Alcohol and Gaming Commission of Ontario
In the Matter of the: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
Between:
Registrar, Alcohol and Gaming Commission of Ontario (Registrar)
-and-
1168849 Ontario Inc. O/A The Three Monkeys (Licensee)
Decision
Panel: Patricia McQuaid, Vice-Chair Brian J. Ford, Board Member
Decision Date: April 6, 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: Richard Kulis, Representative 1168849 Ontario Inc., Licensee: Jerry Levitan, Representative
Authorities 1126430 Ontario Inc. (c.o.b. Little Texas Bar & Grill) (Re), [2008] O.A.G.C.D. No. 274
Allegations
1A hearing into Notice of Proposal number 16561 dated August 13, 2008, to suspend liquor licence number 809554 issued to 1168849 Ontario Inc., (the "Licensee") operating as THE THREE MONKEYS, 1585 Warden Avenue West, Unit 4, Toronto, Ontario, M1R 2S9, (the "establishment") 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 January 20, 2009, in the City of Toronto.
Decision
2After considering all the evidence and submissions, the Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg. Reasons follow.
Registrar's Evidence
3Ka Ng, an Alcohol and Gaming Commission of Ontario ("AGCO") inspector, arrived at the establishment with ACGO Inspectors Stephen Durham, Steve Hetherington and Helen Giorgoudakis on March 14, 2008 at 2:00 a.m. Inspector Ng did a walk through of the premises. When he was in the rear section of the establishment he noticed a male and female sitting in a booth. The female, who was in her early twenties and had curly brown hair, was unconscious. Her head was resting on the table.
4Inspector Ng talked with the female's male companion and asked about the woman. The male stated it was the female's birthday and that she drank too much.
5Inspector Ng asked how much she drank and was advised by the male that he shared a pitcher of beer with her and other friends had bought her several shots.
6The male then tried to wake his companion up, which took approximately half a minute. The female could not respond to his questions. The male companion had to hold her up and after a short time the female's head fell back onto the table.
7Inspector Ng then went to the bar area to locate the manager. He found the manager, Stephanie Hope. Ms Hope then found the server, Ms Stephanie Stelter.
8On speaking to Ms Stelter, Inspector Ng asked how much the female patron had to drink. Ms Stelter advised Inspector Ng that she had served her three rum and coke and one margarita mixed drink. She also advised him that she had cut this patron off an hour before he arrived.
9Inspector Ng asked the male companion when they had arrived at the establishment and was advised that the couple had arrived at approximately 9:30 p.m. He noted that the male was sober.
10Inspector Ng stated when the male and female left the premises, the female was staggering and had to be held up by her male companion. After leaving they went to a fast food store across the street from the establishment.
11Inspector Ng stated the female was very intoxicated and that he could not converse with her. Inspector Ng stated they left the establishment at 2:20 a.m.
12Under cross-examination, Inspector Ng stated the female was unconscious and unresponsive. It took one-half minute (30 seconds) to wake her up and she was in a semi-conscious state when she woke up.
13Inspector Ng admitted he did not know if the female was on medication and whether or not she had any drinks before she arrived at the Three Monkeys. He also said it was not important in this case as this person was served four drinks and a jug of beer and had several shots while at the establishment. He noted that she was only 120 lbs. He did not ask either Ms Hope or Ms Stelter why the female was still in the premises or if plans had been made for her to leave.
14Helen Giorgoudakis has been an AGCO inspector since February 2008. She attended at the Three Monkeys on March 14, 2008 at 2:00 a.m., in company with AGCO Inspectors Stephen Durham, Steve Hetherington and Ka Ng.
15Inspector Giorgoudakis stated she and Inspector Ng walked through the bar to the rear area, near the washrooms. She noted that the area had booth-style seating. While there she noticed a female sleeping. When she spoke to her male companion, he stated that it was his female friend's birthday.
16Inspector Giorgoudakis stated the male woke up the female and she noted that her eyes were glossy, her speech was slurred and she seemed disoriented. The female got up and quickly ran to the washroom.
17Inspector Giorgoudakis followed the female to the washroom where the female vomited. Inspector Giorgoudakis made sure she was in the care of a friend and returned to the bar area.
18Inspector Giorgoudakis stated Inspector Ng advised the manager Stephanie Hope of the incident and all the Inspectors left at 2:20 a.m.
19Under cross-examination, Inspector Giorgoudakis stated that it did not take too long to wake up the female and that while she seemed disoriented at first, she was fully awake in 20 to 30 seconds. It only took a gentle nudge to wake the female patron up. Her eyes were open in about five seconds.
20Inspector Giorgoudakis stated the female patron ran to the washroom. Though she was unsteady on her feet, she did not need any assistance. She also noted that the washroom was a distance of 15 to 20 feet from the booth. She cannot recall if the female said anything at this point.
21Inspector Giorgoudakis stated that she did not see the patrons leave the bar. All of the inspectors left together. She did not recall if the patrons left before them.
22Stephen Durham is an AGCO inspector and has been one since February 2008. Inspector Durham stated he, along with AGCO Inspectors Steve Hetherington, Ka Ng and Helen Giorgoudakis, attended Three Monkeys on March 14, 2008 at 2:00 a.m.
23Inspector Durham stated on entering the establishment he, along with Inspector Hetherington, went to the bar area and spoke with Stephanie Hope. Inspector Durham stated Inspector Ng came up and pointed out a patron at a booth who was intoxicated.
24Inspector Durham stated Inspectors Ng and Giorgoudakis walked over to the female who had her head down on the table. She was wearing a blue sweater, blue jeans and black boots.
25Inspector Durham stated the female's male companion tried to get her attention so that he could get her identification and she raised her head and uttered a profanity. Inspector Durham was advised the female had a half pint of beer and four or five shots bought by friends for her birthday.
26Inspector Durham stated that the patron asked if she could leave the booth, got up, left the booth area and went to the washroom. Inspector Durham noted that she staggered when she was walking. Ms. Hope was advised that a report would be submitted.
27Under cross-examination, Inspector Durham stated he was standing about one foot away from the booth. The boyfriend tried to get the attention of his female friend by poking her a couple of times. She raised her head in about 10 seconds and it was after another 10 seconds or so that she uttered the profanity.
28Inspector Durham stated that the female was sleeping with her head down. The female did not speak but used hand gestures to ask to leave the booth. She got up and staggered but no one helped her to the washroom.
29Inspector Durham saw the patrons leave the bar and go over to a fast food place. He observed the female was sitting on the curb in a hunched over position eating a burger and fries.
30Steve Hetherington is an AGCO inspector with two years experience. Inspector Hetherington attended Three Monkeys on March 14, 2008, at 2:00 a.m. in the company of AGCO Inspectors Ka Ng, Helen Giorgoudakis and Stephen Durham.
31Inspector Hetherington stated he and Inspector Durham walked through to the bar area and he spoke to the manager, Stephanie Hope. While talking with Ms. Hope, Inspector Ng advised that he had found a female patron with signs of intoxication.
32Inspectors Hetherington and Durham attended the area and noted that a female patron was sleeping with her head resting on the table.
33Inspector Hetherington stated that the female's male companion advised that she was drunk. When asked how much she had to drink he stated she had part of a pitcher of beer and approximately five shots.
34Inspector Hetherington stated the male companion tried to wake the female up so they could get some identification from her. The male shook her shoulder and she did not respond for 30 seconds to a minute.
35When the female woke up, Inspector Hetherington stated her speech was slurred. She then got up, left the booth and went to the washroom. He noted that she was unsteady on her feet.
36Inspector Hetherington did not see the patrons leave the establishment. He and the other inspectors left at 2:20 a.m.
37Under cross-examination, Inspector Hetherington stated he saw the two patrons in the parking lot across the street after they left and noted that he was fairly sure they were not eating. He did not believe the fast food place was open at the time.
38Inspector Hetherington stated when the female patron went to the washroom, she walked quickly. Though she was unsteady on her feet, she did not fall.
39Inspector Hetherington reiterated that it took between a half-minute and minute to wake her up.
40Inspector Hetherington stated he did not speak to the server. He was not aware that the female had been cut off.
Licensee's Evidence
41Stephanie Stelter works at the Three Monkeys and was on duty on March 14, 2008. Ms Stelter stated that she has SmartServe training and has worked at Three Monkeys for two years.
42Ms Stelter stated that the night in question was a steady night in terms of business. She knew the woman who was intoxicated and gave her name as A.W.
43Ms Stelter stated when a person is showing the signs of intoxications they are cut off, their drink is taken away and others are told not to serve the person. Normally they are asked to leave right away. If they don't, a doorman will come and escort them outside.
44On this particular night, A.W. came into the bar just after midnight with her boyfriend and others. Ms Stelter served her a drink one-half hour after she got there, a rum and coke and a shot about 10 minutes later.
45Just before 1:00 a.m. she served A.W. her last drink. Ms Stelter stated that the female had played pool with her boyfriend, but when she sat down she seemed sleepy.
46The female asked for another drink just after 1:00 a.m., and Ms Stelter stated she told them they would have to leave. The boyfriend stated they were going to be picked up at 2:00 a.m. so Ms Stelter said they could stay until then.
47Ms Stelter stated the female did not have anything further to drink. She told Stephanie Hope and also kept an eye on the couple. She also informed the boyfriend that the female was not to be given a drink or both would have to leave immediately.
48Ms Stelter stated the AGCO Inspectors came and spoke to her about the female. They asked how much she had to drink and she told them two drinks and showed the receipts to them. She denied saying to the inspector that she had served three rum and cokes and a margarita.
49Ms Stelter wrote down what she said to the AGCO inspector. She asked them what she should have done when she cut her off. They told her that the female should not have been there and that she should have sent her away in a cab by herself.
50Ms Stelter stated that it would not have been safe for her to send away a single female who was beginning to show the signs of intoxication in a cab at night by herself.
51Under cross-examination, Ms Stelter stated that the female's boyfriend is a regular at the establishment. She had seen the woman before.
52Ms Stelter told the female's boyfriend that the female was cut off and that he could not buy any drink for her. She did not have a tab with them and also noted that they could order directly from the bartender as well.
53She noted that there were other servers and a bartender working that night. She believed the boyfriend had a tab with the bartender. She did not look at his tab.
54Ms Stelter stated the female had her head in her hands and that she seemed really sleepy and tired. She then cut her off. She went over and asked if the female was okay and was told she was fine. She told the female that she would not be served any more. She also told her boyfriend not to give her any alcohol or he would have to leave.
55Ms Stelter stated after she cut the woman off she watched to make sure she did not have any more drinks.
56Ms Stelter wrote everything down. She was told to write it down at the time so she would not forget it.
57Ms Stelter stated the woman's boyfriend had a pitcher of beer, again stating she watched the female from the time she cut her off.
58Ms Stelter stated the female's boyfriend said they had a ride that was picking them up at 2:00 a.m. She did not remember them leaving. She thought they left when she was speaking to the inspectors.
59Ms Stelter advised the Inspectors that the two patrons were expecting a ride as neither of them drive. She also noted that the boyfriend was not intoxicated.
60Stephanie Hope is an employee of Three Monkeys and has worked there for five years. Ms Hope advised the Board that she was working on March 14, 2008.
61Ms Hope stated she started work at 5:00 p.m. on March 13, 2008 and was working on the floor, serving.
62Ms Hope saw the female come in with her boyfriend, who is a regular at the bar, and some other friends, noting they arrived late in the evening.
63Ms Hope stated that when she observed the female patron in question enter the bar she did not feel that she was intoxicated. It was the female's birthday. Ms Hope explained that she walked fine and she saw nothing that would cause her to watch this individual.
64Ms Hope stated Stephanie Stelter later told her that she had cut this woman off as she was starting to show signs of intoxication. Ms Stelter told Ms. Hope that she was not serving her anymore and that her friends had been advised not to give her any more drinks. She also indicated that she did not see this female being given any alcohol after she was cut off.
65Ms Hope stated that she spoke with the AGCO inspectors who asked why she was still there. She told them it was her birthday and that she came with her boyfriend and that they were leaving together.
66Under cross-examination, Ms Hope stated that Ms Stelter told her that she had cut this person off but did not give any reasons for cutting her off, but assumed it was because she had had enough to drink. She did not ask Ms Stelter why she was not asking the patron to leave though presumed that she would have asked how she was getting home.
67She stated that the female was cut off about one hour prior to the arrival of the AGCO inspectors.
68Ivan Shapiro is the owner of Three Monkeys and has owned it for the past seven years. He has never had a problem with the AGCO.
69Mr Shapiro stated that the policy of the establishment is that serving intoxicated people is unacceptable and that friends have to leave if the person, as in this case, is given a drink after being cut off.
70Mr. Shapiro stated that Stephanie Hope called him about the incident and that Stephanie Stelter e-mailed him with the facts of the evening.
71Mr. Shapiro stated that while the female patron should have been removed immediately, safety of the patron is paramount. He believes his staff did the right thing that night in cutting the patron off and allowing her to stay until their ride came.
72Under cross-examination, Mr. Shapiro stated that the establishment's policy with respect to intoxicated persons, follows the guidelines set out in the SmartServe training. He meets with staff periodically and goes over the rules and what to do.
73Mr. Shapiro stated in response to a question that the female's boyfriend stated they were going to be picked up so he assumed that he was going to look after her. He replied that he knew this because that is what Stephanie Stelter told him.
Registrar's Submissions
74Mr. Kulis stated that the AGCO Inspectors gave clear, consistent and cogent evidence of the signs of intoxication, noting that the female was passed out with her head down on the table. She had slurred speech and staggered when she walked.
75It is Mr. Kulis's submission that the only conclusion that can be is the female patron was drunk at the time that she was cut off. He submits that Ms Hope did not pay much attention to the female patron and that Ms Stelter's evidence was coloured. Further nothing was done to ensure the patron was okay, noting that none of the staff saw them leave.
76Mr. Kulis noted that the boyfriend stated that the female was drunk and his opinion is that she became drunk in the premises.
77Mr. Kulis stated that more action should have been taken on the part of the establishment. The female was permitted to consume liquor to the point where she showed severe signs of intoxication. To say that they then took care of her is too little too late.
78Mr. Kulis noted the Licensee did not produce receipts to indicate how much this patron had to drink and argued that in an AGCO hearing, 1126430 Inc. o/a Little Texas Bar and Grill, September 4, 2008, the Board drew a negative inference against the Licensee for its failure to produce evidence of a potentially exculpatory nature.
79Mr. Kulis submits that the evidence of the AGCO inspectors is more credible than that of the Licensee's employees, and can be relied upon in making a finding under subsection 45(1) of the O.Reg.
Licensee's Submission
80Mr. Levitan stated that it is not known how much was drunk by the patron. The evidence is inconsistent. He also stated pulling out the receipts is not practical as there were other people buying her drinks.
81Mr. Levitan notes that the Licensee's evidence that this person was cut off was never contradicted.
82Mr. Levitan notes that the female patron was there for a few hours with others who were not intoxicated and when she asked for another drink she was told that she was cut off. He also notes that there is no requirement for a written policy.
83Mr. Levitan stated the female was cut off and her friends and boyfriend were told not to give her any alcohol or they would all have to leave immediately. The female and her boyfriend were going to be picked up. There is no allegation or evidence that the female was served any alcohol after she was cut off and there was no evidence that there was any alcohol in front of her.
84Mr. Levitan submits the evidence of the AGCO inspectors was not cogent and clear but was contradictory.
85Mr. Levitan notes that in evidence, Inspector Ng said the female was unconscious, which is a loaded word, and that it took 30 seconds to get her to respond at which point she could respond to his questions.
86All three of the other Inspectors, Mr. Levitan submits, said that the female was sleeping, was awakened and did respond and that she talked to her boyfriend though profanely.
87Mr. Levitan stated the evidence of Helen Giorgoudakis was straightforward and he notes this Inspector stated that the female was sleeping and not unconscious and that the female ran to the washroom and did not need help. She ran because she needed to vomit. Mr. Levitan states that this is considerably different that what Inspector Ng testified to and somewhat different from Inspector Hetherington.
88Mr. Levitan also noted that the female patron took 10 seconds to respond and within 20 to 30 seconds was fully awake. Mr. Levitan stated three of the four Inspectors stated that the female responded, got up and went to the washroom.
89Mr. Levitan submitted that there is no evidence as to the level of intoxication before the female was cut off after four or five drinks. Based on the evidence, he submitted that the Licensee took steps when it was believed that the patron was at the point of intoxication.
90He also noted that the woman was kept in the establishment under the care of her boyfriend. It was not safe, he submits, to send this female home alone in a cab and that would not have been a reasonable response. It is reasonable to leave her there in the care of an adult.
91The staff acted diligently and supervised and enforced the policy of no further service and told the patron's friends they would have to leave if they gave the female any alcohol.
92Mr. Levitan also noted that the female patron was cut off an hour before the arrival of the Inspectors when she was showing signs of intoxication. He submitted that intoxication doesn't happen immediately.
93Mr. Levitan also points to the inconsistency of the evidence of the Inspectors as it related to seeing the female and her boyfriend after they left the establishment. One Inspector he notes saw them eating outside the fast-food establishment across the street, the other said they weren't eating.
Registrar's Reply
94Mr. Kulis suggested that there were no inconsistencies. Inspector Ng stated it took one-half minute for the female to respond. Inspector Giorgoudakis stated that it took 20 to 30 seconds. Inspector Durham stated it took 10 seconds to respond and 20 seconds to be fully awake. Inspector Hetherington stated it took between 30 seconds and one minute.
95Mr. Kulis submits this shows the evidence of the Inspectors is consistent.
96Whether she was unconscious or asleep, Mr. Kulis submits the female patron was in a state such that she was unaware of the situation.
97There is consistency in the evidence of what the boyfriend said to the Inspectors.
98Mr. Kulis submits there is enough evidence to make a finding under subsection 45(1) of the O.Reg.
Analysis/Reasons/Findings
Subsection 45 (1) of the O.Reg, the licence holder permitted drunkenness.
99The Board heard evidence from the AGCO Inspectors that they went into the Three Monkeys establishment on March 14, 2008 and found a female patron who appeared to be intoxicated.
100The female patron was sitting in a booth with a male companion and was sleeping with her head resting on the table.
101One of the Inspectors who testified, Inspector Ng, stated that the female patron was unconscious and could not respond to his questions. He also said that her boyfriend had to hold her up and her head fell back down onto the table. Inspector Ng also testified that she had to be held up and assisted when she left the establishment.
102Inspector Ng, the Board notes, failed to mention the fact that the female patron got up from the booth she was sitting in and walked or ran to the washroom some 20 to 30 feet away. He also did not mention that she spoke to her boyfriend in a profane manner.
103The Board notes that three of the other AGCO Inspectors testified that the female patron got up from the booth she was sitting in and walked or ran to the washroom unassisted. One Inspector testified that she did not need assistance to walk. They also testified that she spoke to her boyfriend in a profane manner.
104The Board heard evidence from three of the Inspectors that the female patron was asleep and that it took approximately 10 seconds for her to respond and approximately 30 seconds before she was fully awake. The inspectors also stated that when she walked or ran to the washroom she was unsteady on her feet or staggered. They also said her speech was slurred.
105The Board also heard from the employee, Stephanie Stelter, who served the female in question, who testified that the female came into the establishment with her boyfriend, who is a regular at the establishment, at approximately midnight. Ms Stelter and Ms Hope testified that at the time the female came in she was not intoxicated.
106Ms. Stelter testified that one hour (at 1:00 a.m.) before the arrival of the AGCO Inspectors she cut the female off as she was beginning to show the signs of intoxication. She informed other members of the staff so they would not serve the woman and told her boyfriend and other friends not to give her any alcohol or they would have to leave immediately.
107Ms. Stelter also testified that she allowed the female patron to stay on the premises because her boyfriend said they were going to be picked up at 2:00 a.m. She noted that neither one of them drove.
108The Board also notes that evidence indicated that the boyfriend was not intoxicated.
109Ms Stelter testified that she did not send the female patron home alone in a taxi, as it was not a safe thing to do.
110The Board has difficulty accepting the evidence of Inspector Ng for the reasons mentioned above. The Board feels his rendering of the facts was embellished to a considerable degree. He also left out very important evidence as to the actions of the female patron.
111However, the Board does accept the evidence of the other three AGCO Inspectors. The Board accepts that at the time the Inspectors were present the female patron was intoxicated.
112The Board also accepts the evidence of the staff of the Three Monkeys, in particular Ms Stelter, who testified that she cut this female patron off one hour prior to the arrival of the inspectors.
113The Board agrees with Mr. Levitan that drunkenness is not something that happens immediately, it is something that happens over time, with the consumption of alcohol.
114In this case, the Board accepts that at the time the female patron was cut off, the degree of intoxication could not be determined. Suffice it to say that she was exhibiting signs and was therefore cut off alcohol service. Having made that determination, the Board need not comment upon the relevance of the Board decision in Little Texas Bar and Grill to the matter before it.
115The Board must then determine whether the licence holder permitted drunkenness on the licensed premises.
116In this particular case, the Board is of the opinion that the Licensee did not permit drunkenness. The Licensee took appropriate steps and cut this patron off from alcohol service when she began to exhibit signs of intoxication.
117That the Licensee allowed the patron to remain on the premises was, in these circumstances, in the Board's opinion, a reasonable action on the part of the Licensee. The Board agrees that it would have been unsafe to send this female home alone in a taxi at the late hour in question, particularly when she was going to be picked up, along with her boyfriend, at 2:00 a.m.
118On the basis of the evidence before it, the Board cannot find that the Licensee breached subsection 45 (1) of the O.Reg.
Conclusion
119For the reasons given, the Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg.
DATED AT TORONTO THIS 6th DAY OF April, 2009
PATRICIA MCQUAID, VICE-CHAIR BRIAN J. FORD, BOARD MEMBER