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-

Rhythms Restaurant & Night Club Inc. o/a Ice Licensee

DECISION on findings

Panel: S. Grace Kerr, Board Member Decision Date: August 18, 2008 Hearing Location: Toronto, Ontario

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

Appearances

Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative Rhythms Restaurant & Night Club Inc. ) Earl Hutton

Authorities

473954 Ontario Ltd. v. Ontario (Registrar of Alcohol and Gaming), [2001] O.J. No. 5315 (QL) Commercial Tavern, [2006] O.A.G.C.D. No. 580

Allegations

1A hearing into Notice of Proposal number 15827 dated December 3, 2007, to suspend liquor licence number 807530 (the “Licence”), issued to Rhythms Restaurant & Night Club Inc. (the “Licensee”), operating as ICE, 194 Dundas Street, Main Floor, London, Ontario, N6A 5R7, (the “Establishment”), on the basis of alleged violations of section 29 and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”), made pursuant to the Liquor Licence Act, (“LLA”), was held on May 8, 2008, in the City of London.

Decision

2The Board FINDS the Licensee breached subsection 45(1) and section 29 of the O.Reg. Reasons follow.

Preliminary Matters

3Earl Hutton, one of the principals of the corporate Licensee, appeared on its behalf. He waived the right to legal counsel.

4An order to exclude witnesses was made on consent.

Registrar’s Evidence

5The Registrar’s first witness was Constable (Cst.) David Ellyatt, who has been a member of the London Police Service (LPS) for nine years. On January 6, 2007, he attended the establishment as part of the community-oriented response unit for a routine check. When he arrived at 12:05 a.m. that day, a male, holding a Molson’s beer, (the “patron”), fell back into the officer. Cst. Ellyatt attempted to brace up the patron, who took offence at this action, and a struggle ensued. Cst. Ellyatt observed the patron had bloodshot eyes, slurred speech, and difficulty standing. The officer also detected the smell of alcohol on this patron’s breath. After identifying himself as a police officer, the Constable and his partner escorted the patron out of the establishment at which time a further struggle ensued. The patron was arrested for public intoxication, and he was taken to the police cells where he was held overnight.

6Once the patron was under control, Cst. Ellyatt re-entered the establishment. Together with his colleague Cst. Carne, he spoke with the on-duty manager, Chris Archer, and detected an odour of alcohol on Mr. Archer’s breath. Mr. Archer explained that he had attended a hockey game earlier that night and had “one beer”.

7Cst. Ellyatt observed a single person working as door staff on the night in question. This person appeared to not really be looking at what was going on in the establishment.

8When given the opportunity to cross-examine Cst. Ellyatt, Mr. Hutton stated that what the officer said “is partially correct. It is correct”.

9Cst. Amy Birtch, who has been a member of the LPS for eight years, was the Registrar’s next witness. She attended at the establishment on January 6, 2007, and again on March 18, 2007.

10On January 6, 2007, Cst. Birtch arrived at the establishment just after midnight, accompanied by Officers Ellyatt and Carne. In all material respects, this officer’s testimony corroborated that of Cst. Ellyatt as regards to Patron #1.

11On March 18, 2007, Cst. Birtch was accompanied by Alcohol and Gaming Commission of Ontario’s (AGCO) Liquor Inspector Purvis for St. Patrick’s Day checks on establishments. At approximately 3:00 a.m., she and Inspector Purvis entered the establishment from its rear. She observed a number of patrons were standing by the back door, heard loud music emanating from the building, and saw Chris Archer, who she knew to be a manager, produce three plastic cups from the front pocket of his cargo-type pants which he, in turn, gave to Inspector Purvis.

12In cross-examination, Mr. Hutton stated that Cst. Birtch’s statement “was accurate”, although he said the cups were paper and not plastic as the officer had testified.

13The Registrar’s next witness was Cst. Adam Steele, a member of the LPS for 10 years.

14Cst. Steele was parked in front of the establishment on January 28, 2007, at approximately 3:29 a.m., as part of the LPS’s community-oriented response unit. At that time, he was monitoring a nearby establishment, and observed two females exit it and proceed to enter into the subject establishment. These women were not stopped or questioned by anyone at the establishment. Similarly, a minute later, he saw two males leave the other establishment and proceed to enter the establishment without being stopped or questioned.

15As a result, Cst. Steele and his partner, Cst. Mazur, entered the establishment without being stopped or questioned. A deejay was playing music. There were approximately 60 persons present. The lighting was good so Cst. Steele could see from the front to the back of the establishment.

16Cst. Steele approached a table of about six people. There were fruity drinks in plastic cups that were cool to his touch. The drinks were about three-quarters full and smelled of alcohol. Cst. Steel observed people drinking from the plastic cups.

17Cst. Steele also detected the strong odour of burnt marijuana in the area close to and clearly visible from the bar.

18The officer asked to speak with the manager/owner. Mr. Derrick Hutton came to speak with the officer and advised that the bar was only open for food. While Cst. Steele was speaking with Mr. Hutton, Mr. Hutton’s wife exited from the kitchen and joined the conversation, behaving confrontationally and calling the officer “a racist”. The officer tried to speak with Mr. Hutton only, but his wife continued to interject. Mr. Earl Hutton then joined the group. He took the same position as Derrick Hutton’s wife, claiming further that the police were unfairly targeting his bar. Cst. Steele explained how they came upon the establishment that evening and asked the Huttons to close it down.

19On March 17/18, 2007, Cst. Steele was working with the same police unit, and attended the establishment at approximately 3:00 a.m. together with the AGCO’s liquor inspectors. He found the front door was locked; there was no answer to his knocks on the door although he could see light strobes and could hear voices inside. Traveling around to the rear of the establishment, he was stopped by a bouncer.

20Once inside the establishment, Cst. Steele went towards the front, by the bar. He saw three cups on a nearby table that smelled of alcohol to him. He also observed people dancing. He spoke to Mr. Archer, the manager that night, who said they were trying to comply, and the officer said that the establishment would be charged with failure to remove the ‘signs of service’.

21In cross-examination, Cst. Steele denied that, on January 28, 2007, he asked, “Where’s the f…ing manager”.

22AGCO Liquor Inspector John Purvis was the Registrar’s final witness. He has been a liquor inspector since May 2001. On March 18, 2007, Inspector Purvis was working on a joint forces operation with the LPS in relation to St. Patrick’s Day. At approximately 2:55 a.m., he made observations of the establishment from outside its front. Not noticing anything from that vantage point, he made his way around to the back of the establishment.

23At around 3:05 a.m., Inspector Purvis entered the establishment and noticed Mr. Archer walking along and picking up several white plastic cups, which he put into the right front pocket of his pants. Inspector Purvis asked Mr. Archer to produce the cups to him, which he did. Each one smelled of alcohol to the Inspector.

Licensee’s Evidence

24Earl Hutton gave evidence on behalf of the Licensee. He told the Board that he and his brother, Derrick, are new to the business of running a bar. He has no other witnesses because most of the people who might testify are no longer employed by the Licensee, having been dismissed for what happened “on certain nights.”

25Mr. Hutton acknowledged that on January 6, 2007, a person (referring to the drunken patron) who was intoxicated came into the establishment. He said that it was “bad judgment” on the part of the bouncer to let this patron in as he had already been drinking at another club. The bouncer has been let go.

26Regarding the alleged incidents of January 28, 2007, Mr. Hutton said that he accused the police officers of racism as they had entered the establishment “with an attitude”. He admitted that he was a little angry at their approach.

27Mr. Hutton indicated that it is not easy to run a bar, and that one has to confront people who do not respect the law, other people’s property, or anything.

28In cross-examination, Mr. Hutton acknowledged that he was in the establishment on January 6, 2007, did not observe the drunken patron, but was informed afterwards what had happened.

29In response to a question from the Board regarding what policies and training were in effect in the establishment on the nights in question as regards to the issues before the Board, Mr. Hutton said that he and his brother are ‘SmartServe’ trained. He also said that it was a mistake to have cups in which alcohol had been served laying around. Now, there is a policy that staff is to start clearing the signs of service at 2:00 a.m. as he has learned that he “can be fined by having just one empty cup lying around.”

Registrar’s Submissions

30Mr. Kulis submitted that the Board should accept the police officers’ evidence as to infractions by the Licensee on all three dates.

31First, as regards to January 6, 2007, Mr. Hutton has admitted that the patron who was ultimately charged by the police was drunk in the establishment. Furthermore, subsection 45(1) of the O. Reg does not require proof that the over-consumption occurred within the licensed premises; it is sufficient simply that the intoxicated patron was in them. As well, the staff did nothing to prevent the intoxication.

32On January 28, 2007, the police officers found plastic cups that smelled of alcohol. This is sufficient for the Board to make a finding under section 29 of the O. Reg.

33Finally, on March 18, 2007, Inspector Purvis saw the manager pick up cups, which smelled of alcohol, later than 2:45 a.m. Although he was attempting to clear the signs of service, Mr. Archer was late in doing so.

Licensee’s Submissions

34Mr. Hutton said that he was present at the hearing to tell the truth. He and his brother were pretty new at running the bar and were lacking in certain experience. They had made mistakes, but learned from them and have taken steps to prevent them from happening again.

Analysis and Findings

35Having carefully considered all of the evidence and submissions, the Board finds that the Licensee has breached subsection 45(1) and section 29 of the O.Reg.

36As regards to the January 6, 2007, incident, the Board accepts Constables Ellyatt and Birtch’s evidence. The signs of intoxication of the patron, as detailed in paragraph 5 above, were several and severe. Both officers had direct and close contact with the patron to lend weight to their trained observations. The Board therefore finds that the patron was intoxicated in the premises on the night in question.

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

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

39The Board accepts the evidence of Cst. Steele that on January 28, 2007 at 3:30 a.m. a table of about six people in the establishment had three-quarters full fruity drinks in plastic cups, that were cool to the officer’s touch and that smelled of alcohol, in front of them. Based on this credible evidence, the Board FINDS that the Licensee violated section 29 of the O. Reg on the date in question.

40The Board also accepts the evidence of Constable Steele and Inspector Purvis that, on March 18, 2007 at 3:05 a.m., Mr. Archer, an employee of the Licensee, was in the process of removing some plastic beverage cups from tables in the establishment. These containers were empty but smelled of alcohol. The Board also agrees with Constable Birtch’s conclusion that Mr. Archer had put the cups into the pockets of his cargo-type pants because he was attempting to conceal them from the officers and the inspector. Based on this credible evidence, the Board FINDS that the Licensee also violated section 29 of the O. Reg on March 18, 2007.

Conclusion

41For these reasons, the Board FINDS that the Licensee breached section 29 and subsection 45(1) of the O. Reg on the relevant dates.

42The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within twenty-one (21) days of the date of this decision. The Licensee’s representative shall have fourteen (14) days to serve and file a written response. Registrar’s representative may serve and file any reply within ten (10) 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.