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-
697638 Ontario Ltd. O/A The Raven’s Nest Pub and Grill Licensee
DECISION
Panel: Jacqueline Castel, Board Member Alex McCauley, Board Member
Decision Date: December 8, 2008 Hearing Location: Ottawa, 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 697638 Ontario Ltd., Licensee ) Ainslie Dunstone, Representative or
Allegations
1A hearing into Notice of Proposal number 16072 dated February 26, 2008 to suspend liquor licence number 202208 (the “Licence”) issued to 697638 Ontario Ltd. (the “Licensee”), operating as THE RAVEN’S NEST PUB AND GRILL, 1034 Merivale Road, Ottawa, Ontario, K1Z 6A7, (the “establishment” or the “premises”) on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”), was held on November 19, 2008, in the City of Ottawa.
Decision
2After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
3On consent of all parties, the Board ORDERED the exclusion of all witnesses.
Registrar’s Evidence
4The Registrar alleges that on the morning of September 21, 2007 a liquor Inspector observed four intoxicated persons in the licensed premises thereby breaching subsection 45(1) of the O.Reg.
5Gaietan Beaudry has been an Inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”) for approximately 15 years.
6He stated he is familiar with the establishment in question, The Raven’s Nest. He stated he attended there on the morning of September 21, 2007 at approximately 2:20 a.m. to conduct a routine liquor inspection.
7He described the premises as a restaurant/pub that primarily caters to a clientele between the ages of 24 to 40 years. The premises have a horseshoe shaped service bar with bar stools and tables and some booths along the wall. There is an entrance off Merivale Road, but the main entrance is a side entrance off Raven Road. This entrance also leads out to a raised porch smoking area, as well as to the parking area.
8Inspector Beaudry entered the bar by the side entrance. There were two servers at the bar. A female server stated at first that they were closed, but upon recognizing him permitted him to enter.
9Inspector Beaudry stated the server he spoke with was Lisa Lemieux.
10He observed four patrons sitting at a booth with the manager Rick Saikaley, he also noted that there were patrons coming and going through the side door to the smoking area.
11When Mr. Saikaley saw Inspector Beaudry he got up from the booth he had been seated at and went behind the bar and came to face Inspector Beaudry. They were the width of the bar apart, 2.5 feet at most. Inspector Beaudry stated that the manager, Mr. Saikaley, appeared to be intoxicated as he was swaying from side to side, his eyes were red and glassy, and there was a strong odour of beer on his breath. His speech was slurred when he asked Inspector Beaudry, “How are things going tonight?” He later asked Inspector Beaudry, “if he was having a good night”, a phrase he repeated at least six times. He was very fidgety with his hands as though he did not know what to do with them. His eyes were rolled up and he appeared to be avoiding eye contact with Inspector Beaudry. Inspector Beaudry noted that Mr. Saikaley seemed to be having difficulty maintaining his balance, having to push his torso against the bar to steady himself. In the opinion of Inspector Beaudry, Mr. Saikaley was drunk.
12Inspector Beaudry has been attending The Raven’s Nest in an official capacity for at least three years and is very familiar with Mr. Saikaley.
13While in the Premises, Inspector Beaudry observed a second intoxicated patron (“Intox 2”). He described this person as male, between the ages of 38 to 42 years, 6’ tall, lean build, 180 lbs., short dark hair, dark moustache, and dressed totally in black. He heard this patron referred to as Dale. He was standing about 10’ from Inspector Beaudry, he was swaying side to side, and he was holding what appeared to be a dark coloured mixed drink with a swizzle stick in it. His eyes were red and glassy, and he was swaying so much that he was spilling the drink that he was holding.
14Inspector Beaudry observed a third intoxicated patron (“Intox 3”). This person was male, between 35 to 37 years of age, 5’8” tall, slim build, with light coloured, long, shaggy, messy hair. He was wearing a red “T” shirt with white long sleeves with the words “Adidas” on it. He was two stools down from Inspector Beaudry, a distance of approximately 4 feet. This person appeared to be in the advanced stages of intoxication. He lost his balance as he slid off the bar stool landing on one knee to keep himself from falling completely. He had bloodshot and glassy eyes; he was staggering as he attempted to walk outside for a cigarette. When passing by Inspector Beaudry he lightly bumped the Inspector. When he returned back into the bar he was leaning on a short heavyset woman who appeared to be supporting him. Inspector Beaudry noted that Intox 3 was nursing two beers at the bar.
15Inspector Beaudry noted a fourth intoxicated patron (“Intox 4”). This person was a male, between 32 to 35 years of age, approximately 5’9” tall, slim build, wearing a white “T” shirt with “Forrest Ridge” on it, as well as a black baseball cap. He was at the service bar approximately 6 to 7 feet from Inspector Beaudry. This person had difficulty in standing, having to hold on to the bar for support. He appeared confused and disoriented, staring up at the ceiling. This person stepped to his right then to his left. He then made a 180 degree turn to his left and staggered to the side door. He had stopped beside Inspector Beaudry to pay the server, and he spoke briefly to Mr. Saikaley. This person had bloodshot eyes, slurred speech and a strong odour of beer on his breath. While beside Inspector Beaudry he shifted his weight against the Inspector leaning on him. He went out the side door, but came right back in appearing confused. He then went out again.
16Inspector Beaudry exited the bar at approximately 2:35 a.m. and went to his car in the parking lot. From his vehicle he had a clear and unobstructed view of the main door of the premises and the smoking area which was about 50’ away.
17At 2:40 a.m. he observed Intox 2 and Intox 3 exit the premises to the smoking area. Intox 2 provided a cigarette to Intox 3. Intox 3 dropped the cigarette to the deck; both parties at this time were swaying side to side. Intox 3 recovered the cigarette but was too uncoordinated to light it. Inspector Beaudry heard him say “shit, fuck it”. Intox 2 took the cigarette, lit it, and passed it to Intox 3, who then put the lit end in his mouth. Inspector Beaudry could see him spitting and both men laughing. Both men went back into the establishment.
18At 2:47 a.m., Inspector Beaudry observed Intox 2 exit the premises with an attractive woman approximately 27 to 28 years of age. Going down the stairs to street level, Intox 2 missed the last step and fell heavily to the asphalt. He got up slowly and his companion asked if he was all right to which he replied “Yeah I’m fine, I’m only drunk”.
19Inspector Beaudry left the area at 2:55 a.m.
20He did not advise the manager of the infractions noted that night because he felt it prudent, considering the condition of the manager, to do it later. He returned approximately one week later and advised Mr. Saikaley of the noted infractions.
21In cross examination Inspector Beaudry could not recall if he specifically told Mr. Saikaley that he was one of the principals involved in the infractions of September 21, 2007.
22In cross examination the Inspector said he attended the premises to check for infractions described as the “Big 5”: intoxication, over service, minors consuming, overcrowding and removal of liquor.
23In cross examination, when asked about the location of the draft beer towers, Inspector Beaudry did not recall their location.
24Inspector Beaudry stated he did not observe the four individuals in question actually consuming alcohol on the licensed premises.
25In cross examination Inspector Beaudry indicated from his experience and training that 3 or more indicia of intoxication are usually the gauge for determining if a subject is intoxicated. These indicia include poor gross motor skills balance or coordination; poor fine motor skills coordination; speech problems such as slurred speech, voice pitch; eyes bloodshot/glassy; flushed red face; diminished awareness of surroundings; etc.
26Inspector Beaudry stated that the lighting in the parking lot on the night in question was good and he had no difficulty in seeing activity on the smoking patio.
27Inspector Beaudry stated that Intox 4 had difficulty paying his bill and getting cash out of his wallet.
Licensee’s Evidence
28Elias Rick Saikaley has been the manager of Raven’s Nest for 23 years. His duties include managing staff, customers and general managerial duties.
29He stated that in the case of a patron who over drinks that patron is politely cut off. He stated that it is not possible for a person to be intoxicated in the licensed premise without him being aware of it.
30Mr. Saikaley stated that on the night in question he was not intoxicated and never gets intoxicated.
31He stated that, on the date in question, he was completing a 16 hour work day. Mr. Saikaley is 63 years of age.
32He disputed the fact that Ms. Lemieux was working that night, as she was on a maternity leave, and stated that an employee named Laura was working.
33Mr. Saikaley stated that at the end of the night when the Inspector came into the premises they were closing up, cashing out and stocking the coolers. He stated that he may have had one or two drinks at the end of the night, but no more, because he had to drive and his wife was pregnant at the time.
34He recalled the Inspector saying to him “It looks like you’re having a good time”, to which he replied “yes, sitting with friends having a few laughs.”
35The witness stated there were about 16 patrons in the bar that night. He stated the friends he was sitting with were not intoxicated.
36When asked to describe the best way of detecting intoxication he stated and explained: by the way the patrons act; stumbling off a bar stool does not mean the person is intoxicated; change in vocabulary; a person’s eyes can be red for a number of reasons, not just from alcohol consumption. You get to know your regulars, if you note them getting violent, or raising their voices, that is a sign they may be drunk.
37Mr. Saikaley did not recall any of the intoxicated patrons described by Inspector Beaudry.
38Mr. Saikaley stated he had a clear recollection of the events of that evening because he recalled his conversation with Inspector Beaudry.
39He stated that tabs are collected by 2:00 a.m., and it would be unusual to collect a tab at 2:20 a.m.
40In cross examination Mr. Saikaley described J.M. (whose testimony starts from paragraph 50 below) as a friend of his, a patron at the bar and a former employee for a brief period.
41Mr. Saikaley stated that he does not permit staff to drink on duty, “They are there to work, not drink”. He admitted that drinking on duty could impair their judgement.
42Mr. Saikaley would not agree that intoxication of patrons is more problematic later at night.
43Mr. Saikaley admitted he had a drink of alcohol that night, 1 oz. of Grand Marnier contrary to his own policy.
44Mr. Saikaley did not recall Inspector Beaudry attending the establishment on September 26, 2007 to advise of the infractions. He stated he had received nothing in writing on that occasion.
45Mr. Saikaley became very confused during cross examination suggesting the date of the alleged contraventions was in September 2008, not 2007. Further, he enquired as to how he could be expected to recall events from September 2007.
46Registrar’s Representative introduced exhibit 1, an AGCO document referred to as a “Carry out Order”, dated July 15, 2008. Mr. Saikaley admitted that no hearing had been requested at any time prior to this order.
47Mr. Saikaley stated that if the alleged contraventions occurred in 2007, then Lisa Lemieux would have been working. He stated she had her baby four months ago (2008).
48Mr. Saikaley stated, at the end of cross examination in response to: “I suggest that on September 21, 2007 you were drunk in the establishment”, “I don’t recall that. I don’t recall that day and I don’t get drunk”.
49In re-examination Mr. Saikaley stated that he first met Mr. Dunstone, the Licensee’s representative, in 2007.
50J.M. recalls being in the licensed establishment September 21, 2007 with the owner (Mr. Saikaley) and some friends.
51J.M. is currently employed as a doorman at another licensed premise.
52He was employed at Raven’s Nest in April 2008. He was not an employee on the night in question.
53Mr. Saikaley did not advise him or the others at the table about the arrival of Inspector Beaudry.
54He stated that Mr. Saikaley got up several times and wandered around the premises.
55The witness stated that he made a statement about his involvement regarding the night of September 21, 2007. The statement was made on November 10, 2008. He had previous to this met with other witnesses, principally Mr. Saikaley and Mr. Saikaley’s son. This meeting was with the licensee’s representative, Mr. Dunstone, at his office on May 15, 2008. On that date he provided a verbal statement.
56He stated he never saw Mr. Saikaley intoxicated on the night in question.
57In cross examination he was shown his written statement. On it, initially the date was 2008 and that was crossed out and replaced with 2007. He stated that was the way it was when he received it.
58J.M. stated that the significance of that night to him was that his cousin, who he does not go out with often, was with him. He admitted that it could have been the Thursday night the week before or after September 21, 2007.
59J.M. stated, based on his experience in working in licensed establishments, that it is common knowledge that problems with drunken patrons are more prevalent later at night. He further stated that he never drinks on duty because judgement is affected and it is difficult to spot intoxicated persons. You become just like the patrons.
Registrar’s Submissions
60Mr. Morris has asked for findings under subsection 45(1) of the O.Reg. He submits that a very qualified Inspector Beaudry has given clear and concise evidence as to his observations of the intoxicated males on the night in question. His descriptions are detailed, and indicia of intoxication amongst all four parties including the manager, Mr. Saikaley, are very clear. In some cases Inspector Beaudry went further, in his descriptions of some of the intoxicated persons that night, describing them as in a state of advanced intoxication.
61Inspector Beaudry wisely did not speak to the manager that night, because the manager was intoxicated and speaking to him that night may have provoked a confrontation. Inspector Beaudry did return to the licensed premises five days later and advised Mr. Saikaley of the noted infractions.
62Mr. Saikaley did nothing with the information provided to him from a number of sources until May 15, 2008, and no written statements were provided by him or others until November 2008. The taking of statements from all parties together at the same time was improper.
63The fact that the date of the occurrence in question was typed on the statement form, in the form of a question that the witness answered on the statement, was leading. J.M. did not have a precise independent recollection of the exact date in September 2007 he was at the premises.
64Mr. Saikaley’s evidence was virtually useless. He was confused as to the date in question.
65Mr. Saikaley admitted drinking on duty in contradiction to his own policies. J.M.’s evidence on this matter was clear and on point. If you are drinking on duty you become just like the patrons.
Licensee’s Submissions
66Mr. Dunstone submitted that Inspector Beaudry’s testimony was based on independent, uncorroborated, recollections.
67He further stated that the alleged signs of intoxication were weak. Red eyes could be caused by cigarette smoke. Someone tripping on a stair is not evidence of intoxication. Moreover, Inspector Beaudry did not witness anyone consuming alcohol on the date in question.
68He cited the evidence of his two witnesses as testament to the fact Mr. Saikaley was not intoxicated.
69He submitted that Mr. Saikaley’s confusion over dates should not lead to the conclusion that he lacked credibility as a witness. Anyone could become confused, when a number of dates are mentioned.
70Given the inconsistencies in the evidence, the benefit of the doubt should go to the Licensee.
Reply
71Mr. Saikaley’s confusion over the night in question is either wilful or he was drunk that night.
72It is not accurate that Inspector Beaudry’s evidence was based on recollections. He had notes. The only thing which was not mentioned in his notes was his evidence about Intox 4 having difficulty paying the bill.
Reasons and Findings
73The Board has carefully reviewed the evidence as presented. The Board was very impressed by the evidence of Inspector Gaietan Beaudry. His evidence was presented in a fair and forthright manner. He had made careful observations of the events of the night in question.
74The indicia of intoxication observed by Inspector Beaudry are clear. In the Board’s view Mr. Saikaley was very intoxicated. He was not fully capable of looking after himself let alone a licensed establishment for which he was in charge. His lack of recollection and/or confusion over the night in question is deliberate, in the view of the Board, and/or due to his intoxicated condition on the night in question. The Board is of the view that Mr. Saikaley has not acted responsibly throughout this affair, seemingly ignoring notices from the Registrar until the “eleventh hour”.
75Based on the evidence before it, the Board is satisfied that on the night in question Mr. Saikaley, the manager of the licensed premises, was intoxicated.
76The Board did not find Mr. Saikaley’s evidence to be reliable. It was inconsistent throughout, and his recollections appeared to be selective and contradicted documentary evidence, especially in regard to the dates in question. Where the evidence of Mr. Saikaley and Inspector Beaudry conflicted, the Board preferred the evidence of Inspector Beaudry over Mr. Saikaley’s which it found to be more reliable.
77The Board is satisfied, based on the evidence of Inspector Beaudry that persons described as Intox numbers 2, 3 and 4 were indeed intoxicated. All presented strong indicia of intoxication: staggering, swaying, falling, slurred speech, and bloodshot eyes. Inspector Beaudry was in close proximity to all of these people. The Board concurs that these persons were in advanced stages of intoxication and, therefore, would have been noticeable to the Licensee or its staff, if they were acting diligently and responsibly. There is no doubt in the mind of the Board that these patrons were permitted to be on the licensed premises. Some were observed coming in and out of the licensed premises; all three of them appeared to be comfortably ensconced in the licensed premises. Further, the manager of the licensed premises was himself intoxicated and in no position to monitor for signs of intoxication or control the activities of those patrons in the premises.
78The Board agrees with the decision of Inspector Beaudry not to notify the manager of the contraventions on the night in question. Due to the condition of Mr. Saikaley that night, it may well have led to a confrontation.
Conclusion
79For the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg by permitting drunkenness, on the part of four individuals, one of whom was the manager of the establishment, on the licensed premises on September 21, 2007.
80The 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 8th DAY OF DECEMBER, 2008.
JACQUELINE CASTEL, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER