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-
1614804 Ontario Inc. O/A Colchester Bar & Grill Route 67
Licensee
DECISION
Panel: David C. Gavsie, Chair of AGCO
Guy Maurice, Chair of Panel
Decision Date: January 9, 2008
Hearing Location: Windsor, 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 ) Brad Alton, Representative
1614804 Ontario Inc., Licensee ) Robert DiPietro, Representative
Allegations
- A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) into Notice of Proposal number 15360 (“NOP”) to suspend liquor licence number 202698 issued to 1614804 Ontario Inc. (the “Licensee”) operating as COLCHESTER BAR & GRILL ROUTE 67, 67 Country Road 50 West, Harrow, Ontario, N0R 1G0 (the “Premises”) was held in Windsor on December 17, 2007.
Decision
- At the end of the hearing, the Board made the following oral ORDER:
After reviewing the evidence and submissions, the Board makes NO FINDING of a breach under subsection 45(1) of the O.Reg by the Licensee on April 30, 2007. Written reasons to follow.
- These are the written reasons.
Preliminary Matters
- The Board ordered the exclusion of witnesses.
Registrar’s Evidence
Const. Tammi Comartin gave evidence. She has been a constable with the Town of Essex Police Force for just under 5 years. She is familiar with the Premises. She was there on April 30, 2007. On consent, Const. Comartin was allowed to refer her notes to refresh her memory.
At 2:45 p.m. Const. Comartin and another officer, Const. Ouellette, received a radio call to attend the Premises for a possible assault. There had been shouting and yelling in the background when the call had come in to police.
Const. Ouellette arrived first in his cruiser. He advised Const. Comartin that all was now calm. Const. Comartin arrived in her cruiser shortly after.
Const. Comartin said she saw Const. Ouellette speaking to 3 parties – 2 females and 1 male – in the parking lot. They had been involved in an altercation. The officers ascertained no assault had occurred, just verbal shouting and yelling over non-payment for appliances.
Const. Comartin said the parties had been drinking but they were not intoxicated. She spoke to the male – Frederick Doughty. He was unsteady on his feet, smelled of alcohol on his breath, and his speech was slurred. He was also leaning on the police cruiser to steady himself. She did not speak to either of the 2 females.
The call to police had come from the bartender inside the Premises. Const. Comartin said she went into the Premises to talk to the bartender. The bartender said all 3 patrons could remain if they behaved. Const. Comartin and Ouellette left.
At 4:15 p.m., Const. Comartin received another radio call to attend the same location for another possible assault. A male had evidently left the Premises in his vehicle and she was told what direction he was heading.
Const. Comartin pursued and located the vehicle on County Road 20 in the Town of Essex. She stopped it using her cruiser’s roof lights. She arrested the driver for impaired driving. It was the same male as she had spoken to earlier – Frederick Doughty. He had been driving erratically, his speech was slurred, smelled of alcohol, and his eyes were red and glossy.
Mr. Doughty did not say he had been in the Premises. He did ask Const. Comartin to take him away. He put his hands out the vehicle window as though she would be putting handcuffs on him. He did not say why she should take him away.
Const. Comartin said that an intoxilyzer was used to test Mr. Doughty’s blood alcohol level at the police station. He tested 115 and 105 (allowable limit is 80) at 6:16 p.m. and an undetermined time, respectively, and was returned to Const. Comartin’s custody after the tests at 6:55 p.m.
Const. Comartin said that Mr. Doughty’s vehicle was a black Ford pick-up, and that he was driving it by himself.
Const. Richard Ouellette testified. He is a member of the Town of Essex Police Force and has been since 1999. He has been in police service for 34 years.
Const. Ouellette is familiar with the Premises. He was there twice on April 30, 2007. He has notes for the second occurrence and, on consent, was permitted to refer to the notes to refresh his memory.
Const. Ouellette said that he received the first call to attend the Premises at 2:45 p.m. regarding an assault, but was then told prior to his arrival at the Premises that there was no longer a problem. Even though everything was reported as fine, Const. Ouellette still went to the Premises.
A group of people came out to Const. Ouellette’s cruiser in the parking lot. He remembered 2 names, Durfy and Doughty. They told him there had been a momentarily heated argument over non-payment of $300 for appliances.
Const. Ouellette said he could smell alcohol, but there was no disturbance, no safety issue. No arrests had to be made, nor were any charges laid. The parties had been on the patio.
The patrons told Const. Ouellette that there was no claim of an assault, just someone screaming and yelling. The patrons were excited, emotional or tense. That was all there was to it.
Const. Ouellette said although the patrons had been drinking, no one was intoxicated.
Later that afternoon, Const. Ouellette was in the area of the Premises patrolling in his cruiser. He saw a black pick-up truck exiting the parking lot and at the same time, he received a call on his radio about an assault and a black pick-up truck leaving the parking lot at a high speed.
Const. Ouellette followed the truck at a distance, and for safety reason, did not initiate a high speed chase. He did not get the licence number, nor did he see who the driver was. Over the radio, he received news that Const. Comartin had stopped the truck.
Const Ouellette said he was told the driver was Fred Doughty who was one of the patrons police talked to at the first instance in the parking lot adjacent to the Premises.
In answer to a question from the Board, Const. Ouellette said that when he went back to the bar after Mr. Doughty had been stopped by Const Comartin, he was told there had been a verbal confrontation and Mr. Doughty had left. Some patrons advised him that Mr. Doughty had come back, but then left again.
Licensee’s Evidence
Ella Kiebert gave evidence. She works at the Premises as a bartender and waitress and has done so for 3 years. She was working there on April 20, 2007.
Ms. Kiebert stated that she was in the kitchen and heard screaming. A police officer called and another one showed up. Ms. Kiebert said she did not know what happened. The officer who showed up was Const. Ouellette. She spoke to him inside the Premises.
