief (Exhibit 3).
The annual event has been the Applicant’s major (and only) fundraiser for the past 12 years, having tried other events, less successfully, in the past. The Applicant has never hired a paid-duty officer for the event before as there has been no need.
The municipality’s policy of requiring paid-duty officers at SOP events dates back to when the townships amalgamated about 9 years ago. The Applicant received an exemption to the policy based on “their history”. Initially, the Applicant was advised that its exemption was only good for one year; then, in 2006, they were granted a permanent exemption. The Applicant continues under that exemption to date even though in May, 2007, the municipal council’s CEO, Det. Sgt. Burton of the AGCO OPP, and Sgt. John Collins of the Lakeshore OPP were recommending their exemption be rescinded. When council defeated the motion, Sgt. Collins said he was sending four officers to the event “on overtime” anyway.
Mr. Vogler has been involved with the annual fundraising event since its inception. There has never been an incident or complaint about it. The night of the event in 2007, a cruiser was in and out of the parking lot most of the night, although no one ever got out of the cruiser. Mr. Vogler did not interact with those officers. In addition to them, he saw one person in the crowd, whom he assumed was a plainclothes officer but did not recognize a second one. In addition, the two liquor inspectors were there, but he did not know Inspector Holman until after the event.
Fifteen club members and 10 volunteers worked the event in 2007.
Regarding the allegations made by Inspector Holman that someone tried to leave the SOP area with two beer in his back pocket, Mr. Vogler said someone unknown to him told him that a man with two beers in his pocket was coming towards him. He told the man with the beer that he could not leave with it and to go back into the SOP area to consume it. Anyone else who brought beer to the main gate was made to throw it out before leaving. A “No beer in: no beer out” and a “No minors” policies were strictly enforced.
The woman leaving with the two men, who were her designated drivers, is known as “Tequila Sheila”. She “behaves that way” wherever she goes. She is very friendly and was waving goodbye to everyone as she left.
Mr. Vogler does not believe that passengers on the backs of three motorcycles that were leaving were consuming alcohol. He did not see anyone with beer leaving on a motorcycle and he was watching for it.
There were only two occasions where he saw anyone who was “near intoxication”.
The Applicant is resisting the paid-duty condition because is a completely unnecessary expense and also because the policy is based on “numbers alone” (i.e. with “x” number of people in attendance at an SOP event, “y” number of officers are required). Additionally, he worries that some people will feel intimidated by the police presence.
In cross-examination, Mr. Vogler said the Applicant’s total annual budget is $20,000. Each year, about $15,500 is spent on special projects, the balance for expenses.
The Applicant is agreeable to three conditions attaching to the SOP, as follows:
i. for the permit to end one hour after the draw, with all signs of service to be cleared 45 minutes after the event ends;
ii. for fencing to be installed along the dock area. In previous years, fencing was always there. In 2007, boat traffic had not been anticipated because the water levels in the canal were so low;
iii. for the guests to event staff ratio to be 50:1 and for all event staff to wear clothing making them readily identifiable. Normally, only one half of the main gate is open to guests entering and exiting the event. When Inspector Holman was there, both sides were open to allow the motorcycles egress. In other words, the sign reading ‘no alcohol beyond this point’, which is a temporary sign added for the event, is normally facing towards and is visible to the people leaving SOP area.
The Applicant does not agree with the other two conditions proposed by the AGCO. The motorcycles are a major draw for guests to the event. If the motorcycles were restricted to the field outside of the SOP area, he believes that people would stay and drink beer there, giving rise to a “general patrolling issue”. While he could not say that the event would fail if this condition were imposed, he believes it would be a “major impediment” to it.
The ‘paid duty’ officers’ condition is, in part, one of principle as much as it is that of money. He spoke of a ‘sister’ club that had to hire two paid duty officers for its event and “in three years, they had no event”. He believes that the police presence in the SOP area could intimidate the crowd, their presence driving people away.
Mr. Vogler was not “trying to mislead the Board” in saying that two undercover officers were at the event. He concluded that the Chatham-Kent officer he saw was there in an undercover fashion based on Sgt. Collins’ comments made at the May, 2007 council meeting.
Mr. Vogler estimates 300 – 400 people will attend the event if an SOP is granted for 2008. The reason for restricting the number of tickets to be sold is to take away (the Lakeshore OPP’s) argument relating to the number of paid duty officers necessary for crowds of certain sizes. He would prefer to leave the number of tickets sold at 1,000 (at $50.00 per ticket), but was out-voted by other members of the Applicant club. That the Applicant would make less money on liquor and raffle sales is secondary. Most of the club’s profit is made on the Harley draw.
Since the 2007 motion to rescind the Applicant’s exemption, the matter has not been back before council.
According to Mr. Vogler, for “10 of the past 12 years” the OPP has not been present at the annual event. Last year was the first year they showed a “permanent presence” in that they were outside of the SOP area for most of the evening, leaving on two or three occasions for 15 – 20 minutes and then returning. The officers never left the cruiser.
None of the Applicant members present at the event were there as guests. They ran out of sausages only at about 9:10 p.m. Mr. Vogler does not know how or why the ‘food’ part of the liquor/food sales’ sign got crossed out. The tickets were $3.50 each, but they were selling six for $20.00 to encourage people “to eat”.
About 10 days after the event, Inspector Holman tried to call Mr. Vogler at work a couple of times and left his name and telephone number only. Mr. Vogler learned that Inspector Holman had also tried to reach him twice at home, but had not left messages.
Although someone told him about a man coming (towards the exit) with the two beer in his back pockets, that person was not pointed out to Mr. Vogler. Instead, Mr. Vogler looked around to observe him. Mr. Vogler did not say anything in reply to the fellow who told him about this man but he told the man with the beer that he could not take it out. He told several other people the same thing.
According to Mr. Vogler, “Tequila Sheila” was intoxicated when she left the event at about 10:10 p.m. Also, a local man, who was “being friendly” when he left at about 10:15 p.m. “might have had a couple of beers” but was not “falling down drunk”. Mr. Vogler did not see any other intoxicated guests from his post at the gate.
Mr. Vogler was “inclined to agree” with Mr. Stewart that the “whole thing is a hoax between the AGCO, the Lakeshore OPP, and council” since “every year it’s the same aggravation”. Wondering about the police and AGCO presence at the event, he also questioned whether the incident involving the man with the two beer had been “orchestrated”.
In response to a question from the Board, Mr. Vogler agreed that the presence of uniform officers could be an inducement to some people to attend the event.
Mr. Dan Diemer, who is a local dairy farmer as well as municipal councillor, also testified for the Applicant. He has attended the event for the past 7 – 8 years and, last year, left about 10:30 p.m., when he noticed a police cruiser at the gate. He had not seen it earlier in the night.
According to Mr. Diemer, the event is “pretty much the same each year”; “it’s pretty quiet”. The crowd is older. There has never been any trouble before. He did not see any intoxication or rowdiness at the event.
As a councillor, Mr. Diemer voted in favour of giving the Applicant an exemption from council’s resolution requiring paid duty officers at events like that of the applicant, which exemption still stands.
In cross-examination, Mr. Diemer clarified that he was giving evidence at the hearing in his personal capacity. He has been a councillor since 1998 or 1999.
Mr. Diemer said he consumed six beer “at most” over the course of the evening. He did not smell any marijuana. The crowd thinned after the draw and was pretty sparse when he and his wife left the event.
The municipality’s general policy, which came into effect in 2000, is that all permitted events are required to have paid duty officers present, but exemptions are allowed. The Applicant club is so exempted, but he did not know by what number that motion at council had passed.
The (May 2007) motion to rescind the Applicant’s exemption was not passed, “by a majority” but again Mr. Diemer did not know the numbers.
Mr. Diemer volunteered his views that service groups, such as the Applicant, should not be discouraged because they do a great job of caring for the park and save taxes. Their efforts foster the community’s pride in its neighbourhood. Mr. Morris queried if his position in voting down the motion to rescind the Applicant’s exemption was politically motivated but Mr. Diemer disagreed. To him, the majority of council knew that “the party was tame enough. It didn’t need police protection”.
Mr. Arnold Nussey was the Applicant’s next witness. He owns a steel fabricating business and is currently the President of the Applicant club. He has attended the annual event for the last eight years. His job at the 2007 event was to announce the “15-minute winners”, which was done from a spot near the north-west corner of the pavilion.
Mr. Nussey did not see anyone showing signs of intoxication, which was the same as in previous years. One of the reasons he joined the Applicant club is because “everything runs smooth”.
The only time he has seen OPP presence at the annual event was in 2007. He did not see them interact with anyone, but the “stuck around all night”. He saw Bob Rose, a police officer from Tilbury, at the event; he was there as a patron.
In cross-examination, Mr. Nussey said two areas were set up for guests to purchase alcohol: one was in the pavilion; the other was under a tent in a shaded area to the south-east and near the barbeques.
From his position inside the pavilion, Mr. Nussey agreed that he is unable to give any direct evidence as to what was happening at the gate, where the motorcycles were parked, or in the barbeque or canal areas. In between draws, he went and checked the barbeque area.
He was about three feet from the dance floor and did not see any intoxicated guests bumping into each other there or elsewhere in the pavilion.
Next, Mr. Jacques Martin testified for the Applicant. He has attended the annual event since it started 12 years ago. His habit is to arrive early (i.e. about 15 minutes before the first draw) and leave after the last draw. As he was leaving, he saw a male with two beer in his back pockets try to get out the gate. He heard Mr. Vogler “call him every name in the market”. The man went back into the crowd and disappeared.
In cross-examination, Mr. Martin said that he first saw the male with the two cans of beer in his pockets near the motorcycle area. He tried to get out the gate but was turned back by Mr. Vogler. This man tried a second time, “maybe a couple of hours later”, to get out, again with two beer in his pockets, but was rebuffed by Mr. Vogler who used course language to that effect. He never saw the man again and does not know how he ultimately left the event.
In explanation for why there is no reference to this man in the witness statement he gave Mr. Kimmerly, Mr. Martin said he told Mr. Kimmerly about this man but that he “couldn’t put those words” (referring to the swear words Mr. Vogler had used) in the statement.
Mr. Martin, who does not drink alcohol, did not see anyone drunk at the event.
In response to a question from the Board, Mr. Martin said he has never before seen anyone with beer in their pocket(s) trying to exit the event.
Registrar’s Submissions
- The Registrar submits that the hearing is pursuant to s. 19(2) of the Liquor Licence Act (the LLA) and that the SOP should not be granted further to ss. 6(2)(d) of that Act. Mr. Morris, on behalf of the Registrar alleges that, at the 2007 event, the Applicant breached Ontario Regulation 389/91 (the O. Reg) as follows.
Permitted the removal of liquor (s. 26(2))
- The Registrar points to five alleged incidents: the three passengers on the motorcycle, the male with the two beer in his back pockets, the man who simply laughed and walked out of the event when Mr. Volger attempted to stop him, the male who continued drinking while walking out of the gate, and the three occasions mentioned by Inspector Holman. The Registrar urges that Inspector Holman’s observations were fair as well as detailed. Mr. Morris argues that the Inspector’s evidence should be preferred over that of either Mr. Vogler or Mr. Martin, the latter being prone to exaggeration according to the Registrar.
Permitted drunkenness (s. 32)
- There are six such alleged incidents from the Registrar’s perspective: the male who staggered in the pavilion area and bumped into other guests, a second male who staggered in the same area and bumped into the Inspector, the female being held up by the two male guests as she exited the SOP area, the two males who approached the gate (the one holding up the other), and the two individual males who staggered out of the gate while consuming alcoholic beverages. The condition of at least two of these guests is corroborated by Mr. Vogler’s testimony.
Insufficient food (s. 27)
- The Registrar submits two instances to support this contention: the crossing out of the word “food” on the sign which advertised the sale of food/alcoholic beverages; and, Mr. Vogler’s evidence that they ran out of food at 9:30 p.m., yet the event went on for some time after.
Allowed the immoderate consumption or discounting of alcoholic beverages (s. 18(1))
- That food/drink tickets were sold six for $20.00 or $3.50 each constitutes ‘discounting’ in the Registrar’s submission.
Allowed off-permit liquor to be brought onto the premises (s. 26(1))
- The Applicant admitted that fencing was not put up along the canal. As a result, a male got off a boat docked there while holding a beer and made his way up to the pavilion in the SOP area.
Allowed the removal of alcoholic beverages (s. 26(2))
- The same fellow, referred to in the previous paragraph, then went back to his boat, carrying full, closed cans of beer which he had purchased at the event. The Registrar is concerned that no competent licensee would sell unopened cans of beer and alleges that the servers at the event, some of whom were Smart Serve trained, knew or ought to have known they were selling beer that could be taken off premises. The Board is also urged to draw an adverse inference from the fact that none of the servers was called by the Applicant to give evidence.
Permitted use of controlled substances
- The Registrar argues that this behaviour falls within s. 6(2)(d) of the LLA and cites Liquor Licence Board’s Calabria Restaurant decision in support of this contention, there being no specific provision for this ‘offence’ within O. Reg 389. He urges that Mrs. Dixon’s testimony (in which she acknowledged ‘smelling marijuana’) corroborated that of Inspector Holman, who identified that four guests sharing a ‘joint’ on the east side fence of the SOP area and three other persons were smoking marijuana and drinking alcohol around the motorcycle area, in plain view of the barbeque area.
Had security insufficient to ensure unauthorized persons did not attend (s. 22(1))
The Registrar argues that in less than 30 minutes at the event, Inspector Holman saw eight breaches of the Act involving 17 incidents, making it a place that was out of control; Inspector Holman wanted to pull the Applicant’s permit, but felt it was not safe to do so. The Applicant had assigned its members (plus some volunteers) to specific duties, such as selling tickets, minding the gate, and so on, but no one competent was doing security.
More generally, the Registrar submits that the Applicant’s witness’s evidence should be discounted because none of them made notes contemporaneous with the event. He suggests they were all sympathetic to the Applicant, knowing it was having difficulties obtaining a permit for this year’s event. None were independent: either they were friends of the Applicant’s members, were working for the Applicant, or supported its endeavours. The Registrar also challenged the credibility of their testimony in various ways: it was variously confrontational, defensive, exaggerated, reckless, or unprepared.
The breaches, the Registrar submits, were all proven, were multiple, were serious, and occurred in a short period of time. The AGCO had originally put forward five conditions for a SOP to be granted to this Applicant, three of which were acceptable to it, but given the attitude of the Applicant’s administration, the Registrar now does not believe the event would be run properly even with those conditions. He submits that the hearing was about Mr. Vogler and his ego, and the concern that there is a conspiracy against the event, and not about the cost (about $1,000) to the Applicant to have paid duty officers there. In the all, the Registrar concludes that while the Applicant provides good works, public safety is more important.
Applicant’s Submissions
Mr. Bradie, on behalf of the Applicant urges the Board not to accept Inspector Holman’s evidence. The Applicant has held 15 SOP events in the last 12 years; their time and efforts have produced charitable and community-minded works. In those 12 years, no charges were ever laid as a result of the Applicant’s events. There has never been a fight. No one has been arrested on their way home, charged with public intoxication or otherwise. Members of the municipal council, who are elected as well residents of the area, have determined the Applicant will be exempted from their overall policy requiring paid duty officers at SOP events. One month before the event in 2007, the matter came before council again. An exemption was again allowed the Applicant, over the opposition of the council’s CEO and the Lakeshore OPP. While the Registrar suggests that the granting of the exemption was politically motivated, neither the CEO nor anyone on behalf of the Lakeshore OPP was called by him to testify.
Furthermore, either one of the two OPP officers who spent considerable time outside the SOP area gate, in the parking lot and, more generally, in the area of the event should have given evidence. Their testimony was relevant, especially if what was seen there was as lawless as the Registrar intimates. Also, they could have shed light on why an OPP cruiser was there for the event. Mr. Bradie submits that it is more than a coincidence that all of the alleged incidents happened just a month after the motion to rescind the exemption was defeated against the wishes of the council administration and the OPP. To him, it is not surprising that Mr. Stuart has the “temerity” to say that there may be a conspiracy, a hoax, or hidden motives at work in the circumstances, culminating in this hearing.
The Applicant asks the Board to consider the possibility that things were not as bad as Inspector Holman said they were, if public safety was the important issue. Otherwise, he would or should have done something. Besides, he was accompanied by a(n) (AGCO seconded) OPP officer and there were two (regular) OPP officers in the cruiser available to help him.
In the Applicant’s submission, the witnesses did not need to make notes because they had no reason to believe that what went on (or not) the night of the event would become an issue. All of the witnesses are upstanding members of the community, who swore oaths to tell the truth at the hearing. There is no motivation for them to perjure themselves: to avoid a requirement to have paid duty officers at this year’s event is insufficient.
The Applicant has proceeded with this hearing out of ‘principle’, not ‘ego’. The Applicant has earned the right to control the event without being required to have paid duty officers there for several reasons, including the history of the club and its special (exempt) status. He urges as well that, logically, someone as bright and articulate as Mr. Vogler would not have allowed the inappropriate conduct described to go on, risking the Applicant’s SOP status, in the context of an OPP cruiser parked so close by for so long as time.
Registrar’s Reply
- The Registrar submits that OPP evidence was not required since the Board knows what they want, that is, that paid duty officers be required at the event. He asks the Board to give weight to Inspector Holman’s views as to the resources needed to control the “lawlessness” that night, in view of his experience.
Reasons/Analysis and Decision
Having carefully considered all of the evidence and the submissions, and for the following reasons, the Board approves the Application for a Special Occasion Permit, with certain conditions attached.
The conditions which shall attach to the SOP are:
The SOP shall end at 11:00 p.m., with all signs of service to be cleared by 11:45 p.m.
The guest to staff ratio shall not exceed 50:1
Event staff shall not consume alcoholic beverages while on duty or volunteering at the event
Event staff shall be readily identifiable as such
There shall be either a 6-foot or a double snow fence around the entire perimeter of the SOP area.
These conditions are reasonable and appropriate in this case. What’s more, the Applicant consents to them and they are conditions originally proposed by the Registrar.
The condition which requires the perimeter of the SOP area to be fenced should address any potential concerns regarding the potential removal of liquor from the SOP area or, conversely, its carriage into there.
The Board declines to add any other conditions to the SOP, although the Registrar had originally proposed two other conditions be attached, that is, that no motorcycles be allowed in the SOP area and that the Applicant be required to hire paid duty officers for the event. (The Board recognizes that, in his submissions, the Registrar’s representative sought an outright dismissal of the Application.) The Applicant opposed these two conditions. In the Board’s opinion, neither one is necessary, based on the following evidence and factors:
the annual event typically draws an older, quiet crowd;
there has never been any charges laid by the OPP nor any AGCO enforcement-related violations in relation to the annual event since its inception some 12 years ago
the extent of the OPP presence at the event in 2007 was remarkable in that it was substantially more than in previous years
no charges were laid in respect of the event in 2007 which is significant, given the number of incidents/violations Inspector Holman reported to have seen that night
there was sufficient OPP and AGCO presence at the event to act upon even some of the violations (even if not all of them due to safety concerns)
In the Board’s view, if the incidents were as numerous and serious as alleged by Inspector Holman, taking place in the approximately one-half hour he was there, then not only did he have the authority, he also had a duty to take some action, even if it was to address only a little of what he observed. The lack of intervention by either the Inspector or the OPP officers leads the Board to conclude that the nature and extent of the incidents was not as grim as alleged. In addition, Inspector Holman’s evidence lacked readily available corroboration, either by Det. Sgt. Burton or by either one of other OPP officers, all of whom were in attendance that night.
Moreover, the Board finds the reason for not taking action (i.e. that it would not be safe to do so without significantly more personnel) to be specious. If the event had become as lawless as is alleged by the Registrar, the public’s safety required something to be done immediately. Instead, Inspector Holman did not even inquire as to what resources might be available to him to shut down the event. Furthermore, he did not identify (or make any attempt to identify) himself to Mr. Vogler, whom he knew to be a member of the Applicant club, with a view to addressing or dealing in any way with his considerable concerns. Rather, Inspector Holman waited about 10 days before making a few attempts to contact Mr. Vogler, and then did not identify his association with the event or his purpose in calling. Only when the application for a SOP was denied were the AGCO’s significant allegations made known. All of the foregoing supports a conclusion that Inspector Holman, Det. Sgt. Burton, and the OPP officers in the cruiser had no real concerns about what was taking place at the event.
There is also the question of whether motorcycles should be allowed in the SOP area. The Registrar’s and the Applicant’s evidence conflicts on this issue, but the Board prefers that of the Applicant’s witnesses over that of Inspector Holman. The Board accepts the Applicant’s argument that having the motorcycles in the SOP area for viewing is a draw for the event and integral to its success. Inspector Holman acknowledged that there are no motorcycle gang-related concerns. Based on the evidence before this Board, there is no compelling reason to exclude the bikes from inside the SOP area.
Generally, the Board believes that the witnesses did not make notes about the event because there was nothing particularly noteworthy about it. Contrary to the Registrar’s submission, the Board receives their testimony as forthright, even if it seemed ‘testy’ at times. Also, it came from a number of different perspectives, and did not seem motivated by friendship with the Applicant’s administration.
Based on the evidence before it, the Board accepts that the Applicant intended to encourage the purchase of food, rather than the consumption of alcohol, in the pricing of the food and beverage tickets at the event. The Applicant is reminded, however, of its responsibilities to ensure that the price of alcoholic beverages sold at its event is not to be discounted.
The Board finds the evidence conflicting and limited as to whether unopened beer was provided to guests at the event. It believes the Applicant is aware that all beer is to be opened before it is served.
Of concern, and as was conceded by Mr. Vogler, there were two possible incidents of drunkenness at the event, that is, the woman colloquially known as ‘Tequila Sheila’ and the male being held up by a friend as he left. Other evidence also suggests the possible use of marijuana at the event. None of these behaviours are condoned by the Board in coming to its decision and the Applicant must always meet its responsibilities not to permit as well as to prevent and deter such behaviours. However, the evidence before the Board on this matter again was conflicting and limited and, on balance, the Board could come to no determination that drunkenness or the use of narcotics occurred at the event.
The Board finds the Applicant did not run out of food as alleged by the Registrar at the event. Around 9:30 p.m., there were no more sausages, but otherwise there is no evidence that other food did not remain available to the guests.
Finally, the Board’s decision is not linked in any way with the municipality’s decision to exempt the Applicant from the requirement to have paid duty officers at SOP events. However, the Board points to it as another reason for finding that there is no need to make this a condition to the SOP being issued.
Conclusion
- For these reasons, the Board APPROVES the Application for a Special Occasion Permit No. 16017 (the SOP), dated January 18, 2008, to the Applicant, LIGHTHOUSE COVE & DISTRICT LIONS CLUB (the Applicant), 999 Quenneville Drive, R. R. #5, Tilbury, Ontario, N0P 2L0, and attaches the following conditions:
The SOP shall end at 11:00 p.m., with all signs of service to be cleared by 11:45 p.m.;
The guest to staff ratio shall not exceed 50:1;
Event staff shall not consume alcoholic beverages while on duty or volunteering at the event;
Event staff shall be readily identifiable as such;
There shall be either a 6-foot or a double snow fence around the entire perimeter of the SOP area.
DATED AT TORONTO THIS 25th DAY OF April , 2008
S. GRACE KERR, BOARD MEMBER DAVID C. GAVSIE, CHAIR, AGCO
SGK/ee