Registrar, Alcohol and Gaming Commission of Ontario v. 1565611 Ontario Inc. O/A Roxxy Tap & Grill, 2008 CanLII 52587

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-

1565611 Ontario Inc. O/A Roxxy Tap & Grill Licensee

DECISION ON FINDINGS

Panel: David C. Gavsie, Chair, AGCO Joan Lougheed, Board Member

Decision Date: August 25, 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 ) Daniel Alakas, Representative 1565611 Ontario Inc., Licensee ) John Kirby, Representative

Authorities

Radovici v. Toronto Police Services Board, [2007] O.J. No. 2663 Horseshoe Valley Resort Ltd. v. Ontario (Alcohol & Gaming Commission), 2005 CanLII 81108 (ON SCDC), [2005] O.J. No. 5895

Allegations

1. A hearing into Notice of Proposal number 15830 dated February 19, 2008 to suspend liquor licence 0202592 (the “Licence”) issued to 1565611 Ontario Inc. (the “Licensee”) operating as ROXXY TAP & GRILL (“Roxxy’s”), 750 James Street, Wallaceburg, Ontario, N8A 2P5 (the “Premises”), on the basis of alleged violations of section 29 of the Liquor Licence Act (“LLA”) and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on July 14, 2008 in Sarnia.

Decision

2. After considering all the evidence and submissions, the Board makes findings that breaches of section 29 of the LLA and subsection 45(1) of the O.Reg did occur. Reasons follow.

Registrar’s Evidence

3. The evidence of the Registrar consisted of viva voce, evidence of AGCO inspector Kevin Holman. Insp. Holman has been an AGCO inspector since January 3, 2006. Prior to that he was a member of the Windsor Police Services for many years. On consent, he was permitted to refer to notes to refresh his memory

4. On the night of May 31/June 1, 2007, Insp. Holman visited the Kent Tavern. Several people he saw there showing signs of intoxication were later that evening seen by him in the Premises.

5. The Kent Tavern is on the south side of the river flowing through Wallaceburg. The Premises are on the north side of the river. A bridge connects the two sides.

6. Insp. Holman’s attention was drawn to the Kent Tavern when he noticed two males outside consuming beer. He went inside. He estimated there were 70 to 80 people inside, which seemed unusual to him. He said the crowd would normally be around 20. There was a crowd around the bar three to four people deep. People were of all ages.

7. Insp. Holman noticed four men at a stand up table. Each of them except for one had two bottles of beer. The fourth male had three bottles in front of him. They appeared intoxicated to Insp. Holman. They were very unsteady on their feet when they left the bar.

8. Insp. Holman observed another three males stagger to the bar. They pushed their way through a crowd. They were holding beer which they downed, bought new beer and downed that too. Their speech was slurred. They were unsteady on their feet and loud.

9. Insp. Holman said he was at a distance of 5 feet from these three males. They were well spoken but loud. They got their beer and pushed their way back through the crowd, banging into people.

10. Insp. Holman proceeded to the back door entrance of the Kent Tavern towards the river. He saw a man coming along holding on to a wall, talking in a heavily slurred manner. The man would fall away from the wall. He was drinking from a bottle of beer.

11. Insp. Holman went to the back of the bar. There were 30 to 40 people consuming alcohol, but that area was unlicensed.

12. Insp. Holman went back into the main area of the Kent Tavern. He was concerned about the age of some patrons. He asked to speak to a manager or owner. A bartender pointed out a person in charge. That person evidently was the owner’s son who denied he was in charge. The son had been drinking heavily and said his father was in the hospital.

13. The son told Insp. Holman that this was the last night for the Kent Tavern. They were trying to make as much money as they could, and trying to sell as much liquor as they could.

14. Insp. Holman contacted Chatham/Kent police to come to the Kent Tavern. As a result the bar was closed and the patrons scattered. By 12:35 a.m., Insp. Holman said the Kent Tavern was clear of people. He left those premises at 12:40 a.m.

