Registrar, Alcohol and Gaming Commission of Ontario v. El Mocambo Rocks Inc., 2008 CanLII 52557

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-

El Mocambo Rocks Inc. O/A El Mocambo Rocks Licensee

DECISION on findings

Panel: Beryl Ford, Board Member; S. Grace Kerr, Board Member Decision Date: August 15, 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: Phillip Morris, Representative El Mocambo Rocks Inc., Licensee: Jerry Levitan, Representative

Authorities

1157056 Ontario Ltd. (c.o.b. Ein-Stein Café & Pub) (Re) [2007] O.A.G.C.D. No. 470 Einstein's (Re) [2005] O.A.G.C.D. No. 511

Allegations

1A hearing into Notice of Proposal (the “NOP”) number 15849 dated December 13, 2007, to suspend liquor licence number 90105 (the “Licence”), issued to El Mocambo Rocks Inc., (the “Licensee”), operating as EL MOCAMBO ROCKS, 464 Spadina Avenue, Toronto, Ontario, M5T 2G8, (the ”Establishment” or the “Premises”), on the basis of alleged violations of section 29 and subsection 30(4) of the Liquor Licence Act (LLA), and subsections 25(1), 34(1), 44(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”), made pursuant to the LLA, was held on April 15, 2008, in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board FINDS the Licensee violated section 29 of the LLA and subsections 25(1), 34(1) and 45(1) of the O.Reg. The Board DISMISSES the allegations of violations of subsection 30(4) of the LLA and subsection 44(1) of the O.Reg. Reasons follow.

Preliminary Matters

3An order to exclude witnesses was made on consent.

Registrar’s Evidence

4Witness Amy Glenn is a Liquor Inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”), a position she has held for the past six years.

5Ms Glenn testified that on June 9, 2007, she attended the establishment with fellow AGCO Liquor Inspector, Jade Leadbetter, to conduct a routine liquor inspection. Liquor licence hours had been extended until 4:00 a.m. for the duration of the event known as the North by Northeast Festival taking place in the area.

6The Inspectors arrived at the establishment at 3:45 a.m. They were operating in an undercover capacity and did not identify themselves to staff. Ms Glenn did not observe security staff at the entrance on her arrival.

7On entering, Ms Glenn observed the first floor area with a bar; it was not very busy. She did a walk through before going upstairs to the second floor, which appeared to be busier. There were approximately 35 patrons present on the second floor. The crowd appeared youthful. She estimated their ages at between 18 and 21 years old.

8Ms Glenn described a stage at the west side of the upstairs bar with numerous tables and some couches; the service bar was on the east side wall. There was music playing at the time and the lighting was set at a dim bar level.

9At 3:48 a.m., Ms Glenn observed a white male, whom she identified as male #1. Wearing a hat facing backwards, and a light t-shirt and jeans, he was standing in front of the service bar on the second floor. The patron was exhibiting signs of intoxication: he appeared to be unbalanced and unsteady on his feet, was disoriented, and was swaying back and forth. He almost fell more than once.

10Two males approached male #1 at the service bar. Male #1 immediately started leaning on one of the males for support.

11At 3:51 a.m., Ms Glenn observed male #1 being served a rum and coke by a female bartender of Asian origin. The patron consumed the drink at the bar. He then staggered to a cleared area in front of the bar, stopped in front of Inspectors Glenn and Leadbetter, and just stood staring at them. The male was holding a drink that he was attempting to drink through a straw. He had great difficulty in maneuvering the drink to his mouth. His eyes were glassy and unfocused. After staring at the two Inspectors, he giggled and staggered away through the crowd where he just stopped and stood in the middle of the floor.

12At 3:59 a.m., Inspector Glenn observed a female showing signs of intoxication. Inspector Glenn referred to her as patron #2. This female was sitting on a chair along the wall. The Inspector observed her attempting to drink from a beer bottle. Her motor skills were slow, causing her difficulty in negotiating the bottle to her mouth. She had droopy eyes and appeared unsteady on her feet. Later, Inspector Glenn observed her staggering into the hallway area.

13At 4:01 a.m., Inspector Glenn observed a male person #3 who had been seated near the female. His head was down. His eyes were closed, and he appeared to be sleeping. He was holding a beer in his hand, which fell to the floor. He appeared startled by the falling bottle. He stood up and kicked the beer bottle across the floor and then staggered into the hallway.

14The Inspector also noticed numerous patrons gathered in the unlicensed stairway and hallway holding or consuming beer and mixed drinks.

15At 4:15 a.m., Inspector Glenn observed a male and female behind the bar. The male asked the female if they were still serving and she said yes. He poured two shots of tequila, which he and the female consumed. At 4:18 a.m., the female server was also observed with a shot of sambuca behind the bar.

16Inspector Glenn testified that between 4:18 a.m. and 4:21 a.m., she observed a fourth male (male #4). He was wearing military type-clothing, shirt, shorts and a hat. He spoke to Inspectors Leadbetter and Glenn. His speech was slurred so that she had difficulty understanding him. He was unsteady on his feet. He repeatedly asked them for a light for his cigarette. The male was making very inappropriate comments of a sexual nature to the Inspectors and was slapping female patrons’ buttocks as they passed by.

17Male #4 motioned to another male (male #5), to join him. Male #5, who was wearing a pink shirt, also appeared intoxicated. He was young in appearance and to Inspector Glenn, he looked more like a youth. He was standing by the bar, behaving very aggressively. His motor skills were slow and he had difficulty attempting to drink from a beer bottle.

18At 4:21 a.m., Inspector Glenn observed the female bartender serve one Heineken beer and one tequila at the bar. Again at 4:25 a.m., the female bartender was observed serving two Heineken beers. She was also observed around the same time serving a Molson beer to a male person. Inspector Glenn could not recall seeing a male bartender behind the bar at that particular time.

19At 4.29 a.m., as Inspector Glenn was leaving through the front door, she observed two patrons identified as males #4 and #5 involved in a fight with other patrons on the street in front of the establishment. A security person who was at the door together with another security person intervened and broke up the fight.

20Inspector Glenn also observed male #1 leaning on the wall outside the establishment as she left; he was still very unsteady and confused. She testified that at no time during her observations inside the establishment did she see any attempt by staff to remove patrons or stop them from drinking.

21In cross-examination, Inspector Glenn confirmed that she was aware a music festival was taking place in the community. She attended nine other establishments during the evening in the immediate area.

22Inspector Glenn confirmed that there were no problems on the first floor of the establishment; after an initial walk through, she went directly upstairs. She agreed it was quite dark inside the establishment.

23She was confident of the “times” she had noted, as the Blackberry wireless device is accurate and records times on input. She and Inspector Leadbetter worked together all evening. They both made observations of the activities at the establishment.

24Inspector Glenn communicated with Inspector Leadbetter using her wireless Blackberry device. She sent notes from her Blackberry via e-mail to her main desktop computer and then printed them off. There is a very short time delay between typing the notes on the Blackberry and their transmission, however, the e-mail is timed when it is sent.

25Inspector Glenn was about two feet from patron #1. She did not speak to him, had no knowledge of him, and based her assessment of his intoxicated state on her observation. Neither did she speak to staff as the inspection was being carried out in an undercover capacity.

26In reference to the allegations of alcohol in the stairwells, Inspector Glenn agreed that she did not know if all drinks in the stairwells and hallway were alcoholic, but was confident that a number of patrons were actually drinking beer from beer bottles there.

27Inspector Glenn stated that it is not the practice of AGCO inspectors to identify themselves when they are working undercover for personal safety reasons.

28Witness Jade Leadbetter has been an AGCO inspector for the past four years.

29Ms Leadbetter testified that, on arrival at the establishment at 3:45 a.m. on June 9, 2007, there was a relatively young crowd of patrons in their late teens or early 20’s.

30She did not see any security at the door.

31At 3:48 a.m., Inspector Leadbetter observed a male person she determined was intoxicated. The male was wearing a black hat facing backwards, a white T-shirt and jeans. In all material respects, Inspector Leadbetter corroborated the evidence of Inspector Glenn with respect to the male identified as male #1.

32At 3:59 a.m., Inspector Leadbetter observed a female patron who appeared intoxicated; she was described as patron #2. In all material respects, Inspector Leadbetter’s evidence corroborated that of Inspector Glenn with respect to this patron.

33At 4:01 a.m., Inspector Leadbetter observed a male person identified as male #3 was seated in a chair against the north sidewall inside the establishment. In all material respects, Inspector Leadbetter’s evidence corroborated that of Inspector Glenn with respect to male #3.

34Inspector Leadbetter observed multiple patrons taking alcohol into the unlicensed stairwell area. At least three of them were holding bottles of beer.

35The Inspector testified that she observed another male #4, who appeared intoxicated. In all material respects, Inspector Leadbetter’s evidence corroborated that of Inspector Glenn with respect to male #4

36Male #4 motioned for a friend to join him. The male friend, male #5, came across to where the two Inspectors were standing. To Inspector Leadbetter this person appeared very youthful. In all material respects, Inspector Leadbetter’s evidence corroborated that of Inspector Glenn with respect to male # 5.

37Inspector Leadbetter resumed her conversation with male #4 who seemed to be quite pleased in telling her he was happy this young friend had got into the bar because he was only 18 years old.

38At 4:l5 a.m., the Inspector checked the time on her Blackberry device. She observed a male ‘bar-back’ carrying bottles and clearing the bar area. She overheard the ‘bar-back’ asking the Asian female bartender if they were still serving, who after checking her watch, said “yes.” The Inspector then observed the female pouring two shots of tequila and handing one to the ‘bar-back.’ They each consumed a shot of tequila.

39At 4:18 a.m., the female bartender was observed by the Inspector to serve a shot of sambuca, but she could not recall whom the bartender had served it to at that time.

40At 4:21 a.m., the female bartender was also seen pouring a shot of tequila and opening a bottle of Heineken beer and serving it to a male patron.

41At 4:25 a.m., the same female bartender was also observed opening and serving two males a Heineken beer each. She also served a Molson beer to another male patron.

42At 4:29 a.m., Inspector Leadbetter left the establishment and saw two of the male patrons, identified as #4 and #5, engaged in a fight. A male person, who the Inspector thought could have been a security person, came from inside the premises and talked to the males. He tried to stop the fighting.

43Male #1 was observed by the Inspector, slumped in a doorway barely able to stand up.

44In cross-examination, the Inspector stated that she could not recall music playing in the establishment. It was dark. She is very familiar with the Blackberry keyboard and was able to write her notes on it in point form without difficulty.

45The Inspector did not speak to patrons #1, #2 or #3. She knew nothing about the individuals other than her observations. She spoke to male #4 because he asked for a lighter. She did not know if the young patron #5 had entered the establishment with male #4. She did not ask for identification from patron #5 because she was undercover.

Licensee’s Evidence

46Witness Ms An Tu Anh Hu is employed at the establishment as the second Manager. She has worked there for the past two years as a bartender.

47On June 8/9, 2007, three security persons were on duty. One worked the first floor, one on the second floor, and the third security person was wandering around the establishment.

48It was not particularly busy that evening. She was the only bartender working on the second floor. Two other employees, Kristina and Derek, who usually work the bar or attend to clean up duties, were also on duty that night.

49Ms Hu and Tiffany Hsung, also a bartender at the establishment, are both of Asian descent. Ms Hu was working the upstairs bar and Ms Hsung was working the downstairs bar that evening.

50Ms Hu also recalled that at 3:45 a.m., Derek Perrin, who was bar-backing that evening, asked her if they were still serving.

51Five males and one female were standing around the bar at 3:50 a.m. Ms Hu noted the time on her cell phone. One of the males ordered six shots of tequila and four mixed drinks. It took Ms Hu about five minutes to prepare the drinks. One of the men in the group took one shot of tequila and drank it. The patron who ordered the drinks threw $10 on the counter. Ms Hu told him that was not enough money to cover the cost of the drinks which he had ordered.

52The patron asked if she would take a credit card and she told him “no.” Ms Hu advised him there was a bank machine downstairs. He left the remaining drinks on the counter and told her he would return with the money. The patron did not return to pay for the drinks which had been left on the counter. Ms Hu did not see the patron or the group again.

53There were no last call announcements. At 4:00 a.m. the lights were turned on high and the music stopped. A short time later, the promoter responsible for the band came to the bar service counter. Ms Hu told him that she had made the drinks as ordered but the patron had not returned to pay for them. She asked the promoter if he wanted a drink from the ones on the counter. She considered it a waste to throw them out. The promoter took a shot of tequila at her invitation and handed it to a friend. The band members drank the remaining drinks very quickly. The promoter asked if he could have a Heineken beer instead and Ms Hu testified that she served him one. She stated that she knew it was illegal to serve alcohol after 4:00 a.m.

54Ms Hu did not tell the Licensee or anyone else about giving the drinks away. She did not think about it again until the Licensee approached her in October 2007 when he received a letter from the AGCO. The Licensee asked her then if she had served drinks after 4:00 a.m. on the date in question. She told him what had happened and that she had given the drinks to the group from the band.

55In cross-examination, Ms Hu stated that she does not drink herself and nobody else served or consumed drinks behind the second floor bar that evening.

56Witness Kristina Barber was working at establishment on June 8/9,2007, as a bar-back.

57At 4:00 a.m., the lights came on and Ms Barber saw the promoter and two other males at the bar drinking shots. She did not see any money change hands between these people and the bartender.

58In cross-examination, Ms Barber said she was not wearing a watch but was aware of the time because the lights went up at 4:00 a.m.

59Ms Barber did not see the bartender consume any alcohol that evening.

60In cross-examination, Ms Barber stated that she did not see any intoxicated people that evening in the establishment.

61Ms Barber confirmed there is another bartender of Asian descent whose name is Tiffany; however, she did not see Tiffany the evening in question.

62Ms Barber first heard about the violations when she had a discussion with the Licensee and An Hu after a letter had arrived from the AGCO. She could not remember the date.

63In response to a question, Ms Barber stated that the Licensee does not tolerate service after hours. After the weekend of the incident, there was a regular meeting that takes place with staff and they discussed “usual things,” such as “dealing with drunks, what is permitted or not allowed,” and so on. Ms Hu was not at that meeting. The first discussion she had with the Licensee about the violation was in December, which was the first time that she discussed it with Ms Hu also.

64Witness Abbas Jahangiri has owned El Mocambo for the past 4 years. He was present at El Mocambo on the night of June 8/9, 2007.

65Mr. Jahangiri testified that four years ago he took an oath of poverty and that everything he earns is given to charities. He also feeds the homeless.

66Mr. Jahangiri told the Board that he was a capitalist five years ago and that his pay was five million dollars a year. He said that he gave it all up to work for charity and to serve the homeless. According to Mr. Jahangiri, “El Mocambo is about God and charity.”

67He has strict rules and values for his staff. For example, if an employee comes one minute late for work, he will send them home. Because the music is so loud, Mr. Jahangiri testified, the staff communicates by sign language. Managers and servers know the policies on intoxication. He has regular meetings with his staff and policies are in place. Staff knows they cannot serve more than two shots to a patron. They also know that service stops at l:59 a.m., and that nobody, including staff, can be served after that time.

68On June 8/9, 2007, Mr. Jahangiri was going around the establishment checking on safety practices and ensuring that patrons were safe. He went to the second floor a few times during the evening and did not see anyone intoxicated. He stated that he once had a patron with a medical condition that resulted in a lawsuit. As such, he is exceptionally careful with safety and he has never allowed staff to serve after hours after that incident.

69He testified that he deals with alcohol every day and that he is an expert on it. He also has strong morals and values. “The allegation that a person kicked a beer bottle cannot be possible, if a person is drunk, he cannot kick a bottle.”

70Four security staff and two undercover security staff were on duty the evening of June 8, 2007. Mr. Jahangiri explained that security staff do not use force to maintain order as they have experience in general defence and that they check identification if a person looks young.

71Mr. Jahangiri testified that he first learned of the alleged violations about a week after June 8, 2007, when a woman called him and told him he was going to be charged. She also told him that there were drunken persons at El Mocambo that night. He was given a telephone number to call and he called the number, but nobody ever called him back. He said that he received a ‘nasty’ letter in December 2007 with the information about the alleged violations.

72After receiving the letter, Mr. Jahangiri spoke to Ms Hu who told him what had happened that evening, more particularly, that someone had come and ordered shots, did not have the money to pay for them, gone to the ATM machine, but did not return to the bar. An Hu also told him the shots were left on the bar, that the promoter came to Ms Hu and told her he was thirsty and that she then gave him and the band members the drinks on the bar.

73Mr. Jahangiri testified that when he heard this information, he was upset and ‘yelled’ at Ms Hu, but decided not to fire her because he ‘lives in this beautiful world’ and she needed a ‘second chance.’

74Mr. Jahangiri testified that the allegations about alcohol in the stairwells are false and that it is the security staff’s job to watch the stairwells.

75In cross-examination, Mr. Jahangiri stated that although he gives everything to charity, El Mocambo is not a registered charity. The vehicle he uses to deliver food to the homeless belongs to the business.

76He did not know which staff were working on June 8/9, 2007.

77He agreed he had a call from the AGCO from ‘someone who didn’t know what she was talking about’ about a week after the incident. She told him the alleged violations were intoxication, after hours service, minor in the premises and alcohol consumption in the stairwell. Mr. Jahangiri understood that findings with respect to these allegations could lead to a suspension of his licence, which made him very angry.

78Mr. Jahangiri agreed he had appeared before the AGCO on two other occasions.

79After he received the call from the AGCO, Mr. Jahangiri talked to the staff. He could not remember which staff he spoke to, and could not recall speaking to Ms Hu, but remembers one security guard telling him there was a little fight outside on the night in question.

80Mr. Jahangiri said he did not know what was going on in relation to the subject charges or why this is happening to him.

81He stated that what really happened is that the establishment has gay and lesbian customers who “hit on” the inspectors, which upset the inspectors.

82Mr. Jahangiri stated that, since the alleged incidents, he has applied for a licence for the stairwells because it is a “good law,” “many women were being drugged,” for safety reasons and to protect his liquor licence.

83Mr. Jahangiri said that his own personal and spiritual opinion is that it is not wrong to give workers a drink when they work so hard, especially since the band was working for free that night.

84Mr. Jahangiri told the Board he is also a trained engineer. As such, he designed a room called the ‘crowd control room.’ Mr. Jahangiri stated that he trains his staff so well he cannot believe they would not see an intoxicated person.

85He no longer accepts contracts for bands that he considers would cause a safety issue.

Registrar’s Submissions

86In written submissions, counsel for the Registrar bases the breaches of section 29 of the LLA by serving Patron #1 and other drunken patrons on the corroborated evidence of the two AGCO inspectors.

87Counsel also submitted a conclusion that patrons #1, #2, #3, #4, and #5 were permitted to remain in the premises in a drunken state is supported by the evidence of the two AGCO inspectors.

88As regards the alleged breach of subsection 30(4) of the LLA, counsel submitted that there was no reason for a patron to give the age of a friend who was in the establishment if it was not true.

89Both inspectors observed numerous patrons in the hallway and stairwell with bottles of beer. Neither area is licensed. Thus, counsel submits, there is sufficient evidence to support the conclusion that the Licensee breached subsection 34(1) of Ontario Regulation 719/90 by permitting patrons to remove liquor from the licensed premises.

90The licensee had an extension of hours of service until 4:00 a.m. However, at 4:15 a.m., an inspector observed a male behind the bar asking the female bartender if they were still serving. She responded in the affirmative after checking her watch first. Inspector Leadbetter confirmed that her Blackberry showed it was 4:15 a.m. After the staff person poured two shots of tequila, both staff consumed a shot each.

91Counsel submitted that even if staff members rather than patrons are consuming liquor, or the licensee is giving away free liquor, the licensee would still be serving the liquor after hours, which is contrary to subsection 25(1) of the O.Reg.

Licensee’s Submissions

92Counsel for the Licensee submitted that it is important to note that the alleged incidents relate to the North by Northeast Festival for which an extended hours licence was granted to the Licensee.

93Counsel submitted that the observations took place at or about 4:00 a.m., a time when drowsiness and fatigue can undoubtedly be a factor that would affect the usual indicia of intoxication.

94Counsel for the Licensee submitted there is no evidence how much patron #1 had to drink, what his personal demeanour was regardless of drinking, and whether he was fatigued. His behaviour of standing, giggling and staring at a woman in a bar does not, by itself, demonstrate intoxication. The patron did not cause trouble and there was no basic inquiry of the individual by the inspectors.

95Counsel for the Licensee argued that the allegations against patron #2, #3, #4 and #5 were made without inquiry on what the individuals had to drink.

96Slow motor skills and other indicators, including slapping girls on the behind, particularly at 4:00 a.m., are in themselves not indicia of drunkenness.

97Dropping a bottle while asleep in a chair and kicking it across the room is not by itself indicia of drunkenness.

98With respect to an alleged minor, all of the information about this individual was hearsay from someone else. There was no independent enquiry or request for documentation.

99The ‘removal of alcohol’ allegations were made without any evidence of what were in the glasses. There was no evidence as to whether it was alcohol, soft drinks, juice or water.

100The Licensee has admitted that staff involved served already paid for alcohol after 4:00 a.m.

101Counsel referred to the Board decision of Ein-Stein Café and Pub, dated November 20, 2007, where the Board made the following statement:

“Observations alone are insufficient to determine whether a patron is intoxicated or merely having a good time. On those occasions, the inspector will need to speak directly to the patron or make more probing inquiries of the servers. There is insufficient evidence to enable the Board to conclude, on a balance of probabilities, the patrons were drunk.”

102Counsel submitted that, in this case also, there is insufficient evidence to determine findings, on the balance of probabilities, other than the pure conjecture of the inspectors.

103After hours service was admitted and explained, and was not condoned or permitted by or approved of by the Licensee.

Reasons and Findings

104The Board carefully reviewed and considered the evidence and written submissions received from counsel for the Registrar and counsel for the Licensee.

Subsection 45(1) of the O.Reg

105The Board found the evidence of both AGCO inspectors to be credible and relatively consistent throughout their testimony. The inspectors are experienced and trained in their assessment of intoxication and other violations under the LLA.

106The evidence of the Licensee’s witnesses appeared truthful to a point, they admitted that liquor was served after 4:00 a.m. It is obvious to the Board that they were fearful for their jobs, but it is unbelievable that five individuals who appeared intoxicated were not observed by any staff person. One fell down; one made loud sexual comments to the inspectors while slapping the buttocks of females who walked passed him. Another kicked an almost full beer bottle across the floor. They were all observed staggering at some time by the inspectors.

107The Licensee’s testimony appeared irrational at times. He told the Board of his lack of tolerance for tardiness from staff and would send them home if they were one minute late, he described how staff use sign language to communicate because of the noise level at the establishment. He explained his rules and regulations and a ‘crowd control room’ that he had designed to train staff. Despite all of this, staff did not detect intoxicated persons. One was served alcohol while showing signs of intoxication, and others staggered around unlicensed areas consuming beer from bottles. A staff member openly admitted that she knew it was wrong to serve after hours, but did it anyway.

108The Licensee also expressed his belief that Counsel for the Registrar would not understand the meaning of charity, but his own personal and spiritual opinion is it is wrong not to give workers a drink when they work so hard.

109He found it unbelievable that security staff would not see patrons with alcohol in the unlicensed areas “because they are trained to find it.”

110Both inspectors testified they observed male patron #1, whom they identified as wearing a cap backwards on his head, a light t-shirt and jeans. He was exhibiting signs of intoxication. His eyes were glossy, he staggered on his feet, he had difficulty holding a drink and coordinating the drink to his mouth.

111When his two friends approached him at the bar, he leaned on the friends while they assisted him in standing because he had difficulty supporting himself.

112His behaviour was unusual when he stood staring at the two inspectors, he giggled and laughed at the inspectors before staggering into the middle of the floor. This was not in an attempt to dance, but because of his disoriented demeanour.

113Female patron #2 was observed sitting on a chair near the wall. She was attempting to drink from a beer bottle, her motor skills were slow causing her difficulty in negotiating the bottle to her mouth, her eyes were droopy and when she stood she was unsteady on her feet. She was observed later staggering into the hallway area.

114Male patron #3 was observed by both inspectors to be slumped in his chair with his eyes closed. He appeared to have fallen asleep while holding a partially filled bottle of beer.

115The bottle fell from his hands and startled him awake. He aggressively kicked the bottle across the floor, spilling the contents. He was observed staggering into the hallway.

116Male patron #4 spoke to the inspectors, apparently unaware of their role as they were working undercover. His speech was slurred and almost unintelligible, he continually asked them for a lighter which they did not provide. He was unsteady on his feet as he leaned heavily toward them.

117The patron repeatedly made extremely inappropriate sexual comments to the inspectors in a very loud voice. While speaking to the inspectors in a sexual manner, he slapped the buttocks of other female patrons as they passed him by and asked for sex. The inspectors did nothing to entice or encourage this disturbing behaviour.

118Male patron #5 was observed by both inspectors to appear very youthful. He was unsteady on his feet and had difficulty standing. His speech was slurred, his behaviour was very aggressive, his motor skills were very slow and he had difficulty attempting to drink from a beer bottle. He actually fell to the ground on one occasion.

119Patrons #1, #4 and #5, were observed by inspectors outside the premises. Later, patrons #4 and #5 were involved in a fight with other individuals outside the establishment. The fight was broken up by security staff from the premises that were at the door at that time. Patron #1 was outside the premises leaning against a wall, he was still unsteady on his feet and appeared confused regarding his whereabouts.

120Based on this evidence the Board makes a finding of a violation under subsection 45(1) of the O.Reg.

[Section 29](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)

121The Board finds that patron #1, while exhibiting signs of intoxication was served a rum and coke by a female bartender. The male was observed by an inspector to consume the drink very quickly while standing at the bar. He had difficulty in manoeuvring the drink to his mouth; his two friends were supporting him in standing.

122The patron’s behaviour was abnormal when he stared at the inspectors in a peculiar manner, he giggled and laughed in an unfocused way while staring at them, he then staggered away from the bar off into the crowd. Both inspectors saw him outside the premises later leaning on a wall, slumped and barely able to stand. Because of his apparent confusion about where he was, one inspector asked him how he was.

123Based on the evidence, the Board makes a finding of a violation under section 29 of the LLA.

Subsection 25(1) of the O.Reg

124The Licensee submitted that although he does not allow or permit liquor to be sold or served outside the prescribed hours. He admitted however that the violation did occur.

125Based on the evidence and the admission of the Licensee that liquor was served outside the prescribed hours of service, the Board makes a finding of a violation under subsection 25(1) of the O.Reg.

Subsection 34(1) of the O.Reg

126Based on the evidence of both inspectors, numerous patrons were observed in the unlicensed hallway and stairwell with bottles of beer. There was no evidence to contradict that patrons were in the unlicensed area with bottles of beer.

127The Board makes a finding of a violation under subsection 34(1) of the O.Reg.

[Subsection 30(4)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)

128Despite the hearsay evidence that a patron was served alcohol while under the age of 19, the Board has no direct evidence that the patron in question was under the age of 19. Inspectors were undercover and did not request identification from the patron.

129The inspector who had been provided with the information from a patron that “his friend was only 18” was strictly verbal. The patron sharing this information was also deemed intoxicated by the inspector. A statement that the alleged patron ‘looked youthful’ is not sufficient grounds, in these circumstances, for the Board to make a finding.

130The Board makes no finding of a violation under subsection 30(4) of the LLA.

Subsection 44(1) of the O.Reg

131Both inspectors gave evidence that they observed a male person behind the bar at 4:15 a.m. One inspector observed the male ‘bar-back’ clearing the area and carrying empty bottles. Although both inspectors testified that they observed the server and the bar-back consume alcohol after 4:00 a.m., which in itself is a violation, the fact the bar-back was clearing, and cleaning behind the bar at 4:15 a.m. is not a violation as he is an authorized employee.

132The Board makes no finding of a violation under subsection 44(1) of the O.Reg.

Conclusion

133For the reasons given, the Board FINDS the Licensee violated section 29 of the LLA and subsections 25(1), 34(1) and 45(1) of the O.Reg. The Board DISMISSES the allegations of violation of subsection 30(4) of the LLA and subsection 44(1) of the O.Reg.

134The 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.

DATED AT TORONTO THIS 15th DAY OF August, 2008