Registrar, Alcohol and Gaming Commission of Ontario v. 1521141 Ontario Ltd. O/A The Niblick, 2008 CanLII 91982

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-

1521141 Ontario Ltd. O/A The Niblick

Licensee

DECISION ON FINDINGS

Panel: David C. Gavsie, Chair, AGCO

Eleanor Meslin, Board Member

Decision Date: November 7, 2008

Hearing Location: Toronto, 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 ) Richard Kulis, Representative

1521141 Ontario Ltd., Licensee ) Randall Barrs, Representative

1166134 Ontario Inc. (c.o.b. Nashville North) v. Ontario (Alcohol and Gaming Commission of Ontario, [2006] O.J. No. 2567

Birchmount Restaurant v. Ontario(Liquor License Board), [1998] O.J. No. 1367

R. v. 1052928 Ontario Ltd. (c.o.b. Hooterville Station), [1998] O.J. No. 2367

Allegations

1. A hearing into a Notice of Proposal number 15960 dated January 28, 2008 to suspend liquor licence number 810064 (the “Licence”) issued to 1521141 Ontario Ltd. operating as THE NIBLICK, 1011 Upper Middle Road, Building E, Oakville, Ontario, L6H 4L1 (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), 45(1) and 45(2) of Ontario Regulation 719/90 (“O.Reg 719/90”) made pursuant to the LLA, was held on May 7 and September 29, 2008 in the City of Toronto.

Decision

2. After carefully considering all the evidence and submissions the Board FINDS the Licensee has contravened subsections 45(1) and 45(2) of O.Reg 719/90. Reasons to follow.

Preliminary Matters

3. A motion to exclude witnesses was granted on consent.

Exhibits

#1 – Notes of Constable Leon Miklos Dated July 6, 2007

#2 – Photo of Outside Patio

Registrar’s Evidence

4. Scott Heyerman, a police officer, attended the Premises, in plainclothes, on July 6-7, 2007, with other officers. On arrival he noticed a number of intoxicated patrons and some patrons also appeared to be under age.

5. At 1:20 a.m. when he went out to the patio he saw a drug-dealer, known to him as J.R. approach another male, who was handing J.R. a $50 bill. J.R. accepted it, turned to take out his wallet and remove a white packet, which looked like cocaine, and a $10 bill. He palmed both and then shook hands with the other male, making the exchange. The male then put both the bag and the bill in his pocket. The officer was about 10 feet away at the time and had an unobstructed view of the exchange.

6. He advised Officer Miklos and arrested J.R.. After searching him, $892 mainly in $20s was found in his wallet and a cell phone with a message requesting drugs. His wallet also contained a white powdery residue inside it. J.R. was then transported to 20 Division in Oakville.

7. Officer Miklos arrested the other male and charged him with drug possession.

8. Officer Heyerman identified a number of intoxicated patrons to the uniformed officers present. They had slurred speech, many were yelling and stumbling.

9. The clientele appeared to be mostly between 19 to 24 years old. The officer observed two doormen checking I.D.s.

10. In response to Mr. Barr’s questions, the officer agreed that he could not tell age by first looking and that many underage college students had fake I.D.s. He admitted that he had not requested I.D.s from any of the patrons, only pointed them out to the other officers.

11. Regarding J.R., Officer Heyerman admitted that he did not advise the owner about him. He indicated that most people would not have been aware of the drug exchange. He stated that there had not been any drug arrests at the premises, either before or after this incident.

12. During the arrest of J.R., he had argued and tried to pull away from the officer. People on the patio appeared to know J.R. and were asking him what was happening as he was taken away.

13. Leon Miklos is a police officer with the Halton Regional Police, who attended at the premises on July 6-7, 2007, in plainclothes, with four other officers. They were part of a pro-active liquor project, visiting a number of bars in the area that night.

14. Officer Miklos arrived at 12:20 a.m., noted that the bar was unusually busy with about 115 patrons inside and about 68 on the patio. He noted one doorman checking I.D.s but no security staff on the patio or regulating the bar area, only 2 or 3 bar staff and the owner.

15. Ten or twelve people appeared to be underage and several patrons appeared intoxicated. Two of the males were stumbling around the tables, spilling beer. They had bloodshot eyes and slurred speech.

16. One female with alcohol on her breath looked underage. When asked her age she said she was eighteen and admitted to using fake I.D. and being served alcohol. Her name was N.W..

17. Officer Miklos asked Constable Knibb to I.D. two males. Both had false I.D. One, R.B. had his brother S.B.’s I.D. and the other, D.P., had the I.D. of someone named Slade. Both males were drinking beer at the time.

18. At 1:20 a.m. he and Officer Heyerman went out to the patio where he also observed the drug transaction involving a male he knew from prior charges. When Officer Heyerman approached the seller, he approached the other male.

19. Officer Miklos searched him and found a dime bag, a $10 bill and a white substance in his pocket that he admitted was cocaine which he had just purchased for $40.

20. Officer Miklos also noted that this male appeared intoxicated, with a strong odor of alcohol, bloodshot eyes and was unsteady on his feet. His name was C.M. and he admitted to consuming six pitchers of beer. He was arrested and transported to the Oakville Police Station to sober up before he was able to make a statement.

21. In response to Mr. Barr’s questions, Officer Miklos indicated he believed there were nine or ten underage patrons, but he did not I.D. all of them, although three were I.D.’d as underage.

22. After observing a number of patrons, for about 30 minutes, he saw them drinking and yelling at the police. He spoke to three of them, including a female who admitted to having false I.D., although he did not ask her to see it.

23. He observed the drug buy with Officer Heyerman but did not tell Mr. Service about it. He did not know Mr. Service, or that he was the owner.

24. To the Board’s questions, Officer Miklos indicated that he did not know if the six pitchers of beer, admitted to by C.M., were consumed in the bar. He also indicated that the confiscated baggie had been identified as cocaine by the Forensic Sciences Centre. The purchaser was arrested but he did not know the outcome of the arrest.

25. Responding to Mr. Kulis’ questions, Officer Miklos testified that in the parking lot, after the arrest, he told C.M. that the arrest was for possession and that, from a body search, he found the $10 he had seen being put in the buyer’s left hand pocket when he had taken the baggie.

26. N.W. attended the bar on July 6-7, 2007 with two friends at about 10:30 p.m. She generally attended on Fridays with her high school friends. Her I.D. was checked at the door. It was a fake I.D. with her name, picture and postal code. It was not an Ontario government issued card. Security examined it and allowed her to enter, without asking any questions.

27. She testified that she had a vodka drink at home before attending the bar, but did not drink while in the bar.

28. When the uniformed officers arrived she tried to leave to avoid trouble but was stopped by an undercover officer, asked her age and for I.D. She gave him her Ontario Health Card, not the fake I.D. He asked how she got in and she said through the front door. She was not charged but sent home. Now 19, she has been back to The Niblick and always had her I.D. checked at the door.

29. In response to Mr. Barrs, N.W. indicated she often has a pre-drink before attending the bar. She also said that the police officer did not ask her if her I.D. was checked or if she had a fake I.D.

30. At this point, Mr. Kulis advised the Board that the Registrar was withdrawing allegations of violations of subsections 30(2) and 30(4) of the LLA and subsection 41(1) of O.Reg 719/90.

31. Paul Craig, a police officer, attended the premises on July 6-7, 2007 at 12:20 a.m. in plainclothes. It was very loud and busy. He observed several patrons who appeared to be underage and approximately 80 intoxicated patrons. Many were yelling and stumbling with bloodshot eyes. He reported this information to the uniformed officers at 1:00 a.m.

32. He assisted Const. Heyerman with a person they observed to be trafficking in narcotics on the patio. He saw $50 being passed to the seller. The individual resisted Const. Heyerman and had to be handcuffed. Many patrons were asking questions that made the officer fearful for his safety.

33. To Mr. Barrs' questions, Officer Craig indicated that he did not I.D. any intoxicated patrons or inform the Licensee about them. No breathalyser tests were conducted.

34. Amanda Higuera, an AGCO Liquor Inspector, attended the premises in plainclothes on July 6, 2007 at 9:54 p.m., did a walk-through and told the owner she would return later. She returned on July 7 at 12:57 a.m. She noted that there was one security staff at the front door, three bartenders, two wait staff and the owner.

35. One male, early 20’s, was removed from the premises. He had a strong odor of alcohol, red glossy eyes, and slurred speech. He told her that he had been served and consumed two beers in the premises and that he drank a mickey of vodka and some Red Bulls before arriving.

36. Inspector Higuera had also found two males with false I.D. in the premises. She advised the owner of the fake I.D. and intoxication infractions.

37. When she proceeded to the patio, where the police were dealing with a drug issue, she did not see any security staff.

38. In response to Mr. Barr’s questions, Inspector Higuera testified that she had done no intoxication tests on the male patron or obtained his I.D.

Licensee’s Evidence

39. James Service, the owner, opened the bar in March 2003 as a neighbourhood pub to encourage families to attend together. The inside has a capacity of 140 and the patio of 100 patrons. (Exhibit #2 – Photo of outside view of the bar and doors to inside and patio). The hours of operation are weekly from 11:30 a.m. to 9:30 p.m. and Saturday and Sunday from 10:00 a.m. to 2:00 a.m.

40. The bar caters to families and students from Sheridan College. Mr. Service testified that he had a good relationship with the police, who often visited the bar and had no previous problems with the AGCO. He had agreed to allow police to run voluntary breathalyser tests, in the evening, on the premises.

41. As a result of the July incident he has extended the height of the patio fence from 3 feet to 7 feet and covered the top with axle grease as police recommended. He also hired professional security for Friday and Saturday on the advice of the police and closes at 1:00 a.m. He hired Ken Stockstill, the head of security for the mall, for weekends. He has raised entry to 21 years and stamps the hands of those I.D.’d for entry.

42. On July 6-7, 2007 he had 15-16 on staff – 6 in the kitchen, 5-6 wait staff, 2 bartenders, a manager, Ken Stockstill and himself. Ken was at the main door and had a view of the patio, and the Licensee checked the bar and patio, regularly. He has never had drug allegations made and would never allow drugs on the premises. He did not see any patron taken outside by police, but saw one male ticketed for talking back to police. He was not advised by the officers of intoxicated patrons, but was told of the drug transaction by police as they were leaving.

43. Mr. Service testified that all his servers are certified and if there is any indication of intoxication they must stop serving the person. If they argue they are asked to leave and if they talk back they could be banned from the bar. He indicated that he knows most of the patrons.

44. In response to Mr. Kulis, Mr. Service indicated that he did not have Smart Serve training himself. He believed that since he did not serve alcohol, it was not required. He has taken no liquor licence courses. He outlined the signs of intoxication as – staggering, slurred speech, number of drinks per hour.

45. In terms of staff training, he had hired Pub Concepts, a company that built pubs and had experienced managers that advised him about requirements.

46. He testified that he has never had drug problems in the bar, that he relied on his staff to report on any. After the July incident he advised his staff to be more diligent, by looking at new patrons who may be wearing t-shirts or making frequent visits to the washroom.

47. One to two weeks after the incident he hired a professional security company (Dragon). The principal of the company meets regularly with AGCO Inspector Higuera.

48. Mr. Stockstill was hired to scrutinize I.D.s and only accept passports or driver’s licenses. He is not Smart Serve trained.

