Registrar, Alcohol and Gaming Commission of Ontario v. 1126430 Ontario Inc., 2009 CanLII 29749

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-

1126430 Ontario Inc. O/A Little Texas Bar & Grill

Licensee

DECISION on findings

Panel: Brian J. Ford, Board Member Alex McCauley, Board Member

Decision Date: April 24, 2009

Hearing Location: Belleville, 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 ) Richard Kulis, Representative 1126430 Ontario Inc., Licensee ) William Walker, Representative

Allegations

1. A hearing into Notice of Proposal number 16175 dated April 10, 2008, to suspend liquor licence number 809441 issued to 1126430 Ontario Inc., (the “Licensee”) operating as LITTLE TEXAS BAR & GRILL, 290 North Front Street, Belleville, Ontario, K8P 3C6, (the “establishment” or the “premises”) on the basis of alleged violations of subsection 45(1) and section 45.1 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on October 27, 2008, in the City of Belleville.

Decision

2. After considering all the evidence and submissions the Board FINDS the Licensee violated section 45.1 of O.Reg and subsection 45(1) of the O.Reg with regards to the sleeping patron. The Board DECLINES to make a finding regarding the allegation of a violation of subsection 45(1) of the O.Reg with regards to the patron in the black Carhartt coveralls. Reasons follow.

Registrar’s Evidence

3. Constable Laura Portt is a 12 year veteran with the Belleville Police Service. She is familiar with the establishment in question.

4. On October 8, 2007 she was on duty and attended at the establishment, Little Texas. She was on scene at approximately 2:30 a.m. All available Belleville police officers were there in addition to back up from the Ontario Provincial Police (“OPP”). She stated there was a large crowd of persons in the parking lot of Little Texas. She was with Constable (“Cst.”) Braley and they were in charge of the paddy wagon. Cst. Braley had an intoxicated male he was taking into custody. A female friend of the male intoxicated person was also showing indicia of intoxication and was interfering in the arrest of the male party. The female had slurred speech, an odour of alcohol on her breath and was unsteady. The female party resisted the officer when arrested, kicking the glass partition in the police vehicle. While this was going on, fights were breaking out all around them. There were no cabs available to take patrons away. Cst. Portt stated that the parties came from Little Texas. It is the only bar in that immediate area. The fighting and disturbances carried over into the parking lot of the Pita Pitt across the street where another arrest was made.

5. In cross-examination, Cst. Portt stated there were other bars in the area, but north of where Little Texas is situated. Further there is a licensed restaurant in the mall where the Pita Pitt is.

6. Cst. Portt agreed that most of the residential area of Belleville is south of Hwy #401, and Little Texas is the southerly most bar.

7. Cst. David Braley is an 11 year veteran of the Belleville Police Service and is familiar with the licensed premises, Little Texas. He attended there on October 8, 2007.

8. On October 8, 2007 he had been on general patrol in the area. He noted that the crowd in the parking lot around Little Texas was large and growing. He was directed by his supervisor to take the paddy wagon to the parking lot of Little Texas. He took the paddy wagon there arriving at approximately 2:25 a.m. He parked in the southwest corner of the parking lot of the establishment, in view of the front entrance of Little Texas. He noted staff of Little Texas, who were in front of the premises, go into the premises and locked the doors. People could not get in to the licensed premises.

9. He described the scene as a considerable number of intoxicated patrons outside, and they were just picking up the most troublesome ones. Patrons were jumping on cars, running into traffic on the street, and smashing beer bottles in the parking lot. One patron he observed smashed a beer bottle on the ground and ground it with his foot. This male person had indicia of intoxication, unsteady on his feet, was agitated and trying to show off for others. This person was arrested and lodged. He observed the intoxicated female taken into custody by Cst. Portt. The female was fighting and in his opinion obviously intoxicated.

10. They left that scene and went across the street to the Pita Pitt where the crowd had gravitated to and now disturbances were happening there.

11. It was his intent to lay charges against Little Texas for permitting drunkenness and overcrowding but ultimately this was not followed through.

12. He stated they cleared from the area just before 3:00 a.m.

13. In cross-examination, the witness stated when they attended at Little Texas, they were anticipating having to make some arrests.

