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-
Kingston Brewing Company (The) Limited
O/A Kingston Brewing Co. Brewpub & Restaurant (The)
Licensee
DECISION
Panel: Bruce Monteith, Board Member
Decision Date: January 22, 2008
Hearing Location: Kingston, 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 ) Sujin Chan, Representative
Kingston Brewing Company (The) Limited, Licensee ) David Crowe, Representative )
Allegations
- A hearing into a Notice of Proposal dated March 6, 2007 to suspend liquor licence number 200435 issued to Kingston Brewing Company (The) Limited operating as KINGSTON BREWING CO. BREWPUB & RESTAURANT (THE), 34 Clarence Street, Kingston, Ontario, K7L 1W9 (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 was held on November 15, 2007 in the City of Kingston.
Decision
- After considering all the evidence and submissions the Board DISMISSES the allegation that the Licensee violated subsection 45(1) of the O.Reg. Reasons follow.
Registrar’s Evidence
Jesse Braun, a police constable with the City of Kingston, attended at Clarence Street on a report of an assault in the premises of the Kingston Brewing Pub and Restaurant. On arrival he found a small crowd of people gathered around Aaron Lemon who was lying on his back on the sidewalk approximately half a block away from the Kingston Brewing Pub & Restaurant. He was informed by members of the public that Mr. Lemon was responsible for an assault on a member of the pub staff, who had been taken to the Kingston General Hospital.
Mr. Lemon was assisted to his feet by Constable Braun. He was unable to stand on his own without support, assisted to a police cruiser and placed in the back seat. He was identified by information found in his wallet. His father confirmed his identity and indicated they had been in the pub celebrating New Year. He was advised that his son had been arrested and charged with assault.
While being taken to police headquarters Mr. Lemon passed out and urinated in the car. There was also a heavy smell of alcohol in the cruiser. On arrival at the police station, Mr. Lemon had to be assisted to the charge desk where he was again charged with assault. Constable Braun said that Lemon was unable to be photographed or finger printed prior to being placed in a cell.
On an inquiry by the police dispatcher to Canadian Police Information Centre (“CPIC”), it was found that Mr. Lemon was under recognizance, from an order on November 4, 2006 regarding an assault, to abstain from alcohol.
Constable Braun interviewed the victim of the assault, Brian Grant, who was employed as a bartender at the Kingston Brewing Pub. Grant said he had been hit by a glass thrown by an unknown person but did not wish to pursue the assault.
Constable Braun was informed by Jason Murray that he had seen Mr. Lemon throw a beer glass at Mr. Grant who was behind the bar. He said there was no provocation and described Mr. Lemon as in and out of consciousness, had heavy bloodshot eyes and unable to stand up.
On cross-examination Constable Braun said he received a call from dispatch at 12:08 a.m. and arrived at the scene at 12:11 a.m. Witnesses informed him that the assault took place at 12:01a.m. There were 5 people at the scene plus Lemon’s father, who was intoxicated to a lesser degree. The father informed Constable Braun that his son was a chronic alcoholic. He did not check Mr. Lemon for drug use. It took 5 minutes to take Aaron Lemon to the cruiser and seat him in the back seat. He was a big man but offered no resistance. He denied it had been suggested that Mr. Lemon be allowed to go home and sleep it off. He confirmed dispatch had called CPIC for information on Lemon. Constable Braun said that he had never been called to the bar before.
Licensee’s Evidence
Van Allen Turner is a partner in the business of Kingston Brewing with Richard Gilles. The business was rated at 78% food and 22% alcohol. The employees were trained in liquor related services. An employee information sheet was entered as Exhibit 1, a Kingston Brewing Pub & Restaurant food menu was made Exhibit 2, a framed Policy Statement was made Exhibit 3 and an Incident Report was made Exhibit 4. An incident book was kept in the premises and the assault on Brian Grant had been entered by the manager on duty, Allyson Healey, and reported to him next morning.
In cross-examination Mr. Turner testified Ms. Healey had informed him Aaron Lemon had been served three drinks but he did not know what kind.
Allyson Healey is the general manager and has 20 years experience in the hospitality business. On the night of December 31, 2006, she had a fairly quiet crowd who were mostly eating and having a good time. She did not know Mr. Lemon or his father but knew that they had been served by, bartender, Brian Grant. She was in the kitchen area when she heard a yell from the bar. She went into the bar and saw Brian holding his head, there was a lot of blood. She took him into the kitchen, examined the wound and found no other injuries but decided that an employee, named Jason, should take him to hospital.
She went outside and an off duty employee, Frank Turner, told her that a glass had been thrown at Brian Grant. She immediately called 911, around 11:57 p.m., and reported the incident. She said Mr. Lemon was standing but then partially sat and lay down on the sidewalk. When the first police car arrived, two officers assisted Lemon to his feet. The officer from the 2nd car checked his identification. When they took Lemon to the cruiser he did not appear to have a problem walking. She said she went back into the bar and completed an incident report.
On cross-examination Ms. Healey confirmed that there was an error in the report and that she did not know what Lemon had to drink. She said that she had been informed by Brian Grant that Lemon had been cut off about 11:00 p.m. because he was beginning to show signs of intoxication and given water to drink. She confirmed that when she first saw Mr. Lemon he was standing and then sat down. When the police came they assisted him to his feet. She did not know if Mr. Lemon had been provoked but his actions in throwing the glass were unreasonable. In her opinion, intoxicated people were unreasonable. She agreed she did not see the glass thrown and was not in the bar at the time. Lemon was not offered means to get home because he was with his father who did not seem to be intoxicated.
On re-examination Ms. Healey said that it was not normal to ask patrons if they had been drinking before arrival. In response to the Board Ms. Healey confirmed Aaron Lemon was allowed to remain in the premises from 11 p.m. until 11:55 p.m.
Brian Grant had been employed as a bartender at the Kingston Brewing Pub for two and a half years at the time of the incident and is known as Casey. He served Lemon and his father all evening. They had two glasses of White Tail and one glass of Double Nut. About 11:10 p.m. he said he noticed Aaron Lemon’s responses were becoming slower. He decided to cut him off and give him water but allowed him to remain until his father finished his beer because he was quiet. Mr. Lemon did not argue with the decision.
Around 11:50 p.m. he was talking to customers when he was struck on the head by what he thought was a glass. He did not see who threw it. He was taken to hospital but returned to work about 1 a.m.
On cross-examination he agreed he had filled in a part of the incident report incorrectly. He also admitted he had asked Mr. Lemon if he wanted another drink but explained he only did so to get his reactions. He was not given alcohol to drink, just water. He said Mr. Lemon was quiet and not annoying anyone. He agreed no one had asked him to leave the premises.
Colin Burtch is employed as a cook at the pub and had arrived at about 10:30 p.m. to meet some friends. He did not know Mr. Lemon or his father and did not notice anything unusual in their behaviour. He said he heard glass breaking, turned and saw Mr. Lemon’s arm extended, then saw him walk out with Frank Turner.
On cross-examination Mr. Burtch said he was about 8-10 feet away from Mr. Lemon, he said he did not spend a lot of time looking at him and did not notice what he was wearing. On re-examination he said he did not notice any signs of intoxication in Mr. Lemon.
Frank Turner has been a part-time employee at the pub for 14 years. He arrived at the pub between 9-9:30 p.m. He did not pay particular notice to Mr. Lemon and his father when they arrived about 10 p.m. He spoke to them and bought them a beer as a good will gesture to welcome them to the pub. Mr. Lemon had no trouble walking when he left the pub. Outside, he stood for a while then sat down on the sidewalk. He was assisted further up the street to be under the canopy of a neighbouring hotel.
On cross-examination Mr. Turner said that Mr. Lemon’s father had commented that he was disappointed in his son’s behaviour. He did not know that Mr. Lemon had been cut off but would probably have done the same had he been serving.
Registrar’s Submissions
The Registrar’s representative submitted that Constable Braun found Mr. Lemon intoxicated minutes after an assault in the premises. He was unable to stand or identify himself and had to be assisted into the police cruiser where he passed out. At the police station Mr. Lemon was so intoxicated that the officers were unable to fingerprint him.
There is no evidence to confirm Lemon had only 3 drinks. Bar receipts were not accepted by the Board as they did not show who had purchased the drinks. The manager and the bartender both agreed that the incident report was not quite accurate. Mr. Lemon was cut off at 11 p.m. but allowed to remain in the bar until 11:50 p.m. to allow his father to finish his drink. The bartender did not ask Mr. Lemon if he had been drinking prior to coming to the pub. There was no effort made to remove Mr. Lemon from the bar until after the assault. Mr. Burtch could not confirm that Mr. Lemon was intoxicated nor did he observe him in any great detail. Frank Turner could not make up his mind if Mr. Lemon was intoxicated or not but said if he had been serving, he would have cut him off.
