Registrar, Alcohol and Gaming Commission of Ontario v. 475687 Ontario Limited O/A Horseshoe Tavern, 2009 CanLII 29735

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-

475687 Ontario Limited O/A Horseshoe Tavern

Licensee

DECISION ON FINDINGS

Panel: Jacqueline Castel, Board Member

Bruce Miller, Board Member

Decision Date: April 23, 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 ) Joyce Taylor, Representative

475687 Ontario Limited, Licensee ) Jerry Levitan, Representative

Allegations

1. A hearing into a Notice of Proposal number 16864 dated November 24, 2008, to suspend liquor licence number 90103 (the “Licence”) of 475687 Ontario Limited (the “Licensee”) operating as HORSESHOE TAVERN, 368 Queen Street West, Toronto, Ontario, M5V 2A2, (the “premises” or the “establishment”) on the basis of alleged violation of section 29 of the Liquor Licence Act (the “LLA”) and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) prescribed under the LLA, was held on April 6, 2009 in the City of Toronto.

Decision

2. After considering all the evidence and submissions, the Board FINDS the Licensee contravened section 29 of the LLA and subsection 45(1) of the O.Reg in respect of one patron. Reasons follow.

Preliminary Matters

3. The Board ORDERED witnesses be excluded on consent.

Registrar’s Evidence

4. Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Jade Leadbetter attended the establishment at 1:07 a.m. on June 24, 2008 for a routine inspection. She was accompanied by AGCO Inspector Neline Fernando. The day of the week was Monday evening going into Tuesday morning.

5. She observed a male patron on the patio exhibiting signs of intoxication. The male was tall, wearing a blue hoodie, a blue hat and glasses. Inspector Leadbetter proceeded inside to observe the male more closely. On entering, she passed a Security Officer at the front door.

6. Inspector Leadbetter observed the male stand and then stagger towards the Security Officer, who subsequently identified himself as Tyrone Young. The male spoke to Mr. Young. While standing, he was swaying back and forth. She then observed the male stagger inside the establishment to the rear washroom area and enter the men’s washroom. Several minutes later, she observed the male stagger from the washroom area to the automatic teller machine (“ATM”) located on the east wall of the establishment.

7. At the ATM, the male exhibited poor motor skills. He attempted, several times, to place his bank card horizontally into the ATM. At this point, Inspector Leadbetter was standing right next to the ATM, less than a foot away from the male. In an effort to engage him in conversation, Inspector Leadbetter asked whether the ATM was broken. He turned towards her and slurred, “You go ahead and try”. She observed he had red, glassy eyes.

8. The male then staggered outside, stopping to speak to Mr. Young. She observed the male exit the patio onto Queen Street and proceed west. Several minutes later, he returned and spoke to the Security Officer for a third time. After speaking to Mr. Young, he then staggered inside the establishment to the bar. He leaned heavily on the bar, as if he needed the bar to hold him up for support. He spoke to the bartender and then was served one pint glass of beer and a bottle of beer. The male then staggered to the patio and gave one of the drinks to a male friend. He then sat heavily onto a chair.

9. Inspector Leadbetter approached the table where the male was sitting and identified herself to him verbally and by showing her badge. She asked to see his identification. The male refused to give it to her and became argumentative. His speech was slurred and some of the things he was saying in response to her questions did not make sense. She asked him for his name again, and he replied sarcastically, “JJ”. After several minutes of uncooperative dialogue, she left the table and joined her colleague, Inspector Fernando, who was speaking with Mr. Young.

10. Inspector Leadbetter told Mr. Young that the male was intoxicated. Mr. Young knew who she was talking about and told her he had directed him to another ATM in the neighbourhood. At this point, Inspector Fernando went inside. Inspector Leadbetter told Mr. Young of the prohibition on having intoxicated persons in the premises and of the liability. Mr. Young said he told the male he could not have anything else to drink, but that he could purchase a drink for his friend. Inspector Leadbetter also advised Mr. Young of the infraction of serving beverage alcohol to an intoxicated person. Mr. Young did not dispute her observations about the male and seemed to confirm them when he said he had cut the male off beverage alcohol service. She also told Mr. Young she would be submitting a report to a supervisor for disposition.

11. Inspector Leadbetter subsequently went inside where she observed Inspector Fernando speaking with the bartender. She saw the intoxicated male patron leave the patio. When she went outside to see where he went, she saw him on an adjacent patio of another establishment.

12. Mr. Young did not say anything to Inspector Leadbetter about the male patron being tired because he had participated in a cancer run that day.

13. The area where the ATM is located is not as bright as a bank, but you can see the buttons on the machine and where to insert the bank card without difficulty.

14. The establishment was virtually empty on the date in question.

15. On cross-examination, Inspector Leadbetter said she was at the premises between 1:07 a.m. to 1:39 a.m. on the date of the incident.

16. She did not see the male patron trip or fall. Nor did she see him vomit.

17. She subsequently attended the adjacent establishment where she observed the patron on the patio. At this point, Ms Taylor objected to cross-examining the witness on anything related to the adjacent establishment on the ground that it is not relevant to this proceeding. The Board permitted Mr. Levitan to ask questions about the patron’s behavior and physical condition when observed at the adjacent establishment, but not about any investigations or disciplinary proceedings pertaining to the adjacent establishment.

18. Inspector Leadbetter observed the patron on the patio of the adjacent establishment for approximately four minutes. He was evicted from the patio by the staff of the establishment.

19. AGCO Inspector Neline Fernando attended the establishment on June 24, 2008 at 1:07 a.m. with Inspector Jade Leadbetter.

20. When they arrived, she observed a male on the patio exhibiting signs of intoxication which included staggering and speaking in a very loud voice, with slurred speech. She observed the male speaking to Mr. Young. The male was consuming amber fluid, which appeared to be beer, from a pint glass.

21. She observed the male patron walk inside the establishment toward the back where the washrooms are located. He was swaying and staggering when he walked. He entered the washroom and came out a few minutes later. He then went to the ATM located inside the establishment. He exhibited difficulty inserting his card into the slot on the ATM. The lighting at the ATM was dim, like elsewhere in the establishment, but there was enough light to see.

22. Inspector Fernando was observing the male at the ATM from the bar, approximately five feet away. Inspector Leadbetter actually approached the male at the ATM and engaged him in conversation. The male was unable to retrieve any money from the ATM and walked towards the front door of the establishment. On exiting, he stopped and spoke to Mr. Young. A few minutes later, the male re-entered the establishment, approached the bar and ordered drinks. She could not hear him order, but observed him being served one pint of beer in a clear glass and a bottle of beer.

23. While the male was exiting onto the patio, he was swaying and staggering. He lost his balance and almost fell into the east wall. She observed Inspector Leadbetter approach the male, who was not sitting on the patio. Inspector Leadbetter identified herself, and the male told her his name was JJ. Inspector Fernando was standing about seven to ten feet from Inspector Leadbetter at this time. Inspector Fernando was not participating in the conversation, but she could hear that the patron was being uncooperative. Inspector Leadbetter would ask questions which the male would refuse to answer. Sometimes he would look the other way.

24. Inspector Fernando approached Mr. Young and identified herself to him. She asked him about the intoxicated male. He told her that he informed the male that he could not have anything more to drink. Inspector Fernando then told Mr. Young that the bartender just served him two beers. At this time, Inspector Leadbetter came over to speak to Mr. Young.

25. Next Inspector Fernando spoke to the bartender, Edward Franklin. She told him he served an intoxicated patron. Mr. Franklin said the male was annoying but he did not think he was intoxicated. She advised him of the signs of intoxication she observed the male exhibit and that Mr. Young had cut him off beverage alcohol service earlier. She informed Mr. Franklin of the infractions, permitting drunkenness and serving an intoxicated patron. She also told him that a report would be submitted to a supervisor for disposition.

26. The establishment was not busy on the evening of the incident. Most of the customers were on the patio.

27. Mr. Young did not provide any other explanation for the male’s physical condition and behavior. He did not say the male was tired from participating in a cancer run that day.

28. On cross-examination, Inspector Fernando stated she did not recall the male patron wearing glasses. At this point, Mr. Levitan requested to enter Inspector Leadbetter’s notes as an exhibit. Ms Taylor objected on the ground that if he wanted to enter the notes, the time to have done so was when Inspector Leadbetter was on the stand, as Inspector Fernando could not give evidence or answer questions on another inspector’s notes. The Board agreed with Ms Taylor’s objection.

Licensee’s Evidence

29. Tyrone Young is a host at the establishment. He talks to people when they enter. If he sees an intoxicated patron he acts on it. He has been working at the establishment for 15 years.

30. On the date of the incident, his shift was from 8:00 p.m. to 3:00 a.m. The male patron entered the establishment between 9:00 p.m. and 10:00 p.m. He was wearing gold-framed glasses and casual clothes. He engaged him in conversation at the door. He told him he looked tired. The male told him he just came from a cancer run and that his wife had died of cancer. He asked the male if he was tired because his eyes looked a little red and he appeared to be a bit down. His breath did not smell of alcohol. He was not staggering.

31. Mr. Young entered the establishment and told Mr. Franklin not to serve the male any more than one beer. He also told Mr. Franklin that the male is tired, but he seems “ok”. Mr. Franklin wanted to be cautious all the same.

32. After he finished his drink, the male asked if he could buy his friend a drink. Mr. Young said “okay”.

33. At this time, Mr. Levitan filed a photograph of the interior of the establishment which the Board entered as Exhibit 1.

34. Mr. Young said the lights in the establishment are dim so it is hard to see the numbers on the ATM. A lot of customers complain about this. The male told Mr. Young he was having difficulty with the machine. However, the male returned to the machine and was able to retrieve money. It would not be possible to fall into a wall, while at the bank machine, because there are racks and a ledge on one side and a safe on the other side.

35. He allowed the male to buy his friend a drink. He brought the drink out onto the patio.

36. Mr. Young told the inspector that the male was just tired because he participated in the cancer run. The inspector did not give him any indication that he had done anything wrong or committed an infraction.

37. On cross-examination, Mr. Young said he does not know when fundraising runs normally occur. He did not question the male about a fundraising run taking place on a Monday because he believed that the male was telling him the truth.

38. He did not see the inspectors when they arrived so he does not know what they observed. The first time he realized the inspectors were present was when they approached him.

39. He spent most of his shift working at the front door. He was positioned so he could see the patio. There were three or four patrons on the patio. The establishment was not busy.

40. Mr. Young told Mr. Franklin the male could have only one beer because he was tired and should have gone home to rest. He acknowledged that there is nothing wrong with a tired person having a beer. If he knew he was drunk, he would not have let him have a beer.

41. Edward Franklin has been a bartender at the establishment for 23 years. He was working on June 24, 2008.

42. Mr. Young came in and told him there was a male patron who should be served only one beer. He told him he did not know if the male was tired or impaired.

43. The male then came in and ordered a pint of beer. The male looked fine to him. He did not look impaired. The male was white and about 35 years of age. He had gold rimmed glasses and a medium build. When he reached into his pocket for his wallet, he realized he had no money so he went to the ATM in the establishment.

44. The ATM is in a poorly lit area by the safe. He watched him go over to the ATM. The male’s back was to him. Eventually the male retrieved money from the machine and paid him. The male went to the bathroom and then went back onto the patio. He was not bumping into things.

45. On cross-examination, Mr. Franklin said he did not recall whether the male went down the street to retrieve money from another bank machine. He was not concerned that the male might not pay his bill. He would have just recorded it as a “spill”.

46. The patron entered after midnight. It was not a busy night. Most of the patrons were on the patio. He was the only staff member working inside the establishment. He believes the incident took place on a Monday or a Tuesday because he works at the front bar on Mondays and Tuesdays. He was in charge on the evening of the incident.

47. He does not recall what the male was wearing. He tends to focus on faces, which is why he remembers the glasses.

48. He could only recall serving the customer a pint of beer, but acknowledged it was quite a while ago.

49. One of the inspectors spoke to him. She told him the patron was showing signs of intoxication and that she would be filing a report with a supervisor. She also expressed concerns about the patron being served beer in his condition.

Registrar’s Submissions

50. The Registrar submits that contraventions of section 29 of the LLA and subsection 45(1) of the O.Reg have been proven on a balance of probabilities.

51. Inspector Leadbetter observed the male stagger to Mr. Young, speak to him, sway back and forth while standing, stagger to the washroom area, stop at the ATM and insert his card in the wrong way several times. Of all the witnesses, Inspector Leadbetter was in the best position to see what he was doing at the ATM. When she spoke to him, she observed that his eyes were red and glassy and his speech was slurred.

52. After Inspector Leadbetter observed all of these clear signs of intoxication, she saw the bartender serve him a pint of beer and a bottle of beer.

53. The male was argumentative and uncooperative when she identified herself to him. His speech was slurred to the point that some of his answers did not make sense.

