Registrar, Alcohol and Gaming Commission of Ontario v. 501250 Ontario Inc., 2008 CanLII 91917

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-

501250 Ontario Inc. O/A Wally’s Roadhouse Licensee

DECISION ON FINDINGS

Panel: Allan Higdon, Board Member Joan Lougheed, Board Member

Decision Date: December 9, 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 ) Joyce Taylor, Representative 501250 Ontario Inc., Licensee ) Roger Button, Representative

AUTHORITIES: Keg Restaurant (Re), [1998] O.A.G.C.D. No. 273 Heart & Crown Pub & Restaurant (Re), [1999] O.A.G.C.D. No 288 977619 Ontario Inc. v Ontario (Registrar of Alcohol and Gaming), [2000] O.J. No. 5297

Allegations

1A hearing into a Notice of Proposal (“NOP”) dated March 12, 2008 to suspend liquor licence number 20092 (the “Licence”) issued to 501250 Ontario Inc. operating as WALLY’S ROADHOUSE, 2532-2536 Innes Road, Gloucester, Ontario, K1B 4C5 (the “Premises”), on the basis of alleged violations of subsections 30(2) and 30(4) of the Liquor Licence Act (“LLA”) and subsections 41(1) and 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on August 28, 2008 in the City of Ottawa.

Decision

2After considering all the evidence and submissions, the Board FINDS the Licensee violated subsection 30(4) of the LLA. The Board dismisses the allegation of violations of subsection 30(2) of the LLA and subsections 41(1) and 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3As a preliminary matter and on consent of all parties, the Board ORDERED the exclusion of witnesses.

Registrar’s Evidence

4Andrew Rowntree, an Inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”), attended the licensed premises on September 28, 2007 at 12:37 a.m. with Police Constable (“P.C.”) Katherine Plomp of the Ottawa Police Service. On this evening there was a joint operation underway, with a number of establishments being visited to follow up on major infractions, including serving minors.

5Inspector Rowntree observed a young looking female drinking with a group of people at a table on the patio. The identification provided was for a woman born in 1988, and did not look like the patron. When asked for additional identification, the patron produced a health card with a different name and a date of birth of October 8, 1989. This photo identification looked like the patron and placed her age at 17 years on that day.

6It was noted the patron had slurred speech, glassy red eyes, an odour of alcohol on her breath and was swaying back and forth when she stood. She told the police officer she had not been drinking. She agreed to take a breathalyser test. She failed the test and admitted that she had been on the Premises since 10:00 p.m. A friend confirmed she had been drinking.

7When Inspector Rowntree and the officer spoke to the owner he indicated he had not checked identification for this patron. As well, he said a server was responsible for that side of the business.

8On cross examination, Inspector Rowntree stated he was in attendance with several police officers that night. All arrived at the same time, except for P.C. Bouwmeester, who came later with the breathalyser. He stated the Premises was not busy and when checking the identification of the young looking female patron, she was brought inside to the bar area. She was unsteady and falling into the officers while talking to them.

9The friend accompanying the young looking female patron did admit that the minor had been drinking alcohol, but had not been served.

10P.C. Katherine Plomp has worked with the Ottawa Police Service for 11 years. She stated there was a "bar blitz" planned for this evening to target problem locations. Plainclothes officers entered the Premises at 12:39 a.m. with Inspector Rowntree.

11A young woman on the patio looked underage. When she was observed taking a drink of alcohol, P.C. Mondoux approached her asking for identification, with P.C. Plomp assisting. The female had red eyes, slurred speech, smelled of alcohol and was "somewhat unsteady" on her feet. The witness did not see the identification but was told it was an Ontario Driver's Licence issued to the sister of the patron.

12A second piece of identification, with a different name and photo, was produced, resulting in the patron being ticketed for drinking underage and impersonating someone. The patron stated no one had served her and that she just had a sip of alcohol. The witness noted the patron had red eyes, slurred speech, was unsteady on her feet, smelled of alcohol and was "making it difficult for police".

13The witness agreed to be tested for alcohol and failed the roadside breathalyser test with a reading of over 100. She was issued tickets for presenting false identification and drinking under the age of 19.

14The patron admitted she was drinking before she got to the establishment. A friend, in attendance with the minor told her to be quiet as she was "getting rowdy". This friend, who seemed sober, agreed to take care of the minor.

15P.C. Plomp stated that she and Inspector Rowntree went to speak to the owner, who was emphatic that he and the staff did not serve her. It was noted that the patio was not easily seen from inside the building.

Licensee's Evidence

16Mr. Elias Bishar stated he has been the owner of the restaurant for 29 years. On September 28, 2007, he was working the bar and kitchen and had two additional employees on site. He spoke with Inspector Rowntree and P.C. Plomp after they had dealt with the patron, assuring them he did not serve the minor.

17The witness stated three people came into the bar. He checked the identification of two people before giving them two glasses and a pitcher of beer to take onto the patio. Another person was seen going into the washroom and Mr. Bishar was told by her friends she would not be drinking. He never saw the minor during the time she had her identification checked and was subsequently charged by police.

18The Licensee's Counsel presented Exhibit #1, asking Mr. Bishar to confirm statements made in this submission. Mr. Bishar stated he had not checked the identification of the third person and did not see her again. He did not know if this was the same group of people the police had dealt with outside the Premises.

19Mr. Bishar stated he regularly circulates through the Premises, but did not recall doing so on this night since it was quiet.

