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-
1186540 Ontario Inc. O/A Rack & Q Licensee
DECISION
Panel: Allan Higdon, Board Member Decision Date: July 23, 2008 Hearing Location: Brantford, 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 1186540 Ontario Inc., Licensee ) Albert Smelko, Representative
Allegations
- A hearing into a Notice of Proposal number 16116 dated March 13, 2008, to suspend liquor licence number 803510 (the “Licence”) issued to 1186540 Ontario Inc. (the “Licensee”), operating as RACK & Q, 63 – 67 Norfolk Street South, Simcoe, Ontario, N3Y 2W1 (the “Premises”), on the basis of alleged violations of subsections 45(1) and 44(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on June 24, 2008, in the City of Brantford.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated subsections 45(1) and 44(1) of the O.Reg. Reasons follow.
Preliminary Matters
Ms. Taylor stated Licensee’s Counsel undertook to provide statements from patrons in a letter to the Deputy Registrar. At the commencement of the hearing a possible witness who was in the establishment was present but no statement had been provided. This was a breach of disclosure obligations.
Licensee’s Counsel replied he attempted to locate the witness in question but the person had moved. This had made advance disclosure impossible. Counsel could see no prejudice to any party by use of the witness and suggested the issue be addressed if Registrar’s Counsel has concerns as testimony proceeds.
The panel concurred.
Registrar’s Counsel asked for the exclusion of witnesses. On agreement of both parties, exclusion of witnesses was ORDERED.
Registrar’s Evidence
John Purvis has been an Inspector with the AGCO since May 2001. On September 24, 2007 he visited the Premises in question, arriving at 1:15 a.m. He was alone and on an inspection of premises in the town of Simcoe. He entered the front door off Norfolk Street and saw approximately eight patrons sitting at tables and at the bar. In order to make general observations he went to the back of the bar where he was approached by one of the owners, Jose Rodrigues. The Inspector identified himself. He had been in the Premises previously.
The witness spoke to the owner, Jose Rodrigues, about general matters, such as the owner’s interest in getting an outdoor patio. A woman came to his attention because she was speaking very loudly, although there was no music or loud conversation. The Inspector could see her in the front room clearly. She was white, in her 20’s, blond, wearing a black jacket. She was unsteady on her feet and staggered as she walked. Her loud speech was slurred and she appeared to be intoxicated.
The witness spoke to Mr. Rodrigues about the woman and the owner went over to speak to her. She started staring at the Inspector. Mr. Rodrigues concluded his conversation with the woman and returned to the Inspector.
The woman did not leave but remained in the bar.
The Inspector later went to the bar where he was approached by a female patron – white, blond, in her 40’s – who had slurred speech and smelled strongly of alcohol. While conversing with the Inspector she was just inches from his face. The woman spoke about how great Jose was as a bartender – “the bestest bartender in the world.” Mr. Rodrigues asked the woman to leave and she walked to the front room. The Inspector noted she was visibly unsteady and staggered as she walked. The woman appeared intoxicated and had trouble walking in a straight line.
The witness saw the first woman he considered intoxicated (20’s, blond) enter behind the bar. She searched under the counter, under the front, and then under the side of the bar. Mr. Rodrigues spoke to her and she said she wanted to get her purse. Mr. Rodrigues went over and got her out from behind the bar.
The Inspector spoke to Mr. Rodrigues about over-service and drunkenness.
The witness left the Premises around 1:50 a.m.
Under cross-examination, the witness stated there appeared to be no staff working that night other than the owner. The witness did not see either of the two intoxicated women drinking alcohol. Both women who came to his attention were staggering but they were neither assisted by another person nor were they holding on to a wall or any furniture.
The Inspector stated he came to the bar at 1:20 a.m. and left around 1:50 a.m.
In response to Registrar’s Counsel the witness stated he was about 8 – 10 feet away from the first intoxicated woman. The two women came to his attention because the first woman was very loud and the second woman came up to him at the bar and started talking. The witness stated that at no time did he obstruct Mr. Rodrigues from attending to his duties.
The panel asked the maximum number of people who were in the bar at any time and was told approximately 11 patrons. The witness did not know if either of the two intoxicated women left the bar.
Licensee’s Evidence
Jose Rodrigues is the owner of the establishment. He recalled seeing the Inspector at his bar sometime between 11:30 p.m. and 12:30 p.m. on the night in question. About 15 patrons were present. The Inspector was in the back bar area when Mr. Rodrigues approached him and started talking. The Inspector identified himself and talked to him for a few minutes. The witness left periodically to attend to patrons. The Inspector was with him for a total of 10 – 15 minutes.
A blond woman came by with a friend of the witness and sat at the front bar. She was walking normally. He had not served her any alcohol that evening. The woman asked if she could leave her purse and then walked out and did not return. Upon returning the woman appeared upset. She walked into the bar area, went behind the service bar and got out her purse. The woman was walking normally and got her purse without any difficulty.
The second woman identified by the Inspector was at the back bar and then came to the front bar to talk to the Inspector. The witness has known this woman for 7-8 years and had served her one beer. The woman came and left without any difficulty.
On cross-examination the witness confirmed the Inspector did not in any way obstruct him from doing his job. The witness stated the second woman identified by the Inspector was “not really intoxicated.” That woman, named Judy, was present for only half an hour. The owner did not ask the woman to leave although the Inspector told the witness the woman showed signs of intoxication.
The first woman (blond, 20’s) left her purse in the establishment for about an hour and a half. The witness did not know her name.
On redirect, the witness stated he did not ask “Judy” to leave because she was just having conversation and she likes to talk to everybody.
On questions from the panel, the witness stated the first woman who was upset and talking loudly did not receive any service in the establishment. The second woman was served one beer.
Judith Lynn Haskett stated she drops into the Rack & Q twice a week to have a drink after work. She recalls meeting the Inspector at the bar. That day she had stopped at another establishment for a couple of beers and then came by the Rack & Q for another beer. She recalled saying hello to the Inspector but had no difficulty walking or talking. She drank a total of one beer at the bar and was not affected by the amount of beer consumed that night. She had a five minute conversation with Inspector Purvis but she did not know he was a liquor inspector. After she left the Rack & Q, the witness returned to the Norfolk Hotel which she had patronized previously.
On cross-examination the witness stated she had visited the Norfolk Hotel because her son works there. She was at the Norfolk for 30 minutes to one hour. The witness said she had at least a couple of beers at the Norfolk and another at the Rack & Q before she spoke to the Inspector. She did tell the Inspector that Jose was the “bestest bartender in the world.” Mr. Rodrigues told her not to bother the Inspector so she left and returned to the Norfolk Hotel, having been at the Rack & Q for a total of 30 minutes.
There were no questions on redirect.
The panel asked the witness to describe her activity after she left work. She stated she finished work at 7:00 p.m., then took a 30-45 minute walk to the Norfolk Hotel where she stayed for an hour and drank two beers. She then went to the Rack & Q where she stayed for 30 minutes and returned to the Norfolk Hotel for an hour. After that she walked home, which took 30-40 minutes. She consumed a total of three beers that night.
The witness stated she arrived home around 10:30 p.m. to 11:00 p.m. She recalled this clearly as one of her favourite TV programs was still on and it concludes at 11:00 p.m.
At this point, Registrar’s Counsel asked to recall Inspector Purvis. The panel gave its consent as it had been agreed earlier that this witness could be recalled if issues arose due to a lack of adequate disclosure regarding the testimony of a potential witness.
Registrar’s Evidence
Inspector John Purvis testified that a woman called Judith spoke to him at the Rack and Q on the night of September 14. He noted the woman he saw today is not unsteady nor does she stagger as she walks.
In response to the panel, Inspector Purvis stated he does not recognize the woman who testified today as the woman he spoke to at the bar.
Registrar’s Submissions
Registrar’s Counsel stated the Registrar was seeking findings on two provisions of the LLA – subsection 44(1) of the O.Reg, and 45(1) of the same regulation.
Subsection 44 (1) of the O.Reg does not permit an unauthorized person to enter behind a service bar while liquor is being sold.
The woman who went behind the service bar was not an authorized person under the LLA such as an Inspector or police officer and was therefore not authorized to be there. Testimony from the Inspector and the owner both indicate the woman did go behind the bar and was not prevented from doing so. Based on the evidence from both parties it is clear a breach of the regulation took place.
Subsection 45(1) of the O.Reg does not permit drunkenness or disorderly conduction on the premises.
The testimony of Inspector Purvis should prevail in any disagreement between his testimony and that of the owner and other witnesses. The Inspector gave evidence that was clear, straightforward, and provided an honest recollection of the events of that night.
The owner, Jose Rodrigues, gave evidence that was not credible. He stated a woman whom he did not know left her purse behind his bar for 1.5 hours and proceeded to another bar. She has been stated as being in her early 20’s yet we are asked to understand that she left her money and all identification at the Rack & Q and went drinking elsewhere. This is not reasonable as she would have surely been required to present identification at another establishment.
The owner stated the woman was with a good friend of his and that was why he permitted the purse to be left. However his friend was not present to testify and confirm this statement. The absence of this person should lead to an adverse inference on the part of the panel.
The Inspector stated the first intoxicated woman came to his attention because she was speaking louder than anyone else in the establishment. He specifically pointed her out to Mr. Rodrigues.
