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-
3761061 Canada Limited O/A Barefax Licensee
DECISION ON FINDINGS
Panel: Beryl Ford, Board Member Allan Higdon, Board Member
Decision Date: March 18, 2009
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 3761061 Canada Limited, Licensee ) John Cardill, Representative
Allegations
[1]. A hearing into Notice of Proposal number 16607 dated September 5, 2008, to suspend liquor licence number 800818 issued to 3761061 Canada Limited, (the “Licensee”) operating as BAREFAX, 27 York Street, Ottawa, Ontario, K1N 5S7, (the “establishment” or the “premises”) on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (LLA), was held on February 3, 2009 in the City of Ottawa.
Decision
[2]. After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
[3]. Registrar's Counsel requested an order to exclude witnesses.
[4]. Licensee's Counsel asked that the manager, who intended to testify, be permitted to remain present at the hearing. He is the only person affiliated with the Licensee who was in the premises on the night in question and in attendance at the hearing. Counsel needs his advice in order to represent the Licensee.
[5]. Registrar's Counsel replied Licensee's Counsel has disclosure of witnesses’ notes and these should be sufficient for him to adequately represent his client. In addition, the manager is not an officer or director of the Licensee’s corporate body and, as such, has no legal right to be excused from exclusion if he intends to testify.
[6]. The Board ORDERED the manager be excluded as he intends to testify and is not an officer, director or shareholder of the corporate Licensee. His place with Licensee's Counsel was taken by Mr. Frank Bentivoglio, a shareholder and 100% owner of the corporate Licensee.
[7]. Licensee's Counsel stated he had attempted to speak to a witness in the corridor before the hearing but had been prevented from continuing by Registrar's Counsel.
[8]. Registrar's Counsel replied it is the choice of a witness if they wish to speak to counsel. She did not prevent a witness from speaking to the Licensee’s representative. This is an administrative tribunal and there is no right of discovery immediately prior to the beginning of proceedings.
[9]. The Board RULED the objection had no merit as Licensee's Counsel has the opportunity to cross-examine any witness and ask any questions considered appropriate. As such, there is no prejudice to his client in not speaking to a witness immediately before the start of the hearing.
Registrar’s Evidence
[10]. Stephane Godard has been an inspector with the AGCO since May 1994. The Inspector arrived at Barefax at 12:40 a.m. on the night of January 19, 2008 with several police officers for a routine inspection of the premises.
[11]. During the inspection the witness observed a male patron (patron #1) sitting at a table near the stage area close to the main bar.
[12]. The patron attracted the Inspector’s attention as he had his head down on the table and was not moving, despite the fact that performers were on the stage and loud music was playing.
[13]. The witness stated Constable Khalid of the Ottawa Police Services approached patron #1 and had to shake him to wake him up. The witness was standing a few feet away and observed the man woke with a surprised look on his face and appeared lost. His eyes were glossy and had a fixed stare. He was unsteady while sitting on his seat and swayed from side to side. His face was pale.
[14]. The manager of the club, Daniel Simpson, was standing next to the witness. The manager spoke to the server who had served patron #1. The manager told the Inspector the server stated she had served patron #1 three 60 ounce pitchers of beer in addition to a few shots of alcohol since he arrived at the club around 6:30 p.m., approximately six hours before the inspection.
[15]. The manager stated patron #1 had been “cut off” about an hour earlier due to signs of drunkenness yet the patron had a glass of draft beer in front of him.
[16]. The patron was Caucasian, balding, mid 30’s and wore a dark shirt and blue jeans.
[17]. Patron #1 was with a male friend (patron #2) who also had a beer in front of him. The witness stated he did not recall how many glasses were on the table.
[18]. The witness then advised the manager that intoxicated patrons must be removed from the premises. The Inspector told the manager the Licensee was not allowed to permit drunkenness.
[19]. Police put patron #1 in the care of his friend and asked them to leave. They did so.
[20]. The Inspector advised the manager a report on the incident would be filed and his supervisor would decide if prosecution would proceed.
[21]. The Inspector told the manager Ontario law stipulates that intoxicated patrons had to be removed from an establishment. The manager said he was familiar with the liquor laws of Quebec but he was new to Ontario and did not know such a provision was the law here.
[22]. The witness could not recall if he had ever met the manager before.
[23]. On cross-examination, the witness stated he had been working in the market area of Ottawa since February 2005. He had also worked there before in 2001 for a period of three years.
[24]. The Inspector stated there have not been any prior incidents or complaints with this establishment.
[25]. The Inspector testified consideration is given if the removal of a patron is underway when an Inspector visits premises. It is not acceptable for an intoxicated patron to be sitting at a table with a beer in front of him, allegedly while sobering up prior to removal.
[26]. The Inspector confirmed he was told by the manager the server had sold three 60 ounce pitchers of beer and several shots of liquor to patron #1.
[27]. On reply, the witness was asked if bar staff were doing anything to deal with patron #1 when first observed. The Inspector replied, “No.”
[28]. Mehdy Khalid has been a member of the Ottawa Police Services for ten years. The witness arrived at the establishment at 12:43 a.m. with two other officers and the AGCO Inspector. All were in uniform.
[29]. The group was on a routine inspection of licensed premises.
[30]. The witness walked through the premises checking for infractions. He got to the bar area at the back of the establishment and noticed a male who appeared to be passed out at a table near the stage.
[31]. The witness and another officer approached the table. Patron #1 was slouched over the table. Another male (patron #2) was also sitting at the table.
[32]. Patron #1 was sleeping on one arm at the table, apparently passed out. His friend was drinking beer.
[33]. The witness attempted to wake up the patron. He had to shake him awake. Patron #1 became conscious but appeared to have no idea where he was or who the police were although they were in uniform.
[34]. Patron #1 had problems identifying himself verbally. He had slurred speech, was incoherent, had bloodshot eyes, and had a strong odour of alcohol on his breath.
[35]. The patron was groggy and not very co-operative. The police obtained his name and date of birth and asked him to leave with his friend. It took some time for the patron to get up, get his coat and get into a taxi.
[36]. Patron #1 was definitely in a high state of intoxication. He had problems walking, was staggering and swaying very heavily and had to be helped to walk by his friend.
[37]. On cross-examination the witness stated there were several bottles of beer on the table but he could not remember if there were 60 ounce pitchers.
[38]. There were no questions on reply.
[39]. In response to the panel, the witness stated patron #2 was also intoxicated, but not sufficiently impaired that he could not take care of his friend.
Licensee’s Evidence
[40]. Daniel Simpson is manager of Barefax. He has been in the bar business for 18 years, with 13 of those years in Gatineau, Quebec and the last three as manager in Ottawa.
[41]. The witness stated Quebec law requires that if a person is intoxicated a doorman should take the patron to a taxi to ensure they get home safely. If a patron was intoxicated they would be served coffee until sober. They would not be sent home until it was safe to do so.
[42]. The server who served the allegedly intoxicated patron was discharged as she was spending too much time talking to friends and not paying enough attention to her customers. She was also fired in part because of this incident.
[43]. The witness observed the allegedly intoxicated patron (patron #1) before the arrival of police and the Inspector. He saw the man go to the far end of the club to visit the washroom and return. The man had no problems walking.
[44]. The witness said the establishment does not serve 60 ounce pitchers of beer. Mr. Simpson never mentioned such a size to the Inspector.
[45]. The witness agreed patron #1 was served two to three pitchers of beer. Service had been cut to the patron and staff was giving him time to sober up.
[46]. The witness stated he was certified SmartServe.
[47]. On cross-examination the witness stated the establishment did serve pitchers of beer. Patron #1 had been stopped about one hour before the police and Inspector arrived.
[48]. The server had given the patron two to three pitchers of beer and several shots of liquor. These shots had been divided among the patron, his friend and dancers.
[49]. The witness stated he did not see which server was serving the patron.
[50]. The witness told the Inspector patron #1 had been cut off and he was waiting for the patron to sober up.
[51]. The Inspector had replied that in Ontario intoxicated patrons had to be removed from a licensed establishment. This is a different regulation than applies in Quebec.
[52]. The witness stated he had “probably been told” by management that intoxicated patrons had to be removed.
[53]. There were no questions on reply.
[54]. Responding to questions from the panel, the witness stated the pitchers at the establishment were 32 ounce pitchers. Two or three of these had been served to the table of patron #1. Both patrons had been in the premise since 6:30 p.m., or approximately six hours.
[55]. The witness confirmed that he had seen patron #1 walk the length of the premises to go to the washroom near the front door and had seen no signs of intoxication. This occurred about five to 10 minutes before the officers and Inspector arrived.
Submissions
Preliminary Issue
[56]. Before submissions began Licensee's Counsel, on behalf of the Licensee, agreed and acknowledged that an intoxicated person had been on the premises of Barefax on the night of January 19, 2008.
Registrar's Submissions
[57]. Counsel for the Registrar stated the person found intoxicated on the premises was in an extreme stage of drunkenness as he was “passed out” and asleep at his table. Clearly, the Licensee had violated subsection 45(1) in that he had failed to prevent drunkenness on the premises.
[58]. The patron was found at the rear of the establishment with no staff in the vicinity. Testimony indicated the patron had been cut off an hour earlier yet no attempt had been made to remove him from the premises.
[59]. The manager stated he did not know he had an obligation to remove a drunken patron from the premises.
[60]. The manager initially stated he did not know the difference in the rules between the liquor enforcement regimes of Ontario and those of Quebec where he had worked for many years.
[61]. Ignorance of the rules and regulations applicable in Ontario under the LLA is no excuse. It is clear the manager is not sufficiently trained for his responsibilities.
[62]. The manager stated he saw no signs of intoxication in the patron. This is not credible.
[63]. Counsel for the Licensee has acknowledged that a patron was drunk on the premises.
[64]. Clearly, no attempt was made to prevent drunkenness in the case of patron #1. The Licensee is therefore in breach of subsection 45(1).
Licensee’s Submissions
[65]. The manager stated he allowed intoxication patrons to sober up so they could get home safely.
[66]. This was done in good faith.
[67]. The goal of the manager was to ensure customer safety.
[68]. The manager was candid in his testimony and made no attempt to be evasive or perjure himself.
[69]. The impetus behind the manager’s actions was his sense of responsibility to ensure the patron did not injure himself or anybody else.
[70]. The manager did his job properly in supporting the server who cut off patron #1 from the service of liquor.
Registrar’s Reply
[71]. Registrar's Counsel stated it does not constitute safe practice when an intoxication patron is permitted to sit at a table for at least an hour with a glass of beer in front of him.
[72]. The manager stated patron #1 did not exhibit signs of intoxication when he walked from one end of the premises to visit the washroom just five minutes before the arrival of police and the Inspector.
[73]. Yet the manager supported the server in her decision to cut off patron #1 from liquor service an hour before their arrival due to the intoxicated state of the patron.
[74]. Clearly, the manager appears to be trying to keep his employer out of trouble.
Analysis and Reasons
[75]. Licensee's Counsel acknowledged that an intoxicated person was on the premises on the night of January 19, 2008.
[76]. The manager claimed he was unaware of the requirement under the LLA to remove an intoxicated person from licensed premises. Yet this manager is in his third year of managing a bar in the province for three years. It is not credible that a person with such responsibilities is unaware of such a basic requirement of the LLA after working in this jurisdiction for five years.
[77]. The manager gave contradictory and conflicting testimony. He stated patron #1 appeared to have no impairment as he walked to the washroom just minutes before the arrival of police and the Inspector.
[78]. Yet the manager also testified he supported the server in her decision to cut patron #1 off from liquor service at least an hour before the arrival of authorities, obviously due to signs of impairment.
[79]. The Board does not consider the testimony of the manager credible given these obvious and glaring discrepancies.
[80]. The Board also considers it improbable that a sober person would walk the length of a club to go to the washroom and minutes later, upon the arrival of police, be in such a deep sleep that he had to be shaken awake and appeared unaware of where he was.
[81]. The Board also does not believe of the manager that patron #1 was left at his table in an intoxicated state due to concerns regarding his safety if he were removed. It would appear more probable the patron was left in this state due to poor management procedures that reflect ignorance and/or a lack of respect for the LLA and its regulations. The presence of beer on the table would support this interpretation of events. In any event, patron #1 was clearly permitted to remain in the licensed premises while in an intoxicated condition.
Decision
[82]. The Board accepts the acknowledgement of Licensee’s Counsel and FINDS the Licensee in breach of subsection 45(1) of the O.Reg.
[83]. The 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.
DATED AT TORONTO THIS 18th DAY OF March, 2009
BERYL FORD, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER