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-
2009355 Ontario Inc. O/A Copperfields Restaurant
Licensee
DECISION ON FINDINGS
Panel: Allan Higdon, Board Member
Joan Lougheed, Board Member
Decision Date: October 1, 2008
Hearing Location: Belleville, 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 ) Joyce Taylor, Representative
2009355 Ontario Inc., Licensee ) John Mastorakos, Representative
Authorities
Chicago's Diner Restaurant, [2000] O.A.G.C.D. No. 374
Allegations
- A hearing into a Notice of Proposal number 15861 dated December 14, 2007 to suspend liquor licence number 24057 (the “Licence”) issued to 2009355 Ontario Inc. (the “Licensee”) operating as COPPERFIELDS RESTAURANT, 230 Front Street, Belleville, Ontario, K8N 2Z2 (the “premises”), on the basis of alleged violation of section 29 of the Liquor Licence Act (LLA) and subsections 45(1) and 45(2) of Ontario Regulation 719/90 (O.Reg) made pursuant to the LLA was held on September 9, 2008 in the City of Belleville.
Decision
- The Board FINDS the Licensee is in violation of section 29 of the LLA and subsections 45(1) and 45(2) of the O.Reg. Reasons follow.
Preliminary Matters
- On consent, witnesses were ORDERED excluded from the proceedings.
Registrar’s Evidence
Joe Mezzatesta has worked for 15 years with the Ontario Provincial Police (OPP) and is a Detective Constable, currently assigned to the Alcohol and Gaming Commission of Ontario (AGCO). On May 31, 2007 at 9:25 p.m. D/C Mezzatesta entered the premises with Detective Constable Howson of the OPP and AGCO Inspector Jamie Bowman. All were in plainclothes, working undercover. Upon entering the premises by the rear door from the parking lot, they paid a $2.00 cover-charge and proceeded to the bar. Then all three went up a set of stairs to the patio with their drinks. This patio overlooks the parking lot at the rear of the building and has 10 to 15 picnic tables.
D/C Mezzatesta stated that he did not see any staff on the patio in the time they were there. He could not see patrons at the next table unless he turned. However, he stated his colleagues could see them at all times.
D/C Mezzatesta indicated that D/C Howson told him he was watching a man who was putting a substance in a cigarette that appeared to be marijuana.
At 9:59 p.m. the witness observed a male who appeared intoxicated. The man displayed signs of intoxication. His eyes were bloodshot and heavy. He was drinking beer, and demonstrated exaggerated motions and slurred speech.
The man took out a red case with rolling papers in it and rolled a marijuana cigarette but did not light it.
At 10:09 p.m., the witness noticed another intoxicated patron, coming up the stairs on to the patio. This male patron was carrying 2 bottles of Coors Light and was unsteady on his feet. The patron spoke to the officers and stated he had difficulty climbing the stairs. His speech was slurred and the patron exhibited a loss of coordination. This patron then sat at the picnic table with the patron who was observed rolling a marijuana cigarette.
At 10:25 p.m. D/C Mezzatesta observed the first person lighting an apparent marijuana cigarette and passing it to his friends. There was a strong odour of marijuana. No staff was on the patio at this time. At 10:42 p.m., the witness left the establishment. Since it was an undercover operation, he did not identify himself to the owner or staff.
On cross-examination, D/C Mezzatesta stated the team had visited two establishments before entering this premises. They were undercover and on site to observe infractions. While undercover they would not identify themselves, take action, or seek the names of any offenders. The city police were not notified. He stated the usual practice is for an AGCO Liquor Inspector to follow up with the establishment after an undercover operation.
Jamie Bowman is an 8 year employee with AGCO and a Liquor Inspector for 18 months. Ms. Bowman arrived on the premises on May 31, 2007 at 9:25 p.m. with D/Cs Mezzatesta and Howson.
The witness stated the patio was accessed by climbing 6 to 8 stairs. She recognized one staff person from a previous visit but did not recall seeing any staff on the patio. Her back was to the stairs and she was positioned to observe one female and some males sitting at an adjacent picnic table.