Registrar's Submissions

20As stated in the NOP, the Licensee failed to check identification before serving a minor, a minor on the Premises was seen to be consuming liquor and liquor was supplied to a minor. The minor was 17 years old and observed drinking on the Premises by both the Inspector and the police officers. She was observed to have a strong smell of alcohol on her breath, slurred speech, red eyes and was swaying.

21The owner's statement indicates agreement that the minor was on the Premises for approximately one and a half to two hours. There was no indication as to how she got the liquor, but it is known that a pitcher of beer was on the table and had been served to her two friends.

22The Licensee is responsible for both the direct and indirect supply of alcohol, whether alone or in combination with others. Indirect sale and supply occurs by "permit" when a minor is found drinking in an establishment. There was clear evidence the minor was showing signs of intoxication, as described by Inspector Rowntree and P.C. Plomp. The minor consented to a roadside breathalyser and subsequently failed the test.

23It is evident the minor was drunk and had been on the Premises from one and a half to two hours without having her identification checked. The Licensee failed to "prevent" a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises and the Registrar therefore requests a finding under subsection 30(4) of the LLA.

Licensee's Submissions

24Mr. Button stated the evidence did not support an allegation of riotous and/or disorderly behaviour. Therefore the only question is one of drunkenness. The evidence was limited as to the signs of intoxication and the Inspector did not have details in his notes, relying only on his memory and recall. The police evidence referred to the young looking patron's speech being a bit "slurry".

25Concern was expressed about differences in evidence. There was a discrepancy between Inspector Rowntree's testimony, which stated the police officers were in attendance in both uniform and plainsclothes, while P.C. Plomp stated all the officers were in plainclothes.

26The Inspector and police waited for the young looking patron to take one sip of beer before proceeding to check identification. If the owner "permitted" drunkenness, there would have to be some prior knowledge of drinking. There was no evidence of behaviour that would draw attention to her. There is no evidence the liquor was sold or served to her and the pitcher with two glasses was given to the two people who had presented identification. It is not known how long she was in possession of liquor.

27In giving evidence, Inspector Rowntree stated the minor was "falling into police". However, there was nothing in his notes and P.C. Plomp did not mention this happening. There was no evidence indicating the minor's behaviour drew attention. She was "not loud or obnoxious".

28It is the duty of the Licensee to inspect the Premises regularly and the duty to verify identification may occur when a person is plainly and obviously under the age of 19. A roadside test is not concrete evidence and this case should not be based on probability.

Reply

29There is an obligation on the Licensee and employees to oversee patrons at all times. There is no evidence of employees doing anything in this case. When the minor was asked, by the Inspector and police to come to the bar, she had difficulty walking and was falling as she tried to sit down. The Licensee must be rigorous regarding its duties and responsibilities and an owner cannot claim to have no knowledge.

Reasons and Findings

30The Board has given careful consideration to all of the evidence and submissions, including the cases presented for review.

31The Board accepts the evidence that the young lady appeared to be under the age of 19 and warranted the police and Inspector asking for identification when they observed her taking a sip of beer.

32The evidence is clear the minor was displaying signs of intoxication as described by the Inspector and the police officer when they started questioning her. The minor had admitted to drinking at home before entering the establishment.

33There was no evidence, however, that the minor was behaving in an unruly or disorderly manner before or during the investigation by the Inspector and the police officers. Nor was there any evidence that she displayed any signs of drunkenness when she entered or while she remained on the Premises prior to the questioning by the Inspector and the police officers. For example, when the minor was walking to and from the washroom there was no evidence that her behaviour would lead the Licensee to suspect that she was drunk. As well the attention of the Inspector and the police was drawn to her, not because she appeared to be drunk, but because of her young age and that she was observed consuming beer. Her signs of being intoxicated became apparent only after she was questioned. From the evidence presented by all parties, it appears the minor was quiet during the time she was at the Premises and was cooperative with the Inspector and the police. The Board finds the evidence does not support a finding that the licence holder permitted drunkenness or disorderly conduct on the Premises contrary to subsection 45(1) of the O.Reg.

34The Licensee and staff have a responsibility to monitor and deter drinking by minors on the Premises. The Licensee checked the identification of two members of the party prior to serving them a pitcher of beer and two glasses. He did not serve the minor and was specifically advised that the minor would not be consuming any alcohol, as confirmed by the request for two glasses only. The Board finds, therefore, that no person sold or supplied liquor to a person who appears under the age of nineteen years of age, contrary to subsection 30(4) of the LLA.

35There was no reason for the Licensee to request any identification of the minor, as there was no reason to believe that the minor would be consuming alcohol. The Board finds, therefore, there was no breach of subsection 41(1) of the O.Reg which requires the licence holder to ensure that, before liquor is sold or served to a person apparently under the age of nineteen years, an item of identification of the person is inspected.

36The minor and her friend both admitted that the minor had consumed liquor on the Premises. She was also observed to be doing so by the Inspector and the police. Although the Licensee stated that he regularly circulates through the Premises, he did not recall doing so on that night, notwithstanding that a minor was with her two friends with a pitcher of beer on a patio that was largely out of sight, by the Licensee’s own admission, for approximately one and a half to two hours, thereby permitting a person who appears to be under the age of nineteen years of age to have or consume liquor in the licensee’s licensed premises, contrary to subsection 30(4) of the LLA.

Conclusion

37For the reasons given, the Board FINDS the Licensee violated subsection 30(4) of the LLA. The Board DISMISSES the allegation of violations of subsection 30(2) of the LLA and subsections 41(1) and 45(1) of the O.Reg.

38The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file 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 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.