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-

1565611 Ontario Inc. o/a Roxxy Tap & Grill

Licensee

DECISION on findings

Panel: S. Grace Kerr, Board Member Guy Maurice, Board Member

Decision Date: February 5, 2009

Hearing Location: Sarnia, 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

1565611 Ontario Inc., Licensee ) John Kirby, Representative

Authorities

473954 Ontario Ltd. v. Ontario (Registrar of Alcohol and Gaming), [2001] O.J. No. 5315 (QL)

Commercial Tavern, [2006] O.A.G.C.D. No. 580

Allegations

1. A hearing into a Notice of Proposal number 16475 dated July 21, 2008 to suspend liquor licence number 202592 (the “Licence”), issued to 1565611 Ontario Inc., (the “Licensee”), operating as ROXXY TAP & GRILL, 750 James St., Wallaceburg, Ontario, N8A 2P5 (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 December 16, 2008, in the City of Sarnia.

Decision

2. The Board FINDS that the Licensee violated section 29 of the LLA and subsection 45(1) of the O. Reg. Reasons follow.

Preliminary Matters

3. A witness exclusion order was made on consent.

Registrar’s Evidence

4. Murray Decker testified that he has been an Inspector with the AGCO for 8 years. On August 11, 2008, he had been attending a SOP event a couple of blocks away from the establishment when he noticed a gentleman, in his early 60’s, begin a conversation with the event’s paid duty police officers who were outside. He heard one of the police officers tell the gentleman to go home as he had had enough to drink. He observed the gentleman to show signs of intoxication: he emitted a strong odour of alcohol and his eyes were red and bloodshot. The gentleman made his way down the sidewalk to where the establishment was located and entered it.

5. Inspector Decker followed the gentleman into the establishment where, from “a discreet distance”, he observed the man bump into a couple of patrons on his way to the bar. In moving, the gentleman was “slightly staggering”. The gentleman purchased a bottle of beer from the bartender, proceeded with it to another room in the establishment, and took a seat at a table there. As he worked his way to the other room, Inspector Decker observed that the gentleman was “staggering”.

6. Inspector Decker proceeded to locate the owner of the establishment and, pointing out the gentleman in question, he suggested that the gentleman not be served, that he was showing signs of intoxication, and that he should not be in the establishment. Inspector Decker next saw the owner walk over to the fellow in question and remove the beer from him, resulting in a slight argument between the owner and the patron. He then saw them make their way to the exit.

7. The Inspector went outside and saw the patron being arrested by police. He did not know who contacted the police. He also observed another intoxicated male bothering the police while they were attempting to arrest the gentleman in question.

8. On the night in question, Inspector Decker saw a staff member at the door to the establishment, although he did not know if this fellow was “working” the door. He also observed two bartenders as well as the owners. If there were other staff, he did not find them identifiable.

9. The gentleman in question was in the establishment for “no more than five minutes”.

10. In cross-examination, Inspector Decker said he did not know word-for-word what the paid-duty officer told the gentleman in question, but had recounted its essence.

11. The SOP event took place about 100 metres away from where the establishment is located.

12. The gentleman in question had to wait in a slight line-up (i.e. about 2 – 3 patrons) before getting his beer. While there, he was not bothering anyone and was waiting his turn and behaving properly.

13. The bartender was in her mid-twenties, with blonde hair. Inspector Decker did not get her name. He did not see the beer go from her hand to that of the gentleman in question. He did not see the gentleman pay for it. He saw the fellow start to drink his beer from the bottle.

14. The gentleman in question bumped into people in the establishment that he could easily have walked around. He would “tap them on the shoulder” (i.e. make physical contact with them), and then get back on course.

15. Inspector Decker suggested the owner remove the gentleman in question because the patron was intoxicated on the premises. The patron was upset at having the beer removed from him and for being removed from the establishment. He looked agitated and upset “as anybody would”, Inspector Decker guessed. The patron was not aggressive in any other way.

16. Constable Scott Renders was the Registrar’s next witness. He has been an officer with the Chatham Police for seven years. At approximately 10:40 p.m. on August 11, 2008, Cst. Renders, who was based in the police services’ Wallaceburg office, received and responded to a call that there was an altercation between the owner and a male patron at the establishment.

17. Upon arriving at the establishment, he recognized the gentleman in question from previous dealings with him. When this fellow is sober, Cst. Renders said that he is a quiet man who does not give the police any problems. That night, he noticed a strong smell of alcohol on the gentleman and decided that the man should be arrested for being intoxicated in a public place. The man was very unsteady on his feet, his speech was slurred, and he was having difficulty putting sentences together. Cst. Renders said that these exhibited symptoms of intoxication did not change over the time he was involved with him.

18. In cross-examination, Cst. Renders advised that he was in uniform on the night in question. The gentleman in question was lodged in the Chatham police cells overnight and released the following morning.

19. Cst. Renders saw the gentleman in question being pushed up against the wall in the second room of the establishment. There is another exit door there, and the man crashed through it to the outside. He was brought to ground by the police. Later, he was transported to hospital for a small cut he had sustained to his forehead.

Licensee’s Evidence

20. Mr. Kirby, on behalf of the Licensee, first said he was making, and then abandoned his motion for a non-suit against the Registrar. In any event, he elected to call no evidence, but wished to make submissions.

Registrar’s Submissions

21. Mr. Alakas, for the Registrar, submitted that the evidence shows the patron in question was involved in a struggle inside of the establishment.

22. Further, there is ample evidence, coming from separate sources (that is, Inspector Decker, Cst. Renders, and the paid duty officer), as to the patron’s state of intoxication or drunkenness.

23. That the paid-duty officer did not arrest the patron for public intoxication does not mean the patron was not drunk, Mr. Alakas urges. In addition, Inspector Decker and Cst. Renders each had ample time or opportunity to make observations as to the signs of intoxication in this patron. What’s more, once the owner of the establishment had contact with the patron in question, he did not dispute the Inspector’s determination that the patron was drunk.

24. For these reasons, the symptoms of drunkenness have clearly been made out, the Registrar submits.

25. Additionally, Mr. Alakas argues that the provisions, “sold” or supplied”, found in section 29 of the LLA should be read disjunctively and that this interpretation gives effect to the spirit of the legislation. He urges the Board to conclude that the evidence shows that the patron was sold and served alcohol at the bar while he was waiting there. Inspector Decker observed contact between the patron in question and the bartender. The bartender was clearly described. He suggests that, on the balance of probabilities, the exchange between the patron and the bartender was made out.

26. Counsel for the Registrar also argues that the concept of “permit” drunkenness, as found in subsection 45(1) in the O.Reg, has been held to mean “failed to prevent”. In that regard, he points out that the patron in question was allowed to enter the establishment and that his condition was not assessed either upon entry or monitored once inside it. The patron’s signs of intoxication should have been picked up by either floor staff or the bartender, which is their responsibility.

Licensee’s Submissions

27. On behalf of the Licensee, Mr. Kirby argued that, as regards the section 29 allegations, there was no proof alcohol had been sold to the gentleman in question.

28. Furthermore, he argued that there was no evidence the Licensee permitted drunkenness (subsection 45(1)) inasmuch as the Inspector “changed” his evidence, first stating that the patron ran into other patrons and later saying that he bumped into their shoulders. Mr. Kirby also argued that the patron had made his way outdoors (i.e. outside of the establishment) before there was any confrontation.

Analysis and Findings

29. At the hearing, the Board ruled that, without making a final ruling on the evidence as regards the specific allegations, the Registrar had presented sufficient evidence to meet its onus or burden of proof with respect to both allegations. As such, the motion for a non-suit should fail. The Board proceeded to receive submissions on the evidence before it.

30. The Board has now had the opportunity to carefully review and consider that evidence and the submissions of counsel for the Registrar and the Licensee.

Was the Gentleman in Question ‘drunk’ or ‘intoxicated’?

31. Necessary to its analysis of the evidence with regard to both the section 29 (of the LLA) and subsection 45(1) (of the O.Reg) allegations, the Board finds that the gentleman in question on the night in question was intoxicated or drunk. In that regard, the Board finds Inspector Decker’s and Cst. Renders’ evidence to be credible and consistent and accepts their testimony as to the signs of intoxication they observed in the gentleman in question. Both witnesses described a strong odour of alcohol emanating from the gentleman; both observed him to be unsteady on his feet. Furthermore, Inspector Decker also noticed his red, bloodshot eyes; Cst. Renders noticed his slurred speech and difficulty in putting together sentences. Their evidence is more complementary than contradictory. Furthermore, Inspector Decker and Cst. Renders are both experienced in detecting and assessing whether a state of intoxication exists. Quite independently of each other, each official came to the conclusion that the patron in question was drunk. The Board agrees with their conclusions.

32. Significantly, the Board also notes that the owner, Mr. Watts, did not contradict either the Inspector or the police officer’s assessments of the patron’s state. The Board also notes that Inspector Decker detected the signs of intoxication several times and in several places over the course of about five minutes: before the gentleman in question entered the establishment, while he was in it, and after he had been removed from it and while Cst. Renders was attempting to arrest the man for public intoxication. Furthermore, Cst. Renders testified that the signs of intoxication he observed in the gentleman in question did not abate in the time he dealt with him, which began when the man was being removed from the premises and ended when he delivered care and control of the man over to the police in charge of the Chatham Police holding cells.

[Section 29](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)

33. Having determined that the gentleman in question 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 section 29 of the LLA. The Board holds that the concepts of “sold or supplied” should be read disjunctively.

34. The Board agrees with Registrar’s counsel that the only logical conclusions to be drawn from the evidence is that, after waiting in line for a short time, the bartender proceeded to supply the intoxicated gentleman in question with a beer. The gentleman in question did not have a beer in his possession when he entered the establishment and went to the bar. There is no evidence it was given to him by another patron; in fact, the evidence establishes that the gentleman in question did not speak with any of the other persons in line while waiting to be served a beer. Neither did he interact with any other patrons either before arriving at the bar or while on his way to the table in other room, where he began to consume the beer. In other words, there is no other logical reason for why the gentleman in question would have been at bar, except to obtain the beer the Inspector saw him leave that area with. And, accordingly, there is also no other logical conclusion to draw except that the intoxicated gentleman in question was supplied the beer by the bartender at the bar, which is contrary to the provisions of section 29.

Subsection 45(1) of the O.Reg

35. Again, having found that the gentleman in question was intoxicated in the premises, 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. (Wilder’s and the Zoo), the Board held the 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 as well as to deter 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.

36. In this case, the Licensee did not present any evidence to establish what measures were in place to prevent and/or deter drunkenness on the premises. While the evidence establishes that the owner did not dispute and acted immediately to remove the drunken gentleman in question from the premises, the Board can only conclude from the evidence before it that the Licensee’s staff persons were not well-trained and/or that reasonable policies and procedures were not in place to prevent the problem of drunken patrons entering the premises in the first instance. Also, once there, the bartender did not assess or evaluate the (obviously intoxicated) patron she supplied with an alcoholic beverage on the night in question.

37. Either way, it means that the Licensee did not prevent or deter drunkenness in its premises. For all of these reasons, the Licensee has 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

38. Based on the evidence and for all of 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 August 11, 2008.

39. 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 Rules of Practice.

DATED AT TORONTO THIS 5th DAY OF FEBRUARY, 2009

S. GRACE KERR, BOARD MEMBER GUY MAURICE, BOARD MEMBER