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-
3234720 Canada Inc. O/A Raxx Billiards & Bar
Licensee
DECISION
Panel: David C. Gavsie, Chair of AGCO Allan Higdon, Chair of Panel
Decision Date: January 10, 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 ) Richard Kulis, Representative
3234720 Canada Inc., Licensee ) Joel Kuchar, Representative
Authorities
Salty Dawg Roadhouse Restaurant, [2001] O.A.G.C.D. No. 426
Bikini Bob's Inc., [2007] O.A.G.C.D. No. 145
Ale House Company St. Thomas, [2006] O.A.G.C.D. No.1
Ganaraska Hotel, [2003] O.A.G.C.D. No. 350
Allegations
- A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in Kingston on December 4, 2007, regarding a Notice of Proposal dated June 28, 2007 being number 15361 (the “NOP”) proposing to suspend the liquor licence of 3234720 Canada Inc. (the “Licensee”) operating as RAXX BILLIARDS & BAR, 655 Development Drive, Kingston, Ontario, K7M 4W6 (the “Premises”), licence number 804926, on the basis of alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”).
Decision
- The Board FINDS that a violation of subsection 45(1) of Ontario Regulation 719/90 occurred in the Premises on February 18, 2007. Reasons follow.
Preliminary Matters
- On consent, the Board ordered witnesses to be excluded from the hearing.
Registrar’s Evidence
Jasson Paquette was called as a witness.
Mr. Kuchar objected on the grounds he had not received any direct disclosure material regarding this witness or a will-say statement. He noted that AGCO Member Maurice’s disclosure order confirmed the Registrar’s obligations to disclose evidence to the Licensee yet Mr. Kuchar had received nothing. In fact, Mr. Paquette’s name was only referenced in a second-hand statement from police officers.
Mr. Kulis responded that Mr. Paquette’s evidence had been gathered by the police. A synopsis of Mr. Paquette’s evidence was provided in their notes and reports which had been disclosed to Mr. Kuchar.
The Board ruled that Mr. Paquette’s evidence at the hearing would be limited to questions and answers contained in the police notes and reports disclosed to Mr. Kuchar. If questions go beyond those notes and reports, Mr. Kuchar may object and the Board will deal with any such objection.
Mr. Paquette said he was familiar with Raxx in Kingston and that he was there on February 17, 2007. Mr. Kuchar objected to a question about the time Mr. Paquette was there. Mr. Paquette did not answer the question.
Mr. Paquette said he drank beer at Raxx. He was asked how much he drank. Mr. Kuchar objected. Mr. Paquette did not answer the question.
Mr. Kulis showed Mr. Paquette a form headed “Intoxilyzer Questions” attached to a 2 page Kingston police form entitled “Alcohol Influence Report”. Both pertained to Mr. Paquette and to the date of February 18, 2007. In the documents Mr. Paquette states he had consumed 12 to 15 beers. Both forms were made Exhibit 1.
Mr. Paquette stated his last beer that night was consumed at Raxx around last call. After he finished it, he left the Premises.
He attempted to drive his vehicle away but it got stuck. He tried to get out of his vehicle but 3 people saw him including a female who was screaming at him and for someone to call police.
Mr. Paquette said he realized that he could not drive and started to walk down the side of Development Road to a friend’s house.
The police came and took Mr. Paquette to the police station. He had a breathalyzer test and left. He was charged with driving over the limit.
Const. Chris Gobeil was called as a witness. He has been a member of Kingston Police Service for 8 years. He was at Raxx in the early morning of February 18, 2007. On consent, he was permitted to use his notes to refresh his memory.
Const. Gobeil prepared Exhibit 1. He has taken training in intoxication from the Centre for Forensics and has had much experience in dealing with persons who are intoxicated.
He was partnered with Const. Lancop on February 18, 2007. They were dispatched around 2:45 a.m. based on a report of a fight. On arrival, there was a vehicle in a ditch. Const. Gobeil said he saw a male leaving the front of Raxx, and he was stumbling along the wall northbound towards Development Drive. There was snow on the male’s jacket and pants.
Const. Gobeil went to the front of Raxx to investigate. He received information that the male he saw was involved in an incident.
Const. Gobeil proceeded to Development Drive and stopped the male for investigation. The male identified himself as Jasson Paquette. Mr. Paquette was not co-operative in answering questions. He was detained and placed in the police cruiser.
Const. Gobeil said he suspected a vehicle was involved. As his investigation proceeded, Const. Gobeil said he found reasonable grounds to arrest Mr. Paquette for the impared operation of a motor vehicle. He said that Mr. Paquette’s speech was slurred, he was unsteady on his feet, and in the cruiser, Mr. Paquette had alcohol on his breath.
On the way to the police station, Mr. Paquette fell asleep in the cruiser and was snoring. On being awakened at the police station, Mr. Paquette was alert.
At the police station, Const. Gobeil commenced the intoxalyzer test. He ensured the instrument was properly calibrated.
Const. Gobeil took custody of Mr. Paquette in the breathalyzer room at 3:47 a.m. Const. Gobeil explained the process to Mr. Paquette and told him he had the opportunity to call counsel.
At both 3:58 a.m. and 4:18 a.m., Mr. Paquette provided samples of breath into the machine which made an analysis of Mr. Paquette’s blood alcohol concentration. Const. Gobeil placed into evidence (Ex.2) the test records showing Mr. Paquette’s reading were 236 per 100 mls of blood and 243 per 100 mls of blood, respectively. The allowable limit is 80 per 100 mls of blood. Mr. Paquette’s readings were roughly 3 times the legal limit.
Const. Gobeil asked Mr. Paquette the standard questions set out on page 2 of Exhibit 1. Mr. Paquette had been arrested at 3:02 a.m. on February 18, 2007. Mr. Paquette said he was operating a motor vehicle at the time of the accident which was approximately 30 minutes before the police showed up. Mr. Paquette thought the time of his interview with Const. Gobeil was 3:25, whereas it was really 4:00 a.m.
Mr. Paquette said he had consumed 18 beers at home and at the bar. He started at 10 a.m. and had his last beer about 1/2 an hour before his arrest.
Const. Gobeil wrote his observations of Mr. Paquette at the bottom of page 2 of Exhibit 1, and again at the top of page 3 of Exhibit 1.
In answer to questions on cross-examination, Const. Gobeil said he did not enter the Premises. He got there after it was closed. He did not see Mr. Paquette in the Premises.
Const. Gobeil said he spoke to a witness, Brody Schunk. Mr. Schunk told him that a male was walking outside in the parking lot. The male had been in the driver’s seat of a black minivan. The van could not be dislodged from a snow bank. Mr. Schunk identified himself to Const. Gobeil as a Raxx security guard on duty.
Const. Gobeil said he attempted to converse with Mr. Paquette. Mr. Paquette was unsteady on his feet all the time he was standing. Const. Gobeil said he was 4 to 5 feet away from Mr. Paquette.
Const. Gobeil said that the increase in blood level alcohol in the 2 breath samples, increasing from the first to the second, was not unusual. It was possible Mr. Paquette was still ascending in his blood alcohol capacity, given the time he had his last beer and how many he had consumed.
Const. Derek Lancop was called as a witness. Const. Lancop had been a member of the Kingston Police Service for over a year. He is familiar with Raxx. He was there on the early morning of February 18, 2007. On consent, he was permitted to use notes he had made to refresh his memory.
Const. Lancop was dispatched to Raxx because of a fight and a vehicle accident. A van had gone into a ditch. He arrived on scene at 2:48 a.m. On arrival, he saw another police office, Const. Brown, speaking to a bouncer from Raxx obtaining information.
He drove in his cruiser on to Development Road westbound and saw a male walking. He got out of the cruiser and approached the male. Const. Lancop asked the male what was going on. The male responded that at least the police had not caught him, which aroused Const. Lancop’s suspicion. The male was Mr. Paquette.
Const. Lancop said that Mr. Paquette appeared to be under the influence – he was staggering, off-balance, he had fallen in the snow, he smelled of alcohol from about 4 feet away.
Const. Lancop asked Mr. Paquette to wait while he talked to Const. Brown. Mr. Paquette started to walk away, so Const. Gobeil detained him for purpose of further investigation. Const. Lancop said that Mr. Paquette’s speech was somewhat incoherent and evasive, but that his speech was understandable.
Const. Lancop stated that Mr. Paquette told him that he had driven his car only 4 feet and crashed into a snow bank.
In answer to questions on cross-examination, Const. Lancop said he did not go into Raxx that night, not did he see Mr. Paquette in Raxx.
Const. Lancop said according to Mr. Schunk, a bouncer at Raxx, Mr. Paquette had been in the bar, had left, walked to his vehicle, attempted to drive away, and crashed it into a ditch. Realizing Mr. Paquette was intoxicated, Mr. Schunk and others had refused to help Mr. Paquette get his vehicle out of the ditch.
Mr. Schunk told Const. Lancop that Mr. Paquette appeared too intoxicated to drive. A scuffle broke out when Mr. Paquette saw no one would help him out of the ditch. Mr. Schunk had called police.
Licensee’s Motion
Mr. Kuchar moved that the NOP be dismissed for lack of evidence. The allegation in the NOP is that the Licensee permitted drunkenness in the Premises, but there has been no evidence of that presented by the Registrar. No evidence had been presented regarding Mr. Paquette’s behaviour in Raxx, what time he got there, how may beers he was served in Raxx. There was no evidence regarding any interaction with staff in Raxx. Mr. Kuchar stated that permitting intoxication is about behaviour and what the bar did in the particular case. Here, the incident took place in a parking lot. A Raxx employee called police. There is no conduct inside Raxx for Mr. Paquette to answer to from a behavioural perspective.
In his response, Mr. Kulis referred to the Salty Dawg decision at paragraphs 44 to 47 (Exhibit 3). Mr. Schunk’s behaviour is key as it demonstrates some responsibility on behalf of the Licensee. The Board can extrapolate from the evidence that something happened, and that it occurred in the Premises.
Mr. Kuchar stated Salty Dawg could be distinguished on the following grounds:
a) the evidence was that Mr. Paquette began drinking at 10 a.m. There is no evidence how much Mr. Paquette consumed elsewhere;
b) no length of time in the Premises was established, not was there any evidence of interaction with the staff; and
c) there is no evidence from the Licensee or others of anything that happened in the bar.
- Mr. Kuchar introduced book of authorities (Exhibit 4) and referred to Board’s interpretation of ss. 45(1) in Bikini Bob’s where the Board said that if a patron appears to be drunk, the licensee and his staff must ensure that the patron does not continue to obtain liquor on the premises. In the case at the bar, there was no evidence of interaction between staff and Mr. Paquette inside the Premises.
Decision on Motion
- After deliberation the Board gave the following oral decision:
The Board has considered the motion to dismiss the NOP. The Board has heard evidence that an employee of the Licensee, a bouncer/security guard, Brody Schunk, encountered Mr. Paquette in the parking lot outside the Premises, refused to assist him in freeing his vehicle from a snow bank, and told him he could not drive the vehicle. In addition, the evidence is that Mr. Schunk called police, reported an altercation and that a vehicle was in the ditch. The behaviour of Mr. Schunk indicated to the panel that he, in his role as a bouncer/security guard on duty that night, acted in a position of authority and responsibility on behalf of the Licensee. This indicates a telling interaction between Mr. Paquette and a staff member employed by the Licensee, and raises a clear presumption that there was a strong link between Mr. Paquette and the Premises of the Licensee on February 18, 2007. Therefore the motion to dismiss is denied.
Licensee’s Evidence
Brody Schunk was called as a witness. He is 21. He was working the evening of February 17/18, 2007 at the front door of Raxx doing security checks. He had started working at Raxx in August, 2006.
Mr. Schunk said that he first saw Mr. Paquette when his van was in the snow bank. He had not seen him earlier. He did not see Mr. Paquette in the bar.
Mr. Schunk approached the van. The driver was trying to back up, but it was not moving. The driver asked Mr. Schunk if he could help out. The driver got out of the van and fell down.
4 other people in a SUV offered to help pull the van out of the snow bank. However, they realized the driver was intoxicated, and they refused to do anything.
Mr. Schunk also realized the driver was intoxicated. Not only did he fall down, but after he got up he was slurring his words and was bobbing back and forth.
Mr. Schunk told Mr. Paquette to leave the van where it was and take a cab home. Mr. Paquette did not want to do that. He kept complaining that no one was helping him.
The manager of Raxx that evening, Ben Bannister, noticed what was going on. It was Mr. Bannister who called police. Mr. Bannister told Mr. Schunk this in the parking lot. Mr. Schunk told Mr. Paquette the police were coming.
When police arrive, Mr. Schunk spoke to them. He pointed out Mr. Paquette who had a problem. Mr. Schunk gave police a statement.
In answer to questions on cross-examination, Mr. Schunk said he had Smart Serve training which he took in 2006.
In his signed statement to police (Exhibit5) Mr. Schunk said the only time he saw Mr. Paquette was in the parking lot. But in the statement (Ex.5), he did say he saw Mr. Paquette leaving Raxx.
Mr. Schunk said in performing his duties at the front door of the Premises, sometimes he walks 20 to 30 feet away. He also said on the night in question, it was busy – about 300 to 350 people – but when a live band started playing around 9:30 or 10:00 p.m., the crowd was down to around 200 people.
Mr. Schunk stated that he was told by the manager that Mr. Paquette had been in Raxx drinking. After the altercation in the parking lot, the manager recalled that the driver of the van had been in the bar. The manager was Ben Bannister.
In answer to questions by Mr. Kuchar, Mr. Schunk said that if he did put in his statement he saw the person leaving Raxx, he actually meant leaving the parking lot.
In answer to a question from the panel, Mr. Schunk said that Mr. Bannister recalled seeing Mr. Paquette from the back of the bar. The bar is horseshoe-shaped and Mr. Paquette was at the back of the horseshoe. The manager had gone up to Mr. Paquette at the end of the night to tell him to leave, and had recalled Mr. Paquette from doing that.
Ben Bannister was called as a witness. Mr Bannister is 31. He has been the full-time bar manager at Raxx for the past year and a half. Prior to that, he worked as a security guard at Raxx of and on for 5 years. He has worked in security for 10 years.
On the night in question, Mr. Bannister said there were 20 to 30 staff working. There were 4 or 5 bartenders, 8 to 10 servers, 4 security people and 4 porters. Employees are trained by Steve Ivankovic, the general manager.
Mr. Bannister was working on February 17/18, 2007. At the end of the night, he realized he could not see either security person. They were in the parking lot. He saw Mr. Schunk talking to a group of people, and he also saw a car in a ditch. The other security person was in the middle of the parking lot watching Mr. Schunk.
Mr. Bannister said he called the police, and then called Mr. Schunk to tell him he had done so. Mr. Bannister returned inside the Premises.
Mr. Bannister said he could not see who was at the wheel of the car in the ditch. When he saw who it was, Mr. Bannister recalled he had seen the male in the bar. Mr. Bannister had spoken to him at the bar. The man was sitting at the top end of the horseshoe – shaped bar. At the end of the evening, Mr. Bannister told the male that it was time to go, so he should drink up.
The male got up and put his coat on. He was sitting with a blonde female. Mr. Bannister said nothing he saw indicated the male was intoxicated. He did not stagger or stumble on the way out.
In answer to questions on cross-examination, Mr. Bannister said that once a patron starts exhibiting signs of intoxication, it is dealt with. Servers exchange information, patrons are observed. Mr. Bannister is told about this.
Mr. Bannister estimated that evening there were 350 to 400 people in the Premises. Capacity is 433.
Mr. Bannister said he first observed Mr. Paquette at last call around 1:30 a.m. The lights are turned on at 2:00 a.m. Patrons are told they have 15 minutes to finish their drinks.
Mr. Schunk told Mr. Bannister that Mr. Paquette was drunk and that is why they were not towing his car out of the ditch. This was the same man he had seen in the bar. Mr. Bannister advised the general manager about the incident. Nothing further was done.
In answer to a question from the Board panel, Mr. Banister said Mr. Paquette walked out of the bar unassisted. Mr. Bannister said he watched him walk about 20 to 30 feet and then down 3 stars. There was no navigation problem.
Mr. Kulis introduced into evidence the will-say statement of Mr. Bannister (Ex.6).
Registrar’s Submissions
Mr. Kulis stated that except for Mr. Bannister it was obvious to every one who saw Mr. Paquette that Mr. Paquette was drunk. Right after he left the Premises, according to Mr. Schunk and the individuals who might have helped him, Mr. Paquette was drunk.
Mr. Schunk talked to Mr. Paquette and observed him. Mr. Schunk said he was drunk.
Mr. Paquette admitted he had 12 to 15 beers that day. He told the police he consumed 18 beers. Regardless, Mr. Kulis said the number was excessive. The intoxication test (Ex.2) showed Mr. Paquette had 3 times the permissible level. He was by all accounts excessively drunk.
Mr. Kulis said that based on the Salty Dawg decision, the Board can extrapolate from pieces of evidence and exhibits that based on the brief period of time from when he exited the premises until he drove into the ditch, Mr. Paquette was intoxicated. The signs of that were evident to all of those who saw him.
There is no mitigation of not having seen signs for the Licensee.
Mr. Bannister briefly observed and briefly conversed with Mr. Paquette. Mr. Paquette was sitting at the bar. Mr. Kulis said that a person could be sitting at a bar and the Licensee could be in violation of subsection 45(1) of the O.Reg. This is not a section 29 offence under the LLA where sale and service to the patron have to be established.
Mr. Bannister is hedging his evidence. He is not being forthright. Mr. Schunk was told by Mr. Bannister that he had seen Mr. Paquette drinking in the Premises. Mr. Bannister said he saw Mr. Paquette walking 20 to 30 feet. Mr. Bannister is shading his evidence to avoid responsibility. The Board should therefore treat Mr. Bannister’s evidence with scepticism, and question his credibility.
Mr. Kulis stated that there should have been precautions taken before Mr. Paquette could leave the Premises and get into his car.
Licensee’s Submissions
Mr. Kuchar said this is not a reverse onus offence. The Licensee does not have to disprove evidence of intoxication in the Premises. One cannot draw an inference.
Mr. Kuchar restated what he had said in arguing his earlier motion to dismiss:
there was no evidence of when Mr. Paquette arrived at Raxx;
there was no evidence of how many beers were consumed by Mr. Paquette in Raxx; and
there was no evidence of any interaction between Mr. Paquette and staff member of Raxx inside the Premises.
Regarding the last point, Mr. Kuchar said now we have evidence of some interaction based on the testimony of Mr. Bannister who said Mr. Paquette looked fine to him at closing time.
Mr. Kuchar said we do not know where Mr. Paquette was from 10 a.m. on that day.
Mr. Bannister said he saw nothing out of the ordinary when Mr. Paquette stood up, put on his coat, walked down a hallway and down some stairs to leave the Premises. Everything occurred in the parking lot.
The Registrar has presented no evidence from staff of the Licensee that Mr. Paquette appeared drunk in the premises. Not only must the man appear to be drunk in the Premises, he must be seen, and then the question is what did staff do?
Here the case is that Mr. Paquette showed signs of intoxication in the parking lot, so he must have done something inside.
Mr. Kuchar said that the evidence is that Mr. Paquette was sitting in the bar with a woman. He was observed by Mr. Bannister for an hour before he got up to leave. Mr. Paquette got up and walked out without showing signs of being intoxicated. The Board should not guess or infer otherwise.
Mr. Kuchar distinguished the Salty Dawg case. The woman in that case was at the bar much longer. Here, it is admitted that Mr. Paquette had been drinking since 10 a.m. We do not know what Mr. Paquette drank at Raxx. In the other case, there was evidence of what the woman drank and blew 170 on a breathalyser test later. The Board in that case inferred she drank more.
Regarding Mr. Paquette, we do not know when signs of intoxication became overt, so we cannot assume he showed signs of intoxication inside. If he did show signs of this behaviour in the Premises, then Mr. Banister is lying and all other staff in the bar did not do their job that night.
The Registrar is making up the case. Their case is not proven. It makes sense to blame the bar, but the evidence is not there.
Regarding Mr. Kulis’ point about quiet drunks, Mr. Kuchar said not every impaired person acts the same way ie. drunk, especially if they are sitting and not conversing.
The accident in the parking lot happened, and then Raxx knew there was a problem. What did they do? Mr. Schunk refused to assist and made sure Mr. Paquette could not drive. The manager called police and gave a statement to police. Staff showed responsibility for Mr. Paquette on the parking lot. The Raxx employees, once they knew Mr. Paquette was intoxicated, acted responsibly.
Mr. Kuchar said had Mr. Paquette shown signs of intoxication inside Raxx, their employees would probably acted responsibly.
Mr. Kuchar referred to the following cases in his Book of Authorities (Ex.4):
A. Ale House Company St. Thomas at paragraph 14:
The Board also accepts the testimony of Mr. P that his staff was not aware that Mrs. J was intoxicated and that when Mrs. J did come to the attention of the staff at Ale House they did take action.
and at paragraph 16:
The testimony before the Board indicated that staff of the Ale House would not have known Mrs. J. was intoxicated as they for the most part did not serve her directly.
In that case the Board dismissed the alleged violation.
B. Bikini Bob’s Inc. at paragraph 28:
In previous cases, the Board has interpreted this subsection (45(1) of the O.Reg) to mean that if a patron appears to be drunk the Licensee and his staff must insure that the patron does not continue to obtain liquor on the premises.
and at paragraph 36:
The Board believes that by cutting off the Rs when they showed signs of drunkenness, but allowing them to remaining until they could return home safely, was both prudent and is in keeping with subsection 45(1) (of the O.Reg).
Mr. Kuchar said that this case determines there must be a starting point where sign of intoxication are shown.
C. In Ganaraska Hotel the evidence of inspectors was different from that of the bar staff in the premises. At paragraph 52:
While the Board believes that the evidence of the liquor inspector is credible, it placed reliance on the testimony of the licence holder who believes that the patrons were not intoxicated and that he acted in a timely and prudent manner to remove the patrons from the premises.
Mr. Kuchar disagreed with Mr. Kulis when he said not seeing signs of intoxication does not absolve a licensee. Mr. Kuchar agrees that a bar must perform its job, but staff cannot be mind readers. However, they must be responsible.
In this case, a man was drunk before he got to the bar. He had a significant number of beers (12 to 15) before he came in. The bar must have a chance to observe him. The case of the Registrar has not been proven.
Reply
Mr. Kulis said that Mr. Kuchar’s argument that “if I don’t see it, I am not liable” is a dangerous proposition. There is more to responsibility of a licence holder than observing.
The evidence of Mr. Bannister is not credible. There is no other evidence, except that Raxx was short on its security.
Mr. Kulis said there is no evidence of what staff did inside, they took no proactive steps, no steps were taken by Raxx as a Licensee. The Licensee must look out. It must be proactive.
Reasons
- The relevant words of subsection 45(1) of the O.Reg read as follows:
45(1) The licence holder shall not permit drunkenness (…) to occur on the premises (…)
The only direct evidence that Mr. Paquette consumed beer in Raxx on February 18, 2007 was his, namely that the last beer he consumed at Raxx was around last call. There is no evidence as to how long Mr. Paquette was in Raxx, or how much he consumed there during that time.
What is clear from the evidence is that Mr. Paquette left Raxx at its closing time, proceeded to his vehicle in the parking lot outside of Raxx, got in, started to drive it and immediately drove into a ditch or a snow bank where the vehicle was stuck. At that point, Mr. Schunk, a member of the Raxx security staff, saw that Mr. Paquette was intoxicated and as a result, Mr. Bannister, the manager of Raxx, called police.
Police arrived, chased down Mr. Paquette who was walking on Development Drive, and ultimately placed Mr. Paquette under arrest for the operation of a motor vehicle while impaired. The arrest occurred at 3:02 a.m. on February 18, 2007.
Later, at the police station, using an intoxalyzer, Mr. Paquette was found by police to have blood/alcohol levels of 236 and 243 at 3:58 a.m. and 4:18 a.m., respectively, on February 18, 2007 (see Ex.2). These readings were roughly 3 times the legal limit.
Mr. Paquette in his interview with Kingston Police (Ex. 1) which took place around 4 a.m. at the police station, said that he had consumed 18 beers since 10 a.m. the previous morning, and that he had his last beer about a half hour before he was arrested. He also said he was drinking at home and at a bar, not mentioning Raxx by name.
Mr. Bannister’s evidence was to the effect that he saw Mr. Paquette inside Raxx and observed him sitting at the top of a horseshoe – shaped bar for some time. Mr. Kuchar said this observation time was about an hour.
There is no doubt from the above summary of the evidence that, on a balance of probabilities, Mr. Paquette was intoxicated while inside the Premises for the last hour or so before he was asked to leave at closing time by Mr. Bannister. There is no evidence he had anything further to drink while Mr. Schunk and others saw him after he drove his vehicle into a snow bank or a ditch and before he was arrested at 3:02 a.m. Therefore, the Board concludes that all of his drinks were consumed prior to his leaving the Premises.
Assuming he left the Premises between 2 and 2:45 a.m., and given the police intoxalyzer test results around 4 a.m., the Board FINDS, on a balance of probabilities, that Mr. Paquette was intoxicated while in Raxx and that, therefore, the Licensee permitted drunkenness on the premises contrary to subsection 45(1) of the O.Reg.
Conclusion
- 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 10^th^ DAY OF JANUARY, 2008
DAVID C. GAVSIE, CHAIR OF AGCO ALLAN HIGDON, CHAIR OF PANEL
DCG/sm