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-
1305333 Ontario Inc. O/A O’Grady’s Tap & Grill
Licensee
DECISION ON FINDINGS
Panel: Brian J. Ford, Board Member S. Grace Kerr, Board Member
Decision Date: August 28, 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 1305333 Ontario Inc., Licensee ) Jeff Lieberman, Representative
Authorities
Salty Dog Roadhouse Restaurant, [2001] O.A.G.C.D. No. 426 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 Tara Inn, [2005] O.A.G.C.D. No. 489 Bikini Bob’s, [2007] O.A.G.C.D. No. 145 3234720 Canada Inc. (c.o.b. Raxx Billiards & Bar), [2008] O.A.G.C.D. No. 41
Allegations
- A hearing into a Notice of Proposal number 15936 dated January 15, 2008 to suspend liquor licence number 91994 issued to 1305333 Ontario Inc. (the “Licensee”) operating as O’GRADY’S TAP & GRILL, 171 College Street, Toronto, Ontario, M5T 1P7, on the basis of alleged violation of subsection 45(1) Ontario Regulation 719/90 (O.Reg) made pursuant to the Liquor Licence Act (LLA), was held on April 2, 2008 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated subsections 45(1) of the O.Reg. Reasons follow.
Registrar’s Evidence
Kirill Grinshtein testified that on June 16, 2007, he attended O’Grady’s Tap & Grill (the establishment). Before going to the establishment he and a friend, Jesse Grosse, purchased some liquor. Mr. Grinshtein had consumed a full “mickey” (375 ml) of Vodka about an hour before going to the establishment. He also noted that he had had something to eat a couple of hours before going there.
Mr. Grinshtein went to the establishment because a band he liked was playing there. When he and Mr. Grosse arrived there, they purchased a pitcher of beer. They sat down in the middle of the room near a stairway. After they were served, he took a sip and realized he could not drink anymore and that he was really drunk.
Mr. Grinshtein stated that he felt that he should get home, so he left. He was not thrown or kicked out of the establishment. He was out on the street when the police tried to wake him up. He knew that he could not have had more alcohol after he left the establishment. He remembered getting woken up and put in a cab and sent to his home.
On cross-examination, Mr. Grinshtein stated that it was his first time at the establishment. He stated he does not know the names of other bars in the area. He stated that he attends York University and that he has friends at the University of Toronto. He just remembers that Mr. Grosse purchased a pitcher of beer, but does not remember what kind of beer it was. He also did not recall who served him.
Mr. Grinshtein stated he was drunk when he arrived at the establishment, and when he went inside it, it was worse. He also stated that his friend, Mr. Grosse, was also drunk. He also stated he believed there was someone at the front door checking identification.
Jesse Grosse testified that he and Mr. Grinshtein went to the establishment on the night of June 16, 2007. Prior to going there, they each purchased and drank a “mickey” (375 ml) of alcohol. They arrived at the establishment between 10:00 p.m. and 11:00 p.m. Their identification was checked at the door. After entering, he went to the bar and bought a pitcher of beer, brought it to their table, and poured a glass for himself and for Mr. Grinshtein. While there, he stayed seated and drank the beer.
Mr. Grosse noted that at the time he arrived at the establishment he was not sober. He also stated that Mr. Grinshtein did get up and walk around the bar to say ‘hi’ to some friends. Mr. Grinshtein stayed seated at the table while Mr. Grosse was at the bar buying the beer. He remembered that Mr. Grinshtein took a sip and then poured his beer back into the pitcher saying he “could not do it” (meaning he could not drink the beer).
Mr. Grosse stated that a friend came over to the table later on in the evening and, when he tried to stand up, it hit him on how much he had to drink. The friend said that they have to find Mr. Grinshtein. His memory after that was sketchy.
On cross-examination, Mr. Grosse stated that he paid ten dollars for the pitcher of beer. He did not get a receipt. He stated that at first Mr. Grinshtein seemed okay: he was walking and talking to people.
Mr. Grosse stated that when he got to the establishment he wanted to drink more. He also said that he was probably already drunk when he arrived, but felt he could carry on. He went there to see a rock band of friends from high school.
Stephen Henkel is a detective with the Toronto Police Service. He testified that he and his partner, Detective Constable Chris Park, were on general patrol in the area of the establishment on June 16, 2007 at 12:32 a.m. He noticed a male laying face down in front of 177 College Street, stopped to investigate, and found that the male had consumed too much alcohol. This person was identified as Mr. Kirill Grinshtein. He asked Mr. Grinshtein if he needed an ambulance, but was told he did not need to go to a hospital. The officer noted that Mr. Grinshtein was severely intoxicated, his pants were down over his buttocks, and he fell when he tried to get up.
The officer was advised by the friend helping Mr. Grinshtein that he had been drinking at O’Grady’s with a friend, Jesse Grosse, and that Mr. Grosse was still at the establishment. The officers then proceeded to the establishment, accompanied by Mr. Grinshtein’s friend, in an effort to find Mr. Grosse. They were unable to find him in the premises but came upon him as they were exiting the establishment. Mr. Grosse was unsteady on his feet, and his speech was slurred. Mr. Grosse advised the officer that he had been drinking at the establishment and that he had consumed a half pitcher of beer.
On cross-examination, Detective Henkel stated that he and his partner are responsible for all liquor establishments in the area, including the establishment, and that they attend these establishments frequently in that regard. He stated that the premises in front of which they found Mr. Grinshtein was not a licensed establishment and that Mr. Grinshtein was lying on the public sidewalk. He noted that there is a drug addiction centre in the area but that it was not open at the time. He indicated that there is a Salvation Army shelter for the homeless nearby as well.
Detective Henkel stated that he did not test Mr. Grinshtein for alcohol levels as it was not necessary. He concluded based on his professional experience that Mr. Grinshtein was severely intoxicated. He did not charge Mr. Grinshtein for public drunkenness.
Detective Henkel also acknowledged that he did not see Mr. Grinshtein drinking or being served. He had spoken to the manager of the establishment, Jono Miller, who did not admit to serving alcohol to Mr. Grinshtein. He also spoke to a Harry Ponte, the establishment’s sound technician, who was at the patio door of the establishment.
Chris Park is a detective constable with the Toronto Police Service. In all material respects, he corroborated the testimony of Detective Henkel.
On cross-examination, he stated that he told Mr. Jono Miller that the establishment would possibly be charged under the LLA. Mr. Miller advised him that there was a “staff issue” on the night in question.
Det. Cst. Park stated that, from the police’s perspective, the establishment is not a problem bar generally-speaking. When asked if it was possible if the two men in question were on drugs, rather than intoxicated, he replied that it was possible.
Licensee’s Evidence
Keit Kang is the owner of the corporate Licensee, having owned it since 2005. He testified that on the night in question Mr. Jono Miller was the manager; however, Mr. Miller has since been fired.
Mr. Kang stated that the Provincial Offences Act charges that were laid by police were dropped in provincial court because the officers did not attend on the trial date.
Mr. Kang advised that on the night of June 16, 2007 there was not a large number of people at the establishment.
On cross-examination, Mr. Kang stated that he left the bar at 7:00 p.m. on the night in question.
Mr. Kang terminated Mr. Miller’s employment in July 2007, which was after he received the provincial offence notice, although he stated that Mr. Miller was terminated because he was not a good manager. He also stated that he found out about the incident the next day when Mr. Miller told him that something happened.
Mr. Kang stated that he had three staff members working on the main floor and two on the second floor and one bus boy and one sound person on the night in question. He said that for the number of patrons that night, that is, approximately forty to fifty people, there was enough staff on duty. Also, Harry Ponte was the sound man that night, and a person named “Charles” was checking identification.
Deston Baptiste is a bartender at the establishment and has worked there for five years. He testified that he has been the head bartender for three years. He was working on June 16, 2007. It was not busy that night in that there were approximately fifty patrons. He noted that it would be hard for anyone to enter the bar without him seeing them, particularly on this night as it was very slow.
