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-
2113339 Ontario Inc. O/A The James Joyce Irish Pub
Licensee
DECISION on findings
Panel: Kirsti Hunt, Vice-Chair Beryl Ford, Board Member
Decision Date: November 24, 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 ) Phillip Morris, Representative 2113339 Ontario Inc., Licensee ) Jerry Levitan, Representative
Allegations
- A hearing into Notice of Proposal number 16255 dated May 9, 2008, to suspend liquor licence number 201449 issued to 2113339 Ontario Inc., (the “Licensee”) operating as THE JAMES JOYCE IRISH PUB, 386 Bloor Street West, Toronto, Ontario, M5S 1X4, (the “establishment” or the “premises”), 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, was held on September 10, 2008, in the City of Toronto.
Preliminary Matters
- On the agreement of parties, the Board ordered the exclusion of witnesses.
Decision
- The Board finds that the Licensee breached subsection 45(1) of the O. Reg by permitting drunkenness in the licensed premises on February 3, 2008.
Evidence for the Registrar
Inspector Devin Sookdeo of the Alcohol and Gaming Commission of Ontario (AGCO) described the inside of the premises as being on the north side of Bloor Street, west of Spadina Avenue and east of Bathurst Street. The main entrance is on Bloor Street and the premises wraps around to a side street where there is a door which is not used for entry.
As you enter the front door, there is a service bar on the west side of the room, the kitchen behind it and a couple of pool tables after the kitchen. On the east side of the room, there is first a stage, and then tables and chairs toward the back. At the end of the room, there is a doorway that leads to washrooms downstairs to the west and a door to the side street to the east.
On February 3, 2008, Inspector Sookdeo, accompanied by AGCO Inspector Stephen Hetherington, arrived at the premises at 12:34 a.m. He identified himself to the security guard at the door whom he knew from previous inspections and who was present at the hearing. At the service bar which is about eight to 10 feet from the front door, he scanned the room for two to three minutes. He observed a white male, wearing black jeans, a black hat, and a green and black Columbia jacket, standing by himself at the north end of the bar. The male had red glossy eyes which were closing at times. After observing the male for 30 to 45 seconds, he saw a male staff member approach the male, lean over and speak to him and then walk away.
Inspector Sookdeo observed the male stagger as he passed the kitchen and pool table area, a distance of about 20 feet, to the doorway on his way to the washroom. The Inspector followed him and observed him stagger into the washroom and sway while urinating. The Inspector exited the washroom and observed the male stagger back upstairs where the staff member, who had spoken to the male earlier, was in the side door area with a set of keys in his hand. The Inspector believed he was going to let the male out the side door.
The Inspector identified himself to the staff member and asked him to get the owner or manager. Inspector Hetherington spoke to the male patron while Inspector Sookdeo spoke to the manager, Jonah Meller, and then to the owner, Henry Chou, and advised them about the drunk male. Mr. Meller stated that he had heard a rumour that the male might be on some medication. The Inspector advised him not to serve alcohol to people who were on medication.
The Inspector asked the male if he was on any medication and the male answered that he was. He did not ask the male about what kind of medication because he was getting angry and agitated.
After being advised of the infraction of permitting drunkenness, the manager took the male to the front door to get a cab. The Inspectors departed at 12:56 a.m.
Mr. Meller did not say anything about the male being cut off or the male leaving the establishment and then coming back in. He did not say anything about the male being let back in only to use the washroom.
On cross-examination, the Inspector stated that he did not see the male drinking or have any alcohol in his hand.
He believed the staff member with the keys was going to let the male out the side door because he asked him what he was doing and the staff member said that he was letting the male out. The staff member was not trying to hide the keys from him.
The Inspector explained that often when an Inspector is present, staff run around trying to hide something and on this occasion he had the perception that they were trying to let the male out the side door so the Inspectors would not see him. He agreed that perception is not always the truth.
He agreed that there was no allegation of failing to facilitate an inspection.
Inspector Stephen Hetherington added that after two to three minutes of observation at the rear of the bar, Inspector Sookdeo pointed out to him a male who was unsteady on his feet as he walked toward the washroom. He did not see any staff member approach him. He and Inspector Sookdeo followed him. He remained on the landing at the bottom of the stairs while Inspector Sookdeo followed the male into the washroom. The male exited followed by Inspector Sookdeo. He walked past Inspector Hetherington and went up the stairs using the wall for support. He seemed very unsteady on his feet but made it to the main floor. Inspector Hetherington followed the male up the stairs with Inspector Sookdeo coming up behind him. There was a staff member present who led the male to the side door. He had a ring of keys in his hand and was about to let the male out the locked side door.
The Inspectors identified themselves to the staff and patron and Inspector Hetherington spoke to the patron. His speech was slurred, his eyes red and glossy and his breath smelled of beer. When he asked the patron how long he had been in the establishment, the patron answered, “Way too long.” The Inspector did not think he was being sarcastic. The patron also said that he had been drinking beer but he was not sure how many he had had.
The manager, Mr. Meller, said that the male was a regular and he had heard that the male was on some type of medication which may have explained his condition that night. The male did say that he was on medication. He was standing to the side and occasionally would interrupt the conversation between Inspector Sookdeo and Mr. Meller. The Inspector noticed continued slurred speech.
Mr. Meller did not say that the male had been cut off earlier that night. He did not say that he told staff to accompany him to the washroom nor that the male had left and come back in only to use the washroom.
On cross-examination, Inspector Hetherington agreed that there was nothing wrong with letting the male out the side door but he found it odd that he was being let out the locked side door rather than the main door.
The Inspector did not ask the male if he had been drinking at James Joyce’s nor did he ask the owner or manager or any staff member what the male had been drinking. He explained that at one point the male raised his voice and became a little aggressive when he was asked about his medication. He said that it was none of their business and told them to leave him alone.
He could not recall if the manager said that the male was cut off. He did not notice the staff panicking or running around.
Evidence for the Licensee
Mr. Victor Braga was working as a doorman on February 3, 2008. He testified that a regular patron, Jeff, came in about 10:00 p.m. He was sober. He was in the premises for at least an hour and left at 11:00 p.m. or a little after that. Jonah Meller, the manager, or one of the servers informed him that Jeff had been cut off and was leaving. Jeff was all right, not horrible.
He came back about one and one-half hours later and he looked drunk and had a little bit of a stagger, more so than usual. Mr. Braga told him that he could not go back inside. Jeff told him that he just needed to use the washroom. Jeff had his hands to his groin area and looked like he had to go so Mr. Braga let him in. He knew staff would not serve him because he had already been cut off. He walked in and watched Jeff and half way to the washroom, Jonah or a staff member talked to him. He watched Jeff to make sure he got to the washroom and to make sure that if someone caught him, they would not throw him out because he was just going to the washroom.
On cross-examination, Mr. Braga agreed that the e-mail statement of Tuesday, August 26, 2008, (Exhibit #1) was his. He had made notes of the incident in a notebook some time shortly after the incident in order to have something to refer to later if necessary because he has a memory problem. He did not write the statement from his notes. He could not remember if he had the notes when he wrote the statement on his computer. He didn’t keep the notebook and probably tossed it. He has a habit of losing things.
He explained that he watched Jeff walk the whole way to the back where the washroom is and he saw Jonah or Mac, the busboy, talk to him, but he couldn’t remember which one, and Jeff continued to walk to the doorway. Later he said that Mac talked to him. He turned away but he assumed Jeff walked through the doorway for he was just a foot from it when he was interrupted by staff.
The Inspectors came in two to five minutes later. He saw the Inspectors speak to Jeff so he knew that there had been a potential infraction. When Jeff left the second time he looked intoxicated. He could not remember if he told the Inspectors that he let Jeff back inside to use the washroom. Mr. Braga denied that the story about Jeff coming back in was made up for these proceedings.
He could not remember if the owner was there that night.
Jeff is no longer a regular but Mr. Braga did not know why. He believed Jeff was embarrassed.
Mr. Macintosh Thomson was working as a cook and busboy on February 3, 2008. Around 10:00 p.m., Jonah asked him to ask Jeff to leave but did not give him a reason why. It was not at the end of the evening. Jonah came up to him and said, “Mac get Jeff out of the bar.” Jeff said that he’d leave but he needed to use the washroom quickly. He walked with Jeff to the top of the stairs to the washroom.
He did not see Jeff come out of the washroom because he was bussing tables. When Jeff was coming out from the doorway at the top of the stairs to the washroom, Devon got him. Devon did not talk to Mr. Thomson. (The Board assumes that Devon is another staff member). Mr. Thomson said that he did not have the keys to the side door at that point. Those keys can only be used from the outside. He was not trying to get Jeff out the side door.
On cross-examination, Mr. Thomson stated that Jeff is still a regular because he has seen Jeff in the premises having coffee a couple of times a couple of months after this incident. They do not serve him liquor.
On the night in question, Jonah talked to him about Jeff around 10:00 p.m. It was not the beginning of the night or the end of the night. He agreed that it could have been 12:30 a.m. for he was not sure of the time.