At 9:59 p.m. Inspector Bowman observed an intoxicated male. His eyes were red and bloodshot. He was speaking loudly, and had exaggerated behaviour that included flailing his arms, being loud, and slapping a friend.
Ms. Bowman stated she observed this patron opening a maroon case containing green rolling papers. He openly mixed tobacco taken from a cigarette and mixed it with marijuana. At 10:25 p.m. he smoked the cigarette and shared it with others at the table. She could smell the smoke but relied on the expertise of the police to confirm the smell as marijuana.
Inspector Bowman also observed another male, carrying 2 bottles of liquor. He appeared to be intoxicated. He was unsteady on his feet, had slurred speech and red blood-shot eyes. He also mumbled about the stairs being a “pain”.
On cross-examination, Ms. Bowman stated the owner Mr. Paul Laidley, was contacted by phone on June 6, 2007 and advised of the inspection and the infractions. He was told there would be a report filed.
In response to questions, Ms. Bowman stated that when working undercover, physical evidence would not be collected. When observing the patrons, she assumed it was beer in the glass, given its appearance. She did not overhear the conversation at their table, could not see the doorway, and therefore would not know if staff came to the door. The patio was lit with a large spotlight over the door making it possible to observe the condition of the patrons.
Detective Constable Thomas Howson, a 23-year officer with the OPP is presently assigned to the AGCO. He stated that the team entered the bar at 9:25 p.m. on May 31. While he and his two colleagues were at the bar he observed an intoxicated male. This male approached the bartender and was observed to be unstable on feet, had slurred speech, and bloodshot eyes.
The witness was able to hear the conversation between the bartender and patron. This patron was refused service and left the establishment. D/C Howson stated, “the bartender took appropriate action.”
On the patio he observed one female to his right and 3 or 4 males sitting around a picnic table. He noted one patron with bloodshot, watery eyes and slurred speech. He was also unsteady on his feet.
This male produced a maroon plastic cigarette case and was seen removing the tobacco from a cigarette. The patron appeared to be mixing cannabis/marijuana with the tobacco. He stated that cannabis was greener in colour. The patron rolled two cigarettes/joints.
At 10:09 p.m. another male came up stairs, and said, “too many stairs”. He was swaying, unsteady on his feet, and his speech was slurred. D/C Howson concluded he was intoxicated.
At 10:25 p.m. the witness observed a male at the picnic table lighting a joint. When the smell of the burnt smoke drifted, he recognized the smell and identified it as marijuana. He was able to identify the marijuana smell through his training and experience as a police officer. He left with his three colleagues at 10:43 p.m. and during this time he did not observe any staff on the patio.
On cross-examination the witness stated he and his team left the premises after making their observations. They did not speak to anyone. He could not see the door to the staircase, but did have full view of the picnic table with the patrons described. The cigarette case and tray were in full view. He used his own discretion when deciding not to make an arrest, recognizing that they were working undercover.
In answer to questions about other possible causes of slurred speech and unsteady gait, the witness replied he based his observations and conclusion on his experience and training.
Licensee’s Evidence
Paul Laidley stated that Copperfields Restaurant was purchased in March of 2002. He is the President and General Manager, overseeing the day to day operations. Mr. Laidley’s duties also include hiring and staff training. He works seven days a week in the kitchen and doing maintenance. He does not bartend. His son and daughter are on site, if he is not.
Mr. Laidley stated all his staff have Smart Serve training and have attended the Safer Bars program. His business has zero tolerance for drugs and no one has ever been arrested for illegal substance in his establishment. He indicated the police have never expressed concern about drug use in his establishment and he was not contacted by police about a problem on May 31, 2007.
The witness stated that on May 31, 2007, he was not working but there were six staff members, two bartenders and four others. A person is stationed at the front and back doors as well as the patio. One person is a ‘floater’. The person stationed at the patio entrance is also responsible for clearing tables.
Mr. Laidley stated staff did not notify him of any concerns on May 31st and there were no notations in the communication book referencing any problems. Refusal of service would not necessarily show up in the book.
After receiving the phone call from the AGCO Inspector, the witness spoke with his staff who did not recall seeing anyone who matched the descriptions given. He reviewed a surveillance tape and did not see anyone on the tape to match the description given. He felt that with the description of a “dirty person, the person should have stood out”.
Mr. Laidley stated he did not know Inspector Bowman and he did not have a phone number to call her back. Registrar’s Counsel noted the Inspector known to Mr. Laidley was on maternity leave from the AGCO.
On cross-examination, Mr. Laidley stated he reviewed the video surveillance tapes but did not save the tape for evidence nor did he make a copy. After receiving a letter from the Registrar, he stated that it was too late to get a copy, since the tapes are only stored for 45 days.
Mr. Laidley stated he has eight cameras set up throughout his business. One camera has a full view of the patio. When he reviewed the tape for this camera, he saw some regular patrons and was not sure that he saw any of the witnesses present today on the tape he reviewed.
Registrar’s Submission
Ms. Taylor stated the allegations have been proven on a balance of probabilities with consistent and totality of evidence indicating there were two intoxicated patrons on the patio. Referring to Section 29 of the LLA, the Licensee failed to prevent the supply of liquor to a person who appeared to be intoxicated.
No evidence was presented to the contrary by any staff. The surveillance video was not produced as possible evidence, even though the owner was aware of the allegations. The owner did not speak to the regular customers he states were seen on the video on this date. There is no evidence of any staff going to the patio or the table to check on the condition of the patrons or to monitor their actions or behaviour.
There is evidence of intoxication, as well as evidence of one patron rolling a marijuana cigarette which was being smoked by at least two customers. Although the joint was not seized, because of the undercover work and the decision to not “break cover”, the evidence is still valid.
Licensee’s Submissions
Mr. Mastorakos reviewed that evidence stating that none of the witnesses could speak to the smell of alcohol on the breath of the patio patrons. They could only assume the beverage in a glass was beer based on the colour.
He stated that the evidence from the witnesses was not consistent. One said the patron was loud but did not mention slurred speech. Two said the patron(s) had exaggerated behaviour and one did not. The witnesses cannot say they could smell alcohol and no one saw the patrons consuming alcohol. It is insufficient evidence to state “to be loud in a bar at 10:00 p.m. he must be drunk.” The number of stairs is not an indication of intoxication and it is not appropriate to judge a patron’s comment on the stairs.
The witnesses did not have an independent recollection of the evening. They had to refer to their notes. One witness stated he saw a patron refused service at the bar, but the others did not make a note of this.
Mr. Mastorakos stated the establishment is put in a difficult position when no one was notified that evening and could not immediately respond. If the police had come, they would have taken names and talked with staff.
Referencing the Chicago's Diner Restaurant decision, Mr. Mastorakos stated that one officer gave evidence based on 23 years of experience. But a more thorough investigation could have been taken that evening and his client could have responded if the city police had been notified.
There is no previous history of drugs on the patio. The patio is one storey off the ground and cannot be used for trafficking drugs from the street. There is no proof of what was in the cigarette and no one overheard any conversation or use of drug language.
Mr. Mastorakos expressed concerns about inconsistencies in the testimony. All three witnesses recorded the exact same times in their notes for seeing the cigarette and the intoxicated patrons, but each gave differing evidence of recording and sharing. For example, one used a watch, another a blackberry and another stating the times were called out quietly. These times would not be exact unless there had been a discussion.
None could be absolutely certain that a server did not enter the patio during this time. Two of the witnesses could not see the door from the table where they were sitting.
The owner gave evidence honestly and was forthright admitting, in retrospect, he should have saved the video. He looked at the video, spoke with his staff and did not know Ms. Bowman.
Mr. Mastorakos went on to submit that on a balance of probabilities it is difficult to prove that intoxicated patrons were served, given that critical elements are missing such as a breath test and smell. No observation was made that the first patron rolled a cigarette with difficulty, although he is alleged to have been intoxicated. It was not noted that the second patron had blood shot eyes but there was no evidence given that he was consuming alcohol. Mr. Mastorakos asked for the charges to be dismissed.
Reply
As an experienced Licensee, the owner knows the seriousness of the allegations. He did not take measures to preserve the video, or prevent and deter drunkenness.
No suggestion was made that witnesses concocted a story. Although they may have seen different things, they all came to the same conclusion - the patrons were drunk.
The Chicago's Diner Restaurant decision was disputed as the patio was closed to the public. At Copperfields Restaurant, the patio was the busiest area and there is no evidence of staff checking the patio. Staff failed to prevent drunkenness and the illegal use of marijuana.
Analysis/Reasons/Findings
The Board has given careful consideration to all of the evidence and submissions, including the case-law presented.
The Board accepts the evidence of the three witnesses for the Registrar and finds it to be very credible - two police officers and one AGCO liquor inspector. They were working undercover on the evening of May 31, 2007. Each observed various signs of intoxication, including slurred speech, red and bloodshot eyes and unsteady gait. Their observations were based on combined years of experience and were consistent in the important details.
The evidence was credible, that on a balance of probabilities, two patrons were intoxicated and marijuana was openly being mixed with cigarette tobacco. The evidence indicated the patron was seen removing tobacco from a cigarette. This tobacco was then mixed with a green substance. During police evidence it was stated that cannabis is greener in colour than regular tobacco. The “joint” was seen shared with other patrons sitting at the same table. The smoke from the cigarette was identified as marijuana by an officer experienced in drug investigations.
There was no evidence presented that the patio was supervised. The witnesses, who were on the premises and patio for approximately 1 ¼ hours, did not see a staff person monitoring this area at any time. The Licensee thereby “permitted” drunkenness.
The Licensee has a responsibility to monitor and prevent excessive drinking. Evidence indicates the bartender took action on one occasion when someone was intoxicated. D/C Howson stated he observed the interaction between the bartender and patron and acknowledged appropriate action had been taken. There is no evidence other staff members working that night took action to supervise and monitor the patio. It is a responsibility of the Licensee to monitor patrons in all areas of the premises at all times.
The Licensee must ensure that systems are in place to oversee the activities of patrons on the premises, both inside and outside the licensed areas. The owner stated that one person had been assigned to the patio area, but at no time was a staff person seen at the doorway or circulating through the patio area, even though it was known or should have been known that patrons were using this area.
The only witness for the Licensee was not on the premises when the alleged infractions occurred. No other evidence was presented to this Panel, by the Licensee, to contradict the Registrar’s witnesses.
Inspector Bowman was not known to Mr. Laidley. The Licensee’s suggestion that he was unable to contact the Inspector because he did not have her phone number is not credible. A little investigation would have provided the number. The Licensee did not take steps to protect critical video evidence nor did he present his communication log book as evidence.
The Licensee stated he reviewed surveillance tapes taken of the patio on the night in question. The Board is aware it would be very much in the Licensee’s interest to present this tape in evidence if it showed no evidence of illegal activity. However, the Licensee chose not to do so and presented no credible reason for his decision. The Board must draw a negative inference from this conduct. The Board does not have benefit of the video evidence, and, without testimony of staff the Board does not have any evidence which would allegedly corroborate that of the Licensee.
Although the Licensee was not notified of the undercover visit of the premises on the same or next day, which would have been ideal, the Licensee was notified within one week. The Board finds that this short delay did not prejudice the Licensee in preparing his case.
Conclusion
Given the compelling and consistent evidence of the Registrar’s witnesses and the lack of credible contrary evidence, the Board FINDS the Licensee is in violation of section 29 of the LLA and subsections 45(1) and 45(2) of the O.Reg.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file 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 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 1st DAY OF OCTOBER, 2008
ALLAN HIGDON, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER
JL/sm