Mr. Baptiste stated that he saw Mr. Grinshtein on the night in question and that Mr. Grinshtein did not “look right”. Mr. Grinshtein came to the bar and asked for a glass of water. Mr. Baptiste gave him a bottle of water and he walked away. Mr. Baptiste said he then escorted Mr. Grinshtein out of the establishment and said he was not concerned about Mr. Grinshtein’s safety.
When asked how he remembered Mr. Grinshtein, he said he was “pretty good with faces” and that he is “not in the habit of giving water away”. He also noted that there were only twenty to twenty-five people in the lower area.
On cross-examination, Mr. Baptiste said that Mr. Grinshtein came into the establishment from St. George St. East and that he was alone at that point. He could not remember the time of Mr. Grinshtein’s arrival.
Mr. Baptiste also stated that there was a band playing in the establishment that night, but could not remember when it started playing or if it was playing when he observed Mr. Grinshtein.
Mr. Baptiste said that a person named “Charles” does the identification checks for the establishment. He also said that on the night in question no one checked for identification, but later changed his evidence to say that Harry Ponte, the establishment’s sound technician, came down to do identification checks.
Mr. Baptiste heard of the incident from one of the staff members.
Jayme Swanton is one of the managers at the establishment and had worked there for three years. She testified that she was not there on the night in question but gave evidence as to her responsibilities at the establishment and its policies.
Exhibit No. 1 was entered into evidence through Ms. Swanton. This exhibit is a street plan she had sketched. It showed other establishments in the area.
Registrar’s Submissions
Mr. Kulis submitted that Mr. Grinshtein described himself as “drunk” when he entered the establishment and that he became more intoxicated as time went on, once there. His condition was confirmed when the police discovered him at 12:32 a.m., passed-out on the sidewalk close to the establishment. Mr. Grosse, Mr. Kulis submits, although not as intoxicated as Mr. Grinshtein was also drunk in the establishment. After their identification was checked at the door, Mr. Grinshtein and Mr. Grosse were able to obtain a pitcher of beer. As there were not many patrons in the bar at the time, their state of intoxication should have been noted by the staff, and dealt with.
Furthermore, Mr. Kulis argues, both police officers described Mr. Grinshtein as being extremely intoxicated and testified that Mr. Grosse, who they saw leave the establishment, was also intoxicated.
Mr. Kulis referred to the Board’s decision, the Salty Dog Roadhouse Restaurant. In that case, the Board found that a patron found at the scene of an accident exhibited signs of drunkenness, which would have be discernable when she was at the establishment. Mr. Kulis urged the Board to draw a similar conclusion as regards Mr. Grinshtein and Mr. Grosse’s states.
Mr. Kulis noted that in this case there is no evidence that the two young men were drunk other than at the establishment. In that regard, he relied upon the Board’s decision in Raxx Billiards & Bar where the Board found that where there is evidence that a patron has consumed his last beer in an establishment that it is reasonable to conclude that he was intoxicated while at the establishment and urged the Board to draw a similar conclusion on the facts of this case.
Noting also that Mr. Ponte had told police that they were short staffed that night, for all of the above reasons, Mr. Kulis argued that there was sufficient evidence for a finding of breach of subsection 45(1) of O.Reg.
Licensee’s Submissions
Mr. Lieberman submitted that there is no other evidence that either young man attended the establishment, other than their own testimony. He urges the Board to conclude that Mr. Grinshtein and Mr. Grosse’s evidence is unreliable as to where they were on the night in question. He noted that, when asked what kind of beer they ordered in the pitcher, Alexander Keith’s was suggested but that brand of beer is not sold at the establishment. Mr. Lieberman also noted that they could not remember whether their identification was checked at the door.
Alternatively, Mr. Lieberman submitted that, since the beer was purchased at the bar and there was no interaction with staff, Mr. Grinshtein would not have left the impression he was intoxicated. In other words, there was no opportunity for staff to come to the conclusion that he was drunk and therefore should be removed from the premises.
Mr. Lieberman noted that the provincial offence charges were withdrawn in Provincial Court because the officers failed to attend, and suggests this is evidence that the situation was not taken seriously.
Mr. Lieberman also argued that the area where the establishment is located and where Mr. Grinshtein was found is known to be an area with drug problems and that Officer Park said it was possible that Mr. Grinshtein could have used drugs.
Mr. Lieberman urged that Mr. Baptiste, who had a clear view of the entrance to the establishment, saw Mr. Grinshtein for five minutes, observed him to be looking for water, and provided him with it before escorting him out of the establishment. Neither officer observed either young man drink on the licensed premises. Mr. Lieberman noted that in a Board decision, Raxx Billiards Bar & Bar, a breathalyser taken of the patron who was found at the scene of an accident clearly showed the patron to be intoxicated. In this case, no breathalyser was taken. For all of these reasons, he argued, there was no evidence of intoxication in this case.
Mr. Lieberman also referred the Board to the Commercial Tavern case, a previous decision wherein the Board noted that the onus is on licensees to prevent drunkenness on their premises but that realistic expectations have to be applied in enforcing the law or, in other words, were reasonable steps taken by the Licensee to deal with the matter. He urges that the evidence in this case is that Mr. Grinshtein was fine when he entered the premises, that, when in there, he recognized he had too much to drink, and left. He argues that there was no evidence that the establishment had an opportunity to make an assessment of Mr. Grosse’s state.
Further, Mr. Lieberman stated that in a previous Board decision, that of Bikini Bob’s, the Board concluded that when patrons show signs of drunkenness their service is to be cut off but they can be allowed to remain in the establishment until they can return home safely.
Finally, Mr. Lieberman noted that the Board, in its Tara Inn decision, found that, as blood alcohol test results were not presented at the hearing, no empirical evidence was available for it to conclude that the patron was inebriated. Absent evidence of service of alcohol, the Board could not find in that case that the patron was intoxicated. The same should apply in this case, Mr. Lieberman submits.
For all these reasons, Licensee’s counsel submitted that there is insufficient evidence to make a finding of a breach of subsection 45(1) of the O.Reg.
Reply Submissions
Mr. Kulis submits that there is direct evidence of Mr. Grinshtein’s and Mr. Grosse’s drunkenness, that is, the patrons who were drunk admitted and testified that they were drunk. He suggested that the Licensee took no action to deal with drunken patrons.
Further, Mr. Kulis argues that, in the previous Board decision of Commercial Tavern, the Board noted that it is incumbent upon licensees to ensure that they are prudent in their oversight in the premises, and that when a problem is discovered it is handled promptly and appropriately. He submits that neither responsibility was met by the Licensee in this case.
Mr. Kulis also urges that a blood alcohol test is not a requirement for a finding that these patrons were drunk, and that it would be too onerous upon a police service or the AGCO to have to perform one every time.
Analysis/Reasons/Findings
The Board must determine whether the licence holder ‘permitted drunkenness’ on the licensed premises on June 16, 2007, contrary to subsection 45(1) of the O. Reg.
The Board concludes that Mr. Grinshtein and Mr. Grosse have told it the truth. It has also given weight to their evidence because of its objectivity. Neither man has an interest, financial or otherwise, in the outcome of this hearing. The age of testimony, and each man’s degree of intoxication to possibly impair their recollections have been taken into account. From June 16, 2007 to April 2, 2008 is about 9 and a half months and neither Mr. Grinshtein or Mr. Grosse made any notes about the night in question. However, the events of the night in question were significant enough to these persons, such that it likely made details as the men could recollect easier to remember than just recalling a run-of-the-mill evening out. The Board concludes that each of Mr. Grinshtein and Mr. Grosse’s evidence accurately reflects events that took place at the establishment on the night in question.
As a result, the Board can and does conclude that Mr. Grinshtein and Mr. Grosse were patrons of the establishment on the night in question. Both gentlemen testified that they were there. What’s more, Mr. Baptiste, an employee of the establishment, admitted seeing Mr. Grinshtein enter it. The police officers saw Mr. Grosse leave it.