49. Kenneth M. Stockstill is the site supervisor for the upper Oakville Shopping Centre. He handles maintenance and hires security. He also works at Niblicks, on the door and as night security. He checks I.D.s for either a passport or driver’s licence and is aware of out-of-province I.D. which is not acceptable. He has a good relationship with police whom he has had to call on occasion.

50. On July 7, 2007 he worked security at the front door. He stood just outside so he could also observe the patio, watching that no one jumped over the fence. He saw J.R. arrested and taken away in handcuffs. He has never returned. He did not see J.R. on the patio that night or see any drug transactions. Although there were no drug issues at The Niblick, there were drug problems in the mall. He did not see any intoxicated patrons that night. He knows many of the young people who attend that mall and The Niblick – 40% are regulars, but he still checks their I.D.s.

51. Responding to Mr. Kulis, Mr. Stockstill stated that he was not Smart Serve trained and had no formal security training. He stands just outside the front door, all night and does not go inside. When he checks a driver’s licence he looks at the portion for the date of birth. He did not know there was also a serial number that gives the birth date.

52. In response to a Board question, he stated that there was light above the patio and a spotlight over the entrance.

53. Michael Donnelly operates a security business – Michael Donnelly and Associates. He was formerly a police officer (1975 – 1985) with Toronto Police Services and operated, in uniform, with the Major Crimes Unit doing drug dealing and LLA compliance.

54. He was a patron at the bar on July 6 – 7, 2007 at the time of the inspection by uniformed officers. He saw Mr. Stockstill at the door checking I.D.s and saw him turn away some underage people. He has known Mr. Stockstill for 2 – 3 years. He also saw Sgt. Clark checking I.D.s and heard a woman, age 40 – 50 ask him to check hers. One young man was asked to leave but Mr. Donnelly didn’t know why. He did not see anyone who was intoxicated or see or smell any drugs that night. He is a regular customer attending 2-3 times a week and has attended with RCMP and other police officers. He would not attend if he knew of drugs on the premises. He knows Mr. Service and believes he would not tolerate drug activity, or intoxication in the premises.

55. Responding to Mr. Kulis, Mr. Donnelly stated that in 1983-1984 as a police officer he had done liquor licence inspections and checked underage I.D. both in uniform and in plainclothes.

56. He had arrived at approximately 8:00 p.m. – 10:00 p.m. on July 6, 2007 and was seated near the front door. On a number of occasions he had stepped out on the patio to talk to friends. He saw the uniformed officers arrive but did not recall seeing anyone taken out in handcuffs. He did not see the patio arrest.

57. In response to a Board question he stated that he had never worked for Mr. Service as security, only his son had worked in the kitchen in the past.

Registrar’s Submissions

58. The Registrar is not impuning the Licensee’s service. He is very involved in the community, wants to operate a good establishment and not attract any drug activity.

59. However on July 6-7, 2007 there was drug activity that should have been Mr. Service’s responsibility to stop. He had no Smart Serve training, did not know all the signs of intoxication, had very little knowledge of drugs and believed drug activity took place in Toronto, not in Oakville.

60. Regarding Mr. Stockstill, he had no liquor licence security training. He was only at the front door, checking I.D’s, not on the patio.

61. The police evidence regarding drugs is uncontroverted. Mr. Donnelly should have been aware of J.R. with his marijuana T-Shirt.

62. The police clearly saw the drug transaction, the wallet was out for the money exchange with the bag containing a white substance. Both patrons were arrested and the takedown was not discreet. There was more than enough evidence that a drug action was done in plain view in violation of subsection 45(2). To say there are no drugs in Oakville is not a defence.

63. Office Miklos gave evidence that J.R. was too drunk to be interviewed and was therefore handcuffed and removed. At the time, the officers noticed many intoxicated patrons on the patio. After the arrest, they returned to the patio and Officer Miklos testified that they would have made more arrests for intoxication, but because of the large crowd they were concerned it could become rowdy.

64. Officer Craig and Inspector Higuera testified to the number of intoxicated patrons and the rowdy crowd. It is not necessary to have consumed alcohol in the premises to find drunkenness in the premises. There was no evidence from the Licensee of dealing with any drunken patrons. Mr. Service was not capable of determining intoxication and any of the steps he has taken since the incident only goes to mitigation of sanctions, if any.

65. The Registrar submitted that on the evidence of the police there was a violation of subsection 45(1). The Registrar has withdrawn allegations under subsections 30(2), 30(4) and 41(1) of O.Reg 719/90.

Licensee’s Submissions

66. Mr. Barrs questioned the evidence of the police. He pointed out the Const. Heyerman was wrong about minors being served on the patio at 1:20 a.m. J.R. was known to him and he believed J.R. was into drugs. His clothing was of no consequence. Mr. Service did not know J.R. or have reason to suspect him.

67. Const. Heyerman saw a man pass J.R. a bill and saw J.R. take out his wallet and pass a bag to him. There was no search and there is no evidence that this was a narcotic that was exchanged. There is no evidence of the outcome of the arrest or of an analysis of the substance. Staff were in and out of the patio and did not see any transaction. In 5 years, no one has ever been arrested on the premises for drug activity. Mr. Service did not know J.R. and police did not tell him about J.R.’s past drug activity.

68. The police allegations of drunken minors were not proved. There were no names, addresses or direct evidence given. Inspector Higuera’s evidence was unreliable, uncorroborated and no I.D.s were made of the patrons.

69. Mr. Donnelly’s evidence was that no one was drunk and it was very noisy and boisterous. These were college students.

70. Although police testified about people who appeared to be intoxicated, no one was identified.

71. Although Officer Miklos testified that J.R. was intoxicated, there was no evidence of his consuming alcohol and he was not arrested for intoxication.

72. Regarding Officer Craig’s evidence of intoxication, there was no evidence of anyone being over served or seen consuming alcohol. No one was pointed out to Mr. Service by the police as intoxicated except for N.W. who admitted to drinking at home before arriving.

73. Mr. Service testified that he was always there and knows most of the patrons. He has never had problems with the police and many of them are patrons.

74. On July 7, 2007 there was an experienced doorman in attendance and 16 staff. No staff witnessed a drug deal, no one knew J.R. or were told about him by police. The crowd was noisy but no one appeared to be intoxicated and no one was pointed out by police as being intoxicated. Mr. Service was not told about J.R. and the drug transaction until after he was arrested. There has never been a drug problem at The Niblick. This was an isolated incident that could not have been stopped by staff.

75. Mr. Stockstill has had experience with alcohol and drug abusers and did not see J.R. make the deal or know about him. He did not see anyone intoxicated that night. Mr. Donnelly did not see the drug transaction or any intoxication.

76. The issue is not that Mr. Service is not Smart Serve trained, but that he has operated the premises for 5 years without problems and would not tolerate drugs in his establishment. He could not have permitted the drug transaction since it happened so fast.

77. Since the police did not identify any intoxicated patrons and no arrests were made for intoxication, their evidence should not be accepted.

Reply

78. The Registrar cited 3 decisions: Nashville North, Birchmount Tavern and Hooterville, that stand for the premise that there is no requirement to provide the names of intoxicated patrons to make a finding of intoxication and that the test for drunkenness is drunken simplicitor.

79. There is substantial evidence of a drug transaction with 2 police officers observing it. They described the package as cocaine, and found it on the purchaser. Subsection 45(2) could be used regarding an “offer to sell”, even if it was not a narcotic but was held out to be a narcotic.

80. Mr. Service could only give 2 descriptors for intoxication, showing limited training in describing drunks. Mr. Stockstill could not see the intoxicated patrons because he was at the door checking I.D.s. Although Mr. Donnelly saw no drunks, 5 officers and one AGCO Inspector saw them and described the signs of their intoxication.

81. Mr. Barrs accepted and agreed with the cases cited but submitted that not producing names should go to weight regarding the findings.

Analysis & Reasons

82. The Board notes that the Registrar has withdrawn subsections 30(2) and 30(4) of the LLA and subsection 41(1) of O.Reg 719/90.

83. Dealing first with the drug transaction. Officers Heyerman, Miklos and Craig witnessed a drug transaction on the patio involving J.R., who was known to Officers Heyerman and Miklos from previous drug charges. At the time, Officer Heyerman was approximately 10 feet from J.R.. The confiscated baggie was later identified as cocaine by the Forensic Sciences Centre.

84. Although Officer Heyerman testified that most people would not have been aware of the drug exchange, it is the responsibility of the Licensee to have security staff trained to be on the alert at all times for drug transactions and to recognize them when they see them. Excuses, such as those given by Mr. Service, that he knows most of his patrons, does not tolerate drugs and does not believe they are a problem in Oakville, are not acceptable.

85. The Licensee’s argument that he did not know J.R. and that police had not previously told him about J.R.’s past goes to weight and is not of sufficient weight to release the Licensee from his responsibility to have his staff able to recognize a drug deal taking place in the Premises.

86. The fact that neither Mr. Stockstill nor Mr. Donnelly saw a drug deal take place does not assist the Board.

87. The Board accepts the evidence of Officers Heyerman, Miklos and Craig that a drug transaction did occur on the patio on July 6-7, 2007 and, therefore, finds a violation of subsection 45(2) of O.Reg 719/90 in that the Licensee permitted a person to sell a controlled substance on the premises.

88. Regarding the Registrar’s allegations of intoxication on the premises, the Board accepts Officer Miklos’ evidence of an intoxicated patron, whom he identified as C.M., one of the parties to the drug transaction, who admitted to consuming 6 pitchers of beer. Office Miklos also listed the following signs of intoxication that he had observed – strong smell of alcohol, bloodshot eyes and unsteady on his feet.

89. In addition, Inspector Higuera testified that she removed a male from the Premises who had told her he had consumed a mickey of vodka and several Red Bulls before arriving and was served and consumed 2 beers while on the premises. She described him as having red glossy eyes, slurred speech and a strong smell of alcohol. The Board accepts Inspector Higuera’s evidence.

90. Both Mr. Stockstill and Mr. Donnelly testified that they did not see any intoxicated patrons that night. Mr. Stockstill was outside the front door and said he did not go inside at all that night. Unless a patron left or entered appearing intoxicated he was not in any position to observe intoxicated patrons in the Premises. Mr. Donnelly was a patron that evening, is a friend of Mr. Service and a supporter and unlikely to admit to seeing intoxicated patrons. The Board does not accept their evidence where it conflicts with that of the Registrar’s witnesses.

91. Mr. Service has testified that even though he does not have Smart-Serve qualifications, all of his staff is Smart Served. The Board does not accept Mr. Service’s reasons for not being Smart Serve trained. It is incumbent on a Licensee, who regularly attends at the establishment to have successfully completed a server training course approved by the Board of the AGCO to adequately enforce the Liquor Licence Act.

92. The Board accepts the evidence of both Officer Miklos and Inspector Higuera and FINDS that the Licensee permitted drunkenness on the licensed premises in violation of subsection 45(1) of O.Reg 719/90.

Conclusion

93. For the reasons given, the Board finds the Licensee violated subsections 45(1) and 45(2) of O.Reg 719/90.

94. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his/her written submissions within ten (10) days of the date of this decision. The Licensee’s representative shall have ten (10) days to serve and file his/her written response. Registrar’s Representative may serve and file any reply within five (5) 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 7th DAY OF NOVEMBER, 2008.

DAVID C. GAVSIE, CHAIR, AGCO ELEANOR MESLIN, BOARD MEMBER

EM/cp