Registrar, Alcohol and Gaming Commission of Ontario v. 1496860 Ontario Inc., 2008 CanLII 91893

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-

1496860 Ontario Inc. O/A The Rooster

Licensee

DECISION

Panel: Brian J. Ford, Board Member Guy Maurice, Board Member

Decision Date: June 30, 2008

Hearing Location: Peterborough , 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

1496860 Ontario Inc., Licensee ) Ed Blaha, Representative

Allegations

1. A hearing into a Notice of Proposal dated November 27, 2007, to suspend liquor licence number 92311 (the “Licence”) issued to 1496860 Ontario Inc., (the “Licensee”) operating as THE ROOSTER (“Rooster’s”), 172 Simcoe Street, Peterborough, Ontario, K9H 2H7, (the “Premises”), on the basis of alleged violations of subsection 34(1) of the Liquor Licence Act (LLA) and subsection 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the LLA, was held on March 19, 20 and 25, 2008, in the City of Peterborough.

Decision

2. After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg on December 16, 2006. The Board DISMISSES the allegation of violation of subsection 45(1) of the O.Reg on November 19, 2006. Reasons follow.

Preliminary Matters

3. Registrar’s counsel withdrew section 4 (b) of the Notice of Proposal dealing with subsection 34 (1) paragraph (2) of the Liquor Licence Act.

Registrar’s Evidence

4. Ms. Lina Rodriquez testified that she had been at Rooster’s on November 18 to 19, 2006 with some friends and her then boyfriend, Serout Omar. She had gone to Rooster’s because it was Latin music night. She noted that she and her boyfriend got there at approximately 10:30 p.m. to 11:00 p.m. She stated that they met a couple of friends and danced and talked. She also noted that there were not a lot of people in the establishment at the time.

5. At one point Ms. Rodriquez said that she saw Mr. Omar go to the washroom and noted that he was talking to a bouncer near the washroom door. Shortly after he went to the washroom, a friend alerted her to the fact that Mr. Omar was being beaten up outside. She immediately went outside and saw four or five big guys punching and kicking him. She said that Mr. Omar was yelling “I’ll leave”, but they kept hitting him.

6. Ms. Rodriquez stated that two men were holding Mr. Omar on the ground and that another male was punching and kicking him while he was being held. She was screaming for them to stop, but they did not stop.

7. The witness stated that the beating lasted for about five to ten minutes. She stated that Mr. Omar was trying to defend himself during this time but there were four to five large males against him. One was described as 6’3” and heavy. The others were also big. She noted that Mr. Omar was small by comparison to the males accosting him.

8. Ms. Rodriquez stated that she and her boyfriend told the bouncers repeatedly to stop, as she and her boyfriend were leaving. The bouncers eventually stopped and left. She stated that she and a friend assisted Mr. Omar to his feet and they took a taxi to a friend’s house. She also indicated that there were other people from the bar milling around during the scuffle.

9. At approximately 12:30 a.m. Mr. Omar was having trouble breathing and in considerable pain so they called 9-1-1 for an ambulance, which took them to the hospital. At the hospital x-rays were taken and the attending doctor told Mr. Omar that he had broken ribs and a punctured lung. Ms. Rodriquez told the Board that she was with Mr. Omar when the doctor advised him of his injuries. She noted that there were scrapes on Mr. Omar’s face and bruises on his chest and lower back.

10. Ms. Rodriquez stated that while they were at the hospital a Peterborough police officer came and took a report of the incident. When asked how much Mr. Omar had to drink she stated that he had only two beers. He was not drunk.

11. During cross-examination Ms. Rodriquez stated that she had been to Rooster’s on two or three other occasions. She also stated that when she was told about her boyfriend being beaten she went right outside. She reiterated that there were two males holding him down on the sidewalk when she arrived outside. She stated that he was let up on one occasion and then he was pushed down again. When asked, she stated he was pushed down onto his back, that he was face up, and that they were punching and kicking him.

12. In response to a question of whether Mr. Omar used drugs, Ms. Rodriquez emphatically stated that he did not ever take or use drugs.

13. Serout Omar is twenty-eight years old and lives in Peterborough. He stated that he attended Rooster’s on November 18 to 19, 2006 with his then girlfriend, Lina Rodriquez, and this was his first time at the establishment. Mr. Omar stated that they arrived at Rooster’s at around 11:00 p.m. to 11:30 p.m. on the 18^th of November, 2006. While there, they met up with four or five friends, chatted and drank beer. He stated that he had about one and one half beers that night.

14. He stated that he did not do anything in particular that evening and that around 1:25 a.m. he went to the washroom. When he came out of the washroom a bouncer asked him to leave. He stated that he wanted to get his girlfriend at which time he was told emphatically that he was to leave right “fucking” now and he was not getting anything.

15. Mr. Omar stated that the bouncer then grabbed him and told him to leave, and then five or six of the Rooster’s staff jumped him and held him while one of them kicked him, so hard that he blacked out. This took place inside Rooster’s between the bathroom and the front door.

16. Mr. Omar stated that they then threw him out on the sidewalk in front of Rooster’s. His girlfriend came and they got a taxi and went to a friend’s house. He stated that he was having difficulty breathing.

17. When they arrived at the friend’s house he was in pain and continued to have difficulty breathing. An ambulance was called and he and his girlfriend went to the hospital.

18. While at the hospital x-rays were taken and the attending doctor told him he had four broken ribs and that there was bubbling in his lung, which indicated that a lung had been punctured. He also had bruises on his lower back, stomach and face. He was given painkillers and allowed to leave. He was advised to come back the next day so they could check on his punctured lung.

19. While at the hospital a Peterborough police officer came and took a report of the incident. He stated that the next day he went to the police station to have pictures taken of his injuries.

20. During cross-examination, Mr. Omar reiterated that on his way out of the washroom a bouncer asked him to leave. He replied “okay” and told the bouncer that he would get his coat and his girlfriend and leave.

21. He stated that five or six males then jumped him and kicked him and he blacked out. When questioned where this happened he stated inside the establishment. He stated that at no time did he refuse to leave.

22. Once outside he was thrown on the ground and had difficulty getting up. His girlfriend helped him up and they left. He said he did not know why he was asked to leave as he did not do anything to cause a problem.

23. Keith Calderwood, a constable with the Peterborough Police Service, advised the Board that on November 19, 2006, at 6:59 a.m. he attended the Peterborough Health Centre and spoke with Mr. Omar in the emergency room of the hospital.

24. Mr. Omar advised him that between 1:30 a.m. and 2:00 a.m. he was at Rooster’s with his girlfriend and some friends. Mr. Omar told him that when he was leaving the washroom he was told he had to leave the establishment. Mr. Omar said that he needed to find his girlfriend to let her know that he had to leave.

25. Mr. Omar told the constable that they would not let him find his girlfriend and at that time a big muscular male called several other staff members over. Two of the staff, the large muscular male, and another shorter male, escorted him out. Mr. Omar stated that is when he was kicked in the back however he was not sure who kicked him.

26. Mr. Omar further advised Cst. Calderwood that he was punched in the face by an unknown staff. He also advised that a tall male threw him out the door onto the sidewalk.

27. Cst. Calderwood advised the Board that the injuries to Mr. Omar were lacerations over his right eye, the bridge of his nose and on his left cheek. There were scratches on the left side of his neck and the left side of his back. There was also a large abrasion on the right side of his back.

28. Cst. Calderwood interviewed Ms. Lina Rodriquez at the hospital and she informed him that a friend of hers told her that Mr. Omar had been kicked out of the establishment. When she went out front to check she saw a male holding Mr. Omar, and with the help of another bar staff member, threw him to the ground. While he was on the ground he was kicked.

29. Cst. Calderwood stated that both Mr. Omar and Ms. Rodriquez provided witness statements later in the morning at the police station. He also said that photographs of Mr. Omar’s injuries were taken.

30. Cst. Calderwood stated that he attended at Rooster’s later that evening and spoke with the head doorman, Mr. Sean Vandompfeler-Buitenhuis, who provided a written statement. Cst. Calderwood left statement forms for the other staff, which were provided to him within a day or two.

31. Mr. Vandompfeler-Buitenhuis told him that at approximately 1:40 a.m. he noticed Chi Hang Liu, one of the security staff, speaking to a male about 5’5” and 165 lbs., who was identified as Mr. Serout Omar. He also noticed that a second staff member, Lucas Constable, became involved. Mr. Vandompfeler-Buitenhuis said that Mr. Omar was showing signs of intoxication. At the time Mr. Omar was forty feet away.

32. Mr. Vandompfeler-Buitenhuis said that Mr. Omar became agitated and aggressive. Mr. Vandompfeler-Buitenhuis went over to the area and saw Mr. Omar raise his hand in a striking manner towards Mr. Constable.

33. Mr. Vandompfeler-Buitenhuis then grabbed Mr. Omar and escorted him to the front door where he released him. Mr. Constable and Mr. Liu followed behind. Once at the front door Mr. Omar said he knew who they were and would “cut” the staff and kill them. He would remember their faces.

34. Mr. Omar, when he was uttering the threats, pointed at Mr. Constable and at Mr. Lasenby. At that time Mr. Omar grabbed Mr. Constable’s shirt and struck him in the face. Mr. Vandompfeler-Buitenhuis and Alvin Rolle, another staff member, took control of Mr. Omar, restraining him on the ground for a second time.

35. Cst. Calderwood stated that Mr. Vandompfeler-Buitenhuis at this time tried to call the police, however, he dialled the wrong number. Cst. Calderwood said he checked Mr. Vandompfeler-Buitenhuis’ cell phone and noted that a number that was one number off of the non-emergency police number had been dialled at the time of the incident, the time being 1:48 a.m. Mr. Omar was released, got up and walked away.

36. Cst. Calderwood noted that the security staff members on duty at the time of the incident were Sean Vandompfeler-Buitenhuis, Erin Fox, Stephen Lasenby, Lucas Constable, Chi Hang Liu, and Alvin Rolle.

37. Cst. Calderwood left witness statement forms with Mr. Vandompfeler-Buitenhuis with instructions for the staff to fill them out. Some were returned that night and some later. He explained that Mr. Vandompfeler-Buitenhuis filled his out in front of him but it was the only one done in his presence. The others were picked up one or two days later.

38. Cst. Calderwood also stated that he was at Rooster’s on December 16, 2006 with Peterborough Police Constable Burns and AGCO Inspectors Amy Glenn and Lyn Sandiland to conduct a compliance inspection.

39. Cst. Calderwood stated that they arrived at 12:30 a.m. and that Inspectors Glenn and Sandiland, who were undercover, went inside. He and Cst. Burns stayed outside except for a brief time when they went in and did a cursory check of the premises.

40. At approximately 2:00 a.m. one of the undercover inspectors spoke with Cst. Burns and she noted that Cst. Burns was interviewing an intoxicated female. She was unsteady on her feet and leaning against the wall of the building. At one point she fell into Cst. Burns and he had to hold her up. He noted that her speech was slurred when she spoke. The woman was identified as Amber Rothwell, born in 1983.

41. During cross-examination with respect to the incident on November 19, 2006 involving Mr. Omar, Cst. Calderwood stated that Mr. Omar said he was escorted out of the bar by two people and that he received a kick in the back as he was being escorted out. The kick was to the right side of his back. He also said that Ms. Rodriquez observed him being kicked.

42. Cst. Calderwood said that he did not lay a charge because he could not prove who did this to Mr. Omar. He also said when questioned that he believed what the security personnel had told him about the incident.

43. He noted that the dance floor in Rooster’s was less than ten feet away from the washrooms. He stated that if anything happened people could see it, and that it would take about thirty seconds to get to the front door from the washrooms.

44. He also noted that the injuries sustained by Mr. Omar were consistent with Mr. Vandompfeler-Buitenhuis having his knee on Mr. Omar’s back while he restrained him on the ground.

45. Cst. Calderwood stated during cross-examination that the information regarding the drunk was received after 2:00 a.m.

46. In redirect Cst. Calderwood stated that he had no reason not to believe Mr. Omar either.

47. AGCO Inspector Amy Glenn stated that she attended Rooster’s on December 16, 2006 in an undercover capacity. She stated that she paid a cover charge and entered the premises at 12:37 a.m. During her time inside the premises she made observations in various areas of the establishment.

48. At 1:57 a.m. she was near the bar and observing, and noted that at 2:00 a.m. service ceased. At this time she noticed a female in her early twenties, with shoulder length dark hair and dressed in blue jeans who appeared to be intoxicated. This female was on the dance floor with a male and he was holding her up. She was unsteady on her feet and nearly fell a few times. The female’s eyes appeared to be closed and at one point appeared to roll back into their sockets.

49. At this time Inspector Glenn text messaged AGCO Inspector Sandiland with her observations and her location.

50. Inspector Glenn saw female security from the club get down from a platform, who then approached the female, spoke to her and then walked away. The female then went over to the coat check area and sat on a silver coloured couch. Inspector Glenn noted that Inspector Sandiland was with the female on the couch. The female patron then got up, staggered to the front door, spoke to a male and left the premises.

51. Outside the premises Inspector Glenn advised Cst. Burns of the female and he went over and spoke to her. Inspector Glenn stood back and watched.

52. During cross-examination she stated that she made the observations of the female three minutes before closing.

53. AGCO Inspector Lyn Sandiland stated that she attended Rooster’s on December 16, 2006 in an undercover capacity, along with Inspector Amy Glenn, Constable Burns and Constable Calderwood of the Peterborough Police Service and Detective Constable Williams of the Ontario Provincial Police. She paid a four dollar cover charge and entered the premises. She noted that there were approximately two hundred to two hundred and fifty patrons in the establishment at the time.

54. At approximately 2:00 a.m. she received a text message from Inspector Glenn advising her of an intoxicated person and her location. Inspector Sandiland went to the locations and Inspector Glenn pointed out a female with dark straight hair, approximately 5’4” tall, mid-twenties, wearing a black shirt and blue jeans, and flat black pump shoes.

55. This female patron was dancing with a male face to face and he was holding her up. She was unsteady on her feet and almost fell. She had difficulty holding her head up and her eyes appeared to roll back.

56. Inspector Sandiland noted that five different security people from Rooster’s walked by the female patron, and a female security in a yellow shirt looked at the female three times and spoke to her but took no action.

57. The female patron walked over to the coat check area and slumped down onto a silver couch. Inspector Sandiland sat down next to her. She noted that the female’s eyes were glassy and unfocussed, and on speaking to her, noted that her speech was slurred and there was an odour of alcohol on her breath. When this female got up she was unsteady on her feet.

58. On cross-examination Inspector Sandiland reiterated that the woman was unsteady on her feet and staggered when she walked to the coat check.

59. Constable Dan Burns of the Peterborough Police Service informed the Board that he attended Rooster’s on December 16, 2006 with AGCO Inspectors, Sandiland and Glenn, as well as Constable Calderwood of the Peterborough Police, and Detective Constable Williams of the Ontario Provincial Police. He noted that Inspectors Sandiland and Glenn were in an undercover capacity.

60. Cst. Burns stated that shortly after 2:00 a.m. outside of Rooster’s, he was advised of a female who was now outside and intoxicated. He located the female and requested her identification. She was identified as Amber Rothwell, born February 7, 1983, of Peterborough. On talking to her she said that she had three or four drinks in Rooster’s. He noted that her speech was slurred and she was swaying and at one point fell into him.

61. During cross-examination when asked, he stated that he found the bar was a good bar and there were no problems and that they have good staff that help out when needed.

Licensee’s Evidence

62. Steve Lasenby is a part-time employee of Rooster’s working as a security doorman. On November 19, 2006, at 1:30 a.m., he was working as security inside when Mr. Omar was removed from the bar. He stated that Mr. Omar threatened everyone and screamed at them. He also stated that Mr. Omar struck Lucas Constable and had to be restrained on the ground in order to calm him down. Mr. Omar was allowed up but again became aggressive and had to be restrained again.

63. Mr. Lasenby testified that another male tried to intervene and was held back by Mr. Lasenby. This person calmed down and after Mr. Omar left. This person came back and apologized for his friend’s behaviour.

64. Mr. Lasenby stated that he did not speak to Mr. Omar nor was he involved in restraining him. He stated Mr. Rolle, Mr. Vandompfeler-Buitenhuis, and Mr. Constable were the security people who restrained Mr. Omar.

65. Mr. Lasenby stated that at no time did any of the security people kick or punch Mr. Omar. They only restrained him by holding him and at one point placing a knee on his back.

66. On cross-examination Mr. Lasenby stated that Mr. Omar was very angry and that he walked away from the bar on his own in a backward fashion yelling at the staff and that his speech was not slurred. He also noted that Mr. Omar was angry and did swing and try to strike another security staff member.

67. When asked about his police witness statement he said that he wrote it out himself. He also typed up his own report.

68. He stated in response to a question that Sean Vandompfeler-Buitenhuis put Mr. Omar to the ground the first time, then Sean Vandompfeler-Buitenhuis and Alvin Rolle put Mr. Omar to the ground the second time.

69. Alvin Rolle works as a security person at Rooster’s and on November 19, 2006 he was outside on a break when Sean Vandompfeler-Buitenhuis, Chi Hang Liu, and Lucas Constable escorted a male patron out of the establishment. He noted that the male person, Mr. Omar, was giving them a hard time. He was physical and uncooperative.

70. Mr. Rolle testified that Mr. Omar threatened the staff stating that he was from the area and that he would cut them up. He lashed out at Lucas Constable. At this point Mr. Rolle intervened and helped Mr. Vandompfeler-Buitenhuis restrain Mr. Omar pinning him to the ground.

71. Mr. Rolle stated that he came from behind Mr. Omar grabbing his arm and putting him to the ground, Mr. Vandompfeler-Buitenhuis held onto the other arm telling Mr. Omar to calm down and relax. Mr. Rolle stated that at no time did he or Mr. Vandompfeler-Buitenhuis kick Mr. Omar.

72. Mr. Rolle stated that Mr. Vandompfeler-Buitenhuis held Mr. Omar by placing his knee on his lower back and holding him flat on the ground with one hand. While he was doing this, Mr. Vandompfeler-Buitenhuis attempted to call the police on his cell phone.

73. Mr. Rolle reiterated that Mr. Omar was put to the ground twice and stopped being aggressive after the second time.

74. When asked, Mr. Rolle stated that the bar, which has a capacity for 350, had only about 20 people that night. Mr. Rolle stated that he has Smart Serve training.

75. On cross-examination Mr. Rolle stated that he is 6’ tall and approximately 245 lbs. He also stated when asked that Mr. Lucas Constable typed up his statement in the office at Rooster’s at which time Chi Han Liu and Erin Fox were also present. Mr. Rolle said that he told Mr. Constable what he wanted in the statement. The Board notes that this statement is the one provided as part of disclosure for the hearing. With respect to his police statement Mr. Rolle stated that he wrote that out by hand himself.

76. He further reiterated that he saw Mr. Omar being taken out and that he did not previously know him. He said that Mr. Omar was yelling that he would cut all of them and was screaming at them when he left.

77. Mr. Rolle, when asked, stated that as far as he could remember, it was Sean Vandompfeler-Buitenhuis and Lucas Constable who escorted Mr. Omar out. Erin Fox and Chi Hang Liu followed them out.

78. During his cross-examination Mr. Rolle reiterated that he and Sean Vandompfeler-Buitenhuis put Mr. Omar to the ground twice in an effort to calm him down.

79. Sean Arie Vandompfeler-Buitenhuis is the manager of Rooster’s and was working on November 19, 2006 when the incident involving Mr. Omar occurred. He testified that he observed Mr. Omar walking to the washroom and that he looked unsteady on his feet and he instructed Mr. Chi Hang Liu to talk to Mr. Omar when he came out of the washroom. At the time he felt that Mr. Omar’s gross motor skills were off.

80. He continued to watch the area and saw Mr. Liu talking with Mr. Omar and then saw Mr. Constable, another security staff, join Mr. Liu. At this time Mr. Omar lifted his left hand towards Mr. Constable as if to strike him. Mr. Vandompfeler-Buitenhuis immediately went to the location, which was close to where he was, and intervened. He put Mr. Omar into a full nelson and escorted him out of the establishment. Mr. Liu and Mr. Constable followed him.

81. Mr. Vandompfeler-Buitenhuis stated that it took approximately thirty seconds to get Mr. Omar out of the bar. Once outside he released Mr. Omar and at this time Mr. Omar threatened to cut and kill the staff.

82. He testified that Lucas Constable said something to Mr. Omar and that Mr. Omar took a swing at Mr. Constable. At that point he and Alvin Rolle restrained him and put him to the ground.

83. Mr. Omar calmed down and was allowed up whereupon he then swung at Mr. Vandompfeler-Buitenhuis and he was again put to the ground with the help of Mr. Rolle. Mr. Vandompfeler-Buitenhuis stated that on this occasion he placed his knee on Mr. Omar’s lower back with one hand on the upper back and tried to dial the Peterborough Police non-emergency line, misdialing by one number.

84. Mr. Vandompfeler-Buitenhuis stated that at the time Mr. Omar was very agitated and threatened the staff and that Mr. Vandompfeler-Buitenhuis believed the threats were real. He also noted that on the night in question security staff was wearing yellow shirts. He also noted that he has Smart Serve training.

85. When asked about the night of December 16, 2006, he could not recall anything about that particular night.

86. On cross-examination Mr. Vandompfeler-Buitenhuis stated that he made the statement for purposes of the hearing a couple of weeks before the hearing. At the time Alvin Rolle, Chi Hang Liu, Erin Fox, and Lucas Constable were present. Mr. Constable typed up the statement.

87. Mr. Vandompfeler-Buitenhuis, in reply to a question, reiterated his testimony in chief that he thought that Mr. Omar’s gross motor skills were slow. He stated that he told Mr. Liu to talk to Mr. Omar because he was on the washroom post. At the time Mr. Omar was the only one in the washroom.

88. When asked, Mr. Vandompfeler-Buitenhuis described himself as 6’3” and 200 lbs.

89. Mr. Vandompfeler-Buitenhuis stated that Mr. Liu talked to Mr. Omar for a couple of minutes, however, he did not know what was said. He noted that Mr. Constable went with Mr. Liu as well. He stated that Mr. Omar’s body language indicated that he was agitated. He also raised his hand to Mr. Constable, at which point Mr. Vandomfeler-Buitenhuis intervened and put a full nelson on Mr. Omar and escorted him out. He noted that Mr. Omar left on his own power.

90. When asked why he did not call the police again, he stated that he does not call the police after someone has left.

91. Lucas Constable works at Rooster’s, is Smart Serve trained and was working on November 19, 2006. He testified that he observed Mr. Omar walking to the washroom and that he stumbled and hit the doorframe on entering. He also noted that Mr. Vandompfeler-Buitenhuis asked Mr. Liu to speak to him when he came out.

92. Mr. Constable went over to Mr. Liu’s location and joined the conversation after Mr. Omar exited the washroom. Mr. Omar was asked to leave and to call it a night. He became verbal and agitated. At this time Mr. Vandompfeler-Buitenhuis came over. Mr. Constable stated that when Mr. Omar raised his hand toward him as if to punch him, Mr. Omar was restrained by Mr. Vandompfeler-Buitenhuis in a full nelson and escorted out. It took approximately thirty seconds to move him out the front door.

93. Once outside Mr. Omar became verbal and threatened the staff. Mr. Constable tried to talk to him but Mr. Omar punched him in the face. Mr. Vandompfeler-Buitenhuis then put Mr. Omar to the ground. He was put to the ground twice and at one point Mr. Vandompfeler-Buitenhuis tried to call the police.

94. Mr. Constable testified that he thought that Mr. Omar might have been on drugs, probably cocaine. He noted that Omar’s pupils were dilated and he was “chewing his face”.

95. Mr. Constable stated that people on the dance floor would have seen what was going on as it was a slow night with only about twenty people. He noted that the time was around midnight.

96. He stated that he wrote out a police statement that was turned over to Cst. Calderwood. With respect to the statements for the hearing, he typed them for the rest of the staff, noting that he can type ninety words a minute.

97. On cross-examination he described himself as 6’1” and 250 lbs., but 230 lbs. on the date in question.

98. He stated that he was approximately thirty-five to fifty feet away from Omar when the incident began and that the lights were dim.

99. He stated that Mr. Vandompfeler-Buitenhuis told him that he was going to ask Mr. Liu to ask Mr. Omar to leave.

100. Mr. Constable stated that at first the conversation between Mr. Liu and Mr. Omar seemed to be normal, however, he then noted that Mr. Omar was shouting at Mr. Liu. At the time he was approximately ten to fifteen feet away from the two. Mr. Constable then moved toward them.

101. When asked with respect to recognizing the effects of drugs on a person Mr. Constable stated that he had no formal training. He stated that he is an avid card player and has seen the effects of cocaine on people at card games. When asked if he ever reported the use of cocaine to the police, he said he had not.

102. He noted when asked that he had not mentioned the drug use in the statement he prepared for the hearing.

103. He reiterated his testimony in chief with regards to the role of Mr. Vandompfeler-Buitenhuis in removing Mr. Omar from the premises. He also confirmed that Mr. Lasenby and Mr. Rolle were already out front.

104. Mr. Constable stated that when they were out in front of the establishment that Mr. Omar struck him and that he grabbed Mr. Omar by the shirt and punched him back.

105. He stated that Mr. Vandompfeler-Buitenhuis and Mr. Rolle pinned down Omar. He noted that both were beside or on top of Mr. Omar, but he could not recall exactly.

106. When asked how he knew Mr. Vandompfeler-Buitenhuis had called the police he stated that Mr. Vandompfeler-Buitenhuis had told him and that he had dialled the wrong number.

107. He was asked about the police statement and said that Cst. Calderwood dropped off the forms and they were to complete them. He did not complete his statement on the same day as the incident.

108. Chi Hang Liu works for Rooster’s as a security person and on November 19, 2006 he was at the post by the washroom. He testified that he observed a male patron walking towards the washroom and that he staggered into the doorframe.

109. Mr. Liu stated that Mr. Vandompfeler-Buitenhuis asked him to speak to this individual. When Mr. Liu spoke to him he concluded that this indivdual was intoxicated and asked him to leave the bar.

110. He stated that Mr. Omar was swaying back and forth and was shaky and he was grinding his jaw and his eyes were dilated. When Mr. Liu asked him to leave, Mr. Omar defended his right to stay. Mr. Omar was also asked to leave by Lucas Constable but refused and showed signs that he would hit Mr. Liu.

111. Mr. Liu stated that at that point Sean Vandompfeler-Buitenhuis grabbed Mr. Omar and walked him out of the bar. Mr. Liu followed them to the door and then returned to the dance floor. He noted that there were approximately twenty patrons in the bar.

112. On cross-examination Mr. Liu described himself as 5’9” and weighing 185 lbs. When asked how he was instructed to talk to Mr. Omar he stated that Mr. Vandompfeler-Buitenhuis gestured by looking at him and pointed with his face to indicate to him to speak to Mr. Omar.

113. Mr. Liu described Mr. Omar as having difficulty standing when he was talking to him.

114. When asked about his police statement he replied that Mr. Vandompfeler-Buitenhuis gave him a form and told him to fill it out. He stated that it was about a week after the incident.

115. Amber Rothwell lives in Peterborough and is a patron of Rooster’s and goes there a couple of times a month. She testified that on December 16, 2006 she was at Rooster’s with friends and that she was not asked to leave the premises.

116. When she was outside a police officer called her over and asked for her identification. She provided her identification and the police officer told her to go home.

117. She stated that she slipped and fell when she was leaving the bar, but noted that she falls quite a bit due to the fact that she has had six major concussions. She stated that she normally wears flat shoes because of her falling but on this night she wore high heel boots, which had a three-inch heel.

118. Ms. Rothwell testified that on this night she had three drinks and that she was at the bar dancing with friends. She did not recall security talking to her on that night.

119. She stated when asked that she was sitting on the sofa waiting for her friend. She walked out of the bar with her friend after getting her coat. She stated that she was not intoxicated. She does not like to get intoxicated because she has a five-year-old son.

120. On cross-examination she stated that Sean Vandompfeler-Buitenhuis had asked her if she remembered being there on the night in question. She stated that she knows Vandompfeler-Buitenhuis from working at the mall.

121. She again stated that she had only three drinks, which were vodka and cranberry.

122. Ms. Rothwell in reply to a question about her concussions stated that she had seen a doctor but that she had not been told not to drink.

123. Erin Fox testified that she works for Rooster’s, has Smart Serve training and that she was working on the night of December 16, 2006. On this particular night she was working the upper floor and bottom floor as security. She stated that there were approximately two hundred patrons on the dance floor that night and that she does not remember Amber Rothwell.

124. On cross-examination she could not recall anything out of the ordinary.

Registrar’s Submissions

125. Mr. Kulis asked the Board to make findings under subsection 45 (1) of the O.Reg pursuant to the LLA with respect to violent or disorderly conduct on November 19, 2006 and further under subsection 45 (1) of O.Reg with respect to permitting drunkenness on December 16, 2006.

126. It is Mr. Kulis’ submission that the story of the Licensee is a lie and a cover up of a wanton and brutal assault. Why it occurred is unknown and motivation is not an element.

127. Mr. Kulis stated that Mr. Omar and his friend were at Rooster’s and there is no evidence that they were causing any problems.

128. Mr. Kulis stated that there are discrepancies in the evidence given by the staff of Rooster’s.

129. He noted that body movements were used to tell Mr. Chi Liu to talk to Mr. Omar and further to tell Lucas Constable to help Mr. Chi Liu.

130. Mr. Kulis noted that there is similar evidence by two witnesses who believed Mr. Omar was on drugs. Mr. Lucas Constable states his belief comes from what he observed at poker games and Mr. Chi Liu has no experience with drugs except Smart Serve training.

131. The only direct evidence is from Mr. Omar and Ms. Rodriquez who stated that Mr. Omar did not take drugs and doesn’t take drugs.

132. Mr. Kulis submits that four security staff were with Mr. Omar outside, namely Sean Vandompfeler-Buitenhuis, Lucas Constable, Alvin Rolle, and Steve Lasenby.

133. Mr. Kulis questioned whether Sean Vandompfeler-Buitenhuis and Mr. Rolle put Mr. Omar to the ground, or was it Mr. Vandompfeler-Buitenhuis alone. Mr. Omar allegedly lunged at Mr. Vandompfeler-Buitenhuis and swung at Mr. Constable.

134. When Mr. Omar was walking away it is noted that he was not staggering or swaying but walking away.

135. Mr. Kulis noted that four to five bouncers set upon Mr. Omar and the result was four broken ribs, a punctured lung and scrapes and bruises.

136. Cst. Calderwood, Mr. Kulis stated, met Mr. Omar at the hospital and saw the injuries as described. This interview he notes was one hour after the assault as a result of Ms. Rodriquez’s 9-1-1 call.

137. Mr. Kulis also pointed out that Cst. Calderwood only interviewed one of the Rooster staff, and that was Sean Vandompfeler-Buitenhuis. Mr. Vandompfeler-Buitenhuis having being told what the investigation was about was responsible for obtaining written statements from the rest of the staff. These were given back a day or two or up to a week later.

138. Mr. Kulis submitted that Cst. Calderwood had no reason to disbelieve anyone and he kept an open mind. No one was charged because he could not determine who kicked Mr. Omar. He did not say it was because there was insufficient evidence.

139. Mr. Kulis again suggested that the evidence of the Licensee is unreliable as Sean Vandompfeler-Buitenhuis was the only one interviewed by Cst. Calderwood and he knew what story was given to the police. The staff then had time to prepare them for Mr. Vandompfeler-Buitenhuis. The Licensee’s witnesses had time to hear each other’s version and this could have affected their own recollection.

140. Mr. Kulis also stated that the security staff’s stories do not match up with the injuries to Mr. Omar.

141. Cst. Calderwood’s evidence is that there were broken ribs and a punctured lung and that would make it impossible to throw a punch and difficult to walk. Mr. Kulis noted that the injuries could not have occurred if the Board believes the evidence of the Licensee’s witnesses.

142. Mr. Kulis reiterated that Mr. Omar was kicked in the back while he was in the establishment and that he blacked out. They kicked and punched him as described by Ms. Rodriquez. The result was broken ribs and a punctured lung which led to him being taken to the hospital.

143. With respect to the events of December 16, 2006, the Board should make a finding that the Amber Rothwell was in the premises and was drunk.

144. Mr. Kulis believes that the evidence is overwhelming in that Inspector Amy Glenn made an observation of Rothwell being held up while dancing and that her eyes were rolling back in her head.

145. Inspector Lyn Sandiland confirmed Inspector Glenn’s observation as she watched Ms. Rothwell stagger to the coat check and sit on the couch next to the front entrance. Inspector Sandiland sat next to Ms. Rothwell and noted her eyes were glassy and unfocused, her speech was slurred, and she had the smell of alcohol on her breath.

146. The evidence of Cst. Burns was that Ms. Rothwell’s speech was slurred, she was swaying back and forth and that she fell into him. He stated at the hearing that she was intoxicated.

147. Cst. Calderwood confirmed the evidence of Cst. Burns.

Licensee’s Submissions

148. Mr. Blaha noted the discrepancies in the testimony of Ms. Rodriquez and Mr. Omar in that Mr. Omar stated that he was kicked while he was inside the premises and that Ms. Rodriquez testified that he was kicked and punched while he was outside the premises. Ms. Rodriquez did not see or hear any ruckus inside the premises concerning her boyfriend.

149. Mr. Blaha stated that the young men from Rooster’s are not liars. He believes it is Mr. Omar who is lying when he testified that five or six people jumped him. He also noted that the staff testified that they saw him walking away hand in hand with his girlfriend.

150. Mr. Blaha in response to the alleged discrepancies in the testimony of the employees of Rooster’s stated that eighteen months after the incident there are bound to be discrepancies. He noted that Cst. Calderwood testified that he believed the staff.

151. Mr. Blaha stated that there is a time gap between when Mr. Omar went to the hospital and when he left Rooster’s. He asked where Mr. Omar went after he left.

152. Mr. Blaha noted for the Board that Mr. Vandompfeler-Buitenhuis called the police and was off by one number. This fact was confirmed by Cst. Calderwood.

153. If Mr. Omar had broken ribs, where did he get strength to fight as noted by Ms. Rodriquez? He also asked why he attended the hospital twice.

154. Mr. Blaha stated that the employees of Rooster’s just did their job when they noted signs of impairment.

155. With respect to the incident of December 16, 2006, Mr. Blaha noted that the liquor Inspectors were there for over one and a half hours and then observed an intoxicated patron.

156. There is no evidence in his view that the patron, Ms. Rothwell, was intoxicated. There was no evidence she was being held up. He also stated there is a discrepancy between the evidence of Cst. Burns and the AGCO Inspectors. He stated that Ms. Rothwell was speaking properly to Cst. Burns.

157. Mr. Blaha feels that there is enough evidence to determine that Ms. Rothwell clearly understood and that she was not intoxicated. There is not enough to prove drunkenness beyond a reasonable doubt.

Reply

158. Mr. Kulis, in response to the question of why Mr. Omar went to the hospital twice, stated it was due to the severe pain and that he had a punctured lung, which caused bubbling in his lung. He went back the second time to see if the bubbles were increasing and the injuries were becoming aggravated.

159. He also noted that Cst. Calderwood testified that he believed the staff, Mr. Omar and Ms. Rodriquez, and that was the reason for not laying a charge.

160. Mr. Kulis submitted that Mr. Vandompfeler-Buitenhuis put Mr. Omar in a full nelson to escort him out. He also noted that motive is not necessary for a finding under subsection 45(l).

Analysis/Reasons/Findings

161. The Registrar alleges that on November 19, 2006 there was a breach of subsection 45(1) of the O.Reg pursuant to the LLA, which reads:

The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

162. The Registrar maintains that the Licensee permitted quarrelsome, violent or disorderly conduct to occur on the premises. Such conduct occurring when Mr. Omar was forcibly removed from the premises.

163. The Board notes that the only evidence as to the alleged severity of the injuries to Mr. Omar were his and Ms. Rodriquez’s testimony. No documentary medical evidence was entered and the medical practitioner who treated Mr. Omar at the hospital was not called as a witness.

164. The Board heard from Cst. Calderwood of the Peterborough Police who stated that he met Mr. Omar at the Peterborough Health Centre and described Mr. Omar's injuries as being bruises and lacerations. He did not mention broken ribs or a punctured lung and he made no mention of speaking to any medical personnel at the hospital.

165. The evidence of all five Rooster's staff was believable and consistent except for very minor discrepancies. The Board agrees with Mr. Blaha that there would be minor discrepancies after eighteen months.

166. All of the security personnel who dealt with Mr. Omar on November 19, 2006 stated he was agitated and appeared to be intoxicated, and was asked to leave. They all denied kicking him or punching him when he was being restrained. They all stated that he walked away from the establishment without any difficulty.

167. The Board also notes that Cst. Calderwood in his testimony in chief stated that he believed the statements of the staff.

168. The Board also notes that there is a significant discrepancy in the testimony of Ms. Rodriquez and Mr. Omar. Ms. Rodriquez stated that Mr. Omar was being beaten up outside the establishment. She said that the staff were holding him down, kicking him and punching him. She stated that he was trying to defend himself as best he could.

169. Ms. Rodriquez also said that she did not see anything happening inside other than Mr. Omar talking to a security person at the washroom door. She said that later a friend came and told her that Mr. Omar was being beaten up outside.

170. However, Mr. Omar stated that the security personnel of the establishment accosted him, while he was inside the establishment, just outside the washroom door. He stated that he was kicked in the back while inside the establishment and that he lost consciousness.

171. Mr. Kulis indicated in submissions that the staff lied and tried to cover-up this assault. There was no evidence before the Board to support this allegation.

172. The Board prefers the evidence of the Licensee which was more consistent rather than the evidence of Mr. Omar and Ms. Rodriquez which was contradictory.

173. The Board DISMISSES the allegation of a breach of subsection 45(1) of the O.Reg on November 19, 2006.

174. The evidence before the Board dealing with a breach of subsection 45(1) of the O.Reg permitting drunkenness on December 16, 2006, was clear and convincing.

175. The Board heard Cst. Burns and Cst. Calderwood support the testimony of Liquor Inspectors Glenn and Sandiland describing evidence of Ms. Rothwell’s intoxication.

176. The officers and Inspectors gave evidence that Ms. Rothwell was unsteady on her feet, her speech was slurred and her eyes were glassy and rolling back into her head and she had a smell of alcohol on her breath.

177. Their evidence is such that on the balance of probabilities, Ms. Amber Rothwell was intoxicated at the time.

178. The Licensee did not ask Ms. Rothwell to leave or take any other actions despite a number of the staff who saw her in that drunken state.

179. Therefore the Board FINDS that there was a breach of subsection 45(1) of the O.Reg in that drunkenness was permitted on the premises on December 16, 2006.

Conclusion

180. 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. The 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 30^th DAY OF JUNE, 2008

BRIAN J. FORD, BOARD MEMBER GUY MAURICE, BOARD MEMBER

BJF/cp