Registrar, Alcohol and Gaming Commission Ontario v. Barrymore's Inc., 2008 CanLII 6132

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 Ontario

Registrar

-and-

Barrymore's Inc. O/A Barrymore's

Licensee

DECISION

Panel: David C. Gavsie, Chair Bruce Monteith, Board Member

Decision Date: January 11, 2008

Hearing Location: Ottawa, Ontario

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

Appearances

Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative

Barrymore's Inc., Licensee ) Douglas Stel, Representative

Authorities

866917 Ontario Limited (Royal Hotel), 2007 CanLII 27004 (ON A.G.C.)

1590370 Ontario Ltd. (AC Bar & Grill Restaurant & Tavern), 2007 CanLII 26959 (ON A.G.C.)

Tamworth Hotel, 2007 CanLII 6173 (ON A.G.C.)

Allegations

1. A hearing into a Notice of Proposal number 14959 dated February 19, 2007 (“NOP”) to suspend liquor license number 23399 issued to Barrymore's Inc. operating as BARRYMORE'S, 323 Bank Street, Ottawa, Ontario, K2P 1X9 (the “Premises”) 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”), and a Supplementary Notice of Proposal dated May 7, 2007 (“SNOP”) to suspend the Licence, was held on July 10 and 11, 2007 in the City of Ottawa.

2. During the hearing, Mr. Morris advised that the Registrar was withdrawing the incident referred to in the SNOP which occurred on March 3, 2007.

Decision

3. After considering all the evidence and submissions, the Board FINDS the Licensee twice breached subsection 45(1) of the O.Reg. Reasons follow.

Registrar’s Evidence

4. Emanuel Svidram, a Constable with the Ottawa Police Service, was on duty in the early morning of on December 10, 2006 at Elgin Street police station when three individuals, Gerry Gallivan, Sylvie Gallivan, and Eric Matte, appeared at the front desk to complain they had been assaulted in Barrymore’s Bar at Bank and Gilmour Street.

5. Gerry Gallivan was bleeding profusely from a laceration on the top of his head. His lips were also swollen. Paramedics were called who treated Mr. Gallivan’s injuries and possible concussion. (Exhibit 1 – photograph of Mr. Gallivan taken at the time of complaint).

6. Constable Svidram took statements from Mr. and Mrs. Gallivan. He was informed that the assault took place at 1:00 a.m. and that they had called 911 for police assistance, but no units responded. He noted that all three had a strong smell of alcohol but did not act as though they were impaired, and were sober enough for them to prepare a written statement. Written statements were requested but none were received.

7. On cross examination Constable Svidram admitted he did not know whether Gerry Gallivan had sought medical treatment and taken a cab to Slater. He agreed he did not know how the injuries were received but thought the blood on Mr. Gallivan’s face came from the laceration to his head. Constable Svidram’s only knowledge of what happened came from what he was told by Mr. and Mrs. Gallivan and Mr. Matte.

8. Eric Matte lives in Cornwall and works for Gerry Gallivan’s steam carpet cleaning business. He testified that he, Gerry Gallivan and their wife and girl friend had gone to Barrymore’s to celebrate and listen to a band from Cornwall. They were staying in a hotel on Albert Street. That night they had two beers at their hotel, went for dinner and had another couple of beers, and then took a taxi to Barrymore’s where they had another two pints of beer while listening to the music. About one hour later the Cornwall band began its set. They had another three beers while the Cornwall band played.

9. About 1:00 a.m. bouncers came around telling patrons to finish their drinks. Mr. Matte said the bar was still open just before 1:00 a.m. but he was refused alcohol because he was staggering and he had an odd look. His girl friend, who is not a drinker, had already gone back to the hotel. Mr. Matte admitted that he had at least 6 pints of beer.

10. When he told Gerry Gallivan about the refusal to serve, Mr. Gallivan went to the bar and ordered him a beer. Two bouncers then grabbed him by the arm and told him they were escorting him out. He did not resist.

11. Gerry and Sylvie Gallivan came downstairs towards the front door questioning the bouncers why Mr. Matte was being put out. Mr. Gallivan told the bounces it was ridiculous. Mrs. Gallivan was upset and giving the bouncers a hard time.

12. One of the bouncers pushed Mrs. Gallivan and she fell on the floor. Mr. Gallivan retaliated and began to fight with the bouncer. The four bouncers grabbed Mr. Gallivan and threw him to the ground and stomped on his face. Sylvie was on the back of a bouncer attempting to pull him off Mr. Gallivan.

13. Mrs. Gallivan was put out at the front door and stood there asking for her jacket from the coat room. Her jacket was thrown at her a few minutes later. Mr. Matte gave a description of what the bouncers were wearing and described their physique.

14. As they walked across the road to call 911 Mr. Matte saw a bouncer throw a bucket of water on the ground to wash away blood.

15. They called 911 several times for over two hours requesting police to attend, without response. During this time Gerry did not attempt to clean the blood away from his face and head.

16. On cross-examination Mr. Matte testified this had been a pre-Christmas party and that Gerry had paid for the dinner, the hotel and the tickets to Barrymore’s. He said he could not remember if Mr. and Mrs. Gallivan had a drink at the hotel but they could have. They had arrived at Barrymore’s at 10:00 p.m. and he had about 5 beers before leaving there. He saw Mrs. Gallivan drinking but could not remember if Mr. Gallivan had been drinking.

17. He confirmed he did not resist the bouncers. However, Mr. Gallivan was very upset that he was being put out of the bar. He was arguing with the bouncers and making gestures at them. Mrs. Gallivan was also nagging them. Mr. Gallivan pushed the bouncer and they landed on the floor. He agreed he did not know what caused the cut on Mr. Gallivan’s head and did not see him hit his head on a rail. At this point Mr. Matte was outside looking though the glass door watching what was happening inside.

18. Mr. Matte said that Mr. Gallivan did not clean the blood away because he wanted the police to see it. They walked to the police station and from there they went to a hospital.

19. The Board asked Mr. Matte if Gerry had pushed the bouncer. Mr. Matte replied that the bouncers had jumped on Mr. Gallivan and they all landed on the floor. Mrs. Gallivan was trying to pull them off.

20. Sylvie Gallivan’s evidence about the events leading up to the alleged incident was consistent with Mr. Matte’s evidence. She and Gerry Gallivan have been married for 14 years and have 2 female children aged 12 and 17. They were in Ottawa with an employee, Eric Matte and his girlfriend for dinner and to see a Cornwall band playing at Barrymore’s.

21. She had a glass of wine before dinner, a Caeser at dinner, and approximately four beers at Barrymore’s. Mr. Gallivan and Mr. Matte had a few more than that. While they were watching the band play she had two spicy rum and ginger ales and Mr. Gallivan could have been 1 or 2 ahead of her.

22. When Mr. Gallivan saw Mr. Matte being taken out, after Mr. Matte was refused service, Mr. Gallivan was upset and went downstairs to talk to the bouncers. Mrs. Gallivan followed and when she asked the bouncer for an explanation was called “fucking bitch” and told to get out. When she tried to walk back to the coat check to get their coats a bouncer put her in a headlock. She was able to squirm free.

23. She saw Mr. Gallivan with his hand on a bouncer’s shoulder and then she was picked up and put outside. She stated she did not see any altercation or hear any words between her husband and the bouncers. She confirmed they went across the street into a pizza place, called for police, and waited for two hours. They made no effort to clean the wound on Mr. Gallivan’s head.

24. Mrs. Gallivan stated that her husband’s injuries were 2 cuts to the top of his head, his top lip was swollen blue, he had a few cuts inside his mouth, he had a cut across his back about 18 inches long, there were bruises on the back of his arms.

25. In answer to questions on cross-examination, Mrs. Gallivan stated there is a long stair case from street level up to the top where the club is, with the coat check being about half way up. Her altercation with the bouncer took place around the 8th step up from the bottom, so she would have had to go up the staircase to get to the coat check to retrieve her coat.

26. Mr. Gallivan was below her on the stairs. When she was escorted or carried outside by a bouncer, Mr. Gallivan was already outside.

27. Mrs. Gallivan stated that she had no injuries. She said she did not see how Mr. Gallivan was injured. She did not threaten any of the bouncers. She did not overhear any conversation between her husband and any of the bouncers.

28. Mrs. Gallivan said she filed a complaint with the police but as far as she knows no charges were laid.

29. Gerry Gallivan stated that he had consumed 1 or 2 beers at the hotel before dinner, he had a beer with supper and probably had 3 beers at Barrymore’s after arriving there around 9 or 9:30 p.m. He went to the downstairs bar to watch the Cornwall band and had 2 more beers there. In total, Mr. Gallivan said he consumed 7 or 8 beers at Barrymore’s. Mr. Gallivan saw Mr. Matte being escorted out. When he asked the bouncer why Eric was being kicked out he was told, “None of your fucking business”

30. He was asking this notwithstanding that Mr. Matte had told him he was cut off because he was too intoxicated, Mr. Gallivan had subsequently purchased a beer for Mr. Matte.

31. Mrs. Gallivan asked a bouncer the same question and she got the same response. Then, he saw a bouncer put a head lock on Sylvie and had her on her knees. He grabbed the bouncer and pulled him off. This all happened on the stair case. Somehow, Mr. Gallivan reached the bottom of the staircase where there were 2 bouncers. He was pushed in the back and pushed down on the floor. He had a sudden impact with the floor, and he was kicked in the face a few times. Mr. Gallivan said he put his hands in front of his face and got to his knees to stop the bouncers from causing damage. He said he saw a lot of boots. He was bleeding even before he was thrown outside.

32. About 20 minutes later, Mr. and Mrs. Gallivan’s coats were thrown outside with a broken neck chain belonging to Mr. Gallivan. The Gallivans and Mr. Matte walked to the police station after waiting two hours for an answer to their 911 calls. Mr. Gallivan was photographed by a police officer and examined by paramedics who advised him to go to hospital for a further examination regarding a possible concussion, which he did.

33. On cross-examination, Mr. Gallivan said he was at Barrymore’s for about 3 hours and consumed 7 or 8 beers there. He admitted he did not tell the bartender that one of the beers Mr. Gallivan bought was for Mr. Matte. Mr. Gallivan was upset when he saw Mr. Matte being escorted out of the bar.

34. Mr. Gallivan said that he did not get a satisfactory answer from the bouncers as to why Mr. Matte was being escorted out. He himself was never asked to leave. He was on the fourth step up when he forced the bouncer who has holding his wife to let her go. He grabbed the bouncer, forcing him down 3 or 4 steps. His wife was yelling in a loud panicky voice for the bouncer to get off her and not to hurt her husband. Mr. Gallivan said he did not hear any obscenities. He and the bouncer ran or fell down the stairs holding on to each other. He was hit from behind and landed on his knees and did not know what was going on until he was kicked a couple of times. He did not know how he got the cut on his head or the scratch on his back. He said he asked for his jacket and a few minutes later it was thrown out at him.

35. Mark Lambert is a Liquor Inspector with the AGCO. On February 23, 2007 he attended at Barrymore’s with two Ottawa police officers at 1:19 a.m. He identified himself to the doorman and went inside. Mr. Lambert went up the staircase to the main floor. He separated from the police and made observations on the main and upper levels.

36. Mr. Lambert noted that the place was at capacity. There was also a line-up outside.

37. He saw a female on the dance floor with her head on the shoulder of a male who appeared to be holding her up. She appeared sleepy and had droopy eyes. She was unable to stand on her own and when let go she staggered backwards and would have fallen except that the male caught her.

38. He took observations from the bar overlooking the dance floor. He observed a male holding on to a rail. The male was unsteady on his feet and staggered when he walked. His eyes were half closed. He was drinking a bottle of was. When the male turned toward Inspector Lambert, his eyes were half closed or `he was constantly squinting.

39. Inspector Lambert told General Manager Andrea Lanctot about the two patrons. She replied that “when they get drunk we given them water and leave them alone. We do not kick them out she said because there are too many stairs to go down when they’re drunk. They won’t leave”.

40. He advised her of the infractions and she became argumentative. She then left to go to the front door where a male was arguing with the doorman about an assault he said took place. The police were there.

41. Mr. Lambert saw a group of males coming down the stairs and noticed one in particular who had bloodshot eyes and was yelling with slurred speech, “I know I’m drunk but it’s my birthday.” This individual went outside and became belligerent with the police. The male was arrested for public intoxication.

Licensee’s Evidence

42. Andrea Lanctot is the General Manager of Barrymore’s. Her duties include day to day management, hiring, opening and closing the Premises, and cash counting.

43. Ms. Lanctot described the Premises. The building is located on Bank Street in the downtown core of Ottawa. One enters through the front door. To the right is a desk for a doorman. To the left is a staircase that is slightly curved and then goes straight up. There is a landing with a coat check. From the landing, one can go left to the main dance floor area or go right up stairs to the next level. There is a bar about 30 feet long in the dance floor area. The dance floor is about 590 feet long by 40 feet deep. At the end of the dance floor is a stage.

44. The dance floor is the first of 2 levels. There is another bar at the top level. From the top level one, one can look down to the dance floor level.

45. Ms. Lanctot said that all staff including herself have Smart Serve certification.

46. Ms. Lanctot was in the Premises the night of December 9/10, 2006. It was a Saturday night. There were 3 bartenders on duty at the bar on the main floor, and 2 bartenders on duty at the bar on the top floor. There were 6 doormen/security people on duty.

47. Working the main bar were Sean Wood, the assistant manager, Kristin Longmuir and Cameron Terril. The doormen/security people working that night were Anthony Weber, Josh Chambers, Travis Minors and 3 others.

48. On December 10, 2006 she was called to the front door. Anthony Weber and Josh Chambers were standing there out of breath. They explained there had been an altercation. She looked out and saw three people. One male was playing with a cut on his head. She then went back upstairs in the club but later when she was closing up the Premises she noticed the 3 patrons were still standing on Bank Street.

49. On February 23, 2007, there was a dance night and the club was at capacity for several hours. The doorman informed her that an Inspector was wandering around. She approached the Inspector and he pointed out a male and a female who were intoxicated. Both were carrying bottles of water indicating that they had been cut off but were still allowed to be in the premises. Ms. Lanctot stated that the female was standing alone in a section above the dancer. The male was standing by himself at the other end of the club.

50. On cross-examination she admitted she did not speak to either patron during the February inspection because she was busy. She cut short her conversation with the Inspector because there was a commotion at the front door. She did not recall saying that the male and female had been cut off.

51. With respect to the December 10, 2006 incident, she stated she was at the front door where she had been told there was a problem with 3 male patrons who had been cut off and told to leave. The other 2 were not happy. A male jumped on a bouncer, Josh, and had to be physically removed. In the process, the male had cut his head and was outside squeezing the cut. The doormen were not sure how it happened but suspected the cut had occurred on contact with the front door. Staff did not call the police because the female patron was heard calling the police. The police called the club and asked if there was an emergency. Ms. Lanctot told them no.

52. The bar was cleared by 2:00 a.m. The male patron with the cut on his head was still outside putting pressure on his head to produce more blood running down his face. Staff on their own went outside to wash off blood on the sidewalk.

53. Kristin Longmuir has a Smart Serve certificate and has been with Barrymore’s for five years as a bartender. On the evening of December 9-10, 2006 she was working on the main bar with Sean Wood. A guy had been cut off. He seemed okay with this and went back to his friends. His friends appeared agitated. The guy who had been cut off came back and tried to get a beer. He was told him to leave and a doorman escorted him out followed by 2 security people.

54. On cross-examination Ms. Longmuir stated the male, Eric Matte, was loud and overly animated, but he was not staggering. Mr. Matte did not give her a hard time. Mr. Longmuir said that Mr. Matte’s friends were about 10 feet away. The female put her middle finger up in Mrs. Longmuir’s direction, gesturing towards her asking what are you doing. The male doing so was also the one sitting with the female.

55. Mrs. Longmuir’s co-bartender, Sean, approached Mr. Matte and told him that he, Sean, worked in the Premises that Mr. Matte was cut off and should not try to order and if he did, he would be asked to leave. Mr. Matte asked Sean “to take it outside”. Sean got a doorman to come over. Mr. Matte got angry but the doorman took him away. His 2 friends watched all of this and followed Mr. Mate and the doorman out.

56. Sean Wood is the Assistant Manager. On December 9-10 he was working the main bar with Kristin and Cameron. A band from Cornwall was playing. He observed a male acting as if intoxicated and told Kristin to keep an eye on him. She told him the male had been cut off. The male was trying to get a drink from another bartender, Cameron, and was told if he tried to get another drink he would be asked to leave. Mr. Wood described Mr. Matte and what he was wearing. Mr. Matte asked, using profanity, who Mr. Wood was and if it would be Mr. Wood who would throw him out. Mr. Wood said he called another doorman and escorted the male outside.

57. On cross-examination Mr. Wood stated he had written a statement but did not know where it was. He said that Mr. Matte was animated and shouted louder than other patrons. Mr. Wood told the male he was on staff although he was not wearing anything that would so identify him and the male became aggressive wanting to fight Mr. Wood. Mr. Matte walked out with the doorman without resisting but shouting, “this is fucking bullshit.”

