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 Ontario Registrar
-and-
Dupin Holding Company Limited (Estate of Pavle (Paul) Bijelic o/a Dupeen Café Bar Licensee
DECISION on findings
Panel: David C. Gavsie, Chair, AGCO S. Grace Kerr, Board Member
Decision Date: February 3, 2009
Hearing Location: Niagara Falls, 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 ) Daniel Alakas, Representative
Dupin Holding Company Limited (Estate ) Mara Bijelic, on behalf of the Estate of Pavle (Paul) Bijelic )
Authorities
473954 Ontario Ltd. v. Ontario (Registrar of Alcohol and Gaming), [2001] O.J. No. 5315 (Div. Ct.)
Commercial Tavern, [2006] O.A.G.C.D. No. 580
Allegations
- A hearing into a Notice of Proposal number 16621 dated September 10, 2008 to suspend liquor licence number 807008 (the “Licence”), issued to Dupin Holding Company Limited (Bijelic, Estate of Pavle (Paul), (the “Licensee”), operating as DUPEEN CAFÉ BAR, 6090 Main Street, Niagara Falls, Ontario L2G 5Z9 (the “establishment” or the “premises”), on the basis of alleged violations of section 29 of the Liquor Licence Act (“LLA”) and of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on January 6, 2009, in the City of Niagara Falls.
Decision
- The Board FINDS that the Licensee violated section 29 of the LLA and subsection 45(1) of the O. Reg. Reasons follow.
Preliminary Matters
Mara Bijelic is the sole officer, director and shareholder of the licensee corporation. She appeared on behalf of the Corporation and waived the right to be represented by a licensed representative.
A witness exclusion order was made on consent, except that Ms. Bijelic’s son, Igor Bijelic, who would be giving testimony on behalf of the Licensee, was allowed to remain. He provided interpretation of the proceedings for Ms. Bijelic from English into Serbian, and vice versa, as necessary.
Registrar’s Evidence
Mr. Brad Foster, an Inspector with the Alcohol and Gaming Commission (AGCO) for five years, testified on behalf of the Registrar. He attended the establishment at about 1:20 a.m. on March 14, 2008, together with Inspector Passmore, also an Inspector with the AGCO.
From inside his vehicle which was about 30 feet away from the front of the establishment, Inspector Foster observed a male patron (the “patron”) approach its entrance from the sidewalk in front of it. The patron was unsteady on his feet. He was also unsteady as he grabbed the front door handle, appearing to stumble back as he entered the establishment. The weather was clear at the time Inspector Foster made his observations of the patron.
Inspectors Foster and Passmore also entered the establishment and approached the bar area, where the patron was now seated with what appeared to be a full mug of beer in front of him. The liquid was golden/amber in colour and frothy on top; also, it smelled like beer. There were no other beverages around the patron. There were no other patrons in the establishment at the time.
The Inspectors identified themselves to the bartender. Inspector Foster did not get the bartender’s name on the night in question but at the hearing identified Ms. Bijelic’s son, Igor Bijelic, as being the bartender that night. Then, Inspector Foster began to engage the patron in conversation and observed other signs of intoxication in the man: his speech was slurred, his eyes were red and glassy, and he had a strong smell of alcohol on his breath. Sometimes, the patron’s speech was incoherent, although he did say that he had been drinking and would take a taxi. Inspector Foster deemed the patron to be intoxicated.
The bartender confirmed to the Inspector that he had served the patron a beer.
In cross-examination, Inspector Foster advised the bartender that he needed to ensure the patron was taken home in a taxi, according to the responsibilities of a licensed premise.
Inspector Foster did not notice if the front door handle was working properly. He did not obtain the name of the patron, saying it was optional for him to get that information. He did not determine if the bartender was Smart Serve trained, again saying that it was discretionary whether he obtained that information.