If he said on June 30, 2008, that Jonah asked him to escort Jeff out because he was intoxicated, that is what he wrote. That could have slipped his mind since he wrote the statement. He did not make an assessment of Jeff’s condition but asked Jeff to leave because his boss asked him to do so. After Jeff went to the washroom, he bussed a couple of tables and he went back to the doorway to the washroom because Jeff had not come out.
The key ring has keys to the basement door and the food and ice. The keys to the side door can only open the door from the outside.
He could not recall seeing the Inspectors come in or leave. He found out afterwards that they were in the premises.
He did not escort Jeff to the front door because Jeff was talking to the Inspector at the top of the stairs from the washroom.
Mr. Jonah Meller is the manager at James Joyce’s. Jeff came in around 10:00 p.m. and was not intoxicated. Jeff was sitting at the bar and he served Jeff two of the house beers. He was the only one who served Jeff. He did not give Jeff a third beer because after the second beer, Jeff started to act a little funny. He had his hat backwards and was more mumbly than usual. Later he explained that mumbly meant that he had slurred speech. He did not wobble and his eyes were white but he shouldn’t have been acting as he was after two drinks. As a result, he told Jeff that he should go home and Jeff left. He did not tell that to the other servers because they saw him being cut off.
He did not see Jeff come back inside. Around 12:30 a.m., he was behind the bar when he saw the Inspectors come in and about 10 seconds later he saw Jeff at the bar trying to get served. He was slightly intoxicated but not heavily so. He asked Jeff what he was doing back inside and told him to leave. He asked Jeff if he was taking a cab or the subway and Jeff said he was taking the subway. Jeff said he wanted to use the washroom. He didn’t stop Jeff but asked the busboy to ask him to leave. Later he said that he asked the busboy to take Jeff to the washroom and then put him out. He went back to the service bar and did not see the busboy accompany Jeff to the washroom.
He went to talk to the Inspectors when he saw them talking to Jeff. They informed him that Jeff was intoxicated. He told Inspector Sookdeo about the rumour that Jeff was on medication. He told the Inspector several times that Jeff had left and came back in. The Inspector did not believe him.
The second time Jeff came in, Mac took him out.
On cross-examination, Mr. Meller explained that the Inspector told him that Mac was taking him out the side door. He did not know if it was true or not because he had not talked to Mac. If he tells staff to escort someone out, it does not mean out the side door. When he spoke to Mac, Mac said that what the Inspector was saying was not true and that he did not even know where the keys to the side door were. Mr. Meller explained that at the time, the keys to the side door were at the bar. The lock to the side door was old and the key only worked from the outside.
On a previous occasion when Jeff was cut off, he asked Jeff’s friends if he was drunk and they said that he was not. When he asked them why Jeff was acting the way he was, they said that he was on medication, antidepressants.
The Inspector asked Jeff about the medication, turned back to Mr. Meller and told him not to serve anyone alcohol after hearing rumours about them using medication. If he knows that someone is taking medication, he does not serve alcohol to them.
Jeff has been in a couple of times since this incident but they have not served him alcohol. His friends were regulars but since Jeff no longer comes in regularly, they don’t either. He has frequently seen Jeff in the neighbourhood because he frequents other bars in the neighbourhood.
He did not remember if Mr. Chou was in that night nor did he remember Mr. Chou speaking to the Inspectors.
When Jeff first came in he came straight to the service bar. He is generally mumbly but Mr. Meller did not think he was drunk. It was busy that night and Mr. Meller was behind the bar or in the kitchen. From the kitchen he can see the entire bar except for the tables in the back. He would have watched Jeff because he is a sad individual and probably would be over-served if he had his way. None of the other servers would have served him because he was at the bar in Mr. Meller’s section.
Jeff was there for an hour or an hour and 20 minutes and left at 11:00 or 11:15 p.m. Mr. Muller did not cut him off and when he left, his friends left too. Jeff paid in cash and there would have been a tab but he did not have the receipt with him.
He has seen Jeff intoxicated as he was walking to the subway. He can get to the point where he staggers when he walks.
Registrar’s Submissions
- The Registrar asked for a finding under subsection 45(1) of the O.Reg based on the evidence of the Inspectors which is consistent on the important points and which should be preferred over that of the Licensee’s witnesses. Their evidence is not credible because it is inconsistent with each other and with the evidence of the Inspectors on all important points.
Licensee’s Submissions
- The Licensee submitted that the evidence of the Licensee was in fact credible and not necessarily inconsistent with the evidence of the Registrar. The evidence for the Registrar does not establish that the Licensee permitted drunkenness to occur on the licensed premises and therefore the Notice of Proposal ought to be dismissed.
Reasons
Both parties agreed that this is a simple case but each asked the Board to prefer the evidence of their witnesses. At issue then is the credibility of their evidence.
The evidence of Inspectors is essentially that they entered the premises at 12:34 a.m. on February 3, 2008. They walked to the service bar and after making observations for two or three minutes, Inspector Sookdeo saw a patron, later identified as Jeff, at the end of the bar who was exhibiting clear signs of intoxication. A staff member approached Jeff, spoke to him and left. The patron staggered toward the back of the bar. Inspector Sookdeo pointed out the patron to Inspector Hetherington and then followed the patron downstairs to the washroom where the male swayed while urinating. Inspector Hetherington waited at the bottom of the stairs and the two Inspectors followed the patron who staggered back upstairs. At the top of the stairs, they observed a staff member with a set of keys who admitted that he was letting the patron out the side door.
The evidence of the two Inspectors is consistent with each other on all the main points. Their description of the patron’s actions leads the Board to conclude that he was drunk and it is admitted by the doorman and the manager that he was drunk at that time. Therefore, the Board finds that Jeff was drunk in the licensed premises.
At issue then is whether the Licensee permitted drunkenness in the premises. The Licensee’s explanation is that staff cut Jeff off, he left, returned more intoxicated, was let in merely to use the washroom and then was observed by the Inspectors.
The Board does not find that explanation to be credible. The evidence of the Licensee’s witnesses is contradictory with each other and internally as well. Mr. Braga said that he was told by Mr. Meller or a server that Jeff had been cut off when he left the first time. However, Mr. Braga said that he cut off Jeff but did not tell the other staff about it. There is no evidence to indicate that a server informed Mr. Braga.
Mr. Braga testified that he let Jeff back inside, and watched him walk to the back of the premises where he was approached by Mr. Thomson just before going through the doorway leading to the washrooms. That contradicts the evidence of Mr. Meller who said that he saw the Inspectors come in and 10 seconds later saw Jeff standing at the bar waiting to be served and spoke to Jeff there. Inspector Sookdeo saw a staff member speak to Jeff at the bar but neither Inspector say anyone approach him near the doorway to the washroom.
The Board does not find the evidence of Mr. Thomson to be reliable for it was internally contradictory and convoluted. He was very unsure of when he was asked to remove Jeff. He indicated that Mr. Meller asked him to get Jeff out of the bar at 10:00 p.m., the time when Jeff first arrived according to Mr. Braga and Mr. Meller. He said that it was not at the end of the evening but agreed that could have happened at 12:30 a.m.
His evidence about what happened after Jeff came upstairs from the washroom is unclear and contradictory, and he never indicated that he was at the side door when Jeff and the inspectors came up the washroom stairs. He stated that he did not see Jeff come up from the washroom because he was bussing tables but also said that he went to the doorway to the washroom because Jeff had not come up from the washroom and also that a person he called Devon got Jeff at the doorway.
According to Mr. Meller’s evidence, Mr. Thomson told him that he was not trying to let Jeff out the side door and did not even have the keys for it at the time. Mr. Meller indicated that the keys to the side door were at the bar. Both stated that those keys only open the door from the outside. The Board does not believe that the key opens the door only from the outside and not the inside.
Mr. Thomson also indicated that he only found out after the fact that the Inspectors were in the premises but had said earlier that he did not take Jeff out because he saw the Inspectors talking to him at the top of the stairs.
The evidence of Mr. Meller is closest to that of the Inspectors’ evidence regarding what happened after their arrival. However, given the contradictions between his evidence and the evidence of the Licensee’s other witnesses regarding Jeff’s movement, the Board is not convinced that Jeff was asked to leave the premises and permitted to re-enter although he was drunk merely to use the washroom. Jeff’s statement to Inspector Hetherington that he had been in the premises “way too long” does not support the idea that he had just returned.
Even if the Board were to accept the evidence for the Licensee, that evidence indicates that staff did not take proper steps to supervise him after he re-entered the premises. Mr. Braga did not insure that Jeff did not stop at the bar. According to Mr. Meller, he observed Jeff standing at the end of the bar trying to get served. He asked Mr. Thomson to get Jeff out but returned to his duties without ensuring that it happened. Mr. Thomson said he let Jeff go to the washroom and then continued bussing tables. In each case, staff permitted a drunken patron to be in the licensed premises without properly monitoring his movements.
Given all the evidence before it, the Board FINDS that the Licensee permitted a drunken patron to remain in the licensed premises.
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 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 24th DAY OF November , 2008
KIRSTI HUNT, VICE-CHAIR BERYL FORD, BOARD MEMBER