Registrar, Alcohol and Gaming Commission of Ontario v. Pizza Mom Pizza Inc., 2009 CanLII 20281

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

Pizza Mom Pizza Inc. O/A Pizza Mom Pizza Licensee

DECISION ON FINDINGS

Panel: Patricia McQuaid, Vice-Chair Jacqueline Castel, Board Member

Decision Date: March 20, 2009 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 ) Daniel Alakas, Representative Pizza Mom Pizza Inc., Licensee ) Richard Elbirt, Representative

Allegations

1A hearing into Notice of Proposal (“NOP”) number 16397 dated June 13, 2008, to suspend liquor licence number 813075 (the “Licence”), issued to Pizza Mom Pizza Inc. (the “Licensee”), operating as PIZZA MOM PIZZA, 631 Kennedy Road, Scarborough, Ontario, M1K 2B2 (the “establishment” or the “premises), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”), prescribed under the Liquor Licence Act (the “LLA”) was held on March 12, 2009.

Decision

2The Board DISMISSES the allegation under subsection 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3The Board ORDERED that witnesses be excluded on consent.

Registrar’s Evidence

4AGCO Inspector Stephen Hetherington attended the establishment with Inspectors Sookdeo and Durham at 11:43 p.m. on March 8, 2008 to conduct a routine inspection. There were five or six patrons in the establishment when they entered. The capacity of the establishment is 28 persons. The establishment has a horseshoe shaped bar area.

5While Inspector Hetherington was speaking to the Licensee, Mr. Thanendran Balasubramaniam, at the bar area, a male patron approached and interrupted their conversation. The patron had been seated at a table in front of the bar. The patron told Inspector Hetherington to “pick on” a larger venue. Inspector Hetherington noticed that the patron’s speech was slurred and he was unsteady on his feet.

6Inspector Hetherington and his colleagues, as well as Mr. Balasubramaniam, told the patron several times to stop interrupting and to return to his seat. According to Inspector Hetherington, the patron had “mood swings”. He would calm down momentarily and return to his seat for a few minutes and then come back to the bar, raise his voice, become abusive and interrupt their conversation again. When asked for clarification about what he meant by “abusive”, Inspector Hetherington stated that the patron’s demeanour and the way he talked and responded to questions from the inspectors were abusive.

7When asked how much beverage alcohol he had consumed, the patron responded, “How much coke did you take?”

8Mr. Balasubramaniam told the patron several times to sit down and that the conversation did not concern him.

9Inspector Hetherington did not witness the patron consuming beverage alcohol. He did not ask Mr. Balasubramaniam how much the patron had consumed or been served. He does not know how long the patron was in the establishment. When they departed at 11:54 p.m., the patron was still in the establishment.

10Inspector Hetherington advised Mr. Balasubramaniam that he would be submitting a report to his supervisor for disposition regarding the Licensee permitting one drunken patron to be in the establishment.

11On cross-examination, Inspector Hetherington stated that the establishment was fairly well lit.

12Inspector Hetherington did not have a device or breathalyzer for measuring intoxication.

13Inspector Hetherington did not obtain the patron’s name. He had never seen the patron before this occasion, nor has he ever seen the patron again. He does not know whether English is the patron’s first language. He also does not know whether the patron has any type of disability.

14Inspector Hetherington approached the bar area about one minute after entering the establishment and advised the Licensee of the infraction about 10 minutes after entering.

15Inspector Hetherington stated he believes the patron was a friend of the Licensee because they appeared to know each other. He also said he thought he recalled the Licensee telling him they knew each other.

16AGCO Inspector Devin Sookdeo attended the establishment for a routine inspection with Inspectors Hetherington and Durham at approximately 11:34 p.m. on March 8, 2008. Inspector Sookdeo does not recall how many patrons were in the establishment, but he remembers it was not busy.

17Inspector Sookdeo observed a male patron, wearing a striped grey and black top with jeans, seated at the table across from the bar. He estimated the patron was between 30 to 40 years of age. He spoke to the patron when he approached the bar area. The patron had red, glassy eyes. He swayed when he stood up and was unsteady on his feet. His speech was slurred. He had a bottle of beer in his hands for some of the time while they were speaking. Inspector Sookdeo also observed that the patron had “mood swings”. At one point, the patron said he respected the job the inspectors had to do; at other times, he was irritable and confrontational. He kept going back and forth between the bar area, where the inspectors and Mr. Balasubramaniam were speaking, and his table in front of the bar.

18Inspector Sookdeo asked the patron if he had been drinking in the establishment and, if so, how much. The patron confirmed he had been drinking in the establishment, but initially could not recall how much. According to Inspector Sookdeo, the patron subsequently said he thought he had consumed two beers. At one point, when asked how much he had to drink, he asked the inspectors, “How much have you had to drink? How much coke have you had?” According to Inspector Sookdeo, Mr. Balasubramaniam confirmed that he had served the patron four beers.

19Mr. Balasubramaniam asked the patron to calm down and return to his seat several times. He did not allow the patron to get out of control.

20Inspector Sookdeo and his colleagues departed at 11:56 p.m.

21On cross-examination, Inspector Sookdeo was asked to explain the nine minute discrepancy in the time of entry between his testimony and Inspector Hetherington’s. Inspector Sookdeo responded that they entered together at the same time and his notes say that the time was 11:34.

22Inspector Sookdeo initially said he did not speak to Mr. Balasubramaniam. He subsequently indicated that he did ask Mr. Balasubramaniaum how much the patron had to drink. He acknowledged that there is a distinction between beverage alcohol “service” and “consumption”, and that his question to the Licensee pertained to service.

23Inspector Sookdeo acknowledged that he does not know how much beverage alcohol the patron consumed, if any, before arriving. He further acknowledged not knowing how long the patron was in the establishment.

24He prepared his notes shortly after leaving the establishment and did not consult with his colleagues about them, including the use of the term “mood swings”.

25Inspector Sookdeo had never seen the patron before this occasion; nor has he ever seen the patron since this occasion. He does not know the patron’s name. He also does not know whether the patron has a disability. He acknowledged that the patron spoke with an accent.

26In response to a question from the panel, Inspector Sookdeo indicated he first observed the patron exhibiting signs of intoxication while seated at the table.

27The patron knew he was an inspector because he identified himself as such.

28Inspector Sookdeo does not recall seeing any staff except the Licensee in the establishment.

29AGCO Inspector Stephen Durham attended the establishment for a routine inspection at 11:43 p.m. on March 8, 2008 with Inspectors Hetherington and Sookdeo. On entering, he did a walk through and then went to the bar area. The establishment was not busy. He estimated that there were four or five patrons in the establishment.

30While at the bar area with his colleagues and Mr. Balasubramaniam, a patron, wearing a striped shirt and jeans, approached. He told the inspectors to “pick on a bigger establishment” and that they must be “in training”. The patron’s speech was slurred and he was unsteady on his feet, swaying from side to side. Inspector Sookdeo asked the patron how much beverage alcohol he had consumed. The patron said he had consumed two drinks. The patron then asked Inspector Sookdeo, “How much have you had to drink? How much coke have you had?”

31Inspector Durham did not observe the patron consuming beverage alcohol.

32Mr. Balasubramaniam is the only staff member he observed in the establishment.

33Inspector Hetherington spoke primarily to Mr. Balasubramaniam, whereas Inspector Sookdeo dealt primarily with the patron.

34Inspector Durham corroborated that Inspector Sookdeo and Mr. Balasubramaniam told the patron to go back to his seat several times.

35On cross-examination, Inspector Durham acknowledged that he was in training on March 8, 2008. He did not observe the patron’s eyes. He first noticed the patron when he approached the bar.

36The establishment was lit, but somewhat dim.

37Inspector Durham did not recall the content of any conversation between Inspector Sookdeo and Mr. Balasubramaniam, but he said he believes Inspector Sookdeo did speak to Mr. Balasubramaniam. He did not hear Inspector Sookdeo ask Mr. Balasubramaniam how much he served the patron; nor did he hear Mr. Balasubramaniam’s reply.

38He acknowledged that, according to his notes, the patron said he consumed two drinks, but the notes do not specify whether the patron said he consumed them at the establishment or elsewhere.

39Inspector Durham did not confer with his colleagues about what he wrote in his notes.

Licensee’s Evidence

40The Licensee did not call any witnesses.

Registrar’s Submissions

41The Inspectors gave clear, detailed and consistent evidence that the patron was intoxicated, including slurred speech, unsteady on his feet, and argumentative with authority figures. Inspector Sookdeo also testified that his eyes were red and glassy. The Licensee gave no evidence that the patron had a pre-existing condition which would cause him to be unsteady on his feet or argumentative.

42The discrepancy in the time of arrival between Inspector Sookdeo’s notes, on the one hand, and the notes of the other two inspectors, on the other hand, was a human error and does not reflect on credibility.

43“Permit” is to fail to prevent. The bar was not busy. The Board has found in other decisions that an intoxicated patron does not suddenly begin exhibiting signs of intoxication when the inspectors arrive. This patron must have been exhibiting the signs of intoxication before the inspectors arrived. However, even if he was not exhibiting these signs before the inspectors arrived, the Licensee had ample time to evict the patron while the inspectors were present. When the inspectors were present, the patron repeatedly approached the bar area. There was plenty of opportunity for the Licensee to take action and remove the patron from the establishment, but he took no such action. Even after Inspector Hetherington told him the patron was intoxicated and he would be filing a report, the Licensee took no action to have the male removed from the establishment.

Licensee’s Submissions

44The inspectors did not give any evidence of the patron’s condition when he arrived at the establishment. The inspectors only noticed the patron when he got up from the table and approached the bar. There was no evidence that the patron was exhibiting signs of intoxication while seated at the table. Without a device for measuring intoxication, it is impossible to know whether the patron was intoxicated.

45The evidence about what and how much beverage alcohol he consumed was vague and inconclusive. Two of the three inspectors could not comment on what or how much he consumed. Inspector Sookdeo first said he did not talk to the Licensee at all, but subsequently changed his answer to reflect that he asked the Licensee how much he served the patron. None of the inspectors witnessed the patron consuming beverage alcohol.

46On the subject of “permit” there was no evidence that the patron was exhibiting signs of intoxication before the inspectors arrived, and it is not reasonable to expect the Licensee to excuse himself from the conversation with the inspectors to escort the patron out of the premises. The Licensee did attempt to get the patron to behave and return to his seat on several occasions, as all of the inspectors acknowledged. If the patron was drunk, it would not have been prudent to have simply evicted him. The patron should have been allowed to get sober before being asked to leave. There is no evidence that his behavior, in the presence of the inspectors, continued after the inspectors left.

47Mr. Elbirt stated he did not call any witnesses because the Registrar did not present sufficient evidence to establish, on a balance of probabilities, that the Licensee permitted intoxication.

Reply Submissions

48It is not essential for a finding under subsection 45(1) of the O.Reg to observe a patron consuming beverage alcohol or to present evidence of how much the customer consumed.

49Inspector Sookdeo’s testimony that he asked the Licensee how much he served the patron is not inconsistent with his prior comment that he did not speak to the Licensee. Interjecting to ask a quick question, while the Licensee was speaking to Inspector Hetherington, does not constitute a conversation with the Licensee.

50Inspector Sookdeo first noticed the patron when he was sitting down.

51There is no legislative authority for inspectors to carry a breathalyzer or device for measuring intoxication.

Reasons and Analysis

52For a finding under subsection 45(1) of the O.Reg there is a two part test. First, it must be established that drunkenness, or one of the other prohibited acts, occurred on the premises or any of the other specified areas under the exclusive control of the licence holder. Second, it must be established that the Licensee permitted the drunkenness.

53The three inspectors testified to the male patron exhibiting the following behavior: slurred speech, unsteady on his feet, and verbally confrontational with the inspectors, while they were speaking with the Licensee (i.e., interrupting conversation several times, telling the inspectors to pick on a larger establishment, asking them how much they had to drink and how much coke they had consumed), notwithstanding that the inspectors and Licensee told him to return to his seat several times. Inspector Sookdeo, who spoke to the patron, also noticed that his eyes were red and glassy. He also observed that the patron had a beer bottle in his hands for some of the time while they were speaking.

54Mr. Elbirt raised the suggestion, in his cross-examination of the inspectors, that some of the patron’s behaviour or physical condition could have been caused by something other than intoxication, such as a disability. Inspector Sookdeo acknowledged on cross-examination that English was not the patron’s first language. However, Mr. Elbirt introduced no evidence to support the suggestion that the patron’s behavior or physical condition was the result of anything other than intoxication or that the inspectors may have confused his accent for slurred speech. Further, as Mr. Alakas noted, inspectors do not have the authority to require breathalyzer tests of patrons, and breathalyzers are not required for establishing intoxication, on a balance of probabilities, under the LLA and regulations.

55The Board infers that the patron consumed beverage alcohol at the establishment given that Inspector Sookdeo witnessed him holding a beer bottle. However, it is not necessary for there to have been consumption of beverage alcohol at the establishment for a finding under subsection 45(1). It is also not necessary to determine the amount of beverage the customer consumed for a finding under subsection 45(1).

56Based on the inspectors’ observations of the patron’s physical condition and behavior, and in the absence of any evidence to suggest that his physical condition and behavior was caused by something other than intoxication, the Board is satisfied on a balance of probabilities that the patron was drunk. As such, the first part of the test under subsection 45(1) is met with respect to the patron.

57For the purpose of the second part of the test under subsection 45(1) the Licensee must have known, or should reasonably have known in the circumstances, that the patron was drunk and permitted same. In other words, the Licensee cannot be willfully blind to the drunkenness; the Licensee also cannot escape liability under this subsection by failing to employ sufficient well trained staff or by failing to implement effective compliance procedures to monitor for and prevent drunkenness.

58Although Inspector Sookdeo indicated that he first noticed the patron’s signs of intoxication while he was seated at the table, this does not appear to be the case from the evidence. He could have only observed the patron being unsteady on his feet when he was standing. The patron’s slurred speech and confrontational behaviour were only evident when he was speaking to the inspectors and Licensee at the bar area. Further, the patron’s red, glassy eyes would only have been noticeable if one was in close proximity to the patron, as evidenced by the fact that only one of the three inspectors noticed anything unusual about his eyes. The other two inspectors did not testify that they noticed any signs of intoxication while the patron was seated at the table and before he approached the bar area.

59Mr. Alakas submitted that there have been other decisions where the Board has found that a patron does not suddenly begin exhibiting signs of intoxication when the inspectors arrive and that the Licensee, acting diligently, should have been aware of such signs earlier. However, in this case, the signs of intoxication were not as pronounced or advanced, as they may have been in other cases, and there was no evidence that the signs would have been apparent to staff, acting diligently, while the patron was seated; there was also no evidence on the length of time the patron was in the establishment. As such, the Board is not satisfied, on a balance of probabilities, that the Licensee would have been aware of the patron’s drunkenness and thereby allowed or acquiesced to it, while the patron was seated and before the inspectors arrived.

60The Board agrees with Mr. Alakas that the Licensee should have been aware that the patron was drunk while engaged in conversation with the inspectors, but disagrees that he still had ample opportunity to escort him out of the premises while the inspectors were present. All of the inspectors readily acknowledged that the Licensee made best efforts to curtail the patron’s disruptive behavior and did not let him get out of control, telling him several times to go back to his seat and that the conversation did not concern him. The Board does not accept that in failing to excuse himself from the conversation with the inspectors, who are authority figures to the Licensee, and escort the patron out of the premises or call him a taxi, the Licensee permitted drunkenness. The Licensee was the only staff person on duty, so he could not delegate the task of escorting the patron out or calling him a taxi to another employee, while continuing his conversation with the inspectors. Licensees are responsible for having adequate staffing to ensure compliance with their obligations under the LLA and regulations. However, since there were only four to six patrons in the establishment, the Board cannot conclude that the Licensee had inadequate staffing for this purpose on the date and time in question.

61The inspectors did not give any evidence about how the Licensee responded when Inspector Hetherington told him he would be filing a report in respect of the drunken patron or whether the Licensee took steps to escort the patron out of the premises or call him a taxi after the inspectors ended the conversation. There was no suggestion from the inspectors that the Licensee was uncooperative or had a bad attitude. The inspectors left immediately after their conversation with the Licensee and did not wait to see whether he took steps to remove the patron from the premises. Inspector Hetherington testified that he told the Licensee about the infraction approximately 10 minutes after arriving and, according to Inspector Hetherington’s evidence, they were only at the establishment for a total of 11 minutes.

62For the above reasons, there is insufficient evidence that the Licensee permitted drunkenness on the part of the patron, in the circumstances of this case. Therefore, the second part of the test under subsection 45(1) of the O.Reg has not been met.

Conclusion

63The Board DISMISSES the allegation under subsection 45(1) of the O.Reg.