Registrar, Alcohol and Gaming Commission Ontario v. Club Gabella Inc., 2008 CanLII 6139

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

Club Gabella Inc. O/A Club Gabella Inc. Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair Bruce Monteith, Board Member

Decision Date: February 12, 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

Allegations

1. A hearing into a Notice of Proposal dated August 2, 2007, to suspend liquor licence number 806133 (the Licence) issued to Club Gabella Inc. operating as Club Gabella Inc., 574 Rogers Road, Toronto, Ontario, M6M 1B6, on the basis of alleged violations of subsection 34(1) 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 January 21, 2008, in the City of Toronto.

Decision

2. After considering all the evidence and submissions, the Board makes a FINDING of a violation of subsection 45(1) of the O.Reg. The Board DISMISSES the allegation of a violation of subsection 34(1) of the LLA. Reasons follow.

Preliminary Matters

3. Mr. Muraca, the principal of the corporate licensee was not present at the commencement of the hearing. At 10 a.m., no representative of the licensee being in attendance, Mr. Kulis made a motion to have the hearing proceed ex parte. Ms. Kristina Krause was called as a witness in support of that motion.

4. Ms. Krause is the Case Management Coordinator for the Hearings Department of the AGCO and, in that role, schedules hearings and sends out notices of hearing. A notice of hearing in this matter was sent to the licensee on November 22, 2007. That letter was sent first by registered mail, which was returned to the Hearings Department as it was not picked up and subsequently sent by ordinary mail. That letter was not returned. Further, the Hearings Department, as is its usual practice, called the principal of the corporate licensee the week prior to the hearing to remind him of the hearing date at both his home and work numbers. There was no answer at the former. At the latter, a message was left with the person who answered the phone. The Hearings Department received, on October 29, 2007, a letter from the licensee outlining his version of events. That letter was provided to the Board, with the Notice of Proposal.

5. In addition, Ms. Krause stated that attempts were made to reach Mr. Muraca by telephone that morning but were unsuccessful.

6. Based on the evidence, the Board concluded that the Licensee had received effective notice of the hearing. The motion was granted and the hearing proceeded ex parte.

Registrar’s Evidence

7. P.C. Laura McConnell stated that on March 3, 2007 at approximately 10:45 p.m. she was sitting in a police vehicle in the parking lot across the street from the licensed premises when she first observed a male going in and out of the premises several times, over a five to ten minute period. He was accompanied by a female. Her attention was drawn to this male, identified as Carlos Fonseca, because she had dealt with him 20 – 30 minutes earlier in an area east of the premises. He had been drinking; she cautioned him for being intoxicated in a public place and sent him on his way, to home.

8. As she watched the premises, she noticed, through its window, a scuffle occurring inside the establishment. The fight, involving Mr. Fonseca and another male, spilled outside and ended up on Rogers Road. Police intervened, broke up the fight and arrested Mr. Fonseca for intoxication in a public place.

9. Ernest Yard was identified as the individual with whom Mr. Fonseca was fighting. When she spoke to him, his speech was slurred. He was swaying while speaking, his eyes were glassy and a strong odour of alcohol emanated from him. He was unable to remember his address.

10. Mr. Yard stated that he had consumed about five beer in Club Gabella. He was sitting with friends when Mr. Fonseca, whom he knew, entered. Mr. Fonseca harassed him, and others, for money. He asked Mr. Fonseca to leave, but he did not. A female with Mr. Fonseca was also asking for money. The altercation escalated when Mr. Yard attempted to throw Mr. Fonseca out of the premises, which is how the two ended up outside, as witnessed by her.

11. P.C. McConnell stated that after separating the two men, she went inside the licensed premises, which, until she entered, she did not know was a bar. There were about seven patrons in the establishment, with several tables to the left and the bar straight ahead. She did not see anyone behind the bar.

12. She approached a male seated at a table at the rear of the premises. He was slumped over the table with a beer in front of him. When P.C. McConnell spoke to him, he looked up. His eyes were glossy and his speech slurred. She was not sure what he was saying. An older man came out from the back of the premises and identified himself as the owner, Raffelle Muraca. P.C. McConnell spoke to him about several infractions; serving intoxicated patrons, permitting drunkenness, lack of signage and the inability to provide a liquor menu, and indicated that she would be laying charges under Provincial Offences Act. The premises were then emptied for the night. A guilty plea was ultimately entered in respect of several of those charges including permitting drunkenness and disorderly conduct; as part of that plea, other charges were withdrawn.

13. P.C. Kyle Reid stated that he arrived at the licensed premises at approximately 10:55 p.m. having received information that there was a fight in the street. When he arrived on the scene, Mr. Fonseca was already in handcuffs. He spoke to Mr. Yard. A smell of alcohol came from his body and breath. Mr. Yard told him that he had drunk at least five beer in the premises, but could not remember the exact amount. Mr. Yard was unsteady on his feet.

14. He then entered the bar where he saw about 6 or 7 patrons. He attempted to speak to one male whose speech was so slurred he could not understand him. There was a bottle of beer on the table in front of this individual. He smelled of alcohol.

15. P.C. Andrew Dilly was in the vehicle located in the parking lot across the road from the establishment. He, too, observed Mr. Fonseca enter and exit the premises and then saw the altercation that spilled out onto the street. He stood with Mr. Fonseca after his arrest for public intoxication while the other officers went inside the establishment. Mr. Fonseca smelled of alcohol, was very uncooperative and his speech was slurred.

Registrar’s Submissions

16. In submissions, Mr. Kulis asserted that the evidence showed that there were three drunken patrons in the premises – Mr. Fonseca, Mr. Yard and a third male seated, slumped at a table. Based on the totality of the evidence, he submits that a finding can be made of drunkenness pursuant to subsection 45(1) of the O.Reg. Further, an altercation occurred which spilled outside supporting a finding of permitting disorderly conduct, an altercation which it appeared Mr. Muraca was uninvolved in trying to prevent.

17. As to subsection 34(1) of the LLA, the licence holder failed to ensure that a person unlawfully on the premises does not remain on the premises, the unlawfulness arising from the fact that Mr. Fonseca was permitted to be on the premises drunk and disorderly, flowing from a finding under subsection 45(1), and further, that the licensee appeared to have no desire or ability to prevent the situation, but rather allowed patrons to take matters into their own hands.

Analysis and Reasons

18. Dealing first with the allegations of violations of subsection 45(1), Officers McConnell and Reid entered the premises, and spoke to Mr. Yard, who stated he had consumed at least five beer and exhibited signs of intoxication, namely glossy eyes, slurred speech, an odour of alcohol and unsteadiness on his feet. Further, the unnamed male, too, appeared to exhibit the signs of intoxication – slurred, virtually incomprehensible speech, glossy eyes, smelling of alcohol. Their evidence was consistent and unchallenged. On the balance of probabilities, the Board concludes that these two individuals were drunk on the premises, and a violation of subsection 45(1) of the O.Reg occurred.

19. Regarding Mr. Fonseca, Officers McConnell and Dilly had encountered him approximately 20 minutes before his entrance to Club Gabella and, based on signs exhibited, concluded that he was intoxicated. They, then, for a five to ten minute period observed him enter and exit the premises. No evidence was put before the Board that suggested a reason for him going in and out. They witnessed a scuffle, through the windows, from across the road, spill outside. Again, all within a 5 – 10 minute period. The only evidence as to the circumstances surrounding the fight came through the hearsay evidence of Mr. Yard. On the evidence, there appeared to be no questions asked of Mr. Muraca on that evening about the fight or what he observed, did or failed to do. There is no evidence about measures he did or did not have in place to prevent such an occurrence. The mere fact that an altercation began in the premises, absent any other evidence does not, on the balance of probabilities, necessarily suggest that the licence holder permitted disorderly conduct on the premises. The Board, having found that Mr. Yard was drunk cannot on the sole basis of his hearsay evidence draw any reasonable conclusions about what transpired in the premises or Mr. Muraca’s lack of action in response. While the Board can, and does, accept hearsay evidence, the Board attaches little weight to that evidence when it is asked to find, and has so found, that the speaker was, on the balance of probabilities, drunk, and his is the only evidence on which the Board could base a finding of a further violation. The Board therefore makes NO FINDING pursuant to subsection 45(1) concerning the disorderly conduct of Mr. Fonseca.

20. The police officer’s evidence regarding Mr. Fonseca’s intoxicated state, from their interaction with him, his presence in the establishment for a five to ten minute period does however, support a FINDING, on the balance of probabilities, of a violation of subsection 45(1) (drunkenness) with respect to Mr. Fonseca.

21. The Notice of Proposal in alleging a violation of subsection 34(1) of the LLA states that a person harassing other patrons in the licensed premises was evicted several times, but was able to return after each eviction. Again, the only evidence regarding harassment was through Mr. Yard’s statements to the police, who had concluded that Mr. Yard was drunk. His evidence is hearsay. Because Mr. Yard was drunk when the incidents occurred, his evidence is not sufficiently reliable to establish the facts which might support the alleged violation. There is no other reliable evidence about this incident, no evidence regarding evictions from the premises nor any evidence that this licence holder exhibited a complete lack of control of the premises.

22. Without deciding whether subsection 34(1) of the LLA is applicable where the Board has already found a violation of subsection 45(1), the Board therefore concludes that there is insufficient evidence to establish, on the balance of probabilities, that a breach of subsection 34(1) of the LLA has occurred.

Conclusion

23. Therefore, for the reasons given, the Board FINDS a violation of subsection 45(1) of the O.Reg in respect of the three males. The Board DISMISSES the alleged violation of subsection 45(1) in respect of the disorderly conduct of Mr. Fonseca and the alleged violation of subsection 34(1) of the LLA.

24. Having made the findings above, the Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his/her 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/her 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 12th DAY OF February, 2008

PATRICIA MCQUAID, VICE-CHAIR BRUCE MONTEITH, BOARD MEMBER

PM/ee