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-
Arena Entertainment Inc. O/A Circa
Licensee
DECISION
Panel: Dianne Axmith, Board Member
Brian J. Ford, Board Member
Decision Date: May 13, 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 ) Phillip Morris, Representative
Arena Entertainment Inc., Licensee ) Jerry Levitan, Representative
Authorities
Regina v. Royal Canadian Legion, [1971] 3 O.R. No. 552-559
R. v. Canada Tavern Inc., [1998] O.J. 2899
1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553
Allegations
- A hearing into Notice of Proposal (“NOP”) number 16394 dated June 13, 2008, to suspend liquor licence number 807407 (the “Licence”) issued to Arena Entertainment Inc., (the “Licensee”) operating as CIRCA, 126 John Street, Toronto, Ontario, M5V 2E3, (the “establishment” or the “premises”) on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on February 5, 2009 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board DISMISSES the allegations of a violation of subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
- On consent of the parties, the Board ordered that witnesses be excluded.
Registrar’s Evidence
Adam Strongman is an inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”) with 3½ years experience. Inspector Strongman advised the Board that on February 17, 2008, at 12:33 a.m., he, along with AGCO Inspector Rebecca Sargent, Ontario Provincial Police (“OPP”) Detective Sergeant (“D/Sgt.”) Heather Thompson and OPP Staff Sergeant (“S/Sgt.”) Edward Chong, entered Circa. Toronto Fire Department personnel accompanied the inspectors and officers on the inspection.
Inspector Strongman stated that they did a general walkthrough of the premises together, noting that the Toronto fire personnel were not with them for the walkthrough.
Inspector Strongman stated that in the area near the washroom they saw a male patron, “JS” who was showing signs of intoxication. This male patron was swaying back and forth and needed the wall to balance himself.
Inspector Strongman went over to JS and spoke to him and noted that his eyes were glassy, he could smell an odour of alcohol on his breath and his speech was slurred.
Inspector Strongman asked JS, who was described as 6’2”, 250 lbs, and had dark hair, how many drinks he had. He advised Inspector Strongman that he had had between eight and 10 drinks. When asked if he had them all at the establishment he stated he had between “5 and 2” at the establishment.
Inspector Strongman stated Inspector Rebecca Sergeant took JS’ identification information.
Inspector Strongman spoke to a female friend who stated that her friend was just drunk. She advised that they were waiting for a friend in the washroom area.
Inspector Strongman advised the management of Circa that JS was intoxicated and security removed him from the establishment.
Inspector Strongman stated the inspection concluded at 1:24 a.m. On the night in question there were approximately 2,600 patrons at Circa.
Under cross-examination Inspector Strongman stated they found only one intoxicated patron in the establishment that had 2,600 patrons.
Inspector Strongman stated JS was showing signs of intoxication and clarified that he did not say drunk but showing signs of intoxication.
He also stated JS was not drinking at the time, was standing when he saw him and that he later sat down.
Inspector Strongman did not know where the other officers who accompanied him were positioned in relation to JS.
Inspector Strongman said that JS was swaying and that his girlfriend was standing beside him at the time. When asked if there was music playing he stated that there was.
Inspector Strongman stated in response to a question, that he understood what JS was saying when he spoke to him. There was an odour of beer but it was not a strong odour.
Inspector Strongman did not speak to a server or security and did not ask how long JS had been at Circa.
Inspector Strongman stated that JS said he had eight to 10 drinks during the evening. Inspector Strongman did not know where or when.
On re-direct, Inspector Strongman stated that intoxication and drunkenness were the same thing.
Inspector Strongman also reiterated that JS was swaying and using the wall for stability.
In response to the Board’s questions, Inspector Strongman stated that JS was the only one that they saw the entire time they were in Circa. He did not see JS walk nor did he see security take him out.
Inspector Strongman stated that the corridor where the washrooms are located in a long corridor.
Licensee’s Counsel asked a follow up question to the Board’s questions. Inspector Strongman stated in response to the question that it was very busy in the corridor and that there were a lot of people coming and going.
Staff Sergeant Edward Chong was with the OPP assigned to the AGCO on February 17, 2008. S/Sgt. Chong stated on February 17, 200 at 12:33 a.m., he along with, AGCO Inspectors Strongman and Sargent and OPP D/Sgt. Thompson, entered Circa to conduct a liquor inspection.
S/Sgt. Chong stated during the inspection they found a male patron, JS, who appeared to be intoxicated, in the hallway leading to the washrooms.
