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-
1542528 Ontario Limited O/A Greenwood Inn Licensee
DECISION ON FINDINGS
Panel: Kirsti Hunt, Vice-Chair Decision Date: September 16, 2008 Hearing Location: Sarnia, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Brad Alton, Representative 1542528 Ontario Limited, Licensee ) Allan Brock, Representative
Allegations
1The Board of the Alcohol and Gaming Commission of Ontario (AGCO) held a hearing on June 17, 2008 in the matter of a Notice of Proposal number 16103 dated March 11, 2008 to suspend liquor licence number 10734 (‘Licence’) issued to 1542528 Ontario Limited operating as GREENWOOD INN, 117 Christina Street North, Sarnia, Ontario, N7T 5T7, on the basis of alleged violation of subsection 45(1) of Ontario Regulation 719/90 (‘O.Reg.’) made pursuant to the Liquor Licence Act (‘LLA’).
Decision
2After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of O.Reg with regards to 2 patrons. Reasons follow.
Preliminary Matters
3The Board ordered the exclusion of witnesses on the consent of parties.
Registrar’s Evidence
4Murray Decker is a Liquor Inspector with the AGCO. He was accompanied by Liquor Inspector Kevin Holman. They arrived at the Greenwood Inn at 10:05 p.m. on November 9, 2007. On entering, he observed 6 people in the bar. He went to the bar counter to speak with the owner’s wife, Lan Feng, about whether they were going to proceed to license the upstairs which had previously been licensed and about pricing changes. He also mentioned to her to be careful about not over-serving patrons. Inspector Holman responded by saying that it was “too late for that” because a couple of people looked intoxicated.
5While Inspector Decker was talking to Ms. Feng a male patron came up to the bar. He had a slight stagger in his step and was mumbling to himself. He seemed to want a drink and appeared to be upset because the Inspector was talking to Ms. Feng who was bartending at the time. He didn’t order anything but went back to sit down.
6The Inspector looked at the table closest to the bar and observed 2 males who looked intoxicated. One was quite loud, he was slurring his words while talking and had red and bloodshot eyes. One of these gentlemen was the one who came up to the bar.
7All the people there were drinking bottled beer that was in front of them. The gentleman who came to the bar was in his sixties. The other 2 gentlemen were younger, one in his forties. He could not recall the age of the other. He recalled that one of the males wore a ball cap and a plaid shirt.
8The witness tried to explain to Ms. Feng that there were people in the bar who had been over served but she did not seem to understand. He is aware that she has a problem understanding English. She was pleasant and trying to be helpful but language was an issue. She did not appear intimidated or frightened. Her husband, the licence holder, was not there. Ms. Feng did not ask any patrons to leave or in any way intervene with the patrons while he was speaking to her during the 15 minutes he was in the premises.
8The Inspector agreed that he had no conversation with the 3 apparently intoxicated patrons he observed. He agreed that if his inspection report said that the gentleman who came to the bar was sitting by himself, it would be more accurate since his memory is not perfect. He recalled that the 2 males sitting together were both drinking from bottles. He had never seen the patrons before and did not know when they came in or when Ms. Feng last served them but she did not serve or talk to any patrons while he was there. He did not know if Ms. Feng had a Smart Serve training certificate.
9Liquor Inspector Kevin Holman added that he observed 6 males and a female bartender upon entering the premises. One male was playing a game of pool. An elderly male in his mid sixties with greying hair and a medium build walked across the floor. He wore a plaid shirt and a black baseball cap. This male said something to them but Inspector Holman could not understand him. His speech was heavily slurred. Three males were seated at a table near the bar. A male, around 45 years old, wearing a blue baseball cap, dark jacket and jeans, was seated alone at a second table.
10Inspector Holman went to inspect the storage area but found no problems there. When he returned, he continued to observe the elderly male because he wanted to assess his condition further. The male was leaning against the bar using it as a support. He was very unsteady on his feet, sliding and swaying back and forth at the bar. He seemed not to have control of his motor skills. He seemed to be interested in what Inspector Decker was saying to the bartender but had difficulty focusing on them. His eyes were bloodshot, somewhat closed and very watery. He appeared tired but in the Inspector’s opinion that was due to him being intoxicated.
11The person who had been playing pool was now at the table farthest away. The male with the blue baseball cap at the second table was drinking from a bottle of beer. He got up from the table carrying the bottle of beer and staggered up to the bar. As he was coming around the corner of the bar counter, he staggered against it and used it for support. He leaned against the bar, downed his beer and put the empty bottle on the bar. He appeared to wait for service but Ms. Feng was still speaking with Inspector Decker. He turned and leaned with his back to the bar and continued to talk to himself. His speech was heavily slurred. He eventually gave up and staggered back to the table.
12A male who was 53 to 55 years old with a black baseball cap was at the table with 3 males. He was extremely loud, very boisterous and had a distinct slur in his speech. As he spoke his hand gestures were very wild and erratic. He would fall into the person at his right, butting shoulders with him. His eyes were very red and watery.
13He believed the other two males at the table were also intoxicated due to previous consumption of alcoholic beverages. He heard Inspector Decker say something about over-service to the bartender so he said that it was a little too late based on what he had observed. Inspector Decker pointed out to Ms. Feng at least two of the individuals, one at a table and the elderly gentleman, observed by Inspector Holman.
14As the Inspectors were leaving at around 10:20 p.m., the elderly male walked toward them and stumbled. Inspector Holman had to hold him up to keep him from falling directly into him. The gentleman followed them out. Outside he observed the gentleman exit the premises to the sidewalk and stagger to a doorway to his right which leads to the residences upstairs. He entered that door.
15The Inspector did not recall pitchers or glasses of beer but recalled that people were drinking from bottles of beer. He did not see them being served while he was in the premises.
16In trying to clarify who was who, the Inspector explained that there were 2 males with a black baseball cap and one with a blue baseball cap. There were 3 males at a table closest to him, one male alone at a table and a male playing pool. He did not know where the older male was sitting. At the table with three males, one was about 53 to 55 years old and of average build and was drinking beer but the Inspector did not know what kind of beer. He knew nothing about what and how much alcohol was sold that night.
Licensee’s Evidence
17Mr. Jia Hua (John) Zhou is the sole shareholder of the licensee company and manages the daily operations of the premises.
18On November 9, 2007, he went into the bar at 9:00 p.m. when his wife took over the shift from Linda, the previous bartender, who had to leave. There were only a few people there so he went back into the kitchen to work. He was not in the bar when the Inspectors came in but in the kitchen cleaning up.
19He saw Paul Wilkinson in the bar. Mr. Wilkinson had resided upstairs since 2003 or 2004 but died there in March 2008 from a heart attack. He usually came into the bar to watch TV and sometimes to have a beer. Staff knew that he was not well and knew how to deal with the medical condition of customers.
20Their bar has a pool table and 5 televisions. Their tenants come into the bar even if they are not drinking alcohol. They use it as a living room.
21Mr. Zhou submitted as Exhibit #1 a summary of total alcohol sales for the evening and also sales after 9 p.m. Exhibit #2 shows the breakdown of the sales from 5 p.m. to closing. His wife sold 6 bottles of beer and 3 draft beers. Food sales go on a different cash register.
22Mr. Leo Betterman was sitting in the right side of the bar that evening. He always talks really loud and a few times they have had to ask him not to be so loud. He had a stroke several years earlier and since that time, he at times can’t even remember his own name. He is loud, has slurred speech and can’t stand or sit stable.
23Ms. Lan Feng, the wife of Mr. Zhou, testified that she has been employed as a bartender for 3 years. She took the Smart Serve training to learn about responsible service of alcohol and got her certificate.
24On November 9, 2007, she started working at 9 p.m. at which time she started a new till. All drinks have to go through the cash register. When she started work, there were 5 or 6 people in the bar. She remembered Leo, Paul and Dave who was playing pool. She could not remember the others.
25Paul came in at 9 p.m. and ordered draft beer which he normally drinks. She served him 2 drafts and about a half hour later, around 9:30 or 9:40 p.m., he didn’t seem normal. His eyes were becoming a little red and he was slurring his words. She told him that he had had enough, took the rest of the beer from him and told him to go back to his room upstairs. She had sold him 2 drafts and he still had ½ the beer when she took it away. He said, “okay” but he didn’t leave. He was not bothering anyone or drinking but was just sitting down talking to himself. She “cut him off” not very long before the Inspectors came in. Paul followed the Inspectors out when they left and he went back to his room. She did not know if the person the Inspectors saw with a bottle of beer was Paul or someone else.
26She did not serve any alcohol to Leo. He was drinking a bottle of beer when she arrived. She has known him for 2 to 3 years. He had a stroke and has a hearing problem. As a result, he speaks very loud. He moves his arms around and shifts all the time when he walks. He was not drunk that night. He would appear to be drunk to a person who did not know him. Sometimes when he doesn’t understand people, he gets angry and talks loudly to them. He makes people uncomfortable but he is a customer and she can’t refuse him a drink if he is not drunk. Leo never drinks too much. He comes, drinks and leaves.
27Clement Donovan was in the bar also. He came in about a half hour before the Inspectors arrived. He showed no symptoms of being drunk and she sold him one draft beer.
28On cross-examination, the wittiness indicated that she had probably sold fewer than 10 beers that night. No one ordered a pitcher. She put the 2 draft that she sold Paul into a small pitcher.
29She disagreed that Inspector Decker pointed out 3 drunken patrons in the bar to her. He did not talk to her about over-service. He asked her about the upstairs and why it wasn’t open. She told him that it had been shut down for a long time, it was dirty and they needed to redecorate it which would take a lot of money. She asked him if he would issue a licence for it if they asked for one and he told her, “No”. When she asked why, he said that there were some drunk guys upstairs in the bar. She couldn’t understand that because the upstairs was not open so why would there be drunk guys there.
30In trying to identify the patron, she explained that, Dave is 40 to 50 years old, Clem looks 53 or 54 years old, Paul and Leo are between 50 and 60 years old. Of those present, Paul and Clem lived upstairs.
31Her husband was in the kitchen but she did not get him when the inspectors were there. He is always there on the night shift and if there is a problem, they call him. She did not call him when Paul refused to leave. She knows Paul and he just wanted to talk to her.
32She did not observe 3 drunk people in the bar. Only Paul looked a little drunk, the others were okay. She would not serve alcohol to anyone who looked drunk. She did not have any problem with any patrons that night.
33Mr. Clement Donovan testified that he is 54 years old and is a journeyman plumber. He has stayed at the Greenwood Inn for 7 to 8 months. On November 9, 2007, he arrived in the bar late in the evening and ordered a draft. There were 5 or 6 people in the bar. He sat down with a fellow named Jim. There was a fellow playing pool who might have been Dave. He was there for no more than 10 minutes when the Liquor Inspectors came in but he was not watching the time.
34When asked if he saw anyone intoxicated, he explained that Leo was there and he had had a stroke and always looked intoxicated. He knew about the stroke because he had seen Leo there a few times and asked the boys if maybe he shouldn’t be drinking. Someone said that he was that way all the time because of a stroke. He is loud, flays his hands a lot but he never noticed how he walks. He did not know if Leo was drinking or not but he was acting no different than normal. He could not say if Paul was at the bar.
35Mr. Donovan explained that he was in his room before going into the bar. He could not recall if he had any beer in his room but added that he seldom did. When the Inspectors came in, he was half way through his draft and later he may have had 3 or 4 more. He usually has more than one beer.
36He could not recall seeing John the owner but he is normally in the kitchen. He believed Ms. Lan was the bartender when he went in but it was a long time ago and his memory is not very good.
37He and Jim were at the table when the Inspectors came in. It didn’t seem as if Jim was “feeling pretty good.” He believed Jim was drinking but he couldn’t remember the kind of beer. Jim normally drinks bottled beer.
38Paul left right after the Inspectors left. Mr. Donovan indicated that he did not know they were Inspectors. They could have been police officers.
39In describing who was where in the bar, he said that he was at a table with Jim. Leo was at the bar and Paul was at the other side of the bar. Dave was not sitting but was playing pool. He could not recall who was at the table behind him. He did not think Jim got up to get another beer while the Inspectors were there. He guessed that Jim is maybe 40 years old.
40Mr. James Thomas Fraser has worked as a bartender in that building since 1983 and for Mr. Zhou since he has been the owner. He is Smart Serve certified.
41On November 9, 2007, he worked the day shift from 11 a.m. to 5 p.m. He served Paul a couple of small pitchers, which hold 4 glasses, around 1 p.m. He later clarified that Paul usually comes in at 1 p.m. but he did not know what time he came in that day but he wasn’t there at 5 p.m. He would not know if Paul went to his room and drank. When asked if he showed any signs of impairment, he explained that Paul was overweight, around 360 lbs, and could barely walk 5 feet before having to sit down. Paul passed away in March 28, 2008 from a heart attack and he and Mr. Zhou found his body.
42He could not remember if Leo was present or if he served him any alcohol. Leo had health problems and in September had a severe stroke. Afterwards he had difficulty hearing. When talking he would scream. He had difficulty walking and with his balance. He was not a big drinker. He would usually have 2 drafts and then go back to watching a hockey game. His symptoms made people think that he was drunk.
43He saw Leo drunk only on one occasion in October at the mall. Leo came up to him and told him that they would not serve him at the liquor store. He told Leo that he wouldn’t go to the liquor store for him because he was so drunk.
44Mr. Fraser could not comment on what happens in the bar in the evening or how much anyone had to drink on the night in question.
Registrar’s Submissions
45The Registrar asked for a finding of a breach of subsection 45(1) of Ontario Regulation 719/90 under the LLA based on the clear and compelling evidence of the Inspectors that there were three drunken patrons in the licensed premises and that the Licensee permitted the drunkenness by failing to prevent them from becoming intoxicated and by failing to remove them.
Licensee’s Submissions
46The Licensee submitted essentially that the Registrar has not established, on a balance of probabilities, that in fact drunken patrons were permitted to remain in the licensed premises nor that they were served with alcoholic beverages at the time in which they had symptoms that a reasonable operator would interpret as drunkenness. It is not established that the Greenwood Inn has in any way breached the appropriate regulations and the matter should be dismissed.
Analysis/Reasons/Findings
47The Board carefully considered the evidence and the submissions as a whole.
48The Registrar alleges that on November 9, 2007, there were three drunken patrons in the licensed premises in violation of subsection 45(1) of the O.Reg. which reads as follows:
The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur in the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.
49The Registrar’s representative submitted that the Licensee permitted drunkenness by failing to prevent them from becoming drunk and failing to remove them. A finding of permit drunkenness can be made without the element of service. There is no allegation regarding selling or supplying liquor to a person who appears to be intoxicated.
50Regarding the first apparently drunk patron, the Inspectors gave a detailed description of the signs of intoxication displayed by an elderly patron, who the parties agreed was Paul Wilkinson. Ms. Feng admitted that when she observed Paul exhibit some signs of intoxication, she cut him off and told him to go upstairs to his room. Based on the description of the Inspectors and Ms. Feng’s admission, the Board finds that Mr. Wilkinson was drunk in the licensed premises.
51Ms. Feng cut Mr. Wilkinson off around 9:30 to 9:40 p.m. but he didn’t leave. The Inspectors entered at 10:05 p.m. and departed at 10:20 p.m. at which time Mr. Wilkinson followed them out of the premises. Given these time frames, the Board cannot accept the Licensee’s submission that Ms. Feng was prevented from physically assisting Mr. Wilkinson to leave because she was dealing with the Inspectors. She had 25 to 35 minutes to remove him before the Inspectors arrived but she did not do so. Instead she allowed him to stay because he was not bothering anyone.
52By failing to remove Mr. Wilkinson who was drunk, the Licensee permitted drunkenness on the licensed premises.
53Based on the reasons given, the Board FINDS that the Licensee was in violation of subsection 45(1) of the O. Reg. on November 9, 2007 by permitting drunkenness in the premises in the case of Mr. Paul Wilkinson.
54With regard to the two other apparently drunk patrons, the evidence is so contradictory and convoluted that it is not possible to say with any certainty that the persons described by the Inspectors were the people described by the Licensee’s witnesses as being Leo Betterman and Jim.
55The second allegedly drunk person, who went up to the bar and returned to his table, was described by Inspector Holman as sitting alone at the second table wearing a blue baseball cap. The Board will refer to him as the patron with the blue cap for the sake of clarity. Inspector Decker could not remember if he was at the table alone or if there were two people at the table. Mr. Donovan’s evidence is that he was sitting at the table with Jim.
56The male’s signs of intoxication which include staggering from his table to the bar counter and back and talking to himself with heavily slurred speed, led both Inspectors to conclude that he was drunk.
57Ms. Feng denied that there were any drunk patrons in the premises except for Mr. Wilkinson. Mr. Donovan’s evidence is that Jim was not drunk. On cross-examination, he stated that he didn’t think he was “feeling pretty good.” He was very unsure about much of his evidence on cross-examination. The Board does not find his evidence to be very reliable and prefers the evidence of the Inspectors.
58Therefore the Board concludes that the male with the blue cap, who may or may not have been Jim, was drunk in the licensed premises. There is no evidence that the patron was asked to leave the premises.
59Therefore, based on the evidence of the Inspectors, the Board FINDS that the Licensee permitted drunkenness in violation of subsection 45(1) of the O.Reg. in the case of the patron with the blue baseball cap.
60Again with the third apparently drunk patron, there is no certainty if he was Leo Betterman. Based on the descriptions of both Inspectors, this patron exhibited multiple signs of intoxication which would lead the Board to conclude that he was drunk. However, all the Licensee’s witnesses gave evidence that Mr. Betterman had had a stroke and as a result exhibited similar signs when sober to those described by the Inspectors.
61Because the Board is unable to determine that the third patron was not Mr. Betterman and given the credible evidence for the Licensee regarding Mr. Betterman’s medical condition, the Board is not prepared to make a finding regarding this person. If it was Mr. Betterman, it is impossible to know how much of his drunken appearance was due to the consumption of alcohol and how much due to his medical condition.
62Therefore, the Board makes NO FINDING regarding the third patron who may have been Mr. Betterman.
63The 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 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 16th DAY OF SEPTEMBER, 2008
KIRSTI HUNT, VICE-CHAIR
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