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 of Ontario
Registrar
-and-
1197801 Ontario Inc. O/A Body English/Body Rok
Licensee
DECISION ON FINDINGS
Panel: Beryl Ford, Board Member Jacqueline Castel, Board Member
Decision Date: September 16, 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 ) Joyce Taylor, Representative 1197801 Ontario Inc., Licensee ) Joseph Irving, Representative
Authorities
Sand Bar, [1999] O.A.G.C.D. No. 64 Heart & Crown Pub & Restaurant, [1999] O.A.G.C.D. No. 288 977619 Ontario Inc. v. Ontario (Registrar of Alcohol and Gaming), [2000] O.J. No. 5297 Commercial Tavern, [2006] O.A.G.C.D. No. 580 Shooters 222 Restaurant Ltd. v. Ontario (Alcohol and Gaming), [2004] O.J. No. 5595
Allegations
- A hearing into Notice of Proposal (“NOP”) number 15828 dated December 3, 2007, 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, (the “establishment”), on the basis of alleged violations of subsections 45(1) and (2) of Ontario Regulation 719/90 (“O.Reg”) prescribed under the Liquor Licence Act (“LLA”), was held on July 29, 2008. On the request of Ms Taylor and with the consent of Mr. Irving, the Board agreed to accept written submissions.
Decision
- After carefully considering the evidence and submissions, the Board FINDS the Licensee contravened subsection 45(1) of the O.Reg. The Board DISMISSES the allegation under subsection 45(2) of the O.Reg. Reasons follow.
Preliminary Matters
- The Board ORDERED that witnesses be excluded on the consent of the parties.
Licensee’s Evidence
Constable Jason Watson has been a member of the Peel Regional Police for the last twelve years. He is presently assigned to the Vice Unit of the Morality Bureau. Constable Watson visited the establishment on April 20, 2007 with Detective Cowan and Constable Viozzi. They were not wearing police uniforms. He was, however, wearing a police vest which identified him as a police officer on his back.
They arrived at the establishment at approximately 1:05 a.m. on April 20, 2007 in an unmarked police van and observed a male patron exiting the side door with a Security Officer (“Adam”). The patron was extremely intoxicated. He exhibited very slurred speech, bloodshot watery eyes, was very unsteady on his feet, and barely able to stand without falling over. He is identified as “JC”, born in 1987 and living in Brampton, Ontario. JC told Constable Watson and his colleagues that he had consumed four or five Coronas, over a period of two to three hours. Adam told Constable Watson and his colleagues that JC also consumed an unknown quantity of Polar Ice vodka in the bottle service area of the establishment. On cross-examination, Constable Watson admitted that he did not ask the staff in the bottle service area whether JC consumed vodka (or anything else) and, if so, how much. He also admitted that he did not question the employees of the establishment about whether they sold Polar Ice vodka or check whether there were any receipts confirming that JC purchased Polar Ice vodka. Constable Watson said he believes they were still in the police van when they were talking to Adam and JC.
Constable Watson stated he has confidence in the Security staff at the establishment. He believed that Adam would ensure that JC got home safely. It was his understanding, at this time, that Adam was going to call JC a taxi.
Constable Watson entered the establishment at approximately 1:30 a.m. According to his notes, at 2:21 a.m. he smelt freshly burnt marijuana coming from the west side of the dance floor. He and his colleagues were unable to determine where the smell of marijuana was coming from. They did not observe anyone smoking a marijuana cigarette.
Constable Watson did not make a note of the patron count in the club. He did not recall it being either packed or dead.
They left the establishment at 2:30 a.m..
Mr. Irving introduced, as Exhibit 1, a three page floor plan of the licensed areas of the establishment. Constable Watson stated that the floor plan is an accurate representation of the interior layout, except he has no knowledge of the back-of-the-house rooms or hallways, areas he would not normally have reason to access.
On cross-examination, Constable Watson admitted that he had attended the establishment on prior occasions and found the Security staff to be professional. However, he noted that even the best efforts of the Security staff may not fix all problems or prevent all infractions.
On cross-examination, Constable Watson stated that the smell was of freshly burned marijuana as opposed to a lingering smell. He believes the marijuana was extinguished before they left at 2:30 a.m. He did not recall speaking to the Security staff about the marijuana. Although he and his colleagues made an effort to look for the marijuana cigarette, they could not find it. Constable Watson received training in identifying the odour of marijuana in a controlled setting at the Ontario Police College in 1996. He has also encountered marijuana while working as a police officer over the last twelve years.
After leaving the establishment at approximately 2:30 a.m., he and his colleagues monitored the crowd leaving. They noticed JC, now with a sober male companion, in the north east parking lot. At sometime between 2:30 and 2:45 a.m., he videotaped JC. In response to a question, Constable Watson stated that JC was not disorderly while outside the premises.
On re-examination, Constable Watson explained that he did not arrest JC for public intoxication because he was confident his companion would look after him. As such, there was no reason to be concerned for JC’s safety.
Constable Michael Viozzi has been a member of the Peel Regional Police for thirteen years. He is presently assigned to the Vice Unit of the Morality Bureau. The Vice Unit is responsible for LLA enforcement, illegal gaming, and prostitution. When asked to elaborate on his experience detecting drunkenness, Constable Viozzi indicated that he has encountered impaired patrons almost daily throughout his thirteen year career on the Peel Regional Police. Constable Viozzi’s experience in the area of controlled substances and drugs includes working in the Street Crime Unit for three years and issuing fifty to one hundred search warrants relating to drugs.
Constable Viozzi arrived at Body English/Body Rok with Detective Cowan and Constable Watson at approximate 1:10 a.m. on April 20, 2007. They arrived in an unmarked van and were not wearing police uniforms. The only thing which would have identified him as a police officer was the identification badge he was wearing around his neck. On arriving, at the west side of the establishment, he and his colleagues observed a male patron being escorted out of the premises by a Security Officer. The patron appeared to be intoxicated. He could not stand or walk on his own without the assistance of the Security Officer. He and his colleagues exited the van and approached the Security Officer and patron. When he got closer, he noticed that the male’s speech was slurred, his eyes were bloodshot, and he was very unsteady on his feet. He observed the male almost fall off the curb, at which point they had him sit on the curb. Constable Viozzi testified that he did not believe the male could have stomached one more alcoholic beverage, as he appeared to be holding back vomit the entire time they were speaking to him.
Constable Viozzi’s evidence on the identity of the male customer (“JC”) and the amount of beverage alcohol he consumed in the establishment was identical to Constable Watson’s. They did not arrest JC because the Security Officer was going to either call him a taxi or locate a sober friend to accompany him home. The Security Officer assured them he would not let JC drive.
After speaking with the Security Officer and JC, Constable Viozzi and his colleagues re-entered the van, checked the parking lot, and then drove to the east side of the building. On the east side of the building, they saw JC, now with a male companion. Constable Watson videotaped JC. Constable Viozzi was satisfied the companion was going to make sure he got home safely. On cross-examination, Constable Viozzi admitted he did not make a note of Constable Watson videotaping JC.
After speaking with JC and his companion on the east side of the building, they entered the establishment. He noticed that a female wearing a black and white dress appeared to be intoxicated. She was unsteady on her feet. He believed she was consuming rum and coke. He did not engage the woman in conversation.
On the west side of the bar, Constable Viozzi detected a strong smell of marijuana which they were unable to locate. Constable Viozzi said he personally advised a Security Officer that someone was smoking marijuana in the premises. In response to a question, he stated that when they informed Security of the smell of marijuana, Security searched for the source of the smell. Constable Viozzi and his colleagues departed at 2:30 a.m., shortly after informing Security of the smell.
Detective Randall Cowan has been a member of the Peel Regional Police for twenty-three years. He is in charge of the Vice Unit, Morality Bureau. He attended the establishment on April 20, 2007 with Constables Watson and Viozzi. They arrived at 1:08 a.m. in an unmarked van. Constable Viozzi was driving. Detective Cowan was in the passenger front seat, and Constable Watson was seated behind him. He did not recall whether he was wearing a police vest and tactical pants, but normally that would be what he would wear when performing bar checks.
When they arrived, he observed a Security Officer escorting a male out of the west side door of the establishment. The male customer appeared not to want to leave. He was stumbling and being assisted by the Security Officer. From inside the van, the male customer looked like he was either injured or intoxicated. When they got out of the van and approached the male, Detective Cowan noticed he was very unsteady on his feet. He was concerned for the customer’s safety and asked him to sit on the curb so he did not fall over. He did not know how long the customer would be able to stand unassisted. When he and his colleagues began speaking with the customer, Detective Cowan noticed his speech was slurred. He also smelled strongly of liquor. Detective Cowan’s evidence on the identity of the customer (“JC”) and the amount of beverage alcohol he consumed was the same as Constables Watson and Viozzi’s. The only small variation was that according to Detective Cowan, Adam told them the JC consumed an unknown quantity from a 26 ounce bottle of Grey Goose or Polar Ice vodka in the bottle service area. Constables Watson and Viozzi did not specify the size of the bottle and testified that the type of vodka was Polar Ice.