54. Inspector Fernando made similar observations. She saw the patron swaying and staggering and described his speech as loud and slurred. She observed him exhibiting difficulty putting his bank card in the ATM, but admitted that Inspector Leadbetter was in a better position to see what was going on at the ATM. She also observed him almost fall into the east wall when going outside. From Exhibit 1, there is a portion of the east wall which comes out a bit.

55. Both inspectors were clear that they informed the staff of their observations and that a report would be submitted to a supervisor for disposition.

56. Mr. Young had concerns about the patron since he limited him to one beer. His actions contrast with his assertion that he thought the patron was just tired. It is not illegal to serve beverage alcohol to someone who is tired. It was not reasonable for him to believe the patron went on a cancer run on a Monday.

57. Mr. Young and Mr. Franklin’s evidence is not as reliable as the inspectors’ evidence, as their recollection of what occurred was not as good. There were also inconsistencies between Mr. Young and Mr. Franklin’s evidence.

58. The inspectors, on the other hand, gave clear, consistent and credible evidence of strong signs of drunkenness. The patron had interaction with both staff members and they did not take steps to prevent drunkenness in the establishment, in breach of subsection 45(1) of the O.Reg. After the patron showed all the signs of intoxication, the inspectors saw him served beer in a pint glass and a bottle, in contravention of section 29 of the LLA.

59. Accordingly, the Registrar requests findings under subsection 45(1) of the O.Reg and section 29 of the LLA.

Licensee’s Submissions

60. The LLA and regulations do not require perfection. There are varying degrees of intoxication and impairment is not an exact science. The test for intoxication is one of reasonableness. It is not a strict liability offense.

61. The establishment is an historic venue which has operated for decades. For at least a decade, there have been no suspensions for intoxication.

62. On the night of the incident, Mr. Young acted responsibly. He engaged the male in conversation at the door to see if he was okay, as the man seemed a little “off”. The man told him he’s tired because he did a cancer run and his wife had died of cancer. There was no reason not to believe the man. He was not vomiting or falling to the ground, and he understood what was being said to him. His eyes caught Mr. Young’s attention, and the male gave a plausible explanation for his appearance. No evidence was introduced to suggest cancer runs never occur on weekdays. As an abundance of caution, Mr. Young exercised additional due diligence by limiting the male to one beer.

63. Inspector Leadbetter did not describe how the male staggered. It is easy for inspectors to use catch phrases like staggering. Bumping into a wall is not a sign of intoxication. The male was not abusive. The establishment next door let him in. Either this other Licensee was acting irresponsibly, or it too thought the male looked fine.

64. There is nothing wrong with the male buying a drink for his friend. He did not look intoxicated to Mr. Franklin. The male did not appear intoxicated at either the point of entry or the point of service.

65. When the inspectors arrived, the male was speaking to Mr. Young. This was not a case where the inspectors detected a patron exhibiting signs of intoxication and the Licensee was negligent in not turning its attention to the patron. Rather, in this case, the Licensee assessed the patron, determined he was tired (not drunk), and took steps to prevent drunkenness on the part of the patron, by limiting him to one beer.

66. The Licensee submits that there were no infractions and the NOP should be dismissed.

Reply

67. Staggering is self-explanatory and both inspectors gave clear evidence about when and where he staggered. It was Mr. Levitan’s choice not to cross-examine the inspectors about what they meant by “staggered”.

68. Mr. Levitan is misinterpreting subsection 45(1) of the O.Reg. This subsection says the Licensee shall not permit drunkenness. The subsection does not say that only extreme drunkenness is not permitted. The fact that the patron may not have been showing extreme signs of intoxication does not mean he was not drunk.

69. Unlike provincial offences, due diligence is not a defense for infractions of the LLA and regulations which are decided by the Board of the AGCO. Even if due diligence was relevant to determining whether there were contraventions, the Licensee did not exhibit due diligence in this case. Due diligence is not just engaging a patron in conversation. For due diligence to apply, you have to take all reasonable measures to prevent a breach. Mr. Young had four points of engagement and he did nothing to prevent the contraventions. Mr. Franklin also did nothing. There was no evidence the Licensee’s staff took measures to prevent drunkenness in the establishment.

Reasons and Analysis

70. The Board found the evidence of the two inspectors to be clear, detailed, consistent and credible.

71. The Licensee’s witnesses did not have as clear a recollection of the incident and their evidence was less detailed. Mr. Franklin acknowledged that he could not recall certain details because of the passage of time. There were also inconsistencies between the evidence of the Licensee’s two witnesses. For instance, Mr. Young testified that he thought the male patron looked tired and that the male patron told him he was, in fact, tired because he participated in a cancer run that day. Mr. Franklin testified that Mr. Young told him he did not know whether the male patron was impaired or tired. Mr. Franklin also testified that he thought the patron looked fine.

72. As such, the Board did not find the Licensee’s evidence to be as credible or reliable as the evidence of the inspectors. Where the Licensee’s evidence conflicted with the evidence of the inspectors, the Board, therefore, preferred the evidence of the inspectors.

73. According to the evidence of the inspectors, the male patron exhibited the following signs of intoxication: red, glassy eyes, staggering, very unsteady on his feet, (bumped into a wall), swaying back and forth while standing, poor small motor skills and lack of coordination (placed bank card in ATM the wrong way several times), loud slurred speech, and uncooperative when speaking to Inspector Leadbetter. Of all the witnesses, Inspector Leadbetter was in the best position to observe what occurred at the ATM, and for this reason, the Board accepted her evidence on the same. The Board did not accept Mr. Levitan’s contention that the inspectors used “catch phrases” without sufficient description, to describe the patron’s behavior. Instead, the Board found the inspectors’ description of the patron’s behavior and physical condition to be very thorough.

74. Mr. Young also had concerns about the patron’s condition, given that he told the bartender to limit him to one drink. The fact that Mr. Young did not tell the inspectors, on the night of the incident, that the patron told him he was tired because he participated in a cancer run that day, causes the Board to disbelieve the veracity of Mr. Young’s testimony on same.

75. Based on the inspectors’ evidence the Board is satisfied, on a balance of probabilities, that the male patron was drunk. The Board does not accept Mr. Levitan’s argument that the patron must exhibit extreme signs of intoxication, such as vomiting or falling to the ground, to be drunk for the purpose of subsection 45(1) of the O.Reg.

76. According to the evidence of both the inspectors and the Licensee’s witnesses, the two staff members on duty had numerous points of interaction with the male patron. Mr. Young interacted with him: on entry; before he went to the washroom and ATM; before he left the establishment to find another ATM; and again on re-entry. Mr. Franklin interacted with the patron when he ordered and was served the two beers (i.e., one pint glass of beer and one bottle of beer). As such, the two employees on duty had plenty of opportunity to observe the patron and take appropriate action, in accordance with the Licensee’s responsibilities and duties under the O.Reg. Furthermore, the establishment was not busy.

77. The prohibition on permitting drunkenness in the licensed establishment, or areas under the exclusive control of the license holder, goes beyond limiting the service of beverage alcohol or cutting a patron off beverage alcohol service. The prohibition on permitting drunkenness means that the Licensee must ensure that patrons who are drunk do not enter the establishment and that patrons do not become drunk in the establishment. In addition, if a patron is discovered exhibiting signs of intoxication, the patron must be promptly removed from the establishment. In failing to evict the male patron from the establishment, the Licensee permitted drunkenness on the part of this patron, in contravention of subsection 45(1) of the O.Reg.

78. Based on the inspectors’ evidence, when Mr. Franklin served the male patron two beers (i.e., one pint glass of beer and one bottle of beer), he was exhibiting clear signs of intoxication, as described in paragraph 72 above. The Board believes that Mr. Young also assessed the patron as drunk, by the time he was served the two drinks, because he cut him off beverage alcohol service and was under the impression the patron was only buying a drink for a friend. The fact that he thought he was buying one drink for a friend does not absolve the Licensee from liability under section 29 of the LLA. In actual fact, he was served not one but two alcoholic beverages. Moreover, section 29 prohibits selling or supplying liquor to persons who appear to be intoxicated; consumption of the liquor sold or supplied to the person who appears intoxicated is not required for a contravention of this section. Mr. Franklin allowed the male patron, who was exhibiting signs of intoxication, to purchase two beers from him, and Mr. Franklin supplied the two beers to him, in violation of section 29 of the LLA.

Conclusion

79. The Board FINDS that the Licensee contravened section 29 of the LLA, by selling and supplying liquor to a customer who is or appears to be intoxicated, and subsection 45(1) of the O.Reg, by permitting drunkenness on the part of the same customer on the premises.

80. 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 23^rd DAY OF April , 2009

JACQUELINE CASTEL, BOARD MEMBER BRUCE MILLER, BOARD MEMBER