14. Cst. Paul Josefik is a 12 year veteran with the Belleville Police Service. He was on duty on November 3, 2007 and attended at the establishment known as Little Texas, an establishment he is familiar with. He was in company of Kelly Workman, an inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”).

15. They were both in plain clothes. He entered the premises with Inspector Workman at 12:15 a.m. He estimated approximately 550 to 600 patrons in the bar.

16. At approximately 12:45 a.m., they observed a male person being escorted by a security person from the patio area. This patron was having difficulty walking and stumbled and fell. The security officer put him in a full nelson hold, pulled him up and escorted him out. The action was excessive use of force in the opinion of the witness. The patron was not resisting. Outside another male from the bar assisted the patron.

17. He observed a second intoxicated male on the patio. The male person had black Carhartt coveralls. He held a glass of some beverage in his right hand and two bottles of Coors beer in his left hand. He was stumbling about and spilling the contents of the glass. He was talking to himself and his speech was slurred.

18. Back inside the premises he observed a male patron sitting and leaning his head against a pole. This patron appeared to be sleeping. He pointed this out to a security person Mike Seeley. Mr. Seeley checked on this patron, and came back and said, “The guy is fine, he’s just drunk”. At that point he identified himself as a police officer to Mr. Seeley. Mr. Seeley asked him if he was working and how much he had to drink, then he ran off to get the manager.

19. He and Inspector Workman identified themselves to the manager, Sandra Howard. Two security persons escorted the patron out. They followed him out and he identified himself as K.S. He was extremely intoxicated. He was left in the care of several of his friends.

20. Upon re-entering the bar he spoke with the manager, Ms. Howard. She stated that the patron was walking fine, that’s what cameras are for.

21. In cross-examination, the witness admitted that he is involved in a civil matter involving Little Texas.

22. Kelly Workman is an inspector with the AGCO and has been so employed for seven years. She is familiar with the establishment known as Little Texas.

23. She attended at Little Texas on November 3, 2007 with Cst. Josefik of the Belleville Police Service. She corroborates the evidence of Cst. Josefik in all material matters dealing with the events that took place on the night in question at Little Texas.

24. In cross-examination, she stated the patron being escorted from the patio was walking and fell, then the full nelson was applied and he was escorted out.

25. She stated further that there was never a problem in being able to see the eyes of the alleged intoxicated patrons. They were not that far away and the lighting was sufficient.

Licensee’s Evidence

26. Charles Henry St. George, the Licensee, was present on the premises October 8, 2007 but was not present for the November incidents.

27. He stated that in October and November 2007, the video surveillance system in place was only set to view, it was malfunctioning and had no record capability.

28. Mr. St. George has 13 years experience in the liquor licence business.

29. He stated the date in question was a Thanksgiving Sunday, traditionally a very busy time. He stated there were about 735 people in the premises and another 1,000 outside. The reason it is so busy is that the college kids are home from school and this is an opportunity to party it up.

30. The crowd was aged between 21 to 26 years.

31. The witness referred to Exhibit #1, a map that depicted the location of other bars. The witness stated these bars as well catered to the same type of crowd and there was always a migration of persons from one bar to the other. It is about a three minute walk from Matt & Joes, another area bar, to Little Texas.

32. The witness was at the bar from 6:30 p.m. until 3:30 a.m. While at the premises he controlled the front door, there were line-ups all night.

33. He stated on the night in question they stopped selling at 2:00 a.m., he estimated the size of the crowd at 400 to 450 patrons.

34. He stated he told his manager, Sandra Howard, to make two telephone calls, one for taxis, the other for a police presence from the Belleville police to ensure order.

35. He went out to the front of the premises around 2:05 a.m. and remained until 2:45 a.m. He stated he observed police officers on scene standing outside their police cars. He saw the paddy wagon come but it didn’t come on the lot, it parked under the sign on the street.

36. While he was outside he thought the crowd was quite orderly. He had seen a male and female over by the paddy wagon, he felt they were just joking with the police.

37. He estimated the size of the crowd on his property at no more than 400.

38. He stated his manager Sandra Howard came outside around 2:30 a.m. to see how things were going. He stated he told her that the kids were surprisingly well behaved, no problems.