They subsequently drove around the parking lot and saw JC sitting on the curb at the east side of the parking lot with a male companion. Detective Cowan and Constable Watson got out of the van. Detective Cowan could not recall whether Constable Viozzi got out of the van. Constable Watson videotaped JC. JC and his friend told the police officers they were waiting for a ride. They did not arrest JC for public intoxication because his friend was sober and said he would get the male home safely.
Detective Cowan and his colleagues entered the establishment at approximately 1:36 a.m. and did a walk through to check for any LLA violations. In the bottle service area, Detective Cowan observed two males drinking Grey Goose vodka. One of the males poured a large amount of vodka in a glass, causing it to overflow and spill. The male stumbled slightly. He did not mention this to Constable Watson or Viozzi.
Detective Cowan detected a strong smell of burning cannabis which seemed to be coming from one of the groups in an alcove on the west side of the establishment. Detective Cowan informed a Security Officer that people were smoking marijuana. In response to a question, Detective Cowan said he was exposed to the smell of marijuana in a controlled environment at the Ontario Police College. He also witnessed marijuana while he was in high school and, as a police officer, has been involved in a number of drug arrests. On cross-examination, he acknowledged that he did not record anything about the marijuana in his notes. He also acknowledged that the smell of marijuana would not likely give him reasonable or probable grounds to conduct a search.
Detective Cowan spoke with Mr. Brian Mitchell, the manager of the establishment, about the bottle service area and the smell of marijuana, before leaving. Mr. Mitchell told him they did not have a handle on the bottle service area. Detective Cowan walked around the establishment one last time and then departed.
On cross-examination, Detective Cowan indicated he had attended the establishment on previous occasions, although the establishment’s name would have been different. Body English/Body Rok began operations shortly before April 19, 2007. Before the establishment opened under the new name, he attended a meeting with Mr. Petruzziello, the owner, and members of the Peel Regional Police. At this time, Mr. Petruzziello described the security plan for the establishment and gave him a binder with detailed security procedures. Mr. Petruzziello also described the security cameras and offered to provide an on-line link up for the police. He found Mr. Petruzziello and Mr. Mitchell to be honest and open. He declined the offer for an on-line link up because of privacy and other issues. Detective Cowan indicated that the security plan was good, but he communicated to the Licensee that actions are what really matter.
Licensee’s Evidence
Mr. Todd Pereira is the establishment’s Security Manager. As Security Manager, he is responsible for hiring, training, scheduling and payroll for the Security department. He is also responsible for ensuring all Security employees have their Smart Serve certifications and for liaising with police, where necessary. In addition, he is employed part-time at a retail LCBO store in Oakville. To work for the LCBO, he had to go through a special type of Smart Serve training.
Mr. Pereira indicated that his shift at the establishment normally begins at 9:30 p.m. There would be at least eighteen Security staff working on a shift. He holds a pre-shift meeting with his staff before the establishment opens to the public at 10 p.m. At the pre-shift meeting, he reviews security procedures and updates his staff on anything special going on at the establishment that evening.
Mr. Pereira explained that there is only one entry to the establishment for patrons. Everyone is searched by hand and with a wand before they enter. Male Security Officers search males, and female Security Officers search females. When searching customers, they are looking for both contraband and weapons. Purses, including change purses, and packages are searched. They also check cigarette packages for joints. They do not allow any types of gels in the establishment. Everyone is checked in the same way. If something is found, it is thrown out and the person is not allowed to enter the establishment. Mr. Pereira indicated that it would only be possible to bring drugs into the establishment if customers hid the drugs in places, such as their undergarments, where civilian Security staff are not permitted to search.
Everyone’s identification is also checked before entry is permitted. Staff are taught to strike up a conversation with customers when they’re checking identification to determine whether customers are showing signs of intoxication. If they are showing signs of intoxication, they are not allowed in.
When there are issues or problems during a shift, Security Officers inform him via radio and then he meets with them. Mr. Pereira was working on April 19/20, 2007. He remembers being informed of the intoxicated male who was escorted out of the premises on April 20, 2007. He also observed the patron briefly. He does not recall the Security Officer propping the patron up or supporting him, however. He also does not recall his staff informing him of the allegation about the smell of marijuana. The first time he heard about the latter allegation was when he read the NOP. On cross-examination, Mr. Pereira admitted that he remembers greeting the police officers on April 19/20, 2007, but he did not speak to them. He was not present when the police officers were speaking to the intoxicated patron.
Mr. Pereira said the patio doors would have been open on April 19/20. Smoking is only permitted in the patio. If anyone is caught smoking inside, he or she is ejected. They have had no difficulty enforcing the ban on smoking in the establishment. The lighting in the club is darker than a regular restaurant, but you can see for a fair distance without any problem. The light from a cigarette would be visible right away.
Mr. Pereira indicated he does not know what marijuana smells like when burned. He is not aware of any training programs to acquaint civilian security staff with the smell of marijuana. He indicated that he has smelled types of tobacco, such as colt, which smell different than typical cigarettes.
Mr. Pereira did not remember the patron count on April 19/20. However, he indicated that the establishment was not overly crowded.
The Licensee implemented remedial measures in May 2007 in the bottle service area to reduce the risks of customers becoming intoxicated. First, there is now a roam team dedicated exclusively to the bottle service area. The members of the roam team do not serve drinks. Rather, their sole job is to monitor the bottle service area for LLA compliance. Complimentary bottles of water are given to customers in the bottle service area. Between 12:30 a.m. and 1 a.m., trays of complimentary sandwiches are also given to customers in the bottle service area. The industry standard is to require a minimum of three patrons at a table before a bottle can be served; at the establishment, effective May 2007, a minimum of five patrons at a table are required before a bottle can be served. Further, where patrons order a bottle, they cannot order any other alcoholic beverages at the table. Finally, staff explains to customers that they do not have to finish the bottle on the same evening. There is a lockdown section of the bar where the bottle can be stored for another time, provided the customer shows identification.
Mr. Pereira also indicated that the establishment has an electronic camera surveillance system with sixty-four cameras, fifty-two inside, and twelve outside. The cameras are not monitored constantly, but there is continuous recording, and the images are stored for up to thirty days.
Initially Mr. Pereira indicated that he was not aware of any alleged infractions, except the ones which are the subject on this case. When subsequently asked if he had received one other NOP, he indicated he believes there was one pertaining to April 23, 2007. Mr. Pereira then responded that other than this one additional NOP, no other infractions involving liquor inspectors or the police have been brought to his attention. However, subsequently on cross-examination, he admitted that on May 12, 2008, the Licensee pled guilty to failing to remove the signs of service by 2:45 a.m. and was fined $250. On cross-examination, Mr. Pereira also admitted that the Notice of Proposal pertaining to April 23, 2007 alleges that the Licensee permitted drunkenness.
On cross-examination, Mr. Pereira admitted that Security staff can require customers to leave under the Trespass to Property Act if they suspect wrong-doing.
Registrar’s Submissions
Constable Watson, Constable Viozzi and Detective Cowan all saw a Security staff member taking a very intoxicated patron, JC, out of the establishment shortly after 1 a.m. on April 20, 2007. The patron had extremely slurred speech and bloodshot watery eyes. He was also unsteady and swaying on his feet to the point where he almost fell while trying to stand. He was not able to take care of himself, and the door staff was arranging for a ride. JC was in the establishment for two or three hours, consuming four to five Coronas and Polar Ice vodka in the bottle service area.
When assessing the Licensee’s evidence, the Board should consider that the Licensee did not call the Security Officer, Adam, who escorted the intoxicated male out of the premises. Adam would have been in the best position to give evidence regarding the male’s condition. Mr. Pereira did not remember the night in question as well as did the police officers. Moreover, it is possible that Mr. Pereira’s evidence does not refer to the same intoxicated patron who the officers witnessed. The officers witnessed the intoxicated male being escorted outside the premises just after 1 a.m., and Mr. Pereira testified he saw JC being removed after 2 a.m.. Mr. Pereira also testified he did not see any of the police officers or their van. Even if the Board is not of the view that Mr. Pereira and the officers were giving evidence about two different patrons, it is clear that Mr. Pereira’s recollection of the evening is not as good as the recollections of the police officers. As such, it is the Registrar’s position that the evidence of the police officers should be preferred over the evidence of Mr. Pereira whenever there is a conflict.
The police officers witnessed the problems in the bottle service area of the establishment. They saw another two patrons, a female and a male, who were starting to show some signs of intoxication in the bottle service area. The manager of the establishment, Brian Mitchell, also admitted to Detective Cowan that they were having problems with people serving themselves in the bottle service area. This corroborates the observations of the officers respecting JC and his extreme level of intoxication when he was brought out of the establishment from the bottle service area of the licensed premises.
The police officers smelled the odour of fresh burning marijuana at the west side of the establishment at approximately 2:21 a.m.. Constable Watson was wearing a tactical vest which state he is a police officer, and Detective Cowan normally wears a tactical vest and t-shirt as well. In all likelihood, whoever was burning the marijuana hid it and put it out when he or she noticed Constable Watson and/or Detective Cowan.
Constable Watson is familiar with all stages of burning marijuana through his experience as a police officer. Constable Viozzi also has considerable drug enforcement experience and is quite familiar with the smell of burning marijuana. It is clear from the evidence of the officers that, on a balance of probabilities, marijuana was brought into and consumed in a licensed area under the Licensee’s control on April 20, 2007. Detective Cowan also testified that Mr. Mitchell agreed they were having problems with patrons smoking marijuana in the establishment. Mr. Pereira was not inside the establishment at the time of the police walk through and had no evidence respecting the consumption of marijuana in the establishment when the officers were inside. The officers were a considerable distance from any doors to the outside when they smelled the marijuana. Furthermore, the only doors that were open that night were the doors to another licensed area, the patio.
The accepted definition of the word “permit” in liquor licence matters is to “fail to prevent”. A detailed analysis of the word “permit” is found in the Sand Bar decision which has been accepted by the Board in numerous decisions since that time. This definition has also been accepted by the Divisional Court in the appeal of Heart and Crown Restaurant & Pub, which follows an earlier Ontario Court of Appeal decision, R. v. Royal Canadian Legion, where the court also held that permit means “not to prevent”.
In this case, the Licensee failed to prevent JC from becoming extremely intoxicated in the establishment. JC was in the establishment for several hours, and his consumption of liquor was not properly monitored by the Licensee or he would not have been so severely intoxicated, as observed by the police officers. The Licensee also failed to prevent a patron from bringing into the establishment and consuming a controlled substance, marijuana. On the clear, unrefuted evidence of the police officers, marijuana was burned in the establishment, and the Licensee’s staff did not take any steps in relation to the marijuana until they were alerted of the smell by the police.
Licensee’s Submissions
When the three police officers arrived shortly after 1 a.m. on April 20, 2007, they observed the patron with Adam outside the premises on the west side of the building near the exit door. It is noteworthy that the patron had already been removed from the premises when the police officers made their observations. When the police arrived, the Security Officer, who had removed the patron, was having a discussion with the patron and taking steps to ensure that he had a ride home.
The evidence of Constable Watson was that he was familiar with the establishment as he had been there in his capacity as a police officer on a number of occasions, and he stated he had utmost confidence in the Security personnel at the establishment. He further testified that throughout the time the police officers were at the establishment, the Security staff was doing a good job. They were clearing bottles and monitoring the crowd.
According to Constable Watson, he videotaped the patron who had been removed from the premises at 2:31 a.m., just prior to the police departing. The evidence of Constable Viozzi and Detective Cowan was that Constable Watson took the video tape of the patron just before the police officers entered the establishment, shortly after 1 a.m.. The video tape was not produced by the Registrar as part of the disclosure and it was not played at the hearing.
Contrary to the submissions of the Registrar, it is the position of the Licensee that the absence of the evidence of Adam does not provide a basis for an adverse inference to be drawn against the Licensee and does nothing to bolster the evidence of the police officers. A proper consideration of the evidence in relation to the level of intoxication of the patron should include the fact that, although the police videotaped the patron within minutes of the police dealing with him and forming the opinion that he was intoxicated, that video tape was not produced to the Licensee nor provided as evidence at the hearing. The video tape would have provided the best evidence to the Board to make its own determination as to the level of intoxication of the patron, who had been removed from the premises. The absence of this video tape deprives the Board of an opportunity to form its own conclusions by viewing the condition of the patron. The video tape would also have assisted the Licensee in making full answer and defence to the allegations in the NOP. On this basis, it is submitted that the Board should be cautious in simply accepting the evidence of the police officers with respect to the level of intoxication of the patron.
Mr. Todd Pereira testified that since the allegations in the NOP came to light, the Licensee has taken steps to ensure that patrons in the bottle service area of the establishment are better monitored and do not feel pressure to consume the contents of an entire bottle on a given evening.
The Registrar’s submission that Mr. Pereira may not have observed the same patron as the police officers observed is not supported by the evidence and should be rejected by the Board. Mr. Pereira testified that when he arrived on the west side of the exterior of the premises, the police were not present, although Adam was still with the patron. The evidence of the police officers was that they left that area and made a brief tour of the exterior parking area and then observed the patron on the east side of the premises in the parking area. The proposition that is supported by the evidence and the only reasonable finding which is open to the Board is that Mr. Pereira arrived at the west side of the exterior of the premises after the police had left and before the patron made his way to the east parking area. There is nothing to suggest that Mr. Pereira observed a different patron than the one the police officers had interaction with.
To suggest that Mr. Pereira’s evidence should be rejected whenever it conflicts with the evidence of the police officers is simply not appropriate. Even though the police officers made notes of their observations, there is a glaring inconsistency in their evidence with respect to the timing of a video tape that was made of the patron in question. According to Constable Watson, the person who made the video, this occurred at approximately 2:30 a.m., after the officers had been inside the establishment. According to Constable Viozzi and Detective Cowan, the video was made only minutes after the encounter with the patron and Adam and before the officers entered the establishment shortly after 1 a.m.. It is the position of the Licensee that the evidence of any witness is subject to certain frailties and it is for the Board to make its own determination, based on the totality of evidence, as to what findings are supported by the evidence.
All three police officers testified about smelling freshly burned marijuana on the west side of the premises. Constables Watson and Viozzi testified that they were walking through the west side of the premises near the bottle service area at approximately 2:21 a.m. when they detected the odour. According to Constable Viozzi, he notified a Security Officer when he detected the odour and it appeared to him that this Security Officer communicated with other security staff via a two way radio and the Security staff immediately began looking for the source of the odour without success.
Detective Cowan was not with Constables Watson and Viozzi when he smelled the odour of freshly burned marijuana on the west side of the premises. Detective Cowan advised a Security Officer of the odour he detected and both of them attempted to find the source but were unsuccessful. Detective Cowan testified that he had a conversation with Brian Mitchell about his concerns over what he observed in the bottle service area. Contrary to the Registrar’s submissions, there is nothing in the evidence to support the conclusion that Mr. Mitchell agreed that they were having problems with patrons smoking marijuana in the establishment.
What is clear from the evidence is that no controlled substance was located within the establishment. Mr. Pereira testified as to the steps taken by Security staff to search patrons as they enter the establishment to ensure that contraband and weapons are discovered before a patron is allowed to enter. Mr. Pereira testified that although he has limited experience with the smell of marijuana, there have been incidents where a patron was suspected of smoking marijuana in the designated smoking area and it turned out that they were smoking a form of tobacco which smelled different than a normal cigarette.
Detective Cowan was asked in cross-examination about the events surrounding the detection of the odour of what he believed to be marijuana and he testified that without locating the source of the controlled substance, he would not have reasonable and probable grounds to either search or arrest a person for possession of a controlled substance. It is respectfully submitted that without more than the evidence of the police officers that they believed they smelled the odour of marijuana on the night in question, it is not appropriate to conclude, on a balance of probabilities, that the Licensee permitted the presence and consumption of a controlled substance on the premises.
The Registrar’s strict reliance on the decisions of Re: Sand Bar and R. v. Royal Canadian Legion is not the proper approach to be taken in determining the principles applicable in this matter. Each panel of the Board must decide what the appropriate findings are for the matter it is presiding over. The evidence adduced in each hearing will provide the basis for the Board to make its findings and reliance on previous decisions, although useful in terms of providing guidance, cannot be the basis for a de facto determination that “permit” means “fail to prevent”.
In Commercial Tavern, the Board considered the decision in Re: Sand Bar and held that although regrettable incidents may happen occasionally in a licensed facility, what is important is the manner in which these incidents are dealt with by the Licensee once they are discovered. Where such incidents are dealt with in a prompt, safe and responsible manner by the Licensee, a finding of “permit” is not appropriate. It was the view of the Chair in that decision that “it is virtually impossible to scrutinize patrons to the point that someone will not slip through”. The Chair was further of the view that: “When this happens, it becomes incumbent upon licensees to ensure that they are prudent in their oversight of the premises, and when a problem is discovered it is handled promptly and appropriately.”
The evidence adduced before the Board supports the conclusion that the Licensee’s staff in this case acted promptly, safely and responsibly with respect to the patron who was removed from the premises on April 20, 2007, and with respect to the information provided by the police officers regarding the odour of marijuana allegedly being detected within the premises.
The Registrar has failed to establish on a balance of probabilities that the Licensee breached subsections 45(1) and 45(2) of the O.Reg. on April 20, 2007.
Reply
The measures taken by the Licensee in the bottle service area, since this infraction, to prevent these situations from occurring in the future are not relevant to the issues presently before the Board. There is no due diligence defense to infractions before the Board (Shooters 222 Ltd. V. Registrar of Alcohol and Gaming Commission of Ontario. Even if there was a due diligence defense, taking steps to prevent future breaches does not constitute a due diligence defense to the infractions that one has already committed. It is the Licensee’s diligence at the time of the infraction which could be relevant to submissions on sanction once an infraction has been found on the facts, not the Licensee’s attempts to close the barn door after the horse has gone.
The Licensee’s attempts to prevent marijuana consumption in the establishment may be relevant in submissions on sanction, but they are not relevant at this time. Furthermore, the fact that identifiable Peel Regional Police officers could not search anyone in the premises without violating their rights under section 8 of the Charter of Rights and Freedoms does not mean that the Licensee is not responsible for ensuring that drugs are not consumed by anyone in the establishment. Here, the Licensee’s staff were not taking any action to deal with the problem until it was pointed out to them by the police. It is up to the Licensee to be proactive in these matters, not reactive.
The decision of the Ontario Court of Appeal in R. v. Royal Canadian Legion, and the definition of permit adopted in that case (i.e., to fail to prevent), is binding on the Board.
The facts in Commercial Tavern are very different from the facts in this case. In Commercial Tavern, Ms Cheverie was in the establishment for no more than a few minutes. The staff assessed Ms Cheverie, who was drunk when she came in, at the first possible opportunity and was taking steps to deal with her appropriately. The Licensee had no opportunity to prevent Ms Cheverie’s drunkenness because its staff had no involvement in creating the situation. In this case, there is no question that the patron became drunk in Body English/Body Rok. Clearly, JC was not dealt with appropriately at the first possible opportunity by the staff of Body English/Body Rok or he would not have been so drunk that he looked as if he was about to throw up, when the police officers saw him. The situation was within the control of Body English/Body Rok over a two or three hour period and they failed to properly exercise that control.
Analysis and Reasons
Credibility
There were some inconsistencies in the evidence of the three police officers. Constable Watson said the first time they spoke to the Security Officer and the male patron, they were in the police van. Constable Viozzi said they got out of the van to speak to them. Constable Watson said they saw the male patron the second time after they exited the bar, between approximately 2:31 and 2:45 a.m.. Constable Viozzi said he saw the male patron the second time, with a companion, before they entered the establishment. However, for the most part, the evidence of the police officers was consistent.
The panel also noted some inconsistencies in Mr. Pereira’s evidence. First he said he was not aware of any infractions after April 19/20, 2007, but when questioned by his counsel and cross-examined, he admitted to receiving a NOP for an infraction on April 23, 2007 and to the Licensee pleading guilty in May 2008 to failing to clear the signs of service. Except for these inconsistencies, which Mr. Pereira corrected in his examination-in-chief and in cross examination, the panel found Mr. Pereira to be a credible witness who was knowledgeable in the security procedures of the establishment and who seemed dedicated to promoting compliance with these procedures and the LLA. The panel further notes that Constable Watson and Detective Cowan were complimentary of the Security staff at the establishment and the security procedures. The panel believes that this is due, at least in part, to Mr. Pereira’s role as manager of the Security department. Nevertheless, the panel agrees with Ms Taylor that Mr. Pereira did not have a lot of firsthand knowledge or recollection of the events of April 19/20, 2007.
Subsection 45(1) of the O.Reg
Subsection 45(1) of the O.Reg provides that the licence holder must not permit, among other things, drunkenness 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. Therefore, for a finding under subsection 45(1), there is a two part test. First, it must be established that the drunkenness occurred on the premises or any of the other specified areas under the exclusive control of the licence holder. Second, it must be established that the Licensee permitted the drunkenness.
The Registrar alleged in the NOP that the Licensee permitted drunkenness with respect to the male customer (i.e., JC) the three police officers witnessed being escort out of the premises. The Registrar did not allege that the Licensee permitted drunkenness on the part of the female, who Constable Viozzi testified appeared intoxicated, or the male, who Detective Cowan testified spilled his vodka and stumbled. Accordingly, the panel will only consider whether the Licensee contravened subsection 45(1) in respect of JC.
Based on the evidence of the three police officers, as well as the admission of Mr. Pereira, the Board is satisfied that JC was intoxicated. The police officers testified he exhibited very blatant and pronounced signs of intoxication, including, slurred speech, red, bloodshot eyes, and unsteadiness on his feet, barely able to stand up on his own. According to one of the officers, he also appeared to be holding back vomit. Mr. Pereira admitted the patron was intoxicated, although he disputed the degree of intoxication. Specifically, he indicated he did not observe the Security Officer supporting the customer so the patron would not fall over. The Licensee did not call the Security Officer, Adam, to give evidence on this point. Mr. Pereira did not interact with the intoxicated patron, nor was he with the intoxicated patron while the police officers were present. Mr. Pereira also does not appear to have asked his staff for full particulars on the degree of intoxication. As such, the panel accepts the police officers’ evidence on the degree of intoxication.
For the second part of the test under subsection 45(1), the Licensee must be found, on a balance of probabilities, to have permitted the drunkenness. “Permit” means to allow, to acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act. The Divisional Court held in a recent case, Sin City Bar v. Registrar (Unreported, Court File No. 483/07, 2008-05-02), that for a finding that a Licensee permitted drunkenness, there must be evidence that the Licensee or its staff knew or ought to have known that the patrons were drunk.
The Licensee and its staff are required by law to be Smart Serve certified. At Smart Serve training, they are taught to monitor and regulate the service of beverage alcohol to ensure that customers do not become intoxicated. Given the advanced and pronounced signs of intoxication JC was exhibiting when the police observed him being escorted out of the premises, the Licensee and its staff clearly were not monitoring and regulating the service of beverage alcohol to this customer. Staff, acting diligently and responsibly, should have been aware of signs of intoxication sooner and cut JC off beverage alcohol service before the signs of intoxication became so acute.
The panel agrees with Ms Taylor that the facts in the Commercial Tavern case, where the patron arrived intoxicated and the Licensee took appropriate actions within minutes of her arrival, are distinguishable from the facts in this case. JC became intoxicated in the establishment, and in failing to prevent him from becoming so intoxicated or to detect signs of intoxication before they became pronounced, the Licensee permitted or acquiesced to the drunkenness. As such, the second part of the test under subsection 45(1) has been met.
The panel acknowledges that the Licensee implemented corrective measures in the bottle service area in May 2007 after this incident occurred and will give these measures the appropriate weight in its decision on sanction.
For the above reasons, the Board FINDS that the Licensee contravened subsection 45(1) with respect to the male customer.
Subsection 45(2) of the O.Reg
Subsection 45(2) provides that a licence holder shall not permit a person to hold, offer for sale, sell, distribute or consume a controlled substance as defined in the Controlled Drugs and Substances Act (Canada) on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder. Therefore, like under subsection 45(1), for a finding under subsection 45(2), there is a two part test. First, it must be established that a controlled substance was held, offered for sale, sold, distributed or consumed on the licensed premises or other specified areas under the exclusive control of the license holder. Second, it must be established that the Licensee permitted same.
While the three police officers testified they smelt burning marijuana, they were unable to locate the source of the smell. The police did not smell the alleged burning marijuana for a protracted period of time. They began smelling burning marijuana at 2:21 a.m., and Constable Watson testified that he believes the marijuana cigarette was extinguished before they left the establishment at 2:30 a.m.. The panel accepts that the police officers have received training in the smell of marijuana, and also have on the job experience detecting marijuana and other controlled substances. Nevertheless, in the circumstances of this case, the smell of marijuana, in and of itself, is insufficient evidence, on a balance of probabilities, for a finding under subsection 45(2). The fact that Detective Cowan, the most experienced of the three police officers, did not even make a note of smelling marijuana in the licensed premises suggests that he too did not believe there was sufficient evidence for a finding under the LLA. The panel concurs with Mr. Irving that Detective Cowan did not testify that Mr. Mitchell acknowledged the Licensee was having a problem with people smoking marijuana in the premises; rather his testimony was that Mr. Mitchell acknowledged the Licensee was having a problem in the bottle service area of the establishment.
Given that the first part of the test under subsection 45(2) has not been met, it is not necessary for the Board to consider the second part of the test. Accordingly, the Board DISMISSES the allegation under subsection 45(2).
Conclusion
The Board FINDS the licensee contravened subsection 45(1) of the O.Reg and DISMISSES the allegation under subsection 45(2) of the O.Reg..
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file 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 a response. Registrar’s representative may serve and file any reply within three (3) days of the 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.
DATED AT TORONTO THIS 16th DAY OF SEPTEMBER, 2008
BERYL FORD, BOARD MEMBER JACQUELINE CASTEL, BOARD MEMBER
JC/sm