In response to questions from the Board, Inspector Foster said that the patron was older, that is, between the ages 50-55, weighed about 175 pounds, and was average height. When he and Inspector Passmore spoke with the bartender, they told him what they’d observed before entering the establishment, explained the nature of the (alleged) infraction, and described the bartender’s responsibilities to make observations as to states of intoxication in patrons. Inspector Foster does not recall any response from the bartender, except to say that he had served the patron.
Inspectors Foster and Passmore were in the area of the establishment, conducting routine inspections on the night in question. Inspector Foster had been at the establishment on 2-3 occasions before for a similar purpose.
Mr. Joseph Passmore, the Registrar’s next witness, has been an Inspector with the AGCO since April, 2002. On March 14, 2008, he attended at the premises with Inspector Foster and observed a lone male patron, seated at the bar with a jug of beer in front of him. Inspector Passmore spoke with the bartender, Igor Bijelic, who told the Inspector that he was the Licensee’s son. He advised Mr. Bijelic as to why he and Inspector Foster were there, that is, as regards the intoxicated patron, and Mr. Bijelic assured the Inspector he would get a cab for the patron.
Inspector Passmore determined that the patron was intoxicated based on his own observations and the patron’s words. He observed the patron to have slurred and loud speech, and glassy eyes. The patron said that he had been drinking at two other places before going to the establishment.
Inspector Passmore did not make note of who served the beer, which was located directly in front of the patron, to him. There were no other beverages on the bar and no other patrons in the establishment.
Inspector Passmore did not make any observations of the patron before the patron entered the establishment.
In cross-examination, Inspector Passmore said that he and Inspector Foster identified themselves to the bartender. He left when he felt satisfied that the bartender would follow through and get a cab ride home for the patron. The Inspector did not recall if he told the bartender to take the jug of beer away from the patron. He did not obtain identifying information for the patron as “nothing compels him” to do so. The Inspector did not recall if he obtained Smart Serve information regarding the bartender, saying he is not required to check it.
Inspector Passmore said that while Inspector Foster first had a conversation directly with the patron, later the patron spoke by way of an “open conversation” to everyone present. It was then that the Inspector determined that the patron had had too much to drink.
In response to questions from the Board, Inspector Passmore said that the bartender was co-operative with them. He was “fine to deal with”.
Licensee’s Evidence
Mr. Igor Bijelic testified on behalf of the Licensee. He entered into evidence both the AGCO’s Letter of Incident (Exhibit 1) and his response to it (Exhibit 2). Exhibit 2 also includes a response to Exhibit 1, signed by the owner, Mara Bijelic.
In addition, Mr. Bijelic recalled what happened on the night in question. He said that he was working as bartender that night. Around 1:15 a.m., a man entered the establishment. He seemed “normal” to Mr. Bijelic, who had seen him before. The man asked for “juice and a draft”, and Mr. Bijelic proceed to give him those drinks. The man drank the juice first, quickly, and then more slowly began sipping his beer.
About 3 -5 minutes later, Inspectors Foster and Passmore came into the establishment. One of the Inspectors sat beside the patron, and the other (Inspector Passmore) came and talked to Mr. Bijelic. The Inspector told him the patron was intoxicated and that he should call him a cab when he had finished his beer. The Inspectors left. He and the patron talked some more while the patron finished his beer. Mr. Bijelic called him a cab, which arrived around 1:28-1:29 a.m.
In cross-examination, Mr. Bijelic testified that the patron paid $2.25 for the beer and another $2.25 for the juice.
Mr. Bijelic was talking to the patron about things like the weather. He noticed that the patron’s speech was “a bit different” and that his hands were shaking a bit, but because he had seen the patron before so he did not think anything of these things. When this patron came in during the day, he would not order juice; he would only order a “draft or two’, then leave. The patron does not come in on a ‘regular basis’. He has attended on maybe 3-4 occasions in the previous 3 months.
Mr. Bijelic asked the patron why he ordered the juice before the beer; he recalled that it had something to do with the patron having diabetes. He acknowledged that he did not say anything to the Inspectors about the patron having diabetes. Mr. Bijelic does not know the full effects of diabetes on a person. He assumed the patron knew what he was doing.
Mr. Bijelic acknowledged that he had not made any efforts to have the patron attend the hearing, although he agreed that he had an opportunity to have the patron there as a witness. He does not know the patron’s name, or where he lives.
Mr. Bijelic thought it would be “only fair” for the Inspectors to have told him to remove the beer from the patron on the night in question.
In response to questions from the Board, Mr. Bijelic said he was Smart Serve-trained in January, 2008. His roles and responsibilities within the establishment are to tend bar “whenever needed” and to run errands for his mother. He also helps out mornings at the establishment.
Mr. Bijelic said that if he assesses a patron to be intoxicated, he would not serve them and would ask them to leave. On the night in question, Inspector Passmore asked him his name, told him the patron was intoxicated, and asked him to ensure a safe ride home for the patron. He agreed to the latter. He did not recall talking with Inspector Foster. He did not hear the patron say that he had had too much to drink and was “cabbing” it home.
Mr. Bijelic testified that he did not mention the patron’s diabetes to the Inspector because he felt nervous as Inspectors have rarely attended when he is working. He did not feel the patron was intoxicated, and did not change his opinion after the Inspectors said so nor did he vocalize his disagreement with their assessment of the patron’s state. The patron had never ordered juice from Mr. Bijelic before.
Although the Licensee had indicated its case was closed and the Registrar had started to give its submissions, the Licensee then requested that Mara Bijelic be allowed to testify on the Licensee’s behalf. In the interests of a fair and complete hearing, the Board allowed the Licensee’s case to be re-opened to hear Ms. Bijelic’s evidence. This was done with the consent of Registrar’s counsel.
Mara Bijelic testified that her son, Igor Bijelic, was working for her at the establishment the evening of March 13/morning of March 14, 2008. The establishment was opened by her husband, Pavel (Paul), on February 22, 2002; however, since March 14th of that year, she and her son, Mike, have operated it as her husband passed away that day.
Ms. Bijelic told the Board that she feels really badly about what happened on the night in question because she sent her son, Igor, to tend bar that night and he did not have enough experience at the time. She had 20 people at her house that night, marking the anniversary of her husband’s passing. Because of his inexperience, Ms. Bijelic said her son made the mistake of serving the patron beer and juice; an experienced bartender would have just served him juice or water.
She also feels badly towards the Inspectors who did not obtain any contact information about the patron so that she could contact him and talk to him in person about what happened. Ms. Bijelic said that she dealt with a similar problem about one year ago with a different patron, and the AGCO Inspector involved with that matter gave her identifying information. She made a deal with the AGCO in May, 2008 to close the establishment for 7 days in relation to the latter incident. Ms. Bijelic was hoping for similar information about the patron as regards this incident, so she could make a deal with the AGCO as regards it, too.
Since it is a family business, Ms. Bijelic believes her son’s story as much as she believes that of the Inspectors’. She knows a couple of people who come into the establishment and could be mistaken for drunk, yet they are people who have health problems.
On the night in question, the patron may have had difficulties entering the establishment because there are difficulties with the door handle and the sidewalk itself.
Ms. Bijelic feels that the patron was not necessarily drunk just because he had previously attended two other bars. She does not believe that a man could become intoxicated so quickly. Also, Ms. Bijelic knows of another diabetic patron who drinks a glass of orange juice before consuming alcohol.
Ms. Bijelic stated that, from experience, no bartender would tell a customer that they were drunk because it demeans the customer and that they also become aggressive and harder to deal with.
In cross-examination, Ms. Bijelic described the problem with the sidewalk that, according to her, may have caused the patron’s stumbling which Inspector Foster noticed. She indicated that the City (of Niagara Falls) left a cap for the water pipe right in front of the doorway and that, over time, the area around it has sunk. Despite having told the City about this problem, it has not been fixed. It is located about 1-1.5 feet in front of the front door to the establishment.
The problem with the door handles is that they are round and many people do not twist them all the way around to open the front door. Ms. Bijelic suggested that this was what could have caused the patron to fumble with the front door, again, as observed by Inspector Foster.
Ms. Bijelic agreed that, due to her son’s inexperience, he might not have detected the patron’s intoxication.
Ms. Bijelic stated that she is not sure who the patron is. There are a couple of diabetic patrons who attend the premises and drink a glass of orange juice before consuming alcohol. Ms. Bijelic was referred to Exhibit 2, and she confirmed her signature on that document. She stated that she does not know if the patron she referred to in Exhibit 2 is the same one as is talked about in the AGCO’s Notice of Proposal, but thinks it probably was, based on the description given of him at the hearing. She last saw the patron when he came to the establishment about two weeks prior to the hearing. She did not ask him to come to the hearing. She said he does not remember anything, as the incident occurred on March 14, 2008.
Registrar’s Submissions
Mr. Alakas, for the Registrar, submitted that there is a two-part test for the Board to make a finding under s. 45(1) of the O. Reg. First, the Board must determine if the patron was intoxicated. In that regard, Mr. Alakas says that Inspector Foster’s evidence was clear and consistent. His observations were unimpeded. Before entering the establishment, he noticed the patron was staggering and unsteady on his feet. Once inside, he engaged the patron in conversation and noticed further, clear signs of intoxication.
Mr. Bijelic admitted to the Inspectors that he served a beer to the patron, but did not offer that the man is diabetic. The beer was sitting in front of the patron. There were no other patrons in the establishment.
Inspector Passmore’s evidence is consistent with that of Inspector Foster. His observations were that the patron’s eyes were glassy, his speech was slurred, he was speaking loudly, there was a beer in front of him, and there were no other patrons in the establishment. He also confirmed that the bartender said he had served the patron a beer. Inspector Passmore also heard the patron say that he had been drinking at two other establishments and would be taking a taxi home.
In contrast, Mr. Bijelic, who is an interested party, said he did not observe any signs of intoxication except for the patron’s slurred speech.
The Registrar submits that, on the balance of probabilities, the drunkenness of this patron has clearly been made out.
The next hurdle is to determine if the Licensee ‘permitted” the drunkenness and, in that regard, Mr. Alakas said that the concept includes the notion of “failing to prevent”. Given his proximity to the patron and the fact that there was no one else in the bar at the time, Mr. Alakas argued that Mr. Bijelic had ample time and opportunity, as well as the obligation, to effectively assess the patron’s condition. By failing to prevent the intoxicated patron from being in the establishment, Mr. Bijelic permitted the drunkenness.
Further, Mr. Alakas argued that there was no independent evidence to confirm that the patron was diabetic. However, even if this was the case, it did not preclude the patron from also being drunk. The totality of the evidence, Mr. Alakas urged, is consistent with drunkenness, not diabetes.
Ms. Bijelic had the opportunity to arrange for the patron to attend and give evidence on her behalf at the hearing, but did not do so. The Inspectors are not obligated to obtain the name(s) of patrons. Rather, Licensees’ responsibilities are not subject to direction from Inspectors; Licensees are obligated to fulfil them by law.
As regards the alleged breach of s. 29 of the LLA, Mr. Alakas argued that the evidence is clear that the patron was charged $2.25 for the beer. Also, by his own admission, Mr. Bijelic said that he had sold and supplied liquor to the patron, whom the Registrar alleges was intoxicated.
If there was a problem with the sidewalk, as described, it would only hamper a small area. Besides, if the patron was a regular customer, one would assume that he would know about it and avoid it, unless he was in a state of drunkenness.
Mrs. Bijelic’s viva voce evidence and that contained in her written statement (Exhibit 2) conflict. In the hearing she said she was not sure who the patron in question is; in Exhibit 2, she was quite clear as to who he is. In any event, she had the time, opportunity and impetus to have the patron at the hearing to provide exculpatory evidence, but failed to do so.
Finally, Mr. Alakas submitted, Mrs. Bijelic admitted that her son, Igor Bijelic, was not experienced and that his lack of experience could have hampered him in picking up on the signs of intoxication in this patron.
Licensee’s Submissions
On behalf of the Licensee, Mr. Bijelic argued that there were inconsistencies in the Inspectors’ testimonies. For example, in terms of what the patron said, one of the Inspectors said that he spoke just with him; the other Inspector said he spoke to both of them at the same time.
He also submitted that he had never been asked as to how much experience he had. On the night in question, he was there only for about 10 minutes to cover for his brother, who is usually there and has more experience. Rather, his brother was at the annual memorial gathering in respect of his father’s passing.
Mr. Bijelic also submitted that the patron was not intoxicated: in comparison to previous attendances at the establishment, the patron seemed “normal” to him, he argued. That said, the patron was not a ‘regular’ customer of the establishment; he came only now and then and certainly not with sufficient frequency to remember about the problem with the sidewalk.
Mr. Bijelic noticed subtle things in the patron (e.g. his hands shaking), but his voice was clear and he did not stutter. He conceded that, to another person, these things might have appeared as signs of intoxication.
Registrar’s Reply
Mr. Alakas disagreed that the Inspectors’ testimonies were inconsistent: the patron engaged in both direct as well as more general, idle conversation.
It is not incumbent upon the Inspectors to obtain identifying information regarding the patron for the Licensee.
Analysis and Findings
- The Board has carefully reviewed and considered the evidence and submissions of counsel for the Registrar and the Licensee.
Was the Patron ‘drunk’ or ‘intoxicated’?
Necessary to its analysis of the evidence with regard to both the s. 29 (of the LLA) and s. 45(1) (of the O. Reg) allegations, the Board finds that the patron in the establishment on the night in question was intoxicated or drunk. In that regard, the Board finds Inspectors Foster and Passmore’s evidence to be credible and consistent and accepts their testimony as to the signs of intoxication they observed in the patron. Inspector Foster noticed signs of intoxication even before the patron entered the establishment: he was unsteady on his feet and had difficulties opening the front door. The Board rejects the Licensee’s explanation that the patron tripped over the raised utility cap in the sidewalk and that it was the nature of the door handle, and not his condition, that gave him difficulty opening the front door. These explanations are not plausible, particularly given the further observations the Inspectors made once inside the establishment, which substantiated Inspector Foster’s earlier suspicions.
Once inside, Inspector Foster had an additional opportunity to assess the patron’s condition from close proximity. From there, he described a strong odour of alcohol on the patron’s breath and noted that the patron’s speech was slurred and sometimes incoherent. In fact, both Inspectors noticed the patron’s red, glassy eyes and slurred speech from their location up at the bar and nearby the patron. There were no other patrons in the bar; their attentions were completely focussed on the patron and Mr. Bijelic, the bartender.
Inspector Passmore also heard the patron say that he had been drinking at two previous bars and would need a taxi ride home. Taken as a whole, the Inspectors evidence is more complementary than contradictory. Furthermore, Inspectors Foster and Passmore are both experienced in detecting and assessing whether a state of intoxication exists. Quite independently of each other, these officials came to the conclusion that the patron in question was drunk. The Board agrees with their conclusions.
The Board also notes that Mr. Bijelic did not admit to his inexperience as a bartender. However, the owner of the establishment, his mother, Mara Bijelic, candidly admitted to it, and acknowledged that due to it, her son might not have detected the patron’s intoxication on the night in question. The Board concludes, on that balance of probabilities, that this is likely the case.
It is possible the patron suffers from diabetes. The Licensee urges that this might have accounted for the symptoms the Inspectors observed in the patron, rather than them being due to his intoxication as they concluded. However, no direct evidence was provided to substantiate this claim when it could have been obtained by and submitted on the Licensee’s behalf: the Board draws a negative inference from this fact.
The Board also relies upon the contents of Exhibit 2 as confirming that Mrs. Bijelic was definite as to (and knew) which patron was at issue in the AGCO’s Notice of Proposal. She then attempted to convince the Board otherwise in her viva voce testimony given at the hearing. This greatly diminished the credibility of her evidence. For all of these reasons, the Board cannot and does not attach any weight to this allegedly excusing factor. That said, even if the patron did/does suffer from diabetes, the Board agrees with the Registrar’s counsel that this condition does not rule out the fact that the patron was also drunk.
In any event and taken altogether, the evidence supports the Board’s finding that the patron was intoxicated.
Section 29 of the LLA
- Having determined that the patron was drunk while in the establishment, the Board has next found that the Licensee “sold or supplied” liquor or permitted liquor to be sold or supplied to such a person, contrary to s. 29 of the LLA. In support of this conclusion, the Board notes that Mr. Bijelic admitted to serving (i.e. ‘supplying’) a beer to the patron. Also, the patron was charged $2.25 for the beer; it was thus also ‘sold’ to him. The beer was in front of the intoxicated patron. There were no other drinks on the bar; there were no other patrons in the establishment. Thus, the requirements that a violation of s. 29 has occurred have clearly been made out.
Subsection 45(1) of the O.Reg
Again, having found that the patron was intoxicated in the premises on the night in question, the Board must next determine if the Licensee “permitted” intoxication in its premises of the patron for which the findings have been made. In 473954 Ontario Ltd. (Wylders/The Zoo), the Divisional Court held that drunkenness simpliciter is a breach of the O. Reg. The Board agrees with this principle and applies it in this case. Further, at all times the onus is on the Licensee to prevent drunkenness on their premises. This principle is found in the Board’s decision in Commercial Tavern, and again, the Board agrees with it and applies it to the facts of this case.
In this case, the Licensee did not have an adequately experienced staff person in charge of the establishment on the night in question to properly assess or evaluate the patron’s state of intoxication before he supplied him with alcoholic beverage. The reason Mr. Bijelic was present there, instead of his more experienced brother, are certainly unfortunate but it does not diminish the Licensee’s responsibilities at law. If properly trained and experienced staff were unavailable, for whatever reason, then the establishment should not have been open for business.
Also, while the evidence establishes that Mr. Bijelic was co-operative with the Inspectors and followed through to ensure a taxi ride home for the patron, the drunken patron should not have been allowed into the establishment in the first instance. Certainly, he should have not been allowed to finish the beer he had been served. The Board does not believe that the Inspectors told Mr. Bijelic that this was allowable; rather, it believes that his (mistaken) belief that he could do so is yet another indicator confirming his lack of experience to the requirements of his duties.
As such, the Licensee permitted drunkenness in its premises and, for all of these reasons, the Licensee violated the relevant legislative provision. And, based on this evidence, the Board FINDS that the Licensee has also violated subsection 45(1) of the O.Reg.
Conclusion
Based on the evidence and for the reasons described above, the Board FINDS that the Licensee violated section 29 of the LLA and that it also violated subsection 45(1) of the O. Reg, both violations having occurred on March 14, 2008.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within fourteen (14) days of the date of this decision. The Licensee’s representative shall have ten (10) days to serve and file a written response. Registrar’s representative may serve and file any reply within seven (7) 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 Rule of Practice.
DATED AT TORONTO THIS 3rd DAY OF FEBRUARY, 2009
DAVID C. GAVSIE, CHAIR, AGCO S. GRACE KERR, BOARD MEMBER