Registrar, Alcohol and Gaming Commission of Ontario v. 1197801 Ontario Inc., 2008 CanLII 52550

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 of Ontario (Registrar)

-and-

1197801 Ontario Inc. O/A Body English/Body Rok (Licensee)

DECISION ON FINDINGS

Panel: David C. Gavsie, Chair Alex McCauley, Board Member

Decision Date: September 4, 2008 Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances Registrar, Alcohol and Gaming Commission: Richard Kulis, Representative 1197801 Ontario Inc., Licensee: Joseph Irving, Representative

Authorities R. v. 1052928 Ontario Ltd. (c.o.b. Hooterville Station), [1998] O.J. No. 2367 Ice, AGCO unreported decision dated August 18, 2008 Commercial Tavern, [2006] O.A.G.C.D. No. 580

Allegations

1A hearing into a Notice of Proposal 16233 dated April 28, 2008 to suspend liquor licence number 100072 issued to 1197801 Ontario Inc. (the "Licensee") operating as BODY ENGLISH/BODY ROK, 1325 Eglinton Avenue East, Unit 1-6, Mississauga, Ontario, L4W 4L9 (the "Premises"), 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), was held on August 25, 2008 in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3An ORDER to exclude witnesses was made on consent.

Registrar's Evidence

4Kristina Arnold is a Police Constable with the Peel Regional Police (PRP). P.C. Arnold stated that she entered the Premises on June 23, 2007 at approximately 1:40 a.m. She stated that the Premises has a large capacity, but that night there were only about 150 persons in the Premises. In her words it was a quiet night.

5P.C. Arnold observed a patron at the north end of the bar walking in a westerly direction through the bar. She stated that the patron had difficulty walking. She continued to observe this person and saw him walk into a pillar and bounce off it. It was her opinion that this person was probably intoxicated.

6P.C. Arnold then saw the patron enter an area through a doorway marked "employees only". She followed him into that area which led to a patio not in use. D/Sgt. Randall Cowan followed P.C. Arnold into the patio area. The two officers spoke to the patron. He identified himself as Michael Maxwell.

7Mr. Maxwell stated he was looking for an exit. In addition, Mr. Maxwell stated that he had a lot to drink and he had about 5 drinks at the Premises. Mr. Maxwell also said that he had consumed some drinks before arriving at the Premises.

8P.C. Arnold described his speech as slow and deliberate. She stated he was unsteady on his feet, his eyes were red rimmed and he had an odour of alcohol on his breath. Security arrived on the scene virtually immediately, took charge of Mr. Maxwell and escorted him out of the Premises.

9The witness next saw Mr. Maxwell outside the Premises. He was seated on the curb with his head in his hands. Mr. Maxwell stated that he had been in the bar about 2 hours and just wanted to go home. He resided in Waterloo. The witness left the premises at approximately 1:50 a.m.

10On cross-examination, P.C. Arnold stated that security arrived immediately on the scene when she was dealing with the intoxicated male person. Security took charge of Mr. Maxwell and escorted him out of the premises.

11She stated that no one was on the patio when she arrived there to confront Mr. Maxwell.

12Acting Staff Sergeant Randall Cowan is with PRP. He attended the Premises on June 23, 2007. He arrived at approximately 1:40 a.m. He was in the company of P.C. Arnold with whom he entered the Premises.

13Upon entering the Premises the witness observed the intoxicated male later identified as Mr. Maxwell. The witness believed Mr. Maxwell was intoxicated due to his physical movements. Mr. Maxwell was literally bouncing off the walls. The witness noted other indicia of intoxication such as red rimmed eyes and an odour of alcohol on Mr. Maxwell's breath.

14The witness corroborated the evidence of P.C. Arnold. He stated that security arrived simultaneously to them. He stated that it is not unusual because there is generally a heightened awareness by security when the police enter the Premises.

15S/Sgt. Randall Cowan further stated that he had a discussion that night with the manager, Brian Mitchell. He advised Mr. Mitchell of the intoxicated person and advised him to be watchful for persons in that condition.

16On cross-examination, the witness stated that he did not give the intoxicated person's name to Mr. Mitchell.

17When he first observed Mr. Maxwell, there was no security staff near him even though he was intoxicated.

18P.C. Jason Watson is with the PRP and attended the Premises on Body English June 23, 2007 with P.C. Arnold and S/Sgt. Randall Cowan. He did not recall entering the Premises and made no observations as to the intoxicated male person encountered by the previous two witnesses.

Licensee's Evidence

19The Licensee did not present any evidence.

Registrar's Submissions

20The evidence is sufficient to show that Mr. Maxwell was intoxicated on the Premises. The unrefuted evidence of the police officers show ample indicia of intoxication, staggering, bumping into pillars and the amount of alcohol consumed. This person would have been intoxicated.

21Mr. Kulis' further submission was with regards to "permit drunkenness". The police upon entering the Premises immediately observed the intoxicated male person. Staff and security should have seen him as well before the police entered. Security was on heightened alert only after they knew that the police were on the Premises.

22Mr. Kulis then submitted the following cases for the Board's review, Hooterville Station and Ice. The former, a decision of the Ontario Court (General Division), Divisional Court (court file 266/97) stated in part:

"Without in anyway ruling on whether or not the defence of due diligence is open to the appellant, if such an offence exists to be sustained the appellant must show not only that an adequate plan to prevent infractions had been devised, but had in fact been carried out and that in spite of such efforts the infraction still occurred. Here there is no explanation as to why the staff of the licensed premises were not off to see the infractions that were obvious to the inspection."

23Ice was a decision of the Board dated August 18, 2008. Ice was the operation name for Rhythms Restaurant & Night Club Inc. Specifically, Mr. Kulis referred to paragraphs 37 and 38 of the decision which reads as follows:

"37. Next, the Board must determine if the Licensee permitted the intoxication for which the finding has been made. The Board agrees with the principle as established in 473954 Ontario Ltd., in that permit drunkenness simpliciter is a breach of the O. Reg. The Board agrees with the Registrar that this principle should be applied in this case.

38. Further, according to the Commercial Tavern decision, the onus is at all times on the Licensee to deter as well as prevent drunkenness on their premises. Again, the Board agrees with this concept and applies it to the facts of this case. Licensees are responsible to assess and remove any person(s) appearing to be intoxicated at the first reasonable opportunity, promptly and appropriately. The evidence in this case establishes that no steps were taken by the Licensee to prevent the patron, who was already intoxicated, from entering the premises in the first place. In fact, the Licensee admits to this fact. Once in the establishment, the Licensee took absolutely no steps to remove the patron; rather, this is what the police officers ultimately proceeded to do. For all of these reasons, the Board FINDS that the Licensee has violated subsection 45(1) of the O. Reg."

Licensee's Submissions

24Mr. Irving submitted that the Licensee did act appropriately. The arrival of security to deal with the intoxicated person was contemporaneous to the arrival of police on scene.

25Mr. Irving drew the Board's attention to the decision of the Alcohol and Gaming Commission, in the matter of Commercial Tavern, a 2006 decision of the Commission, specifically paragraphs 35 through 37 of that decision which reads as follows:

"35 In the Board's view, the instant case is much closer to the facts in Tara-Inn, a 2005 decision of Board Member Allan Higdon. In that case, as in this, the patron's intoxication was not clearly apparent as the individual in question might also have suffered mental problems. In the circumstances staff kept an eye on him and refused to serve him. The patron became violent and police were called. The police testified that the patron was smelling of alcohol and appeared intoxicated. It was asserted that because the Licensee had no door staff on and had allowed the patron into the Premises, the Licensee was permitting drunkenness. The Board disagreed. In its view, in the circumstances once the licensee became aware of the problem it acted in a responsible and expeditious way. Further, the Board cites in their decision "Regrettable incidents may happen occasionally in a public facility. They must be dealt with in a prompt, safe and responsible manner by the licensee."

36 The Board agrees that there is an onus on all Licensees to prevent and deter drunkenness on their premises. The Board also is of the mind that realistic expectations have to be applied to the enforcing of the law. In this case, the intoxicated person came into the Premises and at first blush appeared fine. When it was apparent that this was not the case, shortly after her appearance in the establishment, steps were taken to deal with the matter in a responsible fashion. We find that this is a regrettable situation but was dealt with promptly by the Licensee.

37 It is the view of the Board that it is virtually impossible to scrutinize patrons to the point that someone will not slip through. When this happens, it becomes incumbent upon licensees to ensure that they are prudent in their oversight in the premises, and when a problem is discovered it is handled promptly and appropriately. The Licensee had a system of oversight, Judy Cheverie was observed coming into the establishment and she appeared fine. When it was realized she was not, action was taken within minutes of her arrival. In the Board's view this does not constitute permitting drunkenness."

26Mr. Irving argued that the decision in Commercial Tavern supported the position of the Licensee. When the Licensee became aware of the problem it took immediate action to deal with the problem. Mr. Irving argued that the Licensee acted promptly and nothing more could be asked of the Licensee.

Analysis and Decision

27There is unrefuted evidence before the Board from the police witnesses in this matter that a male person identified later as Michael Maxwell presented strong symptoms of intoxication in the Premises. He was observed by police while walking in the Premises. The Board accepts this evidence.

28Mr. Maxwell was confronted by the police officers and subsequently removed from the Premises by the establishment's security. The Board concludes that the patron, Mr. Maxwell, was intoxicated in the Premises on the night in question.

29The Board must now determine if the Licensee permitted the intoxicated person to be on the Premises.

30The evidence of P.C. Arnold was that the Premises that night, in her opinion, was not busy. She said the Premise has a large capacity and there were about 150 patrons there. In her words it was a quiet night.

31Licensee's counsel argued that the security staff were doing their job. They arrived on the patio to deal with the intoxicated patron immediately, contemporaneous to the police arrival. The evidence of the police officers, specifically S/Sgt. Cowan, is that there is heightened security attention once the police are on the premises.

32Licensee's counsel argued that this is a similar fact situation to the events in the cited Commercial Tavern. The Board does not agree with counsel on that argument. In Commercial Tavern events happened virtually simultaneously with Ms. Judy Cheverie's arrival in the premises. In this matter before the Board, Mr. Maxwell stated to the police officers that he was on the premises for 2 hours, and he stated that he had consumed at least 5 drinks while in the establishment. This evidence was not refuted by the Licensee. Mr. Maxwell also stated that he had consumed alcohol prior to attending at the Premises that night. The Board accepts this evidence.

33Mr. Maxwell was immediately obvious to the police, when they entered the Premises. They did not need to seek him out. The evidence of the police witnesses was that there was no staff or security attending to Mr. Maxwell before the police took an interest in him.

34The Premises was not busy that night. It would be easy to monitor the patrons. It is the opinion of the Board that Mr. Maxwell was on the Premises in an intoxicated condition for some time prior to the police identifying him. Mr. Maxwell did not suddenly become drunk when the police arrived. It is the opinion of the Board the Licensee permitted Mr. Maxwell to be in the Premises in an intoxicated condition.

Conclusion

35The Board FINDS that the Licensee has breached subsection 45(1) of the O.Reg.

36The 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.