39. He stated he went back in to the premises at 2:45 a.m. and at that time the police paddy wagon was no longer on scene.

40. When he left the property at 3:30 a.m. no one was on the property.

41. In cross-examination he stated he knew the video equipment was not recording in March or April 2007.

42. He stated the Thanksgiving event is not new and is a busy night, this event size has been occurring for the past 14 years.

43. He stated the bouncers’ duties were to control crowds inside the premises and on the patio.

44. He was alone outside that night.

45. He reiterated that there were about 450 people in the parking lot that measured 250 feet wide and 350 feet deep. It is approximately 35 feet from the front door of the premises to the sidewalk.

46. The only basis of knowledge that he has that the police were called is that his manager, Ms Howard, said she had called. He did not check with the police for a record of that call.

47. Sandra Howard has been the manager for 12 and one-half years.

48. She was present and on duty in the premises on both nights in question, October 8, 2007, Thanksgiving weekend and November 3, 2007.

49. In dealing with the October 8th incident, Ms. Howard stated that the crowd that night at the bar was large. She stated that the Licensee, Mr. St. George, was on the premises that night. She recalled that there was a shortage of cabs that night. She had instructed staff to call for cabs and after 2:00 a.m., she called the cab companies as well.

50. She stated she called the Belleville Police that evening just before 2:00 a.m. She advised them that there were no problems but just asked if they could provide a cruiser to monitor the crowd in the parking lot. She stated that she knew the police responded because she saw a police cruiser outside shortly after 2:00 a.m. She stated she did not see the paddy wagon outside. She was only outside briefly with Mr. St. George. She did not recall seeing any problems outside. She said there were about 300 to 400 people trying to leave.

51. She stated when she went home at approximately 3:20 a.m., there were still people in the parking lot but she could not tell how many.

52. Regarding the video surveillance system she stated that there are several cameras inside and out of the premises and a number of screens in the office for live monitoring. She stated the system records on to a cassette tape. She did not know if the system was working in 2007 because she does not know how to operate it. She stated that they have 30 cassettes rotated monthly.

53. She went on to detail the incident of November 4, 2007.

54. She stated on that night she only spoke with Cst. Josefik of the Belleville Police, she didn’t speak to Inspector Kelly Workman. She stated that the police officer told her there was an intoxicated male sleeping against a post. She contacted two of her doormen, Mike Sealley and Yanel Vaquerano. They both stated they had not observed a drunken patron. She had the patron escorted out. In her view the patron was walking fine and showed no symptoms of intoxication. At that point as well she observed Kelly Workman who she knows from previous inspections.

55. In cross-examination, the witness stated she called police to stand-by just before 2:00 a.m., when asked if police were at her beck and call she responded that “they know the process”. She could not state who the police dispatcher she spoke to was. When asked what plan they had if the police didn’t show, she responded that she didn’t know, they always showed up and if not she and Charles are the back up.

56. In cross-examination around the video equipment in use, she was asked when she last checked the videocassette; she stated she hasn’t because she doesn’t know how.

57. She disputed ever giving evidence about viewing a tape; she said her evidence was that she viewed the monitor. She stated, when asked if she reviewed the recording of the November incident that had been recorded over. She stated sometimes she forgets to take the cassette tape out, which she has done before. She said if she needed something off a videocassette she would take it out. The November 3, 2007 incident was not there because she had failed to take the tape out.

58. David Stanzel is employed as a security person at Little Texas and has been so employed for three years.

59. On November 3, 2007 he was on duty at Little Texas. He was the employee who was observed removing a patron and using a full nelson hold to do that. His explanation was that he was escorting the patron out when the patron spun on him as to attack him. He then grabbed the patron under the arms and walked him out. The patron then settled down outside and he let him go. He stated that the full nelson works to settle them down, then once outside they settle down.

60. In cross-examination the witness testified that events from his recollection took place November 4, 2007, not November 3, 2007.

61. He further stated that the patron did not fall to the floor.

62. He has used this technique or a bear hug in the past to subdue patrons.

63. Michael Seeley had been employed by Little Texas in 2007. He had been employed in a security capacity.

64. Regarding the incident of November 3, 2007, his version of events was that he was at his post inside the premises, standing left of the ATM machine. He was on a raised pedestal. A male and female approached him to advise that a male was sleeping by a pillar. He went to see this patron, who advised him that he was tired and had just gotten off work. He went on to state that he was waiting for his friend. According to Mr. Seeley this patron did not appear drunk, and he didn’t have to wake him.

65. He stated that he and another doorman, Yanel Vaquerano, escorted the person out. No one asked him to do this; it is standard procedure when there is a complaint.

66. He stated he advised his manager, Sandra Howard, of this event. He stated the police officer and liquor inspector were also present. He told Ms Howard that in his opinion the patron was not intoxicated.

67. In cross-examination, he advised that during the time he was employed at Little Texas he was not SmartServe trained.

68. He stated that when the police officer indicated the sleeping patron he went over to the patron and spoke to him for two to three minutes. He could not recall if music was playing or just the D.J., but he had to speak louder than normal.

69. Yanel Vaquerano is employed as a security person at Little Texas and has been so employed for eight years.

70. He was working on November 3, 2007. He was approached by the manager, Sandra Howard, to check on a patron, who the police and liquor inspector felt was intoxicated. He stated the patron was standing eight to 10 feet from him. He told the patron that he had been asked to have him leave. The patron was coherent, stated he was very tired and was just waiting on his friends in order to leave. He stated he spent five minutes with the patron and he could see no signs of intoxication, just that he was really tired. He stated he apologized to the patron for having to ask him to leave.

71. In cross-examination, he stated he prepared his “will state” around midnight, November 4, 2007.

Registrar’s Submissions

72. Mr. Kulis first refers to the incident date of October 8, 2007, a date he submits that was very busy. It was Thanksgiving weekend. He submitted that there would have been 700 people in Little Texas with 350 to 400 outside.

73. Police Constable David Bradley had noticed on his routine patrols of the area that the crowd outside the licensed premises was growing and that the crowd was boisterous. He was directed by his supervisor to pick up the “paddy wagon” and return to the premises. He did this, arriving in the parking lot of Little Texas at approximately 2:35 a.m. From his observations at that time, staff from the licensed premises were not in the parking lot. They were inside the licensed premises with the doors locked.

74. Mr. Kulis submits that the Licensee had no idea of what the police were left to contend with in the parking lot. He submits that there were hundreds of patrons from Little Texas in the parking lot, many of whom were very intoxicated. P.C. Bradley observed intoxicated patrons jumping on cars, darting into traffic and smashing beer bottles.

75. Constables Bradley and Portt had to contend with intoxicated and belligerent patrons. Cst. Bradley arrested one intoxicated male who had smashed a beer bottle and further ground it with his foot. This male person was agitated and aggressive, showing off to his friends. Cst. Portt arrested an intoxicated female who was aggressive and kicking. Both of these individuals, in addition to their behaviour, had other indicia of intoxication such as being unsteady and an odour of alcohol on their breath. Both parties were escorted to the police station. In addition to these persons, there were at least two other intoxicated persons arrested and lodged in the wagon.

76. Mr. Kulis submits that the evidence of the police officers is credible and that the officers’ evidence corroborated the evidence each gave.

77. Mr. Kulis submits that the Licensee’s evidence is unimpressive and unhelpful. The essence of the Licensee and his manager, Ms. Howard, is that there were no problems. Ms. Howard wasn’t outside long enough to make such a determination.

78. Mr. Kulis submits that the essence of the violation of section 45.1 of the O.Reg is that the licence holder did not have an adequate plan to ensure patron safety and the protection of property on the licence holder’s and adjacent property. He submits that the licence holder’s plan was woefully inadequate and this produced the problems of October 8, 2007.

79. The licence holder knew that this night was going to be busy. He never stopped to consider that police and the cab companies would be busy as well this night. His concern was to get the patrons out of his bar and close the door and except for a brief period outside by the Licensee, all staff including security were ensconced in the licensed premises behind closed doors oblivious to the events outside.

80. The substantive evidence was that the problems were caused by the patrons exiting Little Texas. Although suggested, there is no evidence that there were any patrons from other bars in the area other than the chance some may be walking by on their way home.

81. The licence holder had no “back up” plan to meet the requirements of section 45.1 of the O.Reg and on October 8, 2007 there was a violation of section 45.1 of the O.Reg.

Licensee’s Submissions

82. Licensee’s counsel refers first to the incident of October 8, 2007. He submits that it was the Thanksgiving weekend and was quite busy.

83. He submits that the Licensee, Mr. St. George, was outside the premises monitoring the crowd which he estimated to be about 400 to 450 people at 2:00 a.m.. Mr. St. George described the crowd as orderly.

84. Mr. St. George stated when he first went out the police were not present but showed up later. He stated he saw a male and female standing by the police paddy wagon. He felt they were laughing and joking with police, he did not sense a confrontation.

85. Sandra Howard, the manager, had attended outside briefly and did not notice anything wrong. Ms Howard advised she had called police as a preventive step and also she and staff attempted to call cabs, which were in short supply.

86. Counsel for the Licensee referred to section 45.1 of the O.Reg and the effective date of July 20, 2007.

87. Counsel drew the Board’s attention to “Licence Line”, Volume 8, Issue 1, of the 2008 publication. It contains a submission from the AGCO which addressed the question of what are “reasonable measures.” Cited from that document is an example by the AGCO as follows:

“A crowd of noisy patrons gathering outside an establishment after closing time should be politely disbursed and the police may need to be called if a dispute spills out of a licensed premises and escalates, creating a public disturbance.”

88. The article goes on to indicate on page 2, that reasonable measures/efforts will be determined on a case by case basis and Licensees may face disciplinary measures if reasonable measures are not taken, particularly if a recurring pattern of public disturbance is reported coming from the same licensed establishment.

89. Counsel further submits that the Licensee took reasonable efforts on the night in question and that reasonable measures were in place. This was illustrated in that the Licensee had called police as a preventative step, had instructed management and staff to call for taxicabs and Mr. St. George, the Licensee was outside monitoring the crowd.

90. Counsel further submits that there was no evidence tendered that there had been a recurring pattern of public disturbances, having regard to the publication in “Licence Line.”

91. Counsel submits that there should be no finding by the Board of a violation of section 45.1 of the O.Reg.

92. Counsel then deals with the incident of November 3, 2007.

93. Counsel submits that the confusion over the incident date regarding the first alleged intoxicated patron is explained that the events took place on the evening of November 3, 2007 into the early morning hours of November 4, 2007.

94. In regards to the first alleged intoxicated patron, removed using a full nelson hold, Counsel submits that Inspector Workman and Constable Josefik failed to see the alleged intoxicated male turn to attack Mr. Stanzel, the bouncer, and he had to take action to protect himself and the intoxicated male. Further, there was no suggestion that the patron was injured. Counsel submits that the Licensee was fulfilling its obligation pursuant to section 45(1) of the O.Reg.

95. In regards to the sleeping patron it is submitted that Mike Seeley approached this individual who stated simply he had just gotten off work and was tired. Mr. Seeley indicated to his manager, Ms Howard, in the presence of the liquor inspector and the police officer that the patron in question was not intoxicated.

96. Sandra Howard, the manager, stated that after the police had requested to speak with her, she asked her security person, Mike Seeley, if there was an intoxicated person near a post. He said, no, and further indicating his conversation with the police officer, stated, “they’ve already asked me.”

97. Ms Howard then asked Cst. Josefik to point the person out, which he did. She then had her security person, Yanel Vaquerano, escort the person out. Ms Howard stated the patron did not appear intoxicated and walked sharply out of the premises with Mr. Vanquerano.

98. It is submitted that there was no evidence from Cst. Josefik or Inspector Workman that they had concerns about the well being of this patron, nor that he was considered for arrest for his own safety and protection.

99. It is submitted that there was no evidence that this patron was violent, disorderly, or quarrelsome. It was submitted that the only possible basis for the allegation under subsection 45(1) of the O.Reg with respect to this event had to do with that portion of subsection 45(1) of the O.Reg that states the licence holder “shall not permit drunkenness.” There is no evidence that the Licensee or staff were permitting drunkenness in this case. There was no evidence of the service of an alcoholic beverage to this patron. Further, staff did not feel the patron was intoxicated.

100. Counsel submits there was no breach of subsection 45(1) of the O.Reg.

101. It is submitted that the alleged incident of November 2007 of the alleged intoxicated male person in black Carhartt overalls is not referred to in the NOP of April 10, 2008. This matter should not be considered by the Board as it was not particularized in the Notice of Proposal.

Decision

102. The Board has carefully reviewed the evidence and the submissions of counsel.

103. The Board will deal first with the incident of October 8, 2007. That night the premises was very busy and there had been a large crowd all evening outside. The crowd grew proportionally larger at closing time.

104. The police evidence is that the crowd was growing and becoming very boisterous. Constable Bradley noticed this and after advising the police office of the situation he was advised to come in and pick up the paddy wagon and proceed to the parking lot of Little Texas. Constable Laura Portt gave evidence that every available officer including back up from the OPP was dispatched to quell the disturbance developing at Little Texas and spilling over to the mall across the street where the Pita Pitt was located. The police officers gave evidence of a crowd out of control jumping on vehicles in the parking lot, smashing bottles and running amuck through traffic. Constable Bradley gave evidence that they arrested drunken disorderly patrons, but only arrested the worst of the bunch. Both arrests that Constables Portt and Bradley were involved in had their subjects vigorously resisting the arrest and on the part of the female prisoner she was kicking the partition glass in the police wagon. The Licensee, Mr. St. George’s indication of this event is that he believed the male and female were just joking with the police, the male laughing and holding out his arms as though he wanted to be handcuffed. The Board finds Mr. St. George’s account to be unreasonable, given the chaos that was taking place which necessitated a large police presence

105. The police in their evidence said that upon their arrival staff from the establishment went inside and locked the doors. It was never clearly established if in fact the doors were locked but they were definitely closed. The police did not see any staff outside Little Texas while they were there quelling the disturbance.

106. The manager, Ms. Sandra Howard, stated she called the police as a kind of “heads up” to send someone over just to stand by. She stated she also called taxicabs. The Board heard no evidence to corroborate Ms. Howard’s contention that she called police on this night. None of the officers made mention of this nor were they asked on cross-examination if they had been dispatched as a result of a call from Ms. Howard, further there was no independent evidence from the police service that they received such a call or further that if it was their policy to provide such a service. On the contrary, the police testimony was they noticed the large boisterous crowd and therefore decided to bring the paddy wagon. On this point the Board does not accept the evidence of Ms. Howard. It is incredible to believe that the Belleville Police Service would be at the beck and call of Little Texas for this type of service.

107. The evidence of Mr. St. George about being outside and his observations is in and of itself incredible. The police have given unrefuted evidence of the two arrests they made and the attitude of the crowd. Mr. St. George would have us believe it was “a walk in the park.” He allegedly observed a male and female joking with the police by the paddy wagon. This is in contrast with the police evidence that they were arrested and placed in the paddy wagon. The Board is of the view that Mr. St. George was not outside over the period of time he says he was, nor did he make any observations with regard to the activities of the police in and around the paddy wagon. He may have observed the paddy wagon drive up and stop under the sign, but his description and that of the police differs with regard to the location of the paddy wagon in the parking lot of Little Texas. The Board notes that Ms Howard admitted that there was no backup plan if the police did not show up, other than the presence of her and Mr. St. George. This is not reasonable given the size of the crowd and the non-response of the Licensee’s staff. Where the evidence of the police officers and that of Mr. St. George differs on a material matter the Board prefers the evidence of the police officers which the Board found to be more consistent and coherent. The Board notes that they, unlike Mr. St. George, have no personal interest in the outcome of this hearing.

108. The Licensee attempted to suggest that the crowd in the area of Little Texas was in part the result of patrons migrating south to the residential area of the city from other area bars. This evidence was simply conjecture and was never substantiated up by any evidence, including from the police or other bar owners. The Board does not see this as a legitimate explanation for the large crowd at Little Texas on October 8, 2007, which was out of control.

109. In the view of the Board calling taxis or calling police to stand by (a scenario not accepted by the Board) especially in view of the large crowd both in and outside the premises is not a suitable plan and amounts to no plan at all.

110. It is the Board’s view the Licensee had no plan to handle the crowd on the night in question. Once the police arrived he abdicated any responsibility to deter disorderly conduct, particularly on the adjacent property to the premises. Intoxicated patrons leaving the licensed premises of Little Texas participated in violent and disorderly conduct in the parking lot of the licensed premises and on area roadways.

111. Based on the foregoing, the Board FINDS that the Licensee committed the infraction of failing to ensure that reasonable measures were in place and that reasonable efforts were made to deter disorderly conduct on property adjacent to and in the vicinity of the premises and to minimize nuisance or other harm to such property arising out of disorderly conduct engaged in by patrons of the licence holder or persons waiting to enter the premises or leaving the premises, contrary to section 45.1 of the O.Reg.

112. With regards to the incidents of November 3, 2008, the Board makes the following conclusions.

113. A patron was escorted out of the premises from the patio area. Based on the evidence of the police witness and the inspector from the AGCO, the Board is satisfied that this patron was intoxicated. As to whether the security person, David Stanzel, used excessive force on this patron in order to remove him, by applying a full nelson hold on the patron and yanking him up after he had fallen, the Board is of the view excessive force was used. The evidence of a seasoned police officer trained and very experienced in the use of force, was that the force used on the patron was excessive. Mr. Stanzel states he used this technique after the patron “spun” on him in an aggressive manner. Neither Cst. Josefik nor Inspector Workman noted that behaviour on the part of the patron. Their evidence was that he stumbled. In this matter the Board chooses to accept the independent evidence of two professionals over that of the evidence of Mr. Stanzel, which it found to be self-serving.

114. In this matter the Board is satisfied that Mr. Stanzel used excessive force to remove the patron from the premises thereby breaching subsection 45(1) of the O.Reg (violent or disorderly conduct.)

115. With regards to the sleeping patron, K.S., the evidence of Cst. Josefik was that he observed this person sleeping against a pole in the licensed premises. The person was observed as well by Inspector Workman. Cst. Josefik reported this to a security person, Michael Seeley. Mr. Seeley not knowing who Cst. Josefik was went and checked on the patron and came back and told Cst. Josefik that the patron was, “OK, he was just drunk”. When Cst. Josefik identified himself as a police officer Mr. Seeley ran off to find a manager. Both Cst. Josefik and Inspector Workman report this patron as being extremely intoxicated, indicia of intoxication being slurred speech, staggering, unable to walk on his own. We then heard from bar staff and Ms Howard that the patron was just tired, not intoxicated, and that he had just got off work and was waiting for friends. This evidence stretches the imagination. One cannot imagine anyone sober sleeping in that environment with the noise and crowds around. In this case the Board accepts the evidence of Cst. Josefik with regards to the initial statement of Mr. Seeley when he checked on him and came back and told him he was drunk. That, in the Board’s view, was the accurate statement. The Board, in this situation, chooses to accept the evidence of Cst. Josefik and Inspector Kelly Workman and where that evidence differs from that of the Licensee’s witnesses the Board prefers the evidence of Cst. Josefik and Inspector Workman which it found to be consistent, credible, have no interest in the outcome of the hearing, and the evidence as described to be more probable than that described by the Licensee’s witnesses.

116. The Board finds, in this situation, that the sleeping patron was in fact intoxicated in the licensed premises and by the actions of security person Mr. Seeley he was permitted to remain in the premises in an intoxicated condition. Had Cst. Josefik not been there or intervened in an official capacity one wonders what state the patron may have eventually come to. The Board FINDS that the licensee permitted drunkenness in the licensed premise contrary to subsection 45(1) of the O.Reg.

117. The Board concurs with the submissions of Licensee’s representative in regards to the alleged intoxicated male in the black Carhartt coveralls and makes NO FINDING with regard to that person.

Conclusion

118. For the reasons given, the Board FINDS the Licensee violated section 45.1 of O.Reg and subsection 45(1) of the O.Reg with regards to the sleeping patron. The Board DECLINES to make a finding regarding the allegation of a violation of subsection 45(1) of the O.Reg with regards to the patron in the black Carhartt coveralls.

119. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his 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 his written response. Registrar’s Representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.

DATED AT TORONTO THIS 24th DAY OF April , 2009

BRIAN J. FORD, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER