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-
Zucca Bar Inc. O/A Zuccabar (The)
Licensee
DECISION
Panel: Jacqueline Castel, Board Member
Beryl Ford, Board Member
Decision Date: March 6, 2009
Hearing Location: Hamilton, 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
Zucca Bar Inc., Licensee ) Jaime Stephenson, Representative
Allegations
- A hearing into Notice of Proposal (“NOP”) number 16675, dated October 2, 2008, to suspend liquor licence number 809906 (the “Licensee”) issued to Zucca Bar Inc., operating as THE ZUCCABAR (the “establishment” or the “premises”), 299 James Street North, Hamilton, L8R 2L4, on the basis of alleged violations of subsections 45(1) and (2) of the Liquor Licence Act (the “LLA”) and subsections 34(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg.”), prescribed under the LLA, was held on February 17, 2009 in the City of Hamilton.
Decision
- The Board FINDS the Licensee contravened subsection 45(2) of the LLA and subsections 34(1) and 45(1) of the O.Reg. The Board DISMISSES the allegations under subsection 45(1) of the LLA.
Preliminary Matters
- The Board ordered that witnesses be excluded with the consent of both parties.
Registrar’s Evidence
Officer Tom Hutton, of the Hamilton Police Service, was on uniform patrol with Officer Blunsdon on March 29, 2008.
While driving by in a marked police car, he observed a crowd of three to five patrons standing in front of the establishment. He also observed a male patron in the group drinking from a beer bottle. When this male saw them in the police vehicle, he poured the beer on the sidewalk, threw the bottle on the pavement, and entered the establishment. The other patrons in the group also entered the establishment.
Officer Hutton and his partner then parked their vehicle and attempted to enter the establishment. There was a male on the other side of the door holding it shut. The male said “Fuck off and get a warrant.” He and his partner engaged in a “tug of war” with the male on the other side of the door and, after approximately thirty seconds, succeeded in forcing the door open and securing entry. The front door, through which they were trying to secure entry, was a tinted pane glass door with a steel frame. He could see the man holding the door shut through the door. Officer Hutton recalled other patrons in the establishment yelling, but he was mainly focused on the man holding the door shut.
The male patron who was trying to prevent them from entering walked about ten feet into the establishment. There were approximately fifty to sixty people in the establishment. Officer Hutton asked the male to identify himself, and the male told Officer Hutton to “fuck off”. Officer Hutton told the male he was under arrest for “failure to identify”. The male was also intoxicated, belligerent and smelled strongly of alcohol.
There were no door staff, and no other staff approached the police officers while they were dealing with the patron inside the establishment. Other patrons in the establishment were yelling at the officers. Due to the hostility of the crowd, Officer Hutton and his partner took the male outside. Some patrons followed them outside and asked that the patron be released. Mr. Fazzari, a co-owner and co-manager of the establishment, subsequently came outside and yelled at the police officers, saying they had no right to arrest this patron. Officer Hutton told Mr. Fazzari several times to back off or he would be arrested for “obstruct”. Eventually he did back down.
The male’s girlfriend supplied his identification, which revealed his name was “JW”. At this point, JW became less argumentative. As such, he was not charged and was allowed to go. Officer Hutton indicated that he and his partner cut JW a break since he had calmed down, his criminal record check came back negative, there were other more serious calls they needed to answer, and JW’s girlfriend was able to look after him.
On cross-examination, Officer Hutton admitted he did not seize the bottle he believed contained beer or confirm it was, in fact, beer. However, he indicated it was a clear bottle, the shape of a beer bottle, and the liquid was the colour of beer. He admitted that he could not identify the male who disposed of the liquid and bottle.
Officer Hutton admitted he did not do a head count of the patrons in the bar. He also indicated that there was loud music playing in the bar.
Officer Hutton said that Mr. Fazzari and other patrons outside the establishment were yelling at him and his partner, but none of them attempted to physically interfere with the arrest. As such, they did not consider it necessary to pull out weapons or call for back up.
Officer Hutton did not see anyone except Mr. Fazzari working in the establishment on this occasion. He has dealt with Mr. Fazzari on other occasions.
Officer Hutton indicated he did not attempt to enter through the red door beside the main entrance doors.
In response to a question from the Board, Officer Hutton said there is a Portuguese restaurant (the Blue Orchid) across the street, but no other bars immediately adjacent to the establishment. The closest bar, on the same side of the street, would be fifteen to twenty stores up the street.
Officer Greg Blunsdon, of the Hamilton Police Service, observed, from his police vehicle, someone drinking outside the establishment on March 29, 2008. He was approximately twenty to thirty feet from the male when he made this observation. There were approximately three or four other individuals standing in front of the bar with the male.
He subsequently parked his vehicle south of the establishment and approached the front door. A male patron standing on the inside was holding the door shut, attempting to prevent him and his partner from entering. He could see the male through the glass tinted door. The male said, “Get a warrant.” He and Officer Hutten managed to pull the door open after a struggle of about fifteen seconds.
He did not lose sight of the male who was pulling the door shut. The male was intoxicated. His speech was slurred, he was unsteady on his feet and his small muscle control was poor. Officer Blunsdon witnessed the latter when the male attempted, unsuccessfully, to take his identification out of his wallet.
Once the male was outside and handcuffed, he calmed down and cooperated with the police. While they were outside, Mr. Fazzari came out and started saying, “What the fuck are you doing? Why are you arresting him?” The male’s wife or girlfriend gave the officers his health card, which revealed the name “JW”. When it was determined that JW did not have a criminal record and was with someone who could ensure he got home safely, Officer Blunsdon and his partner exercised their discretion not to lay charges and to release him. JW re-entered the establishment with Mr. Fazzari.
Officer Blunsdon did not recall any activity outside any of the other restaurants or bars in the vicinity before or during their time at the establishment.
On cross-examination, Officer Blunsdon admitted that he did not inspect the bottle he believed to be a beer bottle.
Officer Blunsdon did not see Mr. Fazzari while he was in the establishment. He believes he saw someone working behind the bar. No staff members were posted at the doors.
He could not hear what was being said by the other patrons in the bar because the music was so loud.
Officer Blunsdon indicated that he does not recall there being a red door but did not dispute that one may exist. He believes that the glass door, through which they entered, was the front entrance door.
Licensee’s Evidence
JW recalls attending the establishment as a patron on March 29, 2008. He is a regular customer of the establishment and a friend of the owner.
On March 29, 2008 he arrived at the establishment at approximately 11:00 p.m. He consumed five beers and approximately two shots. He was feeling the alcohol and had a “buzz”, but he was not drunk. He weighs about 185 pounds.
He saw the police circle the establishment a couple of times from the windows of the establishment.
The police could not enter the establishment because the glass door they were trying to open was locked. The owner has a practice of locking the glass doors at about 1:00 a.m. for security reasons. There is another red door which is left open. Both doors have the establishment’s logo, a “Z”, on them. To enter from the glass door it is necessary to push the door open. The red door opens by pulling it open. Patrons were yelling for the police to use the other door. Mr. Fazzari came from around the bar to open the door for the police.
According to JW, the police placed him under temporary arrest because they believed he was drinking alcohol outside the establishment. They approached him immediately upon entering, forcibly grabbed him, and then took him to the police cruiser. In JW’s opinion, it was a case of mistaken identity. When the officers told him he was under arrest, he was both angry and embarrassed. He recalls saying, “What the fuck is this about.”
When he was arrested, there were seven or eight patrons outside. Mr. Fazzari came outside to ask why he was being arrested.
JW denied ever holding the doors to the establishment shut.
JW acknowledged saying in a written statement that someone entered the premises with a beer purchased elsewhere and that Mr. Fazzari kicked him out. However, on cross-examination JW clarified that he did not witness the male enter with beer or Mr. Fazzari evict him. Instead, someone told him this had occurred.
JW did not see Mr. Fazzari or anyone else lock the glass door on the date in question, but he did see Mr. Fazzari unlock the door for the police.
Mr. Ronny Faria is a co-owner and co-manager of the establishment. He was working behind the bar on March 29, 2008. From behind the bar, he could clearly see everything going on in the establishment.
He knows JW, who is a regular customer, but does not recall exactly when he arrived on March 29, 2008. There were approximately twenty-five people in the bar on this evening.
The establishment has two doors. One door is made of glass, and the other is a red steel door. Both doors have the establishment’s logo on it. To open the glass door from outside, it is necessary to push on the door; conversely, to open the red door, it is necessary to pull. Typically the glass door is locked at about midnight to assist with crowd control. Their clientele is aware of which door to use after midnight.
He saw the police pulling on the wrong door and then, upon entering, immediately “grab” JW. The police were able to enter when Mr. Fazzari unlocked the door for them. He saw Mr. Fazzari unlock the door.
He did not hear anyone shouting profanities or witness anyone trying to interfere with what the police were doing.
On cross-examination, Mr. Faria admitted he did not try and help the police enter the establishment.
Mr. Faria said that before the police arrived someone entered the establishment with a beer bottle. Mr. Fazzari escorted him outside the premises. JW was smoking in front of the establishment at the time. In Mr. Faria’s opinion, the police probably mistook JW for the male with the beer bottle.
The establishment has surveillance cameras over the entrance doors. However, the establishment has a practice of destroying the footage after thirty days. Since the owners were not notified that the Alcohol and Gaming Commission of Ontario would be issuing an NOP for more than thirty days after March 28, 2008, they did not keep the surveillance footage.
Mr. Carlo Fazzari is a co-owner and co-manager of the establishment. He was working on March 29, 2008. His duties included watching the bar, watching people coming in and out, and cleaning up.
On March 29, 2008, prior to the arrival of the police, there was a group of people smoking outside the establishment. He witnessed, from inside the bar, a male from down the street approach, carrying a beer bottle. The male entered the bar but was required to leave, via the red door, after entering. He put the bottle down on the sidewalk when he exited.
Approximately two minutes later, the two police officers attempted to enter via the glass doors. He did not see the police pull up. Someone called him when the police arrived at the doors. He was at the bar area at the time. He went immediately to the door and opened it for the police.
When the police officers entered, they “grabbed” JW, thinking he was the person with the beer bottle. JW tried to explain to the officers that they had the wrong guy. He was not aggressive or abusive with the police. One of the officers told him to back down or he would be charged with “obstruct”.
JW re-entered the establishment after the police released him.
The establishment has two doors, a glass door and a red steel door. To enter from outside, it is necessary to push the glass door and to pull the red door. The glass doors are locked after midnight for safety reasons. A key is required to unlock the glass door from inside.
Mr. Fazzari admitted disclosing in a written statement that he and other patrons were shouting at the police to use the other door.
Registrar’s Submissions
Both officers gave clear, consistent evidence that they saw a male patron empty the contents of a beer bottle and then discard the bottle in front of the establishment before entering. The officers were forthcoming that they could not identify this male patron inside the establishment. The officers know the appearance of beer and would not have mistaken it for another type of beverage. There were no other bars nearby where the patron could have obtained the beer. The closest establishment is the restaurant/bar across the street. The Registrar submits that, on a balance of probabilities, the patron removed the beer bottle from the establishment and the Licensee did not prevent same.
Both officers saw JW holding the glass door shut from inside the establishment. Both officers said they could see JW through the tinted glass. The Licensee’s evidence requires the Board to believe that the two officers imagined the “tug of war” with JW and that the door was really locked. The Registrar submits that the Licensee’s explanation about the door being locked is not credible. Further, the officers approached JW because he was the one trying to prevent them from entering the bar; they did not approach him because they thought he was the one with the beer bottle outside. The officers both admitted they could not identify the latter male.
In failing to prevent JW from trying to keep the door shut for fifteen to thirty seconds, the Licensee obstructed and failed to facilitate the police officers’ inspection, in contravention of subsection 45(1) and (2) of the LLA.
The police officers also gave clear evidence that JW was drunk. His speech was slurred, his small motor skills and balance were poor, he was belligerent and smelled strongly of alcohol. JW also admitted that he consumed seven drinks in approximately two hours and acknowledged being “buzzed”. JW’s physical conditions and behaviour are indicative of drunkenness. The Licensee failed to prevent JW from becoming drunk, thereby meeting the test for permit under subsection 45(1) of the O.Reg. JW was in the establishment for over two hours so the staff would have had plenty of opportunity to observe his behaviour and prevent him from remaining in the premises while drunk.
Overall, the evidence of the police officers was more credible than the evidence of the Licensee. Unlike the Licensee, the police have no agenda or self-interest in the outcome of the hearing.
Licensee’s Submissions
The officers’ evidence that the Licensee permitted the patron to remove the beer bottle from the establishment is not as clear as Mr. Alakas would suggest. One officer said he was thirty or forty feet away from this male, while the other officer estimated one hundred feet. Both officers acknowledged they did not witness anyone exit the establishment with the alleged beer bottle. The officers also acknowledged that they did not inspect the bottle. There were other establishments where a patron could have obtained a bottle of beer. The Licensee submits there is insufficient evidence to establish, on a balance of probabilities, that it permitted a customer to exit the premises with a bottle of beer for the purpose of subsection 34(1) of the O.Reg.
The Licensee’s evidence that it locks the glass doors to the establishment at about midnight for security reasons makes sense as the establishment is situated in a bad part of town. The Licensee is not locking all patrons out; it is just making it less inviting for some individuals to enter. The Licensee’s clientele is aware of the policy. The police officers’ notes do not indicate that they engaged in a struggle with JW to pull the door open. Even if the Board accepts Officer Hutton’s evidence that it took thirty seconds for the officers to gain entry, this short delay does not amount to obstruction or failure to facilitate for the purpose of subsections 45(1) and (2) of the LLA.
The Licensee submits, however, that there was no “tug of war” at the door. The officers’ recollections of the events of March 29, 2008 were not perfect. Officer Hutton said JW’s girlfriend provided his identification, whereas Officer Blunsdon said JW provided it. The Licensee is not suggesting that one of the officers was lying, but rather that memories fade after so much time elapses. The officers’ notes were short and lacked much in the way of detail. The Licensee submits that Mr. Fazzari let the officers in as soon as he became aware that they were trying to gain entry.
The Licensee also submits that there is insufficient evidence that JW was intoxicated for the purpose of subsection 45(1) of the O.Reg. JW was candid regarding the amount of beverage alcohol he consumed; however, it cannot be concluded that this amount of alcohol would necessarily result in intoxication when consumed over two to two and a half hours. People can be belligerent without being intoxicated. JW’s behaviour did not rise to the level of intoxication.
The balance of probabilities standard does not mean that the police officers should automatically be believed over the Licensee and its witnesses. JW had no motivation to lie at the hearing. There is insufficient evidence to make findings on any of the allegations.
Reply
The officers may have observed the male with the beer bottle seconds apart, which would have explained the difference in distance.
The police officers’ notes describe a struggle to secure entry even if they did not use the word “struggle”. The notes say JW held the door and shouted “fuck off and get a warrant.” This reflects a struggle. The length of time it took the officers to gain entry does not negate that the officers were obstructed. Neither officer recalls the door being opened by Mr. Fazzari and both officers remember a tug of war. It is not credible that both officers would have imagined a struggle at the door.
JW is a regular patron at the bar and his actions played a significant role in the Licensee being issued the NOP which led to this hearing. As such, it is not entirely accurate to say that JW has no interest in the outcome of the hearing.
The Registrar is not suggesting that the police officers’ evidence should be preferred over the Licensee’s merely because they are police officers. Rather, the Registrar submits that the police officers gave clear, concise and consistent evidence, and the police officers have no agenda or vested interest in the outcome of the hearing.
Reasons and Analysis
Credibility
The Board found the evidence of the police officers to be credible, as it was clear, detailed and consistent on all significant points relevant to the allegations. Any minor inconsistencies in their testimony were the result of faded memories and do not call into question the reliability of their evidence.
Conversely, the Board found the Licensee’s evidence to be self-serving and lacking credibility. The Board notes that JW acknowledged being a friend of one of the owners. Their explanation of the same events often required far-fetched assumptions or had holes in it which were left unexplained. For instance, the Licensee’s version of events would require the Board to accept that the two police officers, who unlike the Licensee’s witnesses had no self-interest in the outcome of the case, imagined or fabricated the struggle at the door, including eventually forcing their way in. In addition, the Licensee’s witnesses testified that Mr. Fazzari unlocked the door for the police officers, but they did not explain why he interacted with the police officers only after they escorted JW outside. Also, despite allegedly being cooperative with the police, he did nothing to calm the patrons who were yelling at the officers inside the establishment.
The Board believes that the Licensee’s witnesses concocted their version of the incident. As such, where the police officers’ evidence conflicted with the evidence of the Licensee and its witnesses, the Board preferred the evidence of the police officers.
Subsection 34(1), O.Reg.
Subsection 34(1) of the O.Reg. provides that the licence holder shall not permit a patron to remove liquor from the premises to which the licence applies.
The police officers and the Licensee offered a totally different explanation for the events relating to the allegation under subsection 34(1) of the O.Reg..
Officers Hutton and Blunsdon testified that they saw a male with a beer bottle in front of the establishment in a crowd of three to five other people. They also testified that when the male saw them in the police car, he poured the beer on the sidewalk, left the bottle on the sidewalk and went inside the establishment with the rest of the crowd. Neither the officers nor any of the other witnesses observed the male exit the establishment with the bottle. They did not inspect the bottle, but testified that it was the shape of a beer bottle and the liquid was the colour of beer.
On the other hand, Mr. Fazzari testified that he saw someone walking down the street carrying a beer bottle. This person entered the establishment with the beer bottle, but was asked to leave after entering. According to Mr. Fazzari, the man with the beer bottle, who the police officers witnessed, obtained the beer from elsewhere, not from the Licensee. The Licensee’s representative tried to raise doubt about the content of the bottle being beer since the police officers did not inspect the bottle. However, the Licensee’s witnesses did not contest that it was a beer bottle; instead, they asserted that the beer came from elsewhere.
The Board finds the police officers’ testimony to be more credible for three main reasons. First, the Licensee did not have a staff member posted at the door to ensure compliance with subsection 34(1). As such, the Licensee would not have been able to stop anyone from exiting with beverage alcohol or even have known if someone did so, unless at least one of the two staff members on duty happened to be looking in the direction of the door at the moment the person exited. While the establishment is not large, there were only two employees on duty, the co-owners and managers, Mr. Faria and Mr. Fazzari. Mr. Faria was working at the bar; Mr. Fazzari testified he had multiple responsibilities that evening. As such, neither Mr. Faria nor Mr. Fazzari would have been continuously watching the doors when there were, by their own admission, approximately twenty-five patrons at the bar.
Second, the police officers testified that they circled the block in their vehicle several times before stopping in front of the establishment, and JW also testified to seeing them circle the block twice. If the male had been walking down the street carrying a beer bottle the police officers would have likely observed him doing so while circling the block. The police officers did not witness activity outside any of the other establishments in the vicinity. Rather, the police officers only witnessed a crowd in front of the establishment. There are also no other bars immediately adjacent to the establishment where the male could have obtained a bottle of beer if he did not obtain it at the establishment. The Board finds it unlikely that he would have obtained it from the Portuguese restaurant across the street both because of the lateness of the hour and because Mr. Fazzari allegedly saw the person walking from down the street.
Third, when the male dumped the contents of the bottle and entered the establishment, the other members of the crowd all entered as well. This leads the Board to believe, on a balance of probabilities, that the male was part of a group who were customers of the establishment. The Board also accepts, on a balance of probabilities, that the bottle contained beer. If the bottle contained soda or some other non-alcoholic beverage, as the Licensee’s representative suggested, there would be no reason for the male to dump its contents and the bottle and rush inside the establishment when he saw the police.
Accordingly, the Board FINDS, on a balance of probabilities, that the male obtained the beer at the establishment and was permitted to exit the establishment thereby contravening subsection 34(1) of the O.Reg..
[Subsection 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html), [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html).
Subsection 45(1) of the LLA provides that no person shall obstruct a person carrying out an inspection under the Act. Black’s Law Dictionary defines “obstruct” as to hinder or prevent from progress, check, stop, also to retard the progress of, make accomplishment of difficult and slow; to impede; to interpose impediments to the hindrance or frustration of some act or service.
The Board accepts that JW attempted to stop or delay the police officers from entering the establishment. As noted above, the Board does not find it believable that the two police officers, who gave independent evidence and had no self-interest in the outcome of the case, would imagine or fabricate engaging in a struggle or “tug of war” to enter the establishment. The language they heard while trying to open the door – i.e., “fuck off” and “get a warrant” - also indicates that the act of trying to keep them out was very deliberate. Further, the Board believes that JW knew the police were intending to carry out an inspection, as he was present when the male dumped the beer and beer bottle in front of the establishment; JW was either trying to protect the male or the Licensee from the police inspection.
However, despite JW’s intent, given that he only succeeded in delaying the officers from entering by, at most, fifteen to thirty seconds, and given that there is no evidence that the Licensee attempted to conceal or destroy evidence or otherwise hinder the inspection during these fifteen to thirty seconds, the Board does not find that JW’s conduct rises to the level of “obstruct”. It is significant that the language of subsection 45(1) does not make it a contravention to attempt to obstruct an inspection. Rather, the language of subsection 45(1) requires that the person carrying out the inspection actually be obstructed, and in the circumstances of this case, the Board does not find that the fifteen to thirty second delay, caused by JW’s actions, obstructed the officers’ inspection.
As such, while the Board in no way condones JW’s actions, the Board DISMISSES the allegation under subsection 45(1).
[Subsection 45(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html), [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)
Subsection 45(2) provides that it is a condition of each licence that the Licensee “facilitate an inspection relevant to the licence”. Black’s law dictionary defines “facilitate” as to make easier or less difficult. The standard under subsection 45(2) places a higher onus on the Licensee than subsection 45(1). Whereas subsection 45(1) provides that an inspection cannot be obstructed, subsection 45(2) imposes a proactive duty on the Licensee to make the inspection easier.
Although the Board found the conduct described in paragraph 75 above did not rise to the level of obstruction, the conduct most certainly did not facilitate the police officers’ inspection or make it easier, as is required by subsection 45(2). In addition to JW’s conduct, described in paragraph 75 above, Officer Hutton testified that the crowd was getting worked up and yelling at the officers while they interacted with JW, which prompted the officers to take JW outside. This conduct, as well, did not facilitate or make the officers’ inspection easier. The Licensee did nothing to indicate it did not condone the conduct of JW or the other patrons who were yelling at the officers. Quite to the contrary, Mr. Fazzari contributed to the conduct which was not facilitative of the inspection, by yelling at the officers and telling them that they had no right to arrest JW.
Accordingly, the Board FINDS that the Licensee contravened subsection 45(2) of the LLA, by failing to facilitate the police officers in their inspection.
Subsection 45(1), O.Reg.
Subsection 45(1) of the O.Reg. provides that the licence holder shall not permit, among other things, drunkenness to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder. Therefore, for a finding under subsection 45(1), there is a two part test. First, it must be established that the drunkenness 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. “Permit” means to allow, to acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act.
The police officers testified that JW exhibited the following signs of intoxication: slurred speech, poor balance, lack of small muscle control, belligerent, and smelled strongly of alcohol. JW also admitted to consuming five beers and two shots in a period of two to two and a half hours, and testified that he could feel the effects of the alcohol and was experiencing a “buzz”. The Board agrees with the Licensee’s representative that belligerency is not, in and of itself, indicative of intoxication. The Board further agrees that the quantity of beverage alcohol he consumed does not necessarily mean he was intoxicated. However, the totality of JW’s physical condition and behaviour, along with the amount of beverage alcohol he consumed, all point towards intoxication. As such, the Board is satisfied that the first part of the test under subsection 45(1) is met with respect to JW.
The Licensee is required to regulate beverage alcohol service to ensure that customers do not become intoxicated. If a customer is exhibiting signs of intoxication, the Licensee is required to promptly cut the patron off beverage alcohol service and escort the patron out of the premises. Given that JW was in the premises for two to two and a half hours the Board infers, on a balance of probabilities, that he did not suddenly begin to exhibit the aforementioned signs of intoxication when the police arrived. The Board is satisfied that the Licensee knew, or should reasonably have known, that JW was drunk, and allowed or acquiesced to him becoming drunk and/or remaining on the premises while drunk. Mr. Fazzari was present when the police were interacting with JW outside the premises, so at very minimum, he would have observed JW’s demeanour at this time. Although JW may have ceased to be belligerent, he was still exhibiting multiple other signs of intoxication. Despite the signs of intoxication which JW was exhibiting, Mr. Fazzari allowed JW to re-enter the premises when the police released him. Therefore, the Board finds that the second part of the test under subsection 45(1) is met with respect to JW.
Accordingly, the Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg. with respect to JW.
Conclusion
The Board FINDS that the Licensee contravened subsection 45(2) of the LLA and subsections 34(1) and 45(1) of the O.Reg. The Board DISMISSES the allegations under subsection 45(1) of the LLA.
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. The Registrar’s representative may serve and file a 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.
JACQUELINE CASTEL, BOARD MEMBER BERYL FORD, BOARD MEMBER