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 of Ontario Registrar
-and-
1636548 Ontario Inc. O/A All-Star Bar & Eatery Licensee
DECISION
Panel: Dianne Axmith, Board Member Eleanor Meslin, Board Member
Decision Date: July 23, 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 ) Brad Alton, Representative 1636548 Ontario Inc., Licensee ) Daniel Shi, Representative
Allegations
- A hearing into a Notice of Proposal (“NOP”) number 16002 dated February 11, 2008, to suspend liquor licence number 20543 issued to 1636548 Ontario Inc. (the “Licensee”) operating as ALL-STAR BAR & EATERY, 4168 Kingston Road, Scarborough, Ontario, M1E 2M4, on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on July 14, 2008 in the City of Toronto.
Decision
- After considering all of the evidence and submissions the Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
- Daniel Shi is the Manager of the Licensee. He appeared on behalf of the Corporation and waived the right to be represented by legal counsel or a licensed representative.
Registrar’s Evidence
Mr. Ka Ng, an inspector for the AGCO, testified that on the morning of July 15, 2007 he attended All-Star Bar & Eatery on a routine inspection. He entered at approximately 12:56 a.m. and observed a white male in his mid-30s wearing a blue Nike sweater, jeans and running shoes who appeared red-faced with a fixed gaze and heavy eyelids. He was drinking from a bottle of Molson Export. It was Mr. Ng’s testimony that he then observed this individual walk unsteadily to the karaoke stage where he sang with slurred speech.
He then spoke to the Manager, Daniel Shi, about this individual and asked how much alcohol he had consumed. Mr. Shi stated that he only served him one bottle of beer and disagreed that he was intoxicated. It was his testimony that Mr. Shi told him to “do whatever you do” and did not speak to the individual in question or ask him to leave.
Mr. Ng stated that while this individual was at the service bar he was approximately 2 feet away from him and 20 feet away when he was singing. He subsequently sent a report of the incident to 43 Division of the Toronto Police Service but does not know if charges were laid.
In response to questions from the Board, Mr. Ng testified that the individual was already in the bar when he arrived at 12:56 a.m. and was still there when he left at 1:18 a.m.
Licensee’s Evidence
Mr. Valerian (Rocky) Dias testified that he is a regular weekend patron of the establishment and knows that Mr. Ng is an AGCO inspector because he has seen him there on previous occasions. He stated that when Mr. Ng entered the establishment on July 15, 2007, Mr. Dias walked over and asked him what he was doing there again. He did not respond to the question but Mr. Dias believes that Mr. Ng was angry because of his comment.
Mr. Dias knows the individual that Mr. Ng believes was intoxicated that night and described him as a “street person” named Dan who usually does not have any money. On that occasion, Dan asked if he would buy him a beer. He agreed and ordered a Molson Dry which is what he always drinks. Dan was in the bar about five to ten minutes prior to the inspector entering and this was his first drink in the establishment that night.
Mr. Dias testified that Dan did not sing karaoke that night. It was busy and there were 4 or 5 people already waiting to do so.
On cross examination Mr. Dias stated that he arrived at the establishment between 11:00 p.m. and 11:30 p.m. He may have consumed two or three beers by the time Mr. Ng entered. He had no recollection of what Dan was wearing that night and agreed that he has never worked in a bar or had any training to determine whether an individual is intoxicated. He could not say whether Dan had been drinking prior to entering All-Star. All Dan said to him was “Rocky, I’m broke. Can you buy me a beer?”
Mr. Dias was firm in his statement that Dan never sang karaoke that evening. He just sat at the bar drinking his Molson Dry.
He observed Mr. Ng talking to Mr. Shi who subsequently told him the inspector believed Dan to be intoxicated and there would be charges because of the beer he (Dias) had purchased for him.
Mr. Dias did not see Dan finish his beer and could not recall if he was still there when the inspector left the establishment.
On the suggestion from Registrar’s counsel that perhaps Mr. Ng and Mr. Dias were describing two different individuals he was certain the inspector was referring to Dan and when questioned by the Board, he reiterated that Mr. Shi told him that Dan was the individual discussed.
Mr. Daniel Shi is the Manager of All-Star Bar & Eatery. His wife is the corporate licensee. He is very familiar with the individual Mr. Ng believed was intoxicated because he comes into the establishment once in a while.
On that particular night, Rocky (Mr. Dias) bought Dan a Molson Dry. Dan did not sing karaoke that night because the system calls for people to put their names on a board and perform according to the list. Dan had not been in the establishment very long before Mr. Ng entered.
The inspector first complained to Mr. Shi about the comment Mr. Dias made about his presence in the establishment and told him he should not let his patrons speak to him like that. Mr. Shi advised Dias to say nothing more. Then Mr. Ng. stated that Dan was intoxicated and Mr. Shi would be charged. He disagreed and explained that he had only been served one beer.
It was Mr. Shi’s testimony that the establishment has had a previous suspension. In that case, he made a mistake and was wrong so he did not fight the charges. This time, however, he knows the intoxication allegation is not true and that is why he is disputing it.
On cross examination, Mr. Alton enquired about whether charges were ever laid by the Toronto Police Service regarding the incident. Mr. Shi stated they had been but were dismissed for lack of evidence because no witness appeared.
He did not have a conversation with Dan who stood by the bar for a while before Rocky ordered him a beer. He did not hear their conversation but has Smart Serve training and did not believe Dan was intoxicated. When Dan entered, he observed him walk 15 feet to the bar with no problem, and he had taken only a few sips of his beer when Inspector Ng came in.
Dan left the establishment after drinking his beer. He never walked around and only stood or sat at the bar for the approximately 40 minutes he was there.
Mr. Shi stated that he knows Inspector Ng was referring to Dan because he pointed him out. Nobody else bought Dan a beer because he is not well liked by other patrons. The only beer he drinks is Molson Dry, he never drinks Molson Export.
Registrar’s Submissions
Mr. Alton submits Inspector Ng’s testimony proves that on July 15, 2007 there was a violation of subsection 45(1) of the O.Reg and the license holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises.
Mr. Ng was in the establishment for 22 minutes and described the individual in detail. He observed him walk unsteadily in front of the bar and then saw and heard him singing karaoke with slurred speech. The Manager did not remove him when his condition was brought to his attention.
Mr. Dias could not describe what this individual was wearing and has had no training in determining intoxication. He was confused in his testimony about timing on the entry and exit of the individual, had no knowledge about whether he had been drinking elsewhere prior to entering the establishment or if he even finished his beer before leaving. The individual he described did not sing karaoke and perhaps he was talking about a different person.
Mr. Shi based his conclusion that Dan was not intoxicated only on observing him walk from the front door. Even after being told by the inspector that Dan was drunk, he did not approach or speak to him.
Mr. Ng is an experienced inspector whose testimony the Board should find more credible than that of Mr. Dias or Mr. Shi and find that the Licensee permitted drunkenness as described in subsection 45(1) of the O.Reg.
Licensee’s Submissions
Mr. Shi submits that he is absolutely certain Inspector Ng was referring to Dan and is also certain that he was not intoxicated. The Registrar only has the testimony of one person whereas the Licensee has two witnesses who testified about this individual’s condition and consumption.
Mr. Shi believes his judgment about Dan’s condition was correct despite Inspector Ng’s years of experience and the license should not be suspended.
Reply
- Mr. Alton submits that two witnesses for the Licensee versus one for the Registrar does not make their version more credible.
Reasons & Analysis
The Board has carefully reviewed the testimony and submissions from both parties in this matter.
Despite Registrar’s submission that Mr. Dias may have been describing a different individual, it seems quite clear in reviewing the testimony that all parties were referring to the same individual known as Dan. The inspector pointed him out to Mr. Shi and there was no contradiction in either of their testimonies that Mr. Shi disagreed with the inspector’s conclusion that Dan was intoxicated or that he stated he had only served Dan one beer. Mr. Shi then spoke to Mr. Dias about the fact that it was the individual he had purchased a beer for. All of which leads us to conclude it was the same person.
In reviewing the testimony of Mr. Dias, the Board finds there was no confusion or contradiction in his statements about the timing or sequence of when he entered the establishment or when Dan entered the establishment or how much later Inspector Ng entered. While it is true that he could not recall what Dan was wearing that night, he knew Dan from previous occasions. Therefore, we do not find this sufficient reason to question the reliability of his testimony.
Aside from the disagreement about whether or not he was intoxicated, the major discrepancy in the testimony provided on behalf of both parties appears to be whether or not Dan sang karaoke that night. The Licensee’s witnesses both described an orderly system for participating in this activity which lends credibility to the assertion that Dan did not perform, based on when he and the inspector both entered and exited the establishment. The Board accepts their evidence as forthright and credible.
No testimony was provided about any riotous, quarrelsome, violent or disorderly conduct as described in subsection 45(1) of the O.Reg. There was no evidence that Dan consumed more than one beer in the establishment and because he is a “street person” it is possible his appearance (described as a red face, fixed gaze and heavy eyelids) may have contributed to Inspector Ng’s conclusion that he was intoxicated. Mr. Shi testified that Dan is not well liked by other patrons and despite buying him a beer, even Mr. Dias did not engage in conversation with him. Sitting alone and not talking to anyone else could also have contributed to the impression that he was intoxicated.
The Board also found Mr. Shi’s statement about the establishment’s previous infraction and why he is disputing this allegation to be honestly given and believable.
Conclusion
- For these reasons, the Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg.
DATED AT TORONTO THIS 23rd DAY OF JULY, 2008.
DIANNE AXMITH, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER
DA/cp