The intoxicated woman in her 40’s came to speak to the Inspector at the same time as the young blond went behind the bar to collect her purse.
As for the evidence given by witness Judith Haskett, either she does not remember the night well or she is not the woman the Inspector spoke to that night.
The Inspector was very clear in his evidence that he was in the Premises from 1:20 a.m. to 1:50 a.m. Either Ms. Haskett was at the Premises a lot later than she thought, or was intoxicated and cannot remember, or she is mixing up Inspector Purvis with another man she spoke to that evening since she testified she left the Premises early and was home by 11:00 p.m. the previous night. She even outlined in detail the events of the evening and the timing involved.
Given Ms. Haskett’s confused recollection, it is entirely possible she drank much more that night than she admitted in testimony.
Mr. Rodrigues stated he was not particularly observant with regard to his patrons. His duty under the LLA is to be proactive and maintain control over his patrons. Yet the evidence shows he did not do so. There were drunken patrons on the Premises and he did not ask them to leave or escort them out.
Given the clear signs of intoxication observed by Inspector Purvis, the Registrar asks for a finding of permitting drunkenness.
Licensee’s Submissions
The location of the bar should be a factor taken into consideration. It is in a small town, not a big city. Behaviour considered odd in a city – such as leaving a purse in a bar – would not be thought inappropriate in a small town. The woman who left her purse was accompanied by a man who is a friend of the owner. That connection was considered sufficient to secure the safety of the purse.
The woman who left her purse did not touch any alcohol when she went behind the bar. She merely retrieved her purse. No evidence was presented to suggest she was not a person authorized to be behind the bar.
No evidence was presented to confirm that anybody was permitted to be served.
The Inspector stated one of the women had difficulty walking yet he noted the woman did not require assistance or lean on the bar, wall or any furniture.
The other woman was stated to be gregarious and friendly – not qualities that suggest intoxication. Admittedly, Ms. Haskett’s sense of time is flawed. However, she says she was at the bar. Her testimony is supported by Mr. Rodrigues. The Inspector said a female approached him. It would be wrong to discount or exclude the substance of her entire testimony just because her recollection of time was faulty. Her testimony otherwise throughout has been straightforward and honest. It is unfair to expect an exact recollection of time from Ms. Haskett.
Ms. Haskett’s alleged conduct can be easily explained by considering the congenial English pub atmosphere of the Premises. We act differently among friends. She is a very congenial person.
The other woman – the one in her 20’s - was distraught and angry upon her return to the Premises. The Inspector interpreted her emotional state as drunkenness. She was frustrated, possibly jealous, and may have been unsteady on her feet. She spoke loudly and retrieved her purse behind the bar. This is no basis for deeming her intoxicated. There was no riotous behaviour or unruliness.
To conclude, there is no evidence of consumption of alcohol. We are talking about very social and gregarious people living in a small town. The Licensee was in control of the patrons at all times. Minor violations may have taken place but there was no intoxication.
Reply
The onus is on the Licensee to prove that persons other than bar staff behind the service bar fit into one of the permitted exceptions. This is not the responsibility of the Registrar.
The Licensee has not proved the person behind the bar was either authorized bar staff or an authorized exception under the LLA. The same rules apply to all licensed establishments in Ontario.
Given the evidence presented, the Licensee is in breach of subsection 44(1) of the O.Reg on the basis of his own testimony and that of Inspector Purvis.
Counsel for the Licensee has stated no proof of service of alcohol has been presented. That is irrelevant as it is not one of the allegations made by the Registrar.
The evidence on comportment is clear. Neither woman was falling down drunk or throwing up but such drastic behaviour is not necessary to make a finding of permit drunkenness. The Inspector testified to staggering, difficulty standing, and slurred speech. The younger woman also had a loud voice and the older one a strong smell of alcohol. These are clear signs of intoxication.
The small town atmosphere of the town and the gregarious nature of a patron do not provide an acceptable explanation for slurred speech or staggering.
Ms. Haskett is unquestionably confused about the time of the events in question. She could be equally confused about all the other details of the night, such as how much she drank at the Rack & Q and other premises.
The issue really hinges on the credibility of the witnesses. There is no evidence Inspector Purvis entered the Premises with any preconceptions or a determination to find violations. He made observations and testified to them. The facts he stated stood under cross examination.
Ms. Haskett, on the other hand, got one of the most important facts of the evening’s events wrong – the time when they took place. She testified she was home before 11:00 p.m. the night before the events contained in the Notice of Proposal. This error must put all her evidence into question.
With regard to the young female, it does not make a difference whether she was angry or jealous. Such emotions do not produce a staggered walk. The woman was clearly intoxicated.
Counsel for the owner did not present any evidence that Mr. Rodrigues took action to remove the two intoxicated women from his Premises. He therefore permitted drunkenness in breach of the regulations.
The Registrar accordingly asks for findings of a breach of subsection 45 (1) of the O.Reg and also subsection 44(1) of the same regulation under the LLA.
Analysis/Reasons/Findings
The Licensee is alleged to have admitted two infractions.
The breach regarding an unauthorized person behind the service bar - subsection 44(1) of O.Reg under the LLA - was testified to by Inspector Purvis and admitted by the Licensee in his testimony. The motivation behind the action was contested but not the action itself. Both parties acknowledged the woman was unauthorized and had entered behind the service bar.
The Board therefore FINDS the Licensee was in breach of subsection 44(1) of the O.Reg.
The additional charge of permit drunkenness – subsection 45(1) of the O.Reg - was challenged by the Licensee.
The Inspector testified his attention was drawn to a young woman in her 20’s because she was speaking very loudly although there was no loud music or noise in the Premises. He gave a detailed description of her appearance and described several indicators of intoxication that she exhibited – unsteady on her feet, staggering as she walked, and loud, slurred speech. He stated he was 8 to 10 feet away from the woman. He could see the woman clearly as he had a good view into the front room.
The Inspector pointed this woman out to the owner but she was not made to leave the Premises. She did leave of her own volition but returned later to pick up her purse. The owner did not exercise his responsibilities and have her removed from the Premises.
The second woman approached the Inspector and engaged in conversation with him. The Inspector testified she was at times inches from his face. This woman was described as white, blond, in her 40’s, with a strong smell of alcohol and slurred speech. After she was asked by Mr. Rodrigues to leave the Inspector alone, she walked away - “staggered as she walked” - and was “visibly unsteady.” This description was provided by the Inspector.
The testimony of the Inspector was consistent, detailed, and presented without equivocation or hesitation. The principal descriptors of the events were written in his notes (not just from independent recollection) and included the times he entered and exited the establishment. The Inspector presented as a very credible witness.
The evidence of Ms. Haskett presented serious problems. She stated she had consumed three beers before the incident in question and testified she spoke to the Inspector for five minutes but was not drunk, just outgoing and friendly.
Ms. Haskett described her evening in response to a question from the panel. She left work at 7:00 p.m., visited two licensed premises, and returned to her home between 10:30 p.m. and 11:00 p.m. She recalled the time exactly because one of her favourite TV shows was still on and it ends at 11:00 p.m. She stated she was very seldom in the bar at 1:00 a.m. in the morning.
Inspector Purvis testified he entered the premises at 1:20 a.m. early the next morning and departed at 1:50 a.m. The time of the Inspector’s visit was not challenged. Ms. Haskett is either confusing the Inspector with another patron or she is very confused about the sequence of events on the night in question. Whatever the cause, the profound discrepancy in the testimony of this witness regarding the time of the evening’s events calls into question the credibility of her testimony on all aspects of the incident.
Inspector Purvis stated in testimony after he was recalled as a witness that he did not recognize Ms. Haskett as the woman he spoke to on the night in question. This places an additional burden on the credibility of Ms. Haskett’s testimony, as it would appear to corroborate her statement that she was at home by 11:00 p.m. and could not have participated in the events of the evening.
The owner, Jose Rodrigues, confirmed in his testimony that he did not ask either woman to leave the Premises because he did not consider them intoxicated. His statement that the second woman was “not really intoxicated” does not inspire confidence. Mr. Rodrigues appears to be saying the woman exhibited clear signs of intoxication but she was not sufficiently inebriated to be considered legally intoxicated.
Mr. Rodrigues is also unclear about the time of the Inspector’s visit, saying the Inspector was at the Premises between 11:30 p.m. and 12:30 p.m. The panel does not consider this a problem as Mr. Rodrigues was recollecting events several months ago without the benefit of notes. His recollection was vague, not a detailed alternative scenario as outlined by Ms. Haskett.
The panel therefore prefers the time of the Inspector’s visit as stated by Inspector Purvis.
The test for an administrative tribunal is “on the balance of probabilities”. The panel is satisfied the testimony of Inspector Purvis on the issue of “permitted drunkenness” is credible, consistent and of sufficient detail to exceed the balance of probabilities standard required for a finding. No evidence was presented on behalf of the Licensee that refuted the events as stated by the Inspector.
The Board therefore FINDS the Licensee in breach of subsection 45(1) of the O.Reg.
Conclusion
For the reasons given, the Board FINDS the Licensee violated subsections 45(1) and 44(1) of the O.Reg.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his 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 23rd DAY OF JULY, 2008.
ALLAN HIGDON, BOARD MEMBER