15. As he waited for police to arrive, Insp. Holman noticed people walking across a bridge over the river towards Roxxy’s.

16. At 12:45 a.m., Insp. Holman entered Roxxy’s through the back door. He explained that the inside of Roxxy’s is split into two parts. One side was where a band plays and the other side is a bar. The bar side was full.

17. Insp. Holman said that the crowd in the Premises was from the Kent Tavern. He recognized patrons who had been in the Kent Tavern.

18. Insp. Holman stated that there were three female bartenders behind the bar. The owner, Bryan Poissant, was talking to several patrons at the side of the bar. Insp. Holman did not see any security employees but Mr. Poissant said he did have some on duty. Insp. Holman said no employees were by the door when he walked in.

19. According to Insp. Holman, the bartenders were serving as fast as they could. In the middle of the Premises, Insp. Holman saw three of the four male patrons he had seen in the Kent Tavern at a stand up table. They were still showing signs of intoxication. They were leaning abnormally. The tallest of the three fell across the bar. They were leaning on each other for support. Two were holding on to the tallest person. They were unsteady, loud, and had slurred speech.

20. The tallest member of the group asked for three beers and was served. The other two were behind him in single file. They were holding on to each other. When the tallest member was served, he handed over beers to each person behind him.

21. Insp. Holman got the attention of the owner and spoke to him. He pointed out the three men, told him what had happened at Kent Tavern, and that numerous patrons in the Premises had been there.

22. At that point, the fourth member of the group at Kent Tavern came by. He was stumbling with his head down. Insp. Holman pointed him out to Mr. Poissant as being intoxicated. All four males were, according to Insp. Holman, between 60 to 65 years old.

23. According to Insp. Holman, Mr. Poissant took no action. He said he was closing the Premises and everyone showed up.

24. At that moment, the fourth member of the Kent Tavern group went to the bar to obtain service and did receive a beer. He came over to talk with Insp. Holman and Mr. Poissant. His speech was slurred. Mr. Poissant asked the male to leave and took the beer bottle away from him.

25. Mr. Poissant then asked two of the remaining three males of the Kent Tavern group to leave the Premises. Insp. Holman did not see them leave.

26. The remaining member of the group of four downed his bottle of beer and came over to talk to Insp. Holman and Mr. Poissant. Mr. Poissant then went into the crowd and started looking for people pointed out to him by Insp. Holman.

27. Insp. Holman proceeded over to the dance area in the back of the Premises. It is a step up to the back area. He observed two males approach from the front. One was the male Insp. Holman had seen at Kent Tavern standing at the back door shaking hands with everyone. Both males were consuming alcohol, holding on to each other for support, staggering badly and mumbling incoherently. They could not hold their balance. Their eyes were half shut. Their movements were uncontrolled and erratic.

28. Mr. Poissant came by, Insp. Holman pointed the two males out to him. Mr. Poissant walked over to them, had them set down their beers, and they walked out the back door.

29. Insp. Holman then noticed two males in the Premises who had been consuming beer on the sidewalk outside of the Kent Tavern. They had draft beer in plastic cups. They were staggering and had a distinct slur in their speech.

30. At this point Insp. Holman said he was near the back door of the dance area. One of the males stopped. He recognized Insp. Holman from the Kent Tavern as being a liquor inspector. The male threatened Insp. Holman and told him “wait until next time”. He also told Insp. Holman he knew he was not from the Wallaceburg area.

31. Insp. Holman said this man’s eyes were bloodshot and watery, he had slurred speech and his head was weaving.

32. When Mr. Poissant returned to where Insp. Holman was standing, Insp. Holman pointed out these two males as being intoxicated. Mr. Poissant escorted them out the back door.

33. Insp. Holman said he questioned the owner regarding the intoxicated people in the Premises. Mr. Poissant replied that he was about to close when a lot of people came in. There were so many drunks, Mr. Poissant did not know what to do.

34. Insp. Holman said the staff should have Smart Serve certification and take appropriate action.

35. Mr. Poissant yelled to the staff: “That’s it. We are closed.” The bartenders stopped serving. Insp. Holman left at 1:15 a.m. having been in the Premises for about 25 minutes.

36. Insp. Holman said that before he left, the owner, Mr. Poissant was going to find his staff and have the patrons moved out. He was content service had stopped. Insp. Holman called the Chatham police and told them about the situation at Roxxy’s and about the crowd from the Kent Tavern. Insp. Holman told Mr. Poissant a report would be submitted.

37. In answer to questions on cross-examination, Insp. Holman said Mr. Poissant had told him about a month ago that the Premises were to be sold. Insp. Holman went there to talk to Mr. Poissant.

38. Insp. Holman said he saw eight intoxicated patrons at Roxxy’s, four of whom were served alcohol. Of the other four, two had bottled beer and two were drinking from plastic cups.

39. The fourth member of the group who Insp. Holman had seen at the Kent Tavern when he approached Insp. Holman at Roxxy’s, had his head down, was walking slowly and bumping into people. He was served and came over to Brian Poissant. His eyes were bloodshot, watery, rolling back. He was weaving while he was standing.

40. Insp. Holman was asked about a seasoned drinker. He replied that it would be someone who is an experienced drinker and who might have a higher tolerance for alcohol. He also said that this group of four men were just as obviously intoxicated in the Kent Tavern as they were inside Roxxy’s.

41. Insp. Holman said the men were friendly and compliant. When people were asked to leave by Mr. Poissant, they followed instructions. There was no fighting, no fuss. There was no band playing. The noise from patrons was not loud. Insp. Holman said he could hear himself talk without raising his voice. He could hear people down the bar.

42. Insp. Holman said he saw Mr. Poissant escort four people out of the Premises that night.

Licensee’s Evidence

43. Tammy Poissant gave evidence. She had been a previous owner of Roxxy’s. She and her husband were principals of the corporate licensee. She worked in the Premises.

44. Ms. Poissant said she was working as a bartender in the Premises the night of May 31/June 1, 2007. She is Smart Serve trained, and has been qualified to lead others in the Smart Serve training for four years.

45. That night was the first night of their contracting out arrangement with proposed new owners. There were two other girls working – Stephanie and Beth. Stephanie has her Smart Serve certificate. It was a Thursday night. There were about 15 patrons in the Premises. When the Kent Tavern closed, the number of patrons increased to 40.

46. Ms. Poissant said she knew the group of four men described as being “elderly” by Insp. Holman. She identified them as Mike Morgan, Wayne Robinson, Paul Grellis, and a fourth man. The first three come in to the Premises regularly. Of the three, one is elderly. The other two are the age of Ms. Poissant, namely 44. They like to have two or three drinks.

47. Mike Morgan is noticeably taller. Wayne Robinson is the oldest. Wayne and Mike, said Ms. Poissant, are both deaf. She has to scream at them. That night, Ms. Poissant did not serve them. She said that Mike Morgan came up to the bar and was served.

48. The group of four men was sitting at a round table at the end of the bar. Mike Morgan came up to the bar for drinks. Ms. Poissant watches what goes on in the Premises. She did cut off a few people from being served, but not this group.

49. Ms. Poissant said she could tell if someone is intoxicated from their actions, speech and the way they move. The three men in the group she knew were not intoxicated. They were their normal selves, joking with each other.

50. Insp. Holman was yelling at her husband, Bryan, to cut people off. Ms. Poissant said she and Insp. Holman never spoke that night.

51. Ms. Poissnat said that Mr. Poissant took beers away from those patrons Insp. Holman said to and told those patrons to leave. She saw three of these patrons. Wayne Robinson told Ms. Poissant that they were giving him a hard time at Kent Tavern and another place, so he knew why he was being kicked out. He left without any problem.

52. In answer to questions on cross-examination, Ms. Poissant said there were three staff behind the bar. Sonia Jilkova was also there. It was her first night as the new owner. Mr. Poissant was not working.