Police found Mr. Lemon intoxicated, minutes after their arrival, and there is sufficient evidence to show that Lemon was intoxicated in the pub.
Licensee’s Submissions
Licensee’s representative submitted that Mr. Turner had been in business for 22 years without problems or infractions. His business is mostly in the service of food at 80% to selling alcohol at 20%. His staff made special effort to ensure that drunkenness is not allowed and would assist any patron who had a problem. He is one of the leaders in the Smart Serve programme and has been since its beginning.
There were no signs of intoxication from Mr. Lemon other than he took time to answer questions. All witnesses concur that Mr. Lemon showed no signs of impairment. He was served only 3 drinks and cut-off for showing the beginning of signs. Mr. Lemon was not obnoxious after being cut off. He was allowed to remain in the bar until his father finished his drink and because the weather was wet and cold with no taxis readily available on New Years Eve. The incident report is in error because of an oversight.
There are a number of reasons for Mr. Lemon’s condition when the police arrived. He had been outside in the wet and cold for 20 minutes before their arrival. Police said that Mr. Lemon had to be assisted which differs greatly from the evidence of the staff who said that he walked out without assistance.
Reply
- The bartender cut Mr. Lemon off for showing several signs of intoxication. Mr. Healey said Mr. Lemon was allowed to remain while his father finished his drink because he was sitting quietly drinking water. Cold and wet conditions would work in reverse and cause a sobering effect.
Reasons and Findings
The police received a call regarding an assault in The Kingston Brewing Co. and when they attended they found a male on the sidewalk who, in their opinion, was intoxicated. They had difficulty in placing the male in the police cruiser and when in the cruiser he passed out. The police presumed Lemon was in the same state when inside the pub. The police did not enter the premises to interview staff or patrons regarding the assault or drunkenness within the establishment. They appeared to be interested only in removing Mr. Lemon to the police station.
Brian Grant testified he served Mr. Lemon only three drinks. There is no direct evidence from the Registrar to refute this. Mr. Lemon was cut off not because he was drunk but, because he was beginning to show signs of intoxication. Allison Healey knew that Lemon had been cut off because the bartender said he was beginning to show signs and given water to drink. He was allowed to remain on the premises by two experienced staff who were of the opinion that he was beginning to show signs but was not drunk. Frank Turner said Mr. Lemon walked out of the premises unaided and then saw him sit down. The view that cold acts to bring sobriety to some people, could also work in reverse to others. No medical evidence was introduced to support or deny this fact.
Aaron Lemon was charged with assaulting Brian Grant inside the premises after Jason Murray said that he had committed the assault. Brian Grant did not see the assault occur. Colin Burch did not see any aggressive behaviour from Mr. Lemon. He stated that all he saw was Mr. Lemon’s arm extended and presumed that he had thrown the glass. Frank Turner saw no signs of aggressiveness and actually bought Mr. Lemon and his father a drink to welcome them to the pub. The only witness to the assault, Jason Murray, was not called as a witness at the hearing.
It is reasonable to believe that Aaron Lemon was allowed to remain on the premises because of the weather conditions outside and the unavailability of taxis given the time of year. Also the staff did not believe he was intoxicated but only cut him off to prevent this occurring.
I have considered the evidence with respect to Mr. Lemon’s behaviour while in the premises contrasted with his behaviour when police arrived and while in their custody. After weighing the consistent and uncontradicted evidence of the Licensee’s witnesses that Mr. Lemon did not display obvious signs of intoxication in the premises and walked out of the premises unaided against Cst. Braun’s observations of him after he had been outside in the cold for some time, I find, on a balance of probabilities, Mr. Lemon did not appear drunk in the premises. Had Mr. Lemon exhibited obvious signs of intoxication at the time he was cut off, I am satisfied he would have been escorted from the premises by the staff.
Therefore, the Board DISMISSES the alleged breach of subsection 45(1) of the O.Reg.
DATED AT TORONTO THIS 22nd DAY OF JANUARY, 2008
BRUCE MONTEITH, BOARD MEMBER
BM/sm