Registrar, Alcohol and Gaming Commission of Ontario v. Albina Ingratta, Umberto Ingratta O/A La Molisana Café, 2008 CanLII 91838

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-

Albina Ingratta, Umberto Ingratta O/A La Molisana Café

Licensee

DECISION

Panel: Guy Maurice, Board Member Alex McCauley, Board Member

Decision Date: October 24, 2008

Hearing Location: Windsor, 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 ) Daniel Alakas, Representative

Albina Ingratta, Umberto Ingratta, Licensee ) Albina Ingratta

Allegations

1. A hearing into a Notice of Proposal number 16256 dated May 9, 2008 to suspend liquor licence number 808069 (the “Licence”) issued to Albina Ingratta, Umberto Ingratta operating as LA MOLISANA CAFÉ, 209 Talbot Street West, Lot 4, Leamington, Ontario, N8H 1N8 on the basis of alleged violations of subsections 34(1), 45(1) and 45.1 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on October 8, 2008 in the City of Windsor.

Decision

2. After considering all the evidence and submissions the Board FINDS the Licensee violated subsections 34(1) and 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3. Albina Ingratta is the Licensee. She appeared on her own behalf and waived the right to be represented by a barrister and solicitor or a licensed representative.

4. Daniel Alakas, Registrar’s representative, advised that the Registrar wished to withdraw an allegation of a violation of subsection 45.1 of the O.Reg as set out in paragraph 3(c) of the Notice of Proposal. The Board accepted the withdrawal of this allegation.

Registrar’s Evidence

5. The Registrar alleges that on October 14, 2007 at approximately 1:29 a.m. police attended at the licensed Premises in question due to a reported disturbance. Upon arrival police observed two intoxicated males outside the Premises in question. Both intoxicated males had on their person open bottles of beer removed from the licensed Premises in question.

6. Troy West has been a police officer with the Leamington Police Services (“LPS”) for 18 years. He attended at the licensed Premises on October 14, 2007 in response to a radio call of a large disturbance in front of the Premises. He arrived on scene at 1:29 a.m. Upon his arrival he noted that there were approximately 20 people in the parking lot. He spoke to the bar owner and staff in the parking lot. He was advised that there had been a number of Mexican nationals in the bar earlier and that a fight had started. Other officers arrived on scene at this time.

7. At approximately 1:34 a.m. Const. West observed an intoxicated male approaching him from the direction of the licensed Premises. He noted that this male was quite unsteady on his feet, and he was carrying a bottle of Coors Light. Sgt. Moniz, a backup officer in the LPS, grabbed this male. The beer bottle he was carrying fell to the ground and the contents spilled from the opened top.

8. At this point Const. West observed a second intoxicated male urinating against the side of a patron’s vehicle. He took this person into custody, he noted that the person was very unsteady on his feet and he had a strong odour of alcohol on his breath. His speech was thick and he had a Mexican accent, his English was not good. This person had an open bottle of Budweiser beer that was ¾ empty. This person seemed to be trying to conceal the open beer under his coat.

9. Const. West could not say where the male person had come from, but the encounter occurred in the Licensee’s parking lot, and the intoxicated male was approximately 30 feet from the door of the establishment. Const. West stated that the only other open licensed establishment was at least a kilometre away.

10. In cross-examination Const. West stated he had no difficulty observing the intoxicated males even when at one point he was speaking to the Licensee.

11. Sergeant Joe Moniz of the Leamington Police Services attended at the parking lot of the licensed Premise in response to a call of a disturbance at that location. He arrived on the scene at 1:28 a.m., October 14, 2007. Upon arrival he saw people fleeing the parking lot of the licensed Premises by various means. The people he observed in the parking lot were mostly Hispanic.

12. He stated that the Hispanic people were migrant farm workers who work in the area farms.

13. Upon arrival Sgt. Moniz spoke with the Licensee and her son. He was advised that there had been a fight in the bar, but the combatants had been removed.

14. At approximately 1:34 a.m. he observed a male of Hispanic origin come out the front of the establishment and walk towards them, it was quite obvious to the witness that this male was intoxicated. He was staggering and carrying an open bottle of Coors Light which he dropped on the ground when he saw the police. Sgt. Moniz took control of this person physically. He noted that this person’s speech was slurred and heavily accented. The person’s breath smelled of alcohol.

15. Sgt. Moniz noted the male was holding his jacket tight as though he was concealing something. The jacket was opened and there was a full bottle of Budweiser beer open, which fell to the ground when the male’s jacket was opened. He also had a full open bottle of Coors tucked in his belt. This person was arrested and subsequently charged. The beer in question was open and cold to the touch.

16. Sgt. Moniz corroborated the evidence of Const. West as it related to the second intoxicated male who was urinating against a car in the parking lot.

17. The parking lot referred to is for the use of patrons of the licensed Premises.

Licensee’s Evidence

18. Albina Ingratta, the Licensee, submitted that on the night in question a fight started inside the bar. Her son, son in-law and the bouncer broke it up and took the people out. There were about 20 people outside, and Ms. Ingratta called the police. When the police arrived the combatants had left. She stated that no one was monitoring the door; everyone was attending to the parking lot.

19. In cross-examination she admitted that someone should have been monitoring the door, although she said it is not always possible to detect someone sneaking beer out of the Premises.

20. Augusto Couteiro, is the Licensee’s son in-law. He was working in the licensed establishment October 14, 2007, the night in question.

21. He stated that there had been a confrontation earlier in the bar, but the people had been taken out. He stated there was a lot of confusion outside and admitted that someone should have been watching the door.

22. He stated that the patrons are Hispanic and do not understand the law.

Registrar’s Submissions

23. Mr. Alakas asks the Board to make findings that the Licensee breached subsections 34(1) and 45(1) of the O.Reg.

24. There was hard evidence from the police witnesses that the males encountered by them were clearly intoxicated and in possession of alcohol from the licensed Premises.

25. Mr. Alakas points out that based on a balance of probabilities the males arrested had come from La Molisana. There was no other probable place. The closest open bar was a kilometre away.

26. Sgt. Moniz observed one of the males come out from the front door of the establishment. The second intoxicated male who was urinating against a car was a mere 30 feet from the front door.

27. The indicia of intoxication described by the two police officers were clear: staggering; slurred speech; unsteady on their feet. In addition both males had open bottles of beer on their person, which were still cold and came from the licensed Premises.

28. The Licensee admitted that she should have had someone monitoring the door. By failing to undertake proper security the Licensee permitted drunkenness and the removal of liquor from the Premises.

29. The Licensee permitted the offences by failing to prevent.

Licensee’s Submissions

30. Licensee chose not to make submissions

Analysis and Reasons

31. The Board has considered the evidence as presented. We have concurring evidence from two seasoned police officers that two males were observed in a highly intoxicated condition in the parking lot of La Molisana Café, a parking lot that services only that licensed establishment. The concurring evidence of the police is that both of these male persons were in possession of open bottles of beer. This beer was cold to the touch. Both male persons were Hispanic and there were many Hispanic patrons in the licensed Premises that night. There was evidence that there is no licensed establishment within one kilometre of the Premises. The Board did not hear any evidence that the two intoxicated males had access to a vehicle.

32. The Board is satisfied based on the evidence that the two males encountered by the police on the night in question were in fact intoxicated. Further based on the evidence and absent any evidence to the contrary the Board is satisfied on a balance of probabilities that the two intoxicated males were patrons of La Molisana.

33. The Board is further satisfied, based on the evidence, that the two males in question were intoxicated while on the Premises. They did not suddenly become intoxicated when the police arrived. This finding is reinforced by the timing of the encounter with the police, and the possession of cold open beer by the two males in question which is further supportive evidence that the two males were in the licensed Premises.

34. The Board is satisfied that both males were in possession of beer taken from the licensed Premises. The evidence of the police on this point is very compelling. The bottles were all open, and were still cold to the touch. There was no other explanation as to where this beer came from.

35. The Licensee in her evidence stated they should have been watching the door. The evidence of her only witness was that no one was at the door, and further the Hispanic patrons don’t understand the law. On that point the Board is of the view that they have a sufficient understanding of the law as evidenced by their attempts to conceal the beer from the police.

36. The Board is satisfied that the males in question were intoxicated within the licensed Premises.

37. Further the Board is satisfied by the Licensee’s own admission that security was lax and at times non-existent. In the Board’s view the two males were permitted to be on the licensed Premises in an intoxicated condition and the Licensee took no steps to prevent it.

Conclusion

38. For the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg by permitting drunkenness on the licensed Premises, and subsection 34(1) of the O.Reg by permitting patrons to remove liquor from the licensed Premises.

39. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his/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/her 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 24^th^ DAY OF OCTOBER, 2008.

GUY MAURICE, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER

AM/cp