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-
516532 Ontario Limited O/A Jameson’s Restaurant
Licensee
DECISION on findings
Panel: David C. Gavsie, Chair, AGCO
Beryl Ford, Board Member
Decision Date: March 6, 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
516532 Ontario Limited, Licensee ) Richard Knott, Representative
Authorities
Old Brock House (May 29, 2002), unreported decision of the AGCO
1577107 Ontario Inc. (c.o.b. Place Bar & Grill) (Re), [2008] O.A.G.C.D. No. 405
Allegations
- A hearing into a Notice of Proposal number 16315 dated June 18, 2008, to suspend liquor licence number 92380 issued to 516532 Ontario Limited (the “Licensee”) operating as JAMESON’S RESTAURANT, 27 Wilson Street West, Perth, Ontario, K7H 2M8, (the “premises” or the “establishment”), on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”), was held on February 4, 2009, in the City of Ottawa.
Decision
- After carefully considering the evidence and submissions, the Board FINDS the Licensee contravened subsection 45(1) of the O. Reg. Reasons follow.
Preliminary Matters
- The Board ORDERED that witnesses be excluded on consent.
Registrar’s Evidence
Stephen Alan McElravy is a police officer with the Perth Police Services with 24 years experience. On the evening of November 30th, 2007, Officer McElravy, accompanied by Police Officer Hughes, was conducting routine checks of licensed establishments in the area. They arrived at Jameson’s Restaurant at approximately 11:35 p.m. Both officers were in uniform.
They entered through the main entrance which was described as four to five steps up into the premises. Officer McElravy entered first, with his partner, Officer Hughes, following closely behind him. Officer Hughes stopped to speak to the security person at the door while Officer McElravy proceed up the steps to the first floor entrance way.
From his vantage point at the top of the steps, he could see most of the first floor. He observed a room to the left with a pool table. This room is referred to as the “new room.” A large room with a fireplace is to right. The service bar is located at the far end of the room to the right.
Kellie Desjardine was behind the bar that evening. She was standing near the fridge at the end of the bar when Officer McElravy first saw her. Officer McElravy said Ms Desjardine would have an open view to the two rooms and the top of the stairs most of the time, but two pillars near the stairs and the room on the right would have obscured some of her view, depending on where she was located at the bar.
Officer McElravy was in the entrance way at the top of the stairs surveying the rooms when he began talking to a female server whom he identified as Julie.
While talking to Julie, the officer, quite by surprise, was struck very hard on the right shoulder by a person who had approached him from behind. He looked around and recognized the person as Donald Kirkham. Mr. Kirkham was a patron of the establishment, Officer McElravy had seen him many times in the premises and knew him as “Donny”.
Officer McElravy stated that the punch was hard and deliberate. He had never experienced that force used on him in his 24 years of experience working as a police officer.
Officer McElravy testified that Mr. Kirkham was belligerent when he spoke to him. Mr. Kirkham told the officer he was only fooling with respect to the punch.
Officer McElravy did not consider it to be fooling. The officer watched Mr. Kirkham go into the new room on the left side of the stairs. He sat on a chair, which he had turned around from the table and he stared at the officer in an aggressive, threatening manner. Officer McElravy was of the opinion he was looking for a fight.
While the officer was assessing from a distance the sobriety of Mr. Kirkham, Mr. Kirkham got up from his chair and proceeded to bump into a young man who was approximately 23 to 24 years old. The young man was much larger than Mr. Kirkham in both height and size. After bumping into the young man, Mr. Kirkham took a step back and shoved the young man very hard in the chest area.
The young man looked towards the police officer and made eye contact with the officer but did not retaliate.
At this time, Officer McElravy’s partner had joined him at the top of the stairs and became engaged in the conversation with Julie.
Officer McElravy walked over to Mr. Kirkham, who was walking towards him with a bottle of beer at this time; he took Mr. Kirkham by the arm and advised him that he was arresting him for drunkenness.
He told Mr. Kirkham that he was obviously intoxicated; he was exercising poor judgment and said “Donny, you are being mean, and are obviously intoxicated.” Mr. Kirkham responded that he was not mean.
Officer McElravy took the beer bottle from Mr. Kirkham and placed it on the banister of the stairs. Mr. Kirkham started to struggle. The officer observed that Mr. Kirkham had a strong odour of alcohol on his breath, his speech was slurred and his eyes were red and glassy.
Both officers escorted Mr. Kirkham out to the front of the premises. Although he was struggling he was not fighting. The officers had him under control.
When outside, Officer McElravy offered to drive Mr. Kirkham home. However, Mr. Kirkham wanted no part of it and wanted to go back inside the premises.
At this point, Officer Hughes placed Mr. Kirkham under arrest. Both officers walked him to the corner where a police car driven by Constable Truelove was located. Mr. Kirkham was placed into the police car and taken by Constable Truelove to the police station.
Office McElravy testified that although he did not lay the charge, he understood that Mr. Kirkham was charged with a provincial offence of being drunk in a public place.
Officer McElravy responded to questions that Constable Hughes, who was with him that evening, was not present at the hearing as he had a serious accident and had not returned to work in over a year.
Officer McElravy agreed that the demeanour of Mr. Kirkham was quite different today at the hearing where he was sober and polite. The officer offered the opinion that on the evening in question Mr. Kirkham did not demonstrate good common sense by hitting a police officer, refusing to go home, acting hostile and exhibiting the signs of intoxication.
In cross-examination, Officer McElravy stated that although he had seen Mr. Kirkham intoxicated in the past, he had never seen him violent. His behaviour that evening was out of character.
The officer confirmed that although he was the senior officer on duty that evening, Officer Hughes was the arresting officer.
He agreed that the premises were busy that evening but not overcrowded.
The officer spoke to staff about the incident, both the door person, who he thought was Peter Runge, and Kellie Desjardine. Julie was aware of the incident because she was standing with the officer when it took place.
Officer McElravy clarified that he thought the punch and the staring was personal to him although he did not know why Mr. Kirkham would specifically behave this way towards him.
It was only when Mr. Kirkham shoved the young man that he realized that it was not a personal act towards him. He believed Mr. Kirkham may have stumbled into the young man accidentally, but then stood back and deliberately shoved the young man in the chest very hard.
Licensee’s Evidence
Kellie Desjardine has been employed as a bartender at Jameson’s Restaurant for the past four years. She has accumulated experience as a bartender for more than 20 years.
She was working on the evening of November 30th 2007. Her job involves tending bar, maintaining the bar, and advising staff on their work schedules and duties. She stated that she is responsible for every individual that comes into the establishment.
The bar was steady that evening. There were no problems. A disc jockey was playing music but it was not loud. She knew Officer McElravy from his visits to the establishment and had seen Officer Hughes in the past.
She saw Donald Kirkham (Donny) come in at about 11:00 p.m. on the evening in question. She only nodded to him to acknowledge him, but did not speak to him. He appeared to be fine from her observation.
She stated that she knows Mr. Kirkham because he comes to the establishment and is a regular patron. She has served him often in the past.
That evening he came in with a group of friends. A patron she knows as Randy was at the bar and bought a round of beers. Mr. Kirkham did not come up to the bar.
From where she was located at the bar she could not see where he was. She did not see him sit down but knew the general area where he was probably sitting.
She did not see Mr. Kirkham being served beer but emphasized that staff are well trained on the service of alcohol.
Ms Desjardine did see Mr. Kirkham walk to the washroom and go back to the area where she thought he was sitting. She made no observations regarding Mr. Kirkham and he did not purchase alcohol at the bar.
Ms Desjardine did not see the interaction between Mr. Kirkham and the police officer, nor did she see them speaking. She only saw the back of Mr. Kirkham’s head when he was leaving and did not notice the officers at that time. When she first saw the officers they were standing at the top of the steps near the pillars. Mr. Kirkham was going down the stairs.
She did not see the officers come into the premises. However, staff told her they were there.
Ms Desjardine testified that the floor staff had advised her that Mr. Kirkham had been asked to leave and was not to be served any more alcohol.
Peter Runge, identified as the main doorman, signalled to her that Mr. Kirkham had been cut off and was leaving the premises.
Ms Desjardine stated that she did not know what time Mr. Kirkham left the bar or the time the officers came in. However, she clarified that the officers were in the premises when she was told that Mr. Kirkham had been cut off.
In cross-examination, Ms Desjardine said she did not know if the group had been served by a server on the floor. She stated that staff are not assigned to specific areas but circulate throughout the establishment.
She stated that she was told by staff that Peter Runge was removing Mr. Kirkham. She could not recall which staff person had given that information, nor did she know if the police officers had been dealing with Mr. Kirkham before she was told he was leaving the premises.
Ms Desjardine confirmed that she did not see the police officers going down the stairs with Mr. Kirkham, but the pillars would have blocked part of her view.
Ms Desjardine said she has been working in the premises at other times and had asked patrons to leave because she thought they had enough to drink. Sometimes Office McElvray was present when this happened.
She agreed it was unusual for Constable McElvray to arrest a person. He is usually calm and non-confrontational, and he usually tries to get people to go home.
In re-direct, Ms Desjardine confirmed that three security staff, three floor staff, a bartender and a disc jockey were working that evening. Two security staff were on the patio and circulated through the premises during the evening.
Ms Desjardine said everyone must come through the front door where Peter Runge is located. Intoxicated persons are not permitted to enter the premises.
Donald Kirkham testified that he is a regular at Jameson’s Restaurant. He arrived on the evening of November 30th 2007 at approximately 10:30 p.m. to 11:00 p.m. Prior to arriving, he was at a friend’s home playing cards.
He may have had a beer at the friend’s place; he occasionally has a drink after work and acknowledged that he had drunk alcohol in the past to the point of drunkenness.
That evening he had a cold and his friend Amanda, who was also playing cards, gave him two cold capsules to help his cold.
After the game of cards the friends went to Jameson’s for a drink and maybe shoot pool. Amanda drove Mr. Kirkham to Jameson’s. They came in through the front door. Amanda and another friend went to the bar and bought three beers. They sat in the room on the left side of the bar where the pool table is. Mr. Kirkham was sitting by the pool table. He didn’t speak to any staff members on his arrival.
He got up and went to the washroom. He did not finish his beer. He felt off-balance. He came out of the washroom and nudged Constable McElvary. It was after that that Peter Runge asked him to leave.
He can’t recall what the police officers said to him, but he recalled he did not have a key to his apartment and that was his reason for not wanting to go home. He wanted to wait for Amanda who was dancing at the time.
He recalled being taken into the police station and being charged with public intoxication. He paid a fine of $69.00 and was released the next day.
Mr. Kirkham stated that he was in Jameson’s the same day at lunch time and had one beer with his lunch. He did not order beer in the evening. He only had the one beer that was purchased for him when he arrived, and he recalled he had not finished that beer.
In cross-examination, counsel for the Registrar suggested that Mr. Kirkham did not have a clear memory of that night because of the consumption of cold capsules and drinking alcohol.
Mr. Kirkham acknowledged being hazy and having little recollection of what happened on the evening of November 30th 2007. He attributed his disorientation and poor memory to taking cold capsules and drinking a couple of beers.
Officer McElvary, whom he calls “Officer Steve”, was talking to Julie in the front area. He thinks he bumped into the officer, but he can’t really recall. He said it might have been possible.
Mr. Kirkham could not recall staring at the police officer. He stated that there were some girls sitting up high, and it is possible he was watching them.
He thought he had run into the other patron on his way to the washroom, but agreed “it might have looked like a shove.”
He had no recollection of the police officer taking his beer, telling him it was time to go or that he was under arrest.
Mr. Kirkham could not recall that he was told that he was being mean, “because the band was playing kind of loud.”
Mr. Kirkham did not recall struggling when he was handcuffed outside. He stated that he did not want to go home because he did not have a key and he was waiting for Amanda.
He did not contest the ticket for drunkenness because he did not have a doctor’s note to say he was taking medicine.
Mr. Kirkham agreed he did not check the cold medicine, he only knew they were called Benadryl and was for a cold. He took the tablets with beer at his friend’s house about 45 minutes before arriving at Jameson’s.
Registrar’s Submissions
Counsel for the Registrar submitted that the allegation of permitting drunkenness has been proven on the balance of probability.
The only witness with a clear view of what happened and the memory of what took place is Officer McElvary.
Ms Desjardines did not have a clear view of where the incidents took place and Mr. Kirkham did not have a clear memory.
The evidence is clear and credible that Mr. Kirkham was intoxicated on the evening in question.
The amount of alcohol that may or may not have been drunk is irrelevant to a breach of subsection 45(1). “Permit” means fail to prevent.
Mr. Kirkham admits to drinking beer that night and clearly appeared to be behaving drunkenly.
The evidence is that the police officer and his partner dealt with Mr. Kirkham, not the staff. Mr. Runge is not present today and we have not heard from him.
Officer McElvary was speaking to a server, Julie, when the incident occurred. She was not present at the hearing.
The Licensee has not shown what steps, if any, had been taken to prevent the situation from recurring.
Mr. Kirkham was in the premises 30 minutes and admits he had growing signs of intoxication. No intervention occurred by staff.
Ms Desjardine did not observe anything wrong when Mr. Kirkham went to the washroom.
Ms Desjardine was forthright in her evidence that she was busy with a steady flow of customers. Her attention was divided between her tending bar and trying to keep an eye on what was going on.
Staff took no action to deal with Mr. Kirkham from the time he struck the police officer or when he pushed the young man playing pool.
Mr. Kirkham did not contest a Provincial Offences Act ticket of being drunk in a public place.
Whether Mr. Kirkham was behaving drunk because of alcohol alone or combined with drugs, which is speculation on the part of Mr. Kirkham is irrelevant.
Mr. Kirkham admits to being hazy about remembering that night, he clearly can not remember the amount of liquor he consumed because of his hazy memory.
Mr. Kirkham has apologized for the amount of trouble he caused that night. He appears to be sorry for the difficulties he has caused the establishment. He also seems to minimize his actions.
Even if drunkenness was caused by combination of cold drugs and beer it is the Licensee’s responsibility to ensure the patron is dealt with appropriately. This did not occur.
Registrar’s Counsel referenced two previous decisions of the Board namely The Place Bar and Grill and the Old Brock House Restaurant and Tavern.
Licensee’s Submissions
Ms Desjardine testified that Mr. Kirkham was cut off before he was asked to leave the premises.
Mr. Kirkham is a regular patron. Officer McElvary had dealt with him in the past, and he was not known to be violent. His behaviour was out of character that evening.
Staff is familiar with Mr. Kirkham and saw him go to the washroom. He did not demonstrate signs of intoxication. Counsel suggested that the officer was exaggerating the actions of Mr. Kirkham.
The police officer did not arrest Mr. Kirkham for assaulting a police officer. Mr. Kirkham was issued a ticket outside the premises for public intoxication, not drunkenness.
The Licensee does not dispute that Mr. Kirkham showed signs of intoxication. The Licensee disputes the allegation of permitted drunkenness.
Reasons and Analysis
The Board took into consideration all of the evidence and submissions.
The Board found the evidence of Officer McElvary to be credible and consistent. He was directly involved in the incident and could assess the nature of the assault by Mr. Kirkham to his person.
Officer McElvary was familiar with Mr. Kirkham and had encountered him in the past when he had been intoxicated, but on those occasions he had not demonstrated violence.
The Board heard testimony that Mr. Kirkham had struck a uniformed police officer in an unprovoked aggressive manner.
Mr. Kirkham behaved in such a manner that the police officer, although he did not arrest him for assault, the officer was concerned enough to watch him as he returned to a table. The officer was assessing Mr. Kirkham for sobriety. Mr. Kirkham stared at the officer and appeared to be hostile.
It was only after Mr. Kirkham got up from the table and although appearing to accidentally bump into another patron, became confrontational with the patron. Mr. Kirkham stood back and deliberately shoved the patron extremely hard in the area of his chest. The patron he shoved was a much younger, much larger person, who did not retaliate but looked to the police officer for a reaction.
It became more obvious to Officer McElvary that Mr. Kirkham was intoxicated by his actions.
When Officer McElvary approached Mr. Kirkham and took him by the arm, he smelled strongly of alcohol, his eyes were red and glossy and his speech was slurred.
Officer McElvary advised Mr. Kirkham that he was being arrested for drunkenness. Mr. Kirkham was holding a bottle of beer which the police officer removed from his hand and placed down.
Officer McElvary had informed staff of the incident. The doorman Peter Runge and Officer Hughes escorted Mr. Kirkham outside the premises.
Officer McElvary offered to drive Mr. Kirkham home to avoid further trouble. Mr. Kirkham struggled with the officers and refused the offer of a ride home. In the Board’s opinion, Mr. Kirkham was given every opportunity by the police to be taken home and avoid a provincial charge of intoxication in a public place.
The Board found the evidence of Ms Desjardines to be credible and forthright. She admitted she was busy that evening. Her role of bartender combined with taking cash and ensuring the bar was well maintained did not allow her to observe what was going on at all times in the premises.
From the bar she could not clearly see what was happening near the top of the stairs. She saw Mr. Kirkham arrive, did not see him sit down and only saw the back of his head when he was leaving. She did not see the interactions between Officer McElvary or the young patron.
Ms Desjardines testified that she was notified by staff that Mr. Kirkham was cut off from service and was leaving. Ms Desjardines agreed that police officers were in the bar when she was advised that Mr. Kirkham was cut off and leaving the premises.
Ms Desjardines did not serve Mr. Kirkham alcohol and had no conversation with him.
The Board found the evidence of Mr. Kirkham to be vague and unreliable. He admitted to being hazy and having little recall of the evening in question. He recalled being disoriented while at the premises.
Decision
The Board heard no evidence that any staff member spoke to or observed Mr. Kirkham in an intoxicated or disoriented state while in the premises. Mr. Kirkham testified that he had consumed alcohol and medication prior to arriving at the establishment. Most of his evidence was hazy at best, as he was feeling disoriented.
It was only after Officer McElvary had been assaulted and Mr. Kirkham had assaulted another patron that staff became aware that Mr. Kirkham was being removed from the premises by the officer for his intoxicated behaviour. It was then that staff informed the bartender that Mr. Kirkham had been cut off from service.
It is clear to the Board that Mr. Kirkham’s behaviour was indicative of intoxication. He assaulted a uniformed police officer and deliberately assaulted another patron while in view of a police officer. He refused an offer to get a ride home, and instead was charged by the police.
By his own admission, he ws disorientated while in the establishment, yet staff did not notice or see anything unusual in his behaviour. Mr. Kirkham was admitted to the premises past a door person who made no observation of his condition.
There is no evidence that any other staff interacted with Mr. Kirkham other than Ms Desjardine who nodded to acknowledge him, until he was brought to their attention by a police officer.
Based on the evidence, most significantly the testimony of Officer McElvary, the Board is satisfied that Mr. Kirkham was exhibiting signs of intoxication while in the premises. The Licensee, during submissions, did not dispute this.
Whether intoxication occurs because of alcohol alone or a combination of medication and alcohol is immaterial. Mr. Kirkham exhibited strong signs of intoxication while in the establishment. The evidence indicated that Mr. Kirkham was not a person known to be violent under normal circumstances, yet his behaviour was out of character. The Board prefers the testimony of Officer McElvary who testified in a detailed and consistent manner in chief being struck very hard by a punch, rather than the vague recollection of Mr. Kirkham who asserts that he inadvertently nudged Officer McElvary. The Board also accepts Officer McElvary’s account of Mr. Kirkham’s encounter with the other patron. No staff member took any action to prevent what occurred on the evening in question; they allowed or permitted it to happen.
Although other staff members were present on November 30th 2007 and had direct interaction with Officer McElvary, they were not present at the hearing. Officer Hughes who was also present, is on an extended sick leave. Officer McElvary is the only witness that had any significant direct interaction with Mr. Kirkham on November 30th, 2007. Other witnesses either did not see what was happening or in the case of Mr. Kirkham, could not recall what had happened.
It is the responsibility of the Licensee to ensure the safety and well being of all patrons while in the establishment. The Board finds that by permitting Mr. Kirkham’s deteriorating condition and allowing Mr. Kirkham to remain in the premises while exhibiting signs of intoxication the Licensee permitted drunkenness on the licensed premises.
Conclusion
Therefore the Board finds that 516532 Ontario Limited operating as Jameson’s Restaurant is in contravention of subsection 45(1) of Ontario Regulation 719/90.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file 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 a written response. Registrar’s representative may serve and file any reply within three (3) days of the 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 6th DAY OF March , 2009
DAVID C. GAVSIE, CHAIR, AGCO BERYL FORD, BOARD MEMBER