She said there had been a confrontation between Deb (Ms. Kiebert did not know Deb’s last name) and Fred Doughty. It had to do with selling or payment owing for appliances. The altercation happened out on the deck or patio. Debra only ordered a pop – tonic or soda – not alcohol. Ms. Kiebert said she served Fred 2 draft beers. It was not that busy.
Ms. Kiebert said she told Deb as long as there were no more problems she could stay. Eventually she left. Fred left about an hour later.
Ms. Kiebert said the officer never came back in the bar. Deb was on the deck. Fred was in his truck. Ms. Kiebert said she called the police a second time because someone said to do so.
On cross-examination, Ms. Kiebert said she was inside. Deb was served a draft beer. She had come with her girlfriend Michele. Deb had had on draft beer when the officer came to the bar the first time. She had one more beer on the patio. A draft is a standard pint glass - 10 ounces.
Ms. Kiebert said some neighbour had complained prior to the first time that police showed up. Ms. Kiebert was in the kitchen. She heard yelling and screaming on the patio which resulted from a confrontation between Fred and Deb.
Ms. Kiebert said that Mr. Doughty left the patio about an hour after Const. Ouellette had been at the bar. Mr. Doughty got in his truck and drove out of the parking lot. She described the truck as being light coloured.
Mr. Doughty returned to the parking lot to talk to Michele who was on the patio. He was in the same truck as before and did not get out of it. He was asking Michele to leave with him but she refused. She was sitting with Mr. Doughty’s grandparents.
Ms. Kiebert said there were probably 8 to 10 people on the patio. She went inside. Mr. Doughty was talking to Michele, he in his truck and she on the patio. A female yelled to call police, and Ms. Kiebert did that.
Ms. Kiebert said she has no knowledge of an assault. She was the only staff person working that day.
Registrar’s Submissions
Mr. Alton said that the Registrar is seeking a finding under subsection 45(1) under Ontario Regulation 719/90 (“O.Reg”).
Officers Comartin and Ouellette spoke to parties in the parking lot. Officer Comartin said 3 parties were intoxicated. One of them, Mr. Doughty was bad. Officer Comartin only spoke to him.
The dispute was resolved. Officer Comartin said she did not feel there was a public safety issue. This was about 2:45 p.m. on April 30.
An hour and a half later, police received a call that a second assault occurred.
Const. Ouellette followed a black pick-up truck. Officer Comartin eventually pulled it over. Mr. Doughty was driving. Officer Comartin said Mr. Doughty showed evidence of impairment, and asked the officer to be taken away.
Mr. Doughty tested over the allowable limit in 2 intoxilyzer tests.
The bartender heard yelling and screaming on the patio. She was inside and did not see what was going on. From her evidence, it did not appear that drunken patrons were fighting each other in the Premises.
There is evidence of drunkenness – Mr. Doughty was intoxicated. There is evidence of quarrelsome conduct – yelling and screaming on the patio and the parking lot.
In answer to a question from the Board, Mr. Alton said it does not matter what the particulars say in the NOP – in this case “On April 30, 2007, drunken patrons in the licensed premises fought each other.” Rather, the Licensee must defend against anything disclosed to it, including, in this case, drunkenness.
Licensee’s Submissions
Mr. DiPietro said that the evidence of Constable Comartin was at odds with that of Const. Ouellette.
Const. Comartin said that at 2:45 p.m., Mr. Doughty displayed signs of intoxication, but he was all right to go into the bar.
Const. Ouellette said he talked to Mr. Doughty and Ms. Durfy and saw no signs of intoxication.
The information received was about a fight. But the proof what occurred was that there was only a verbal argument.
Neither drunkenness in the Premises nor fighting in the Premises has been proven. Regarding fighting, there was evidence of a verbal argument only.
The Licensee called the authorities to come which is any event is not “permitting” within subsection 45(1) of the O.Reg.
Reply
- Mr. Alton said that the initial call regarding an assault did not come from the bartender. It apparently came from a concerned neighbour The Licensee “permitted”, by not preventing.
Reasons
- The NOP alleges that the Licensee breached subsection 45(1) of the O.Reg because:
On April 30, 2007, drunken patrons in the licensed premises fought each other.
- Based on the evidence of the 2 police officers, the Registrar has not proven on a balance of probabilities that either:
a) drunken patrons were in the licensed premises; nor that
b) such patrons fought each other.
Const. Comartin said that she felt there were no public safety concerns after she talked to Mr. Doughty at the Premises the first time police were called. The bartender did not feel there were any concerns about Mr. Doughty’s state of sobriety at that point.
The evidence points to a verbal, non-physical argument, nothing more, having taken place. This was not a case of patrons fighting.
It was about 1 1/2 hours later that Mr. Doughty was arrested for being intoxicated some distance away from the Premises. The evidence showed that prior to this arrest, Mr. Doughty had exited the parking lot driving his truck at a high rate of speed. But the evidence also showed Cont. Ouellette saw Mr. Doughty in his truck in the parking lot just before this exit. There was no evidence Mr. Doughty was in the Premises while carrying on his conversation with Michele who was on the patio.
Conclusion
- The Board confirms its oral ORDER to DISMISS the allegations of a violation of subsection 45(1) of the O.Reg, to the liquor licence of 1614804 Ontario Inc. operating as COLCHESTER BAR & GRILL ROUTE 67, 67 Country Road 50 West, Harrow, Ontario, N0R 1G0.
DATED AT TORONTO THIS 9th DAY OF JANUARY, 2008
DAVID C. GAVSIE, CHAIR OF AGCO GUY MAURICE, CHAIR OF PANEL
DCG/sm