Next, the Board must determine if these two patrons were drunk in the establishment. The Board concludes that they were, for the following reasons. First, it accepts the direct evidence of Mr. Grinshtein and Mr. Grosse as truthful, that while they were in the establishment they were drunk and, further, that they were in this condition when they entered it. Further, and importantly from a credibility standpoint, Mr. Grinshtein and Mr. Grosse’s testimonies corroborated each other in all material respects on this issue.
The Board accepts Mr. Grinshtein’s evidence as to the significant amount of alcohol he had consumed before attending at the establishment and, further, as to how it impacted upon him once there. As well, it believes the evidence of the two experienced police officers, Det. Henkel and Cst. Park, confirms Mr. Grinshtein’s evidence as to his level of extreme intoxication on the night in question, to the point that he was lying on a sidewalk nearby the establishment, ‘passed out’, when the officers came upon him. Taken all together, the Board concludes that Mr. Grinshtein would have been and, in fact, was intoxicated during the time he was in the establishment.
The Board also accepts that the officers saw Mr. Grosse leave the establishment in what they believed to be an intoxicated state (described in paragraph 14 above). Taking this evidence together with that of Mr. Grosse himself as to what he consumed both before attending and while at the establishment, the Board concludes that Mr. Grosse was drunk while in the establishment.
The Board must then decide, on a case-by-case basis, whether the Licensee permitted the drunkenness in the establishment. In that regard, the Board holds that the patron need not become intoxicated on the premises before a finding of a breach of ss. 45(1) can occur. Drunkenness simpliciter is a breach of the regulation (see 473954 Ontario Ltd (Wilder’s and the Zoo), supra). On this basis alone, the Board could conclude that ss. 45(1) had been breached in this case.
Further, there is an onus on all Licensees to, at all times, not only prevent but also to deter drunkenness on their premises (see Commercial Tavern, supra). Even when patrons found drunk in an establishment entered it already intoxicated (which the Board concludes in this case), the Licensee (or the staff member designated to be in charge of the establishment) should have assessed and removed any person appearing to be intoxicated at the first reasonable opportunity.
Following the principles enunciated in the Commercial Tavern case, the Board concludes the Licensee’s response was inadequate on the night in question for several reasons set out below.
First, by the Licensee’s own evidence, there were not many patrons in the establishment. Thus, it should have been easy in the first instance for the Licensee to avoid any of the subject patrons entering the premises drunk, as is its responsibility in law.
Furthermore, Mr. Grinshtein and Mr. Grosse testified that they believed they were checked for identification, which was confirmed in the Licensee’s evidence, upon entering the establishment. This is also a time that incoming patrons’ levels of intoxication should be assessed, but there was no evidence to show that this was done by staff.
As well, while a pitcher of beer was purchased by Mr. Grosse shortly after he and Mr. Grinshtein entered the establishment, the Board accepts the evidence of Mr. Grinshtein that he did not consume much of it. He quickly and soon concluded that he had already had too much to drink. Given Mr. Grinstein’s self-admitted, and police confirmed, level of extreme intoxication, the Board agrees with the Registrar’s submission that the signs of drunkenness exhibited by Mr. Grinshtein, when he was discovered by the police on the sidewalk near the establishment, would also have been discernable when he was in it. There is no evidence for the Board to conclude that either Mr. Grinshtein or Mr. Grosse took any drugs or that drugs were involved in their impaired states.
While Mr. Baptiste stated that he escorted Mr. Grinshtein from the bar, the Board does not accept this evidence. It finds more credible Mr. Grinshtein evidence that he was not thrown out of the bar but chose to leave of his own accord having concluded himself that he had had too much to drink.
Conclusion
The Board therefore FINDS, based on the evidence and on the balance of probabilities, that drunkenness was permitted in O’Grady’s Tap and Grill on June 16, 2007, contrary to subsection 45(1) of the O.Reg.
The Board invites written submission 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 written response. Registrar’s representative may serve and file any reply with three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the manger, Hearings Department, Alcohol and Gaming Commission at the address of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 28th DAY OF AUGUST, 2008
BRIAN J. FORD, BOARD MEMBER S. GRACE KERR, BOARD MEMBER
BJF/sm