S/Sgt. Chong stated JS was sitting on a bench in the hallway and he was swaying from side to side. He was also resting his head on a female friend’s shoulder.
S/Sgt. Chong spoke to both parties and noted JS spoke with a slur and his eyes were droopy and he was having a hard time keeping them open. He also noted an odour of alcohol on JS’ breath.
S/Sgt. Chong obtained JS’ name through his driver’s licence and noted that both the male and female were very cooperative. JS told him he had between seven and eight drinks at the establishment.
S/Sgt. Chong stated his involvement with JS was brief, that the AGCO inspector did most of the work.
Under cross-examination, S/Sgt. Chong stated his notes contained three or four sentences and that he spoke to the two patrons for approximately two to three minutes. S/Sgt. Chong’s notes were entered as Exhibit #1 by Mr. Levitan, Counsel for the Licensee.
S/Sgt. Chong stated Circa was busy that night and there was a lot of traffic in the corridor leading to the washroom. He could not remember where the hallway leads. He could not remember the physical aspects of the corridor.
S/Sgt. Chong did not know how far he was from JS when he first observed him. There were other people in the hallway.
S/Sgt. Chong could not recall if people had coats nor could he not recall how far the other officers were from him when he saw JS.
S/Sgt. Chong stated that there was loud music in the corridor and in the club.
S/Sgt. Chong could not remember if the other officers were separated from him or not.
S/Sgt. Chong stated JS was swaying and also that his head was resting on the shoulder of his female friend. He also stated in response to a question that it could be a sign of affection or a sign of intoxication.
S/Sgt. Chong, in response to a question, admitted that it would be hard to sway from side to side with your head on someone’s shoulder. He then stated that JS’ head was not on the female’s shoulder the whole time.
S/Sgt. Chong was questioned regarding the number of drinks the patron said he had. His notes showed JS had seven to eight drinks. It was then pointed out that his notes do not say that he had them at Circa.
In response to a question, S/Sgt. Chong stated he did not speak to Circa staff.
On re-direct S/Sgt. Chong stated that at some point JS put his head on the shoulder of his female friend.
S/Sgt. Chong stated in response to a Board member’s questions, that he did not see this patron walking or standing, he was sitting the whole time. He was not sure if he was the first one to approach this person, but that they entered as a group. He also did not recall if JS had a coat on.
S/Sgt. Chong stated he and the other officers left as a group.
In response to a question from Mr. Morris, S/Sgt. Chong stated his attention was focused and it was possible JS was intoxicated.
Rebecca Sargent is an AGCO inspector and she entered Circa on February 17, 2008, at 12:33 a.m. with S/Sgt. Chong, AGCO Inspector Strongman and D/Sgt. Thompson.
She stated the group was doing a liquor inspection of the establishment. They had checked the identification of a few youthful looking patrons but all were found to be of age.
Inspector Sargent stated in the lobby area on the main floor, in a long hallway leading to a smoking area, they noticed a male patron, JS, displaying signs of intoxication. JS was seated on a bench with a female friend. She noted that JS was leaning against a female friend, kind of slumped against the female.
Inspector Sargent stated JS had slow motor skills, noting he was sitting up kind of unsteady. He was “kind of swaying” she said.
Inspector Sargent saw JS for less than a minute before she talked to him.
Inspector Sargent could not recall if JS’ head moved off the shoulder of the female. When he was getting up to leave he had difficulty. Then she said that he didn’t get up just that he had difficult motor skill problems getting up.
Inspector Sargent stated JS had seven to eight Lucky Lager beers prior to attending the establishment and he said he was not driving home.
When asked if this was in response to her questions she stated she did not recall, she heard it. She did not ask if he had any beer at the establishment.
Inspector Sargent did not know where Circa security was but JS was removed. She believed S/Sgt. Chong spoke to security.
Inspector Sargent stated again she did not know where Circa security were but they were speaking to S/Sgt. Chong.
Inspector Sargent stated security removed JS from the area but she could not recall where they went with him or how they removed him. She did observe he was unsteady on his feet, swaying from side to side, not in a straight line.
Under cross-examination Inspector Sargent stated she has been to Circa two or three times. She also agreed that the hallway is long and narrow and that the music was loud.
Inspector Sargent stated the other three officers walked together. She was with D/Sgt. Thomson. Then she stated she did not recall if they were together and she could not remember who asked what questions, stating some asked and others watched.
Inspector Sargent stated that they were standing around the patron. She also said there were people walking back and forth in the hallway and did not recall being brushed by people.
Inspector Sargent stated JS was displaying signs or exhibiting signs of intoxication.
When asked if leaning on his female friend’s shoulder, it could be interpreted as a sign of affection, she stated she did not know.
When asked if JS was passed out, she stated no.
Inspector Sargent stated JS had difficulty getting up but did not recall how he got up. She also said he did not have any trouble pronouncing his words.
Inspector Sargent stated JS did not say how much he had to drink at Circa.
Inspector Sargent could not remember how the other officers left the establishment. She stated that she was with D/Sgt. Thompson.
Inspector Sargent’s notes were entered as Exhibit #2, and Mr. Levitan pointed out that they do not refer to staggering. The notes also mention that S/Sgt. Chong spoke to security and that the patron was removed, but not how he was removed.
On re-direct, Inspector Sargent stated JS was unsteady, not staggering and had slight signs of intoxication. She also did not recall if he had a coat on. The patron was not charged with any offense.
Heather Thompson is a D/Sgt. with the OPP. She attended at Circa on February 17, 2008 at 12:33 a.m. along with AGCO Inspectors Sargent and Strongman and OPP S/Sgt. Chong.
D/Sgt. Thompson stated they were in two groups and that she was with Inspector Sargent. She stated they did a walk through, during which they requested identification of several youthful patrons who were found to be of age.
D/Sgt. Thompson stated that they made observations throughout the club. When they were in the hallway leading to the smoking area, she noticed a male patron, JS, who was semi-reclined, leaning back against the wall. She noted that his eyes were closed.
D/Sgt. Thompson could not remember if the other two officers noticed JS first or if she and Inspector Sargent did.
D/Sgt. Thomson stated that in the hallway there was a bench on one side of the hallway and her attention was drawn to it. She noticed JS who was leaning back and to one side.
D/Sgt. Thompson stated a female patron was to the left of JS. She also stated there was a pillar to the right and some other object to the left.
D/Sgt. Thompson stated JS did attempt to stand up and required the assistance of his female companion. She assisted so he would not fall over.
D/Sgt. Thompson stated that Inspector Sargent conversed with JS. She also noted that his eyes were glassy and bloodshot and that he had slow motor skills. He also had difficulty understanding the need for identification.
D/Sgt. Thompson also recalled that the female companion sat him down again. She noted that security was called over. She did not remember what happened or if JS left the premises.
Under cross-examination, D/Sgt. Thompson stated that Circa was busy but there was ample room for walking in the corridor.
D/Sgt. Thompson stated she had a lot of experience with drunks and that JS appeared intoxicated. She did not recall if all four officers were standing around him at the time.
It was pointed out to D/Sgt. Thompson that her notes do not say JS’ eyes were closed. She stated that she remembered that his eyes were closed.
D/Sgt. Thompson stated in response to a question, that JS was leaning against the wall and that he was seated later. She could not recall if he was leaning on his girlfriend.
When asked if she was holding him she replied she did not know. She also could not recall how his girlfriend assisted him in sitting down.
It was also pointed out to D/Sgt. Thompson that her notes do not mention JS sitting down again.
D/Sgt. Thompson stated JS’ movements were slow and he was slow to understand and respond.
On re-direct, D/Sgt. Thompson stated JS was stumbling when standing up unassisted. It was noted that this was not in her notes.
D/Sgt. Thompson also stated JS had no problem standing up and did not recall how he stood. She also could not remember if he walked. She also stated she did not talk to him.
When asked who talked to security, she did not know. She also did not know if the area of the hallway was licensed.
Licensee’s Evidence
John Llanos is a full time security person with Group 4 Security Force and Eastman Security. He has been with Circa for 13 months. He has had SmartServe training.
Mr. Llanos stated that he began work at 11:00 p.m. on the night of February 16-17, 2008.
When asked about Circa policy towards intoxicated patrons he stated they must leave the establishment.
On the night in question he was door security at the smoking area at the back of the club. He stated the hallway leads to the smoking area.
Mr. Llanos stated that an AGCO inspector pointed out a patron, JS, who she said was intoxicated. At that time the patron was sitting on a bench.
Mr. Llanos stated he was a big guy, more than 200 pounds, and that he looked fine to him. He noted that his eyes were open and he had good posture.
Mr. Llanos stated the AGCO inspector said JS had to leave and that he followed the rules. He spoke to JS and asked if he was okay and the patron said yes.
Mr. Llanos stated JS did not need help standing and he understood what was being said. He also said that JS walked to the coat check, got his coat and was escorted out. He noted JS did not trip or stumble.
Mr. Llanos stated JS went to the front of the club with his girlfriend and took a cab. The patron asked for his money back because he only had been in the club for such a short time. This was denied and he left without incident.
Under cross-examination, Mr. Llanos stated he said “girlfriend” because they were holding hands.
Mr. Llanos stated that he did not fill out any report for the incident and that he relied on his memory of the event. He stated he remembered the incident as it was the only time he has been approached by an AGCO inspector.
Mr. Llanos stated the incident occurred sometime after midnight before last call, after 1:00 a.m.
Mr. Llanos stated a person would not be able to get into the club if they were showing signs of intoxication.
Mr. Llanos did not know if there is a camera at the front door or where exactly they are positioned.
When asked if he saw the AGCO inspector enter the hallway, he stated Inspector Sargent spoke to him, but he did not see her prior to that. Mr. Llanos stated he was returning from the back when he saw the inspector.
Mr. Llanos did not know what happened while the inspector was talking to JS. He also stated when he saw JS, JS was fine. Mr. Llanos stated JS was sitting straight up.
The inspector told Mr. Llanos JS had to leave and she was beside him when he spoke to JS. He also said while escorting JS out, JS said he was fine. He also said that he was not swaying back and forth and had no difficulty walking.
On re-direct, Mr. Llanos stated Inspector Sargent was the only one he spoke to that night.
Orrin Bristol is the General Manger of Circa. Mr. Bristol advised the Board that he has been managing establishments for 10 years.
Mr. Bristol stated that they have a large security staff at Circa averaging one security person for every 50 to 75 patrons. He also stated they have a zero tolerance for intoxication.
Mr. Bristol stated they have regular training sessions and do training with the AGCO and OPP during staff sessions.
Mr. Bristol explained that everyone entering Circa is checked for identification and sobriety before they enter. He also stated that there is only one way to get into the club, adding there is another entrance, which is used by staff and officers.
Mr. Bristol stated that on the night in question there were approximately 2,000 patrons in the establishment at the time the officers were there, which is prime time for the club.
Mr. Bristol stated that the hallway which the male patron, JS, was in would have been very busy. He described the hallway as seven feet in width, with displays in glass cases along the wall. He stated that between the displays there are small benches that patrons can sit on and wait. There are no tables to put a drink on. He also noted that the benches are not comfortable. He further stated that you can lean back on the benches but only at right angles and it would be very uncomfortable.
Mr. Bristol stated that on the night in question he was advised of what happened. The couple was not happy and wanted a refund because they had not been in the club for very long, noting that he did not speak to them personally.
Under cross-examination, Mr. Bristol stated that usually between 10:30 and 11:00 p.m. there are approximately 600 to 700 patrons and around 11:30 pm to 12:30 a.m. the club is at the maximum amount (2,000). People start leaving the club after last call and around 2:30 to 2:45 a.m. the majority have left.
Mr. Bristol, in response to a question, stated that a person sitting on the bench in the hallway would not be able to lean straight back. He stated that they could slouch forward or sideways.
When asked if the club had video surveillance he stated they did, noting there are cameras at the front entrance. When it was suggested he could have checked the video, he stated that it is not the way they do it.
Mr. Bristol stated that Mr. Llanos, who escorted JS out, stated he did not think JS was drunk.
On re-direct, Mr. Bristol stated the video cameras at the front door would only get the top of a person’s head and that there is no sound on the video. The other cameras are at each cash station, pointing towards the cash register.
Mr. Bristol stated that two to three people could sit on each bench in the hallway. There are approximately four or five benches, one between each display case.
Mr. Bristol stated that none of the officers spoke to him that night.
Registrar’s Submission
Mr. Morris submits that the question before the Board is a simple one. Did the Licensee permit drunkenness?
Mr. Morris noted that Circa is a large night club located in the Entertainment District of Downtown Toronto. There is no evidence that JS entered the premises drunk. Mr. Morris submits that there is evidence that JS consumed some portion of the 8 to 10 beers he consumed that evening before he entered the club.
Mr. Morris noted that Inspector Strongman first saw JS in the long hallway by the washroom. There were two security staff five feet in either direction of JS. Inspector Strongman said JS was swaying back and forth and for a couple of minutes, used his hand against the wall to stabilize himself. Mr. Morris contends that he did not do so to relax. Mr. Morris also notes Inspector Strongman stated that JS had red glassy eyes which were intermittently half closed.
Mr. Morris noted that Inspector Strongman was told by JS that he had eight to 10 beers, between “5 and 2” at Circa. The male patron’s girlfriend told the inspector he was just drunk, not on drugs, and they were waiting for friends.
Mr. Morris stated that at some point during the 10 to 15 minutes of observation, JS sat down. Inspector Strongman did not see JS stand up or leave.
Mr. Morris stated that the inspector spoke to Mr. Bristol, the manager, and advised him of the infraction.
Mr. Morris noted that S/Sgt. Chong first saw JS when he was sitting on the bench. He was swaying from side to side while sitting. JS was also resting his head on the female companion’s shoulder.
Mr. Morris noted that JS told S/Sgt. Chong that he had seven or eight drinks at Circa.
Mr. Morris then noted the evidence of Inspector Sargent who also saw JS when he was sitting or resting against his female friend, in such a way as to appear to be intoxicated, not, Mr. Morris contends, affectionate. Mr. Morris then noted the symptoms of intoxication noted by Inspector Sargent.
Mr. Morris stated that Inspector Sargent did watch JS get up to leave and noted that he had difficulty in getting up. While Inspector Sargeant had no present recollection, her notes said the female assisted JS.
Mr. Morris stated that all the inspectors spoke to JS at some point and that Inspector Sargent heard him say he had seven to eight Lucky Lager beers prior to attending the establishment.
Mr. Morris stated that Inspector Sargent spoke to security, who had been speaking to S/Sgt. Chong and security escorted JS out of the premises. JS was a bit unbalanced and swaying from side to side while walking.
Mr. Morris went into the evidence of D/Sgt. Thompson who also observed JS seated on a bench in the hallway. She said JS was in a semi-reclining position leaning against the wall for support.
Mr. Morris described D/Sgt. Thompson’s observation of JS. D/Sgt. Thompson did not see JS stand up. D/Sgt. Thompson testified that JS seemed to have difficulty understanding Inspector Sargent when she was talking to him.
It is Mr. Morris’ view that the evidence of all four witnesses for the Registrar was clear, cogent and credible. He also stated that the evidence was consistent in all major respects.
Mr. Morris maintained that there is ample evidence for a finding of permit drunkenness, given the signs of intoxication described over an extended period of time.
Mr. Morris stated that the evidence of Mr. Llanos, the security guard on duty at the time, is not credible. He makes this assertion due to the fact that Mr. Llanos testified from memory without the aid of notes.
Mr. Morris submits that the evidence of Mr. Bristol is not credible either.
Licensee’s Submission
- Mr. Levitan noted that Registrar’s Counsel viewed the question before the board as a simple matter, namely:
a. Did the licensee permit the drunkenness?
b. Was the patron drunk?
c. Did he show signs of being drunk or intoxicated?
Mr. Levitan submitted that the question is not that simple for two reasons.
He suggested that this is not a case of section 29 of the LLA and it is not set out as such in the NOP. The reason, he submits, is that there is no credible or consistent evidence that the patron was served or sold liquor while appearing to be intoxicated.
Secondly, Mr. Levitan submitted, contrary to what Registrar’s Counsel submitted, the Registrar’s witnesses gave evidence that was the opposite of clear, cogent and credible and consistent in all major respects.
The issue is, Mr. Levitan submitted, assuming JS was intoxicated, on the balance of probabilities, when was the first point in time that it could reasonably be found that the Licensee’s staff could determine that JS showed signs of intoxication.
Mr. Levitan stressed that this point is particularly important given the conflicting evidence of the Registrar’s witnesses and the fact that there is no evidence that JS entered the premises drunk.
Mr. Levitan noted that the evidence supports that it was a busy night at Circa, with an excess of 2,500 patrons. It is also clear that the inspectors and officers were in Circa for close to an hour, and this was the only incident that caught their attention.
Mr. Levitan noted the evidence is that the incident occurred in the hallway leading to the smoking area and the washrooms. He also noted that S/Sgt. Chong could not remember much of the incident, could not remember the physical location of the corridor or what it was.
Mr. Levitan points out Inspector Strongman claimed to have seen JS standing and using the wall in order to maintain his balance. He also pointed out Inspector Strongman claimed there was a “strong” odour of beer coming from JS yet the word is not in his notes. Inspector Strongman, Mr. Levitan noted, claimed JS did not specify any kind of drinks at Circa and yet his notes specify beer. Mr. Levitan noted Inspector Strongman does not remember JS standing up and admitted understanding what the patron was saying, understood the questions and that he did not see him walk, nor did he see the security escort the individual out.
D/Sgt. Thompson testified that she had walked through all levels of the club and found no other areas of concern. She also testified that JS was leaning back against the wall and that his eyes were closed, but admitted on cross that the latter was not in her notes.
Mr. Levitan also noted that D/Sgt. Thompson testified that JS was leaning on a pillar. Later testimony by the Licensee indicated that there is no pillar in the corridor. Mr. Levitan also has difficulty with D/Sgt. Thompson’s testimony with respect to JS reaching out to his girlfriend as he feels it was inconclusive, because she testified the female sat JS down and yet that was not in her notes.
Mr. Levitan also noted that in reply to a question from the Board, D/Sgt. Thompson could not recall seeing any problems with JS standing up and in fact had no memory of him standing up. She also did not recall him walking or stumbling and did not remember seeing him walk out. Mr. Levitan also stated D/Sgt. Thompson claimed, contrary to all other evidence including that of Inspector Sargent that he had difficulty understanding what Inspector Sargent was asking.
Mr. Levitan felt that the most credible witness of the Registrar was Inspector Rebecca Sargent. She confirmed the hallway was long and narrow and that people were bumping into each other. Mr. Levitan noted that Inspector Sargent testified all of the inspectors and police officers were standing around with her and speaking to JS as a group. She also testified that D/Sgt. Thompson was standing around with her. Mr. Levitan noted that Inspector Sargent’s evidence is that JS stated that he had seven or eight Lucky Lagers prior to coming to Circa. She did not ask what he drank at Circa. Inspector Sargent also testified that no one spoke to the patron for more than four minutes.
Mr. Levitan noted Inspector Sargent stated that the male was a “big guy” and that he was cooperative and friendly. Inspector Sargent, Mr. Levitan stated, confirmed to the Board that JS was not charged with drunkenness and that she could not remember if he required assistance getting up. She stated he was “a bit imbalanced” but would not say he was staggering from side to side. Mr. Levitan noted that in response to a Board question, Inspector Sargent reiterated firmly that “everybody that said something was in a position to hear those conversations.”
Mr. Levitan submitted Inspector Sargent made a relevant statement in that she agreed, in cross-examination, that a person could drink before entering an establishment and not exhibit signs of intoxication and that can still be true even after having drinks at the establishment. Mr. Levitan asserted that this statement goes to the heart of this case. He noted even if it is assumed that JS was intoxicated, the issue then becomes at what point it can be said that these signs of intoxication ought to reasonably have been apparent to staff. Mr. Levitan submitted there is no evidence on this point from the Registrar and no evidence that the conduct was permitted as required by the section.
It is Mr. Levitan’s submission that, on the balance of probabilities, based on all of the inconsistencies that directly affect the characteristics of JS, it cannot be determined on the evidence that the individual was in fact intoxicated to the point of violation. Mr. Levitan noted he did not stumble, he did not fall, and according to Inspector Sargent he did not even stagger. He was cooperative and friendly and his words were understood. He was escorted out without assistance. Only one person claimed he was standing and using the wall for support and this was contradicted by the others. Much, Mr. Levitan noted, was made about his head resting against his companion, but there is no basis to make a finding that was anything other than intimacy and/or fatigue.
Mr. Levitan submitted that there is no basis for finding the evidence of the Licensee’s security person, John Llanos was “not credible,” as Registrar’s Counsel submits. Mr. Llanos’ evidence was clear, unshaken and forthright. He cooperated immediately with the inspectors and police and escorted the individual out because, he testified, it was policy not to challenge them.
Mr. Levitan also submitted that non-denial of an allegation is not, contrary to the Registrar’s Counsel’s submission, admission of wrongdoing.
Mr. Llanos testified that JS walked with him to get his coat, and exited without any trouble or assistance and did not seem intoxicated. He testified that JS then inquired about a return of the cover charge, as he had only been in Circa briefly and therefore felt entitled to it.
Mr. Levitan asked if JS was intoxicated why did not one of the four officials remember seeing him walk or observe him walk down the corridor, and out of the premises?
Mr. Levitan noted that there were no other issues at Circa for the officials, this was the only one. He submitted had they accompanied JS out there would have been a better basis for observation rather than the four minutes of observation and conversation.
Mr. Levitan noted that the manager of Circa, Orrin Bristol testified with clarity about the location in the establishment where this incident occurred. He described the location as a long slender hallway. Mr. Bristol testified that a person would not walk a straight line in the hallway even if one wanted to due to congestion. Mr. Bristol stated the benches were ledges and designed not to be comfortable to avoid lengthy stays. It would not be possible to sit comfortably on the benches and it is not possible to sit against the wall.
Mr. Levitan asked, based on all of the above, can it be said that the Registrar, on the balance of probabilities, had established that the Licensee “permitted drunkenness” to occur? Mr. Levitan submitted that the level of intoxication is highly open to question and there is not a scintilla of credible evidence that the Licensee served or sold JS alcohol or that the Licensee permitted drunkenness. The moment JS was pointed out to the security, he was escorted out.
Registrar’s Reply
Mr. Morris submits contrary to Mr. Levitan’s submission, Inspector Strongman clearly recalled the patron indicated he had “5 or 2” beers at Circa.
Mr. Morris stated that Inspector Sargent did not testify that JS was not asked what he had to drink in Circa. She testified that she did not know if someone else asked him what he drank at Circa. She also testified, he stated in response to the Board that all four officials at some point spoke to JS.
Mr. Morris submitted that the Licensee has merely selected pieces of evidence out of context to imply inconsistencies in the inspectors’ evidence. There is no requirement that their evidence be consistent in every single respect, for they observed JS from different angles over a period of time.
Mr. Morris noted that the conversations may have been four minutes but Inspector Strongman testified he observed the drunk for 10 to 15 minutes. He then stated, in any event four minutes is adequate time for four inspectors to conclude that JS was drunk.
Mr. Morris stated that JS himself told the Inspectors that he had consumed liquor in the establishment. He submitted that the Licensee would never know due to the number of bars in the establishment.
Mr. Morris submitted the issue is whether JS was drunk in the establishment. The evidence on that, he believes, is substantial. As for “permit”, it is trite law that due diligence is no defence. In any event, in the present case, there is no evidence of due diligence. There is no evidence that the Licensee did anything to prevent JS being drunk in the establishment. In fact, Mr. Morris stated, on the Licensee’s own evidence, JS had been in the establishment for half an hour.
Analysis/Reason/Finding
The Board has carefully reviewed the testimony, exhibits and submissions from both parties in this matter.
Mr. Morris submits that this is a simple case of whether or not the Licensee permitted drunkenness in the premises on the night of February 17, 2008. Specifically, was the male patron JS drunk and did he show signs of being drunk or intoxicated on the night in question.
Mr. Morris points out there is no evidence that JS entered the premises drunk although there is evidence that he consumed some portion of the eight to ten beers he drank that evening in Circa.
He believes that testimony by AGCO inspectors and OPP personnel demonstrate that this individual exhibited many of the classic signs of intoxication and that by his own admission, the patron had consumed eight to 10 beers during the evening and between “five to two” of those at Circa. One inspector heard him say he had seven to eight Lucky Lager beers prior to attending the Club but was not driving that evening.
Mr. Morris also suggests that testimony from Security Guard John Llanos is questionable because he was recalling an event of one year ago without any notes or other written record. Further, it is not unusual for a drunk to say he is okay or resent being asked to leave and even if JS was only in the establishment for 30 minutes, that was ample time for him to consume two to five beers.
Mr. Bristol, the Club Manager admitted he did not know how long JS was in the establishment or if he had been served. His testimony that a person cannot lean backwards on the benches is simply not credible according to Mr. Morris, because a drunk can slump anywhere and he believes there is ample evidence for this Board to find that the Licensee permitted drunkenness on the premises contrary to subsection 45(1) of the O.Reg.
On behalf of the Licensee, Mr. Levitan submits that in order for the Board to make findings of a breach of subsection 45(1) it must determine whether JS exhibited sufficient signs of being drunk or intoxicated and whether the Licensee permitted that drunkenness.
He contends that there was no credible evidence that JS was served or sold liquor at Circa while appearing to be intoxicated and asks when was it possible that the staff could reasonably determine if that was so.
He points out that there was conflicting evidence from the Registrar’s witnesses and that even Mr. Morris concedes there was no evidence that JS entered the establishment in a drunken state. He submits that all testimony shows it was a very busy night at Circa with an excess of 2,500 patrons coming and going. Despite this, and notwithstanding the fact that the inspectors and officers were in Circa for almost an hour, this was the only incident that caught their attention.
In his submissions, Mr. Levitan reviewed the inconsistencies in testimony from the Registrar’s witnesses and reminds us that no charge was laid against JS. Further, he believes that testimony from Inspector Sargent about the fact that someone can drink elsewhere, enter an establishment, be served alcohol and not yet exhibit signs of intoxication is crucial. At what point then, he asks, can it be said that the signs of intoxication ought to reasonably be apparent to staff? Since no evidence was provided on this point from the Registrar, it cannot be concluded that the conduct was “permitted” as required by the section.
He goes on to suggest that based on the conflicting evidence regarding this patron’s condition, it cannot be reasonably determined that he was intoxicated to the point of violation. He did not stumble, he did not fall or stagger. According to at least one of the Registrar’s witnesses, he was cooperative and friendly and his words were understood. He was escorted out without assistance or incident.
Mr. Levitan believes there is no basis for finding the evidence of Mr. Llanos to be “not credible”. He was clear, unshaken and forthright in his testimony and he cooperated immediately with the inspectors and police in escorting the patron out of the premises because it is Club policy not to challenge such instructions.
He concludes by suggesting that on a balance of probabilities, the Registrar has not established that the licensee “permitted drunkenness” because no evidence was presented that the patron was served or sold alcohol in the premises while intoxicated. He cites Regina v. Royal Canadian Legion (1971) and submits that the Court of Appeal held that “permit” should be read to mean “where drunkenness does occur under circumstances where that condition must have been known to the staff.” He believes that this test has not been met.
On reply, Mr. Morris cites the Divisional Court decision on Canada Tavern to offer another definition of “permit” for the Board’s consideration and reiterates relevant testimony during the hearing to refute some claims by Licensee’s counsel.
The Board notes that there is a two part test in order to make a finding under subsection 45(1). First, it must be established that drunkenness occurred on the premises. Second, it must be established that the Licensee permitted that drunkenness to occur.
In determining whether or not drunkenness was permitted, the Board has reviewed all of the testimony and notes that each of the Registrar’s witnesses had differing opinions as to the state of possible intoxication exhibited by JS. According to one, he was friendly, cooperative and easily understood with no trouble pronouncing his words. Conversely, we heard testimony from another witness that his speech was slurred, and he had difficulty understanding the need for identification.
We also heard from some witnesses that he was sitting whereas one witness stated that he was standing with his hand against the wall. We heard that he was swaying and unsteady on his feet but not one of the Registrar’s witnesses observed him walking when he retrieved his coat and exited the establishment with Security. This would have been helpful in determining whether he was intoxicated and should have been asked to leave prior to those instructions being given by AGCO and OPP personnel. This Board concludes that the inspectors and officers involved did not believe JS’ condition was serious enough to stay and ensure that he did exit the premises.
As for Mr. Morris’ contention that the testimony from Mr. Llanos was not credible because he had no written record for an incident that took place a year ago, the Board found Mr. Llanos’ evidence convincing when he stated he remembered the event well because it was the first time he had been asked by inspectors to remove a patron. He went on to say that in his opinion, JS was not intoxicated.
JS, by his own admission, consumed a number of beers during the course of the evening. It is important to note that most of those were a Lucky Lager brand which is not served at Circa. There is no evidence as to how much alcohol was actually served and/or consumed by JS at Circa, if any. The Board also notes that there was no dispute to JS’ claim that he had been there for only half an hour and believed he should be reimbursed for the cover charge. The fact that JS caused no incident after his request for reimbursement was denied further indicates to this Board that he was not noticeably intoxicated. He exited the premises, got into a cab and left without argument.
By Mr. Morris’ own submissions, this patron was not intoxicated when he entered Circa and he was not consuming any beverage when observed by the inspectors and officers. Nor do we know exactly how long he had been sitting in the corridor before he was observed by them. It would have been impossible for establishment staff to know how much alcohol JS had consumed prior to entering Circa and based on testimony from Inspector Sargent, he could have exhibited absolutely no signs of intoxication when and if he was served.
It is noteworthy that in all the time the inspectors and officers were in the club, this was the only problem observed. According to testimony, there were 2,000 to 2,500 patrons in Circa that evening and this suggests that the Licensee was controlling the establishment in an effective manner.
In view of the above, and having considered the above, and having considered the recent Court of Appeal decision, Sin City Bar and Eatery, the Board finds that even if JS was drunk on the premises, there is insufficient evidence for the Board to conclude that the Licensee knew or even ought to have known so as to constitute “permit” drunkenness.
For these reasons, the Board DISMISSES the allegation of a violation under subsection 45(1) of the O.Reg.
DATED AT TORONTO THIS 13th DAY OF May , 2009
DIANNE AXMITH, BOARD MEMBER BRIAN J. FORD, BOARD MEMBER