53. Ms. Poissant said she was looking after the place that night. She would walk around the Premises every half hour or so. She would check identification at the bar, not at the door. When the Kent Tavern crowd came in, it brought the crowd in the Premises up to 40.

54. Ms. Poissant stated that she was going to close before the Kent Tavern crowd came in which she estimated was around midnight.

55. Ms. Poissant said that she has to yell at Wayne Robinson and Mike Morgan. The latter also has a speech impediment. Both of them talk very loud.

56. In answer to a question from the Board, Ms. Poissant indicated that the Licence was in the process of being transferred to Sonia Jilkova that night.

57. Bryan Poissant gave evidence. He was in the Premises the night of May 31/June 1, 2007. Patrons came in because the Kent Tavern was closed.

58. Insp. Holman started yelling at him to cut off Paul Grellis, Wayne Robinson and Mike Morgan. They had arrived around midnight. They all left. They were regular customers.

59. After that, Mr. Poissant told staff to close the bar. There were no other incidents. No one else was asked to leave.

60. Mr. Poissant said he personally had no concerns about the three men, but he cut them off and asked them to leave because Insp. Holman said they should be cut off.

61. In answer to questions on cross-examination, Mr. Poissant said he was going to close but stayed open because of the arrival of the crowd from the Kent Tavern. No one was on the doors. Mr. Poissant observed sobriety of patrons. There was nothing to be concerned about.

62. Mr. Poissant said he could not please Insp. Holman so he closed the bar. Tammy Poissant cut off three patrons. Insp. Holman did not tell him to remove anyone, just to cut three men off from service.

63. Mr. Poissant said that Paul Grellis was asked to leave and did. The other two just left.

64. Richard Walt gave evidence. He is the “significant other” of Sonia Jilkova who was acquiring the bar. May 31/June 1, 2007 was her first night of operation under a “contracting out” arrangement with the then Licensee.

65. Mr. Walt was at Roxxy’s from 11:00 a.m. until closing. It was slow until midnight. It got busier after the closing of the Kent Tavern which was three or four blocks away on the other side of the Sydenham River.

66. Mr. Walt said he watched the Kent Tavern crowd come in. They were not known to him. He was brand new to Wallaceburg. No one he saw was out of control or staggering or appeared to him to be intoxicated. He was standing at one end of the bar with Ms. Jilkova and Mr. Poissant. Mr. Walt never saw anyone being held up by another person.

67. Mr. Walt heard Insp. Holman tell Mr. Poissant to remove beers, specifically, Paul Grellis’. Mr. Walt walked with Mr. Grellis out the back door. He was apologetic. Mr. Grellis was not even close to being intoxicated.

68. Mr. Walt said Bryan Poissant had control. Everyone knew him.

69. Mr. Walt said Insp. Holman embellished his story. No one was intoxicated.

70. On cross-examination, Mr. Walt said his definition of intoxication was if a person could not walk or stand, and his speech was very slurred.

71. In answer to a question from the Board, Mr. Walt said he once owned a brew on premise business. He sold it in May 2006. He owned it for six years. He never had any issues with the AGCO.

72. Sonia Jilkova gave evidence. She is the new owner of Roxxy’s. The transfer was in process on May 31, 2007. That was the first night of taking over the bar. Business slowed down after supper and as she was thinking of closing down around midnight, people came in.

73. Ms. Jilkova said she has had a Smart Serve certificate for a couple of years.

74. Ms. Jilkova was walking around and greeting people. She was not serving. Tammy, Beth and Stephanie were serving.

75. Insp. Holman came into the Premises around 12:30 a.m. He appeared upset. He went over to Bryan Poissant and told him “You are serving intoxicated people”. Bryan took their beer away.

76. Ms. Jilkova said Insp. Holman came in fast and went over to Bryan Poissant. He asked Mr. Poissant to remove beer from three patrons.

77. Ms. Jilkova stated she had no concerns about any patrons. She had seen the bartenders turn away patrons. People were not intoxicated in the bar. Anyone who was told they would not be served left the bar.

78. In answer to questions on cross-examination, Ms. Jilkova said she had worked in a bar for a couple of months as a bartender. She could see intoxication in patrons by their movements, speech and watery eyes.

79. The people who came in from the Kent Tavern were not staggering. They were clear in asking for drinks.

80. Bryan Poissant had a spontaneous reaction to shut the bar down. Ms. Jilkova said he did not want problems with Insp. Holman so she agreed with the decision to close down.

Registrar’s Submissions

81. Mr. Alakas confirmed that the Registrar was seeking findings under section 29 of the LLA and subsection 45(1) of the O.Reg. This is a case of context regarding patrons and the licensed establishment operating on the first day of a contracting out agreement.

82. Regarding the patrons, Insp. Holman was very clear and consistent. He gave detailed evidence on each patron and each infraction. He observed the patrons in two different bars and in each their signs of intoxication were consistent. This adds weight to the credible evidence of Insp. Holman.

83. Insp. Holman entered the Premises from the rear. He immediately saw three of the four elderly males he had previously seen at the Kent Tavern. There they were intoxicated, hanging on to each other, talking with heavily slurred speech. At Roxxy’s, three of the four were showing the same signs a half hour later. One of these males was served three drinks, one for himself and one each for his two companions. He was supplied alcohol while he was intoxicated.

84. Insp. Holman testified the three elderly males appeared to be seasoned drinkers. They did not show extreme signs, but nevertheless displayed clear signs of intoxication. The fourth member of the group staggered by Mr. Poissant and Insp. Holman showing the same signs of intoxication as earlier.

85. The infractions were pointed out to Mr. Poissant who asked the male patrons to leave. Insp. Holman observed the men from a close proximity. The fourth male came up to him. His state was pointed out to Mr. Poissant before he was served.

86. Insp. Holman saw two other intoxicated males who were consuming alcohol. One he had seen at Kent Tavern leaning against the back door. These two showed signs of intoxication in Roxxy’s. They were pointed out to Mr. Poissant who escorted them out. Mr. Poissant denied this happened.

87. There were two other males Insp. Holman had seen at Kent Tavern. They had been outside of Kent Tavern with beer bottles in an intoxicated state. They had been drinking draft beer in cups. One became aggressive. Insp. Holman had the time, opportunity and was at a distance to make observations.

88. Insp. Holman saw eight intoxicated patrons at Roxxy’s. Two were clearly observed to have been served there. Seven of the eight were observed at Kent Tavern. The signs of intoxication were consistent at both places.

89. Mr. Alakas said there is a clear difference of credibility in the Licensee’s case. Whether they were in a “contracting out” arrangement or not, the Licensee is responsible.

90. No one was in charge of compliance with the LLA that night and looking after the patrons. Mr. Poissant made two decisions:

a) to stay open; and

b) to shut the Premises down.

92. Tammy Poissant testified she worked as a bartender that night with two others. Ms. Jilkova was also there.

93. Ms. Poissant said she knows three of the four elderly men. They are seasoned drinkers. If she sees them all the time, their signs of intoxication may not have seemed unreasonable to her. She said two were deaf. This would not have caused their slurred speech.

94. Ms. Poissant said no one was working the door. She did not remember how many times she walked around. She could not see both entrances. She could not see the state of patrons. Other than people she served, she did not know the state of anyone.

95. Bryan Poissant said he was not working. He was not really checking on the patrons. He denied escorting out three other drunk patrons. That was in Insp. Holman’s notes that Mr. Poissant did so.

96. Mr. Poissant said he closed down because he took beer away from three patrons. Yet when Tammy took three beers away, he did not think it was a big deal. In reality, Mr. Poissant knew there was trouble.

97. Ms. Jilkova was in the Premises to observe. She admits she heard Insp. Holman being threatened while he was standing with Mr. Poissant. Mr. Poissant denied he ever heard that.

98. The witnesses for the Licensee were inconsistent with each other and with the evidence of Insp. Holman.

99. Mr. Alakas concluded by stating that “permit” as used in subsection 45(1) of the O.Reg means “acquiesce”. Roxxy’s had an influx of intoxicated patrons that night. Those patrons who were intoxicated, were only told to leave when the inspector said they had to leave.

Licensee’s Submissions

100. Mr. Kirby said there are different points of view in this case. The business decision is not relevant here. There was no requirement for a door person. The Registrar missed the real issue.

101. Section 29 of the LLA deals with intoxication whereas subsection 45(1) of the O.Reg deals with drunkenness. Insp. Holman said being intoxicated and being drunk are the same.

102. Mr. Kirby referred to the case of Radovici v. Police Services Board (July 6, 2007, docket 306253 SR) as defining “intoxication”. He said the amount of alcohol consumed is not effective.

103. There is no definition of “seasoned drinker”. Different amounts of alcohol have different effects on different people. Being very drunk leads to intoxication.

104. Insp. Holman’s perception was that the members of the group of four were elderly. This was about people in their 40’s according to Ms. Poissant. Insp. Holman’s description was subjective. He followed people to Roxxy’s from Kent Tavern. He appeared upset when he arrived.

105. The individuals were no problem at all. Insp. Holman had issues from the Kent Tavern. They had an issue of public safety. This was not an easy night for him. He brought his observations from Kent Tavern. They were all perceptions on his part.

106. Mr. Kirby asked why Mr. Poissant decided to close down after he had to take beer away from people and not when the three men were cut off. They had already been paid in the former case – a big distinction.

107. Insp. Holman’s evidence about the intoxication of the fourth member of the group of male patrons consisted of saying his head was down and he was staggering. He could not identify this person. That is not much evidence.

108. Regarding the threat to Insp. Holman by Paul, he was not a danger. No one was raucous or quarrelsome. There was no profanity.

109. The Registrar must prove intoxication in section 29 of the LLA and permitted drunkenness in subsection 45(1) of the O.Reg. Drunkenness is lower than intoxication.

110. The Licensee took steps to deal with it when it was brought to their attention.

111. Mr. Kirby referred to a decision of the Ontario Divisional court in the case of Horseshoe Valley, 2005 CanLII 81108 (ON SCDC), 264 D.L.R., 4th, 686, where the Court said a finding under subsection 45(1) of the O.Reg cannot be based on a draconian interpretation on the moment a drunk entered a bar. It must be “permitted”.

112. The Registrar has not made a case for a finding to be made.

Registrar’s Reply

113. Mr. Alakas said regarding a business decision, it needs to be weighed in light of obligations under the LLA. A licensee must take measures to prevent breaches. In this case, no measures were taken.

114. The Radovici case refers to subsection 31(4) of the LLA. It deals with being intoxicated in a public place and standards of arrest.

115. The Board has seldom, if ever, differentiated between the terms “intoxication” and “drunkenness” in section 29 of the LLA and subsection 45(1) of the O.Reg. The terms “intoxication” and “drunkenness” are interchangeable. Insp. Holman articulated the signs he saw. There are not two different standards. The signs of behaviour seen by Insp. Holman were clear and consistent.

Reasons

116. There was no doubt that Insp. Holman was influenced at Roxxy’s by what had transpired earlier in the evening of May 31, 2007 at the Kent Tavern. Several of the problem patrons there showed up at Roxxy’s while Insp. Holman was doing his inspection.

117. Further, there is no doubt that the staff at Roxxy’s were basically overwhelmed when the crowd from the Kent Tavern walked in, increasing the number of patrons from 15 to 40 very quickly. There was no security at either door. The bartenders serving patrons were busy.

118. Insp. Holman was quick and flippant at times in answering questions. He also was inconsistent regarding the number of patrons he believed to be intoxicated and escorted out of Roxxy’s that night. However, he is an experienced former police officer and now AGCO inspector who was able to identify clear signs of intoxication in the group of four men he had seen earlier at the Kent Tavern. One of these men was served at the Roxxy’s bar and bought three bottles of beer, one for himself, and one for each of his two friends. The fourth member of the group went to the bar and bought a beer.

119. In addition, Insp. Holman identified two other males who were intoxicated, one of whom he had seen earlier standing at the back door of the Kent Tavern shaking hands with everyone. At Roxxy’s these males were consuming alcohol, holding on to each other for support, staggering badly and mumbling incoherently. They could hardly stand up, their eyes were half shut and their movements were uncontrolled and erratic.

120. Insp. Holman testified about two other males at Roxxy’s, both of whom had been consuming alcohol on the sidewalk outside of Kent Tavern. They were drinking beer in plastic cups in Roxxy’s. Both showed clear signs of intoxication as described by Insp. Holman.

121. Insp. Holman pointed out all of these male patrons to Mr. Poissant, and some were escorted out of the Premises by him.

122. This was the first night of a contracting out arrangement between the Licensee and a proposed transferee. The new owner, Sonia Jilkova, was observing as was her significant other, Richard Walt. Neither observed any intoxicated patrons but their evidence on this was subjective. Mr. Walt’s definition of intoxication – a person who could not walk or stand and his speech was very slurred – was trite.

123. Ms. Jilkova said she had worked in a bar for a couple of months. Mr. Walt had not. Ms. Jilkova was becoming the owner and therefore has much to lose with a suspension. Therefore, the Board places much less weight on their evidence than that of Insp. Holman.

124. Ms. Poissant testified she was in charge of Roxxy’s that night, working primarily as a bartender behind the bar. She walked around the bar “every half hour or so”. She checked identification at the bar. The bartenders, according to Insp. Holman were very busy serving. The Board accepts that evidence given the crowd and rush, and the Board concludes from that, that Ms. Poissant did not have much time to check on the state of intoxication of patrons although she apparently did cut off one or two from further service.

125. Mr. Poissant was not working that night according to him and to Ms. Poissant. Yet he testified it was he who decided to stay open prior to the Kent Tavern crowd coming into Roxxy’s, it was he who escorted some patrons pointed out to him by Insp. Holman as being intoxicated, and it was he who gave the order to close down.

126. The Board believes that Mr. Poissant ordered the closure of Roxxy’s that night because things were getting out of hand with intoxicated patrons as pointed out to him by Insp. Holman, and for no other reason.

127. Although Ms. Poissant in her testimony tried to explain away the evidence of Insp. Homan of the group of four men through their disabilities – hearing and speech related, and their drinking habits as normal to her, these men were clearly intoxicated based on the evidence of Insp. Holman.

128. The Board accepts his evidence as being credible and objective not only with the group of four males, but also with the other sets of male patrons about which there was no conflicting evidence other than witnesses for the Licensee stating that they saw no signs of intoxicated patrons that night in Roxxy’s which the Board does not accept.

129. Although, when giving evidence, Inspector Holman used undefined and unsubstantiated descriptions and interpretations, such as “elderly patrons” and “seasoned drinkers” in his testimony, the essence of his evidence relating to intoxication and service of alcohol remains credible and objective; therefore the Board makes a finding that subsection 45(1) of the O.Reg was breached.

130. Insp. Holman testified that he saw two of the group of four men served beer at the bar of Roxxy’s at a time when they exhibited clear signs of intoxication. Based on this, the Board makes a finding that section 29 of the LLA was breached.

131. The cases referred to by Mr. Kirby were of little application to the present situation. Further, the Board is not bound by previous decisions of the Board.

132. Finally, the Board agrees with Mr. Alakas’ submission that the words “intoxication” and “drunkenness” are interchangeable in applying the meaning to a section 29 of the LLA situation and a subsection 45(1) of the O.Reg situation.

Conclusion

133. For the reasons given, the Board finds the Licensee violated section 29 of the LLA and subsection 45(1) of the O.Reg.

134. The 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 25th DAY OF AUGUST, 2008.

DAVID C. GAVSIE, CHAIR, AGCO JOAN LOUGHEED, BOARD MEMBER

DCG/cp