58. Mr. Wood went to the top landing of the long staircase which leads to the front door. He saw 3 doormen with Mr. Matte, the latter yelling up the stairs at Mr. Wood. The doormen were not holding or touching Mr. Matte. Once Mr. Matte was put out the front door, Mr. Wood went back to work and did not see Mr. Matte again.

59. Chris Seibel is a bartender at Barrymore’s. Formerly he was a bus boy. On December 9-10, 2006 working as a busboy, he was coming down the stars to get beer. He saw Josh Chambers escorting a female out. He had it under control. Around the corner, Anthony Weber was escorting a male out. The male patron was being difficult with Anthony. The female was yelling at and being physically abusive to Josh. There was blood on the floor. Mr Seibel got a mop and cleaned it up and physically abusive to Josh.

60. On cross-examination Mr. Seibel admitted he did not know when the male started bleeding. He said he was on the landing when the female was swearing and refusing to leave. Josh was touching her and the male was struggling as he was put out the door.

61. Josh Chambers has been a doorman at Barrymore’s since 2005. He was on duty on December 9-10, 2006. There was a good crowd, about 200, in the club. He was called upstairs to the bar by Sean Wood who told him to watch because there was a “kick out” happening. He saw Travis escorting a male downstairs. They walked by Mr. Chambers and he followed. It was Mr. Matte being escorted out.

62. A female approached Mr. Chambers and said, “You don’t know how to do your job, you make mistakes, you earn nickels.” She became more abusive and threatened to gouge Mr. Chambers’ eyes out. Mr. Chambers told her to leave. She laughed and said, “I’m not going anywhere”. Mr. Chambers stood in front of her and then she said she would leave if she could get her coat. She turned to walk upstairs to get her coat pushing by Mr. Chambers. He grabbed her by the arm and a male started choking him from behind, shouting, “Don’t touch my fucking wife”.

63. The male was grabbed by the arm by Anthony who tried to bring him downstairs. They tripped and fell and the male struck his head on the door frame. The male got up and forced Anthony on to the desk in the foyer. Anthony held the male.

64. Mr. Chambers put the female out and turned round to help pick up Anthony who was on the ground with the male under the vending machine. The 2- Mr. Chambers and Anthony- picked up the male and put him outside. They locked the door. Mr. Chambers looked out the door and saw the male squeezing blood from his head wound, and was shaking his head back and forth to put blood on his face.

65. On cross-examination, he testified he saw the three (Mr. Matte, Mr. and Mrs. Gallivan) go into a pizza shop across the street. One was eating when they came out. They tried to flag police driving by.

66. Mr. Chambers agreed there was a fair amount of blood on the foyer floor but he did not call police or an ambulance.

67. On January 12, 2007 Mr. Chambers was asked to provide a written statement a copy of which was placed into evidence as an exhibit (Ex. 2).

68. Ms. Chambers said that Sean told Mr. Matte he was cut off and to leave. Mr. Matte was being “escorted out” but in fact he was walking out. Travis was following him. There was no touching. Mr. Matte was cooperative.

69. A couple of stairs down from the main landing, a woman approached Mr. Chambers. The women had been yelling at Travis but got no response from him. Mr. Chambers reached the bottom of the stars. The female became abusive threatening to gouge his eyes out. Mr. Chambers grabbed her arm and her husband grabbed him around the neck. Anthony came up the steps to help him. Mr. Chambers was being choked. The husband let go, and both of them fell down the stairs towards the door. Mr. Chambers only saw blood from the husband’s head when they were both under the vending machine.

70. Mr. Chambers was asked to complete a written statement (Ex. 2) by Andrea Lanctot.

71. Mr. Chambers was asked why in his statement he said when Mr. Gallivan’s head hit the door it began to bleed, but he did not say this in his viva voce evidence today. He said he did not remember seeing blood on the door-frame.

72. Anthony Weber has been a doorman for six years and on December 9-10, 2006, he was the head doorman at the Premises. Mr. Weber has taken courses at Seneca and Algonquin Colleges.

73. Mr. Weber said that a male who had been asked to leave, was trying to get back in. He heard a female arguing with Josh as to why the first male was being kicked out. Josh told her it was because he was cut off. The female disagreed as did her husband. Josh tried to explain this.

74. The female started yelling at Josh and threatened him. He told her she was out of control and would have to leave. She held on to the railing and Josh tried to remove her hands when Josh was grabbed around the neck in a choking hold by the female’s husband who was yelling don’t hit my wife and tried to push Josh down the stairs from behind. The husband grabbed Josh by the neck in a sleeper hold.

75. Mr. Weber said he attempted to hold on to the front door to keep it closed because Mr. Matte was still trying to get back in. He grabbed at the male on the stairs (Mr. Gallivan) to pull him off of Josh. The male let go of Josh, grabbed Mr. Weber’s jacket, and the two of them, Mr. Weber and Mr. Gallivan, went down the stairs.

76. Once the two of them regained their balance, the male (Mr. Gallivan) pushed Mr. Weber up onto a step in front of the Aloha Club door (a doorway off the foyer), and then on to a desk in the front lobby. Mr. Weber used his forearm to push Mr. Gallivan away. They both ended up in front of the vending machines on the ground.

77. Mr. Weber said that Josh or Travis helped him restrain Mr. Gallivan and helped carry him out, and then locked the front door. Mr. Weber said that, all 3 ejected patrons were yelling and screaming and that Mr. Gallivan was playing with the cut on his head.

78. They would not go away, so Mr. Weber called police who said officers were on their way. After some time, a police dispatcher called back. Mr. Weber said everything was under control.

79. Mr. Weber said Mr. Gallivan cut his head when he fell down the stairs and hit his head on a door frame.

80. On cross-examination, Mr. Weber said he was told that the first male (Mr. Matte) was being kicked out because he was intoxicated and tried to order a drink after being told he was cut off.

81. Although, he saw what was happening on the staircase, Mr. Weber did not get involved until he saw Mr. Gallivan had grabbed Josh around the neck and pushed Josh from behind.

82. Mr. Weber was asked by management to prepare a statement which he did, and which was placed into evidence (Ex.3) Mr. Weber said that, while it is undated, he prepared it not too long after the events of that night.

83. Mr. Weber also changed his evidence regarding who at Barrymore’s called the police. He said he did not.

84. Mr. Weber said all of the events on the staircase and on the floor happened very quickly. He also said he carries no weapons, but does have a plastic flashlight.

85. The Board requested written submissions from the parties.

Registrar’s Submissions

86. Mr. Morris began by stating that Inspector Lambert observed three intoxicated persons in the licensed premises on February 23, 2007. Two were holding water bottles which, as Ms Lanctot confirmed, indicated they had been cut off from having more alcohol. Another patron was heard yelling, “Okay, I know I’m drunk but it’s my birthday.” He became belligerent to the police and was arrested for public intoxication. These facts support finding a breach of subsection 45(1) of the O.Reg.

87. The evidence of the events on the night of December 9-10, 2006 is more contentious. Clearly all of Mr. Matte, Mr. Gallivan and Mrs. Gallivan consumed alcohol at their hotel before dinner, at dinner, and after dinner while at Barrymore’s.

88. Mr. Matte was cut off from further service, and when he continued to try to purchase a beer, he was asked to leave and escorted out.

89. Regarding the incident with Sylvie Gallivan on the staircase, Mr. Morris asks why a female being 5'4" tall weighing approximately 135 lbs would threaten a male bouncer of 5'11" and 250 lbs with her husband of 5'8" in height weighing 175 lbs nearly, as was the story of the bouncers who gave evidence? All the Gallivans wanted to do was get their jackets and leave.

90. Mrs. Gallivan was stopped from going up the stairs to retrieve her coat from the coat check. The bouncer grabber her to stop her, Mr. Gallivan grabbed the bouncer, another bouncer intervened.

91. Mr. Gallivan testified he was pushed down the remaining stairs from behind, fell on his knees, and was kicked. Mr. Matte, from outside saw Mr. Gallivan on the ground, with at least 5 bouncers stomping on his face and punching him.

92. Mr. Weber, one of the bouncers, only said at the hearing that Mr. Gallivan tried to choke him, something he did not say in his statement (Ex. 3)

93. Sylvie Gallivan said she did not see what happened to her husband, only the injuries afterwards.

94. Mr. Morris indicated that staff at Barrymore’s did nothing to help Mr. Gallivan. They just cleaned up the blood and then concocted their stories that Mr. Gallivan was trying to make his head injury worse.

Licensee’s Submissions

95. Mr. Stel began by saying that Inspector Lambert did not see any of the 3 allegedly drunk patrons consume alcohol in the Premises on February 23, 2007, nor was there evidence any of the 3 had consumed alcohol at Barrymore’s or elsewhere that evening.

96. Regarding the incident on December 9-10, 2006 the Registrar has the burden of proof on a balance of probabilities. Where there is conflicting evidence, the Panel must assess credibility.

97. The Licensee did what it was required to do by ensuring that a person who had too much to drink (Mr. Matte) was ushered out of the Premises. Mr. Gallivan became aggressive and belligerent, and Mrs. Gallivan too was escorted out.

98. Mr. Gallivan tried to come to his wife’s assistance. Neither Mr. Matte nor Mrs. Gallivan saw how Mr. Gallivan received his head injury.

99. There are two conclusions to be reached from the evidence:

a) it is so inconsistent that it is almost impossible to determine what really happened. If so, the Registrar has failed to prove his allegations on a balance of probabilities; or

b) the 3 patrons when asked to leave became aggressive and belligerent, refused to leave and had to be escorted out. Mr. Matte and Mrs. Gallivan basically cooperated, but Mr. Gallivan had to be physically removed, and during removal accidentally cut his head.

Registrar’s Reply

100. Mr. Morris pointed out that for there to be a breach of subsection 45(1) of the O.Reg, there is no requirement that a person be seen consuming alcohol, only that they appear drunk.

101. Finally, regarding December 9-10, 2006 Mr. Morris said there is no doubt the stories are inconsistent. The Board must assess not only the witnesses, but the reasonableness of their stories in light of the circumstances.

Reasons

102. Licensee is alleged to have breached subsection 45(1) of the O.Reg. on 2 different occasions – December 9/10, 2006 and February 23, 2007.

103. The Registrar has the burden of proof based on the balance of probabilities to establish that the allegations are true.

104. On the evening of February 23, 2007 an AGCO liquor inspector saw what he determined as 3 intoxicated patrons. Two were drinking water and, according to Ms. Lanctot, the manager, the policy of Barrymore’s when people have had enough to drink is to give them bottled water. This is because the stairs are steep and difficult to navigate for an intoxicated person.

105. On February 23, 2 patrons who had been cut off from further service were seen in the Premises by Inspector Lambert exhibiting clear signs of intoxication. A third patron became belligerent with police after admitting he was drunk. This patron was arrested by police for being intoxicated in a public place. The Board accepts that evidence and FINDS that the Licensee allowed these 3 patrons to be in the Premises and hence is in breach of subsection 45(1) of the O.Reg.

106. Unfortunately, Ms. Lanctot did not go on to say at what point are such patrons asked to leave and whether they given any assistance down the stairs when they do leave.

107. On the evening of December 9-10, 2006, Mr. Matte was also cut off, but he made the mistake of trying to purchase a beer after that, and was immediately escorted out which led to the donnybrook on the stairs involving Mr. and Mrs. Gallivan.

108. As for the events on December 9-10, 2006 at Barrymore’s, the evidence is quite conflicting.

109. What is clear, however, is that Mr. Matte, Mr. Gallivan, and Mrs. Gallivan all had quite a few alcoholic beverages before they arrived at Barrymore’s and also while there, before Mr. Matte was cut off.

110. It is also clear that Mr. Matte was cut off by staff because they felt he had enough which means he appeared intoxicated. When Mr. Matte continued to try to purchase alcohol, not only was he refused, he was asked to leave, which he did peacefully down the stairs and outside followed closely by a staff member.

111. Mrs. Gallivan did not accept the fact that Mr. Matte was asked to leave and took exception with that. She was asked to leave and created a disturbance on the stairs. She may well have been simply trying to go back up the stairs to get her coat, but she did this in such a manner as to create a ruckus.

112. Mr. Gallivan did not like the way his wife was being treated and he intervened, resulting ultimately in injuries to him.

113. The Board DISMISSES the allegation regarding possible disorderly conduct by the Licensee on December 9-10, 2006 because the evidence shows the staff was not responsible for instigating the violence that occurred and were merely taking appropriate action regarding the circumstances which arose. However, the Board FINDS that the Licensee breached subsection 45(1) of the O.Reg by permitting Mr. Matte to remain in the Premises after staff cut him off. While there was no safety or other reasons preventing him from being required to leave the Premises.

Conclusion

114. The 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 a 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 11th DAY OF JANUARY, 2008

BRUCE MONTEITH, BOARD MEMBER DAVID C. GAVSIE, CHAIR

BM/DCG/sm