Registrar, Alcohol and Gaming Commission of Ontario v. 1057488 Ontario Inc., 2009 CanLII 29778

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-

1057488 Ontario Inc. O/A Tumbleweeds Family Restaurant

Licensee

DECISION ON FINDINGS

Panel: David C. Gavsie, Chair, AGCO Eleanor Meslin, Board Member

Decision Date: May 7, 2009

Hearing Location: Alliston, 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

1057488 Ontario Inc., Licensee ) Mansour (Tom) Massoudi, On his ) own behalf and on behalf of the ) Corporation

Allegations

1. A hearing into Notice of Proposal (“NOP”) number 16846 dated November 19, 2008 to suspend liquor licence number 801386 (the “Licence”) of 1057488 Ontario Inc., (the “Licensee”) operating as TUMBLEWEEDS FAMILY RESTAURANT, 107 Main Street West, Shelbourne, Ontario, L0N 1S0 (the “premises” or “establishment”), on the basis of alleged violations of section 29 of the Liquor Licence Act (“LLA”) and subsection 45(1) of Ontario Regulation 719/90 (“OR 719/90”) made pursuant to the LLA, was held on April 15, 2009 in Alliston.

2. Mansour (Tom) Massoudi is the shareholder, officer and director of the Licensee. He appeared on his own behalf and on behalf of the Corporation and waived the right to legal representation.

Decision

3. After carefully considering all of the evidence and submissions the Board DECLINES to make a finding of a violation of subsection 45(1) of OR 719/90. Allegations of violations under section 29 of the LLA were withdrawn by the Registrar. Reasons follow.

Registrar’s Evidence

4. James Joseph Hunter has been a constable with the Ontario Provincial Police (“OPP”) for eight years with experience in LLA drunkenness offences.

5. He attended the premises on April 30, 2008, in uniform, with two other OPP officers to arrest Mansour Massoudi for alleged criminal code offences which had nothing to do with the allegations or particulars contained in the NOP.

6. When they entered the premises at 10:05 p.m., he observed a male sitting at the end of the bar drinking from a bottle of beer. A female bartender was behind the service bar. On request, the male identified himself as Mansour Massoudi and the bartender identified herself as Ashley Lee.

7. The officers asked to speak with Mr. Massoudi in private. When he walked towards them, Officer Hunter testified that he had a strong odour of alcohol, his eyes were red and bloodshot and he was very unsteady on his feet, but did not appear to be limping. He believed that Mr. Massoudi was intoxicated.

8. In the hallway, Officer Nixon arrested Mr. Massoudi for criminal code violations, handcuffed him and took him to their police vehicle. When told about the criminal code offences, Mr. Massoudi appeared very nervous.

9. At the car they were approached by Officer Kilburn of the Shelburne police and they advised him of the arrest.

10. Officer Hunter then returned to the premises and advised the bartender of the arrest and the LLA offences.

11. On cross-examination by Mr. Massoudi, the officer indicated that Mr. Massoudi had been very compliant. Officer Hunter did not ask how many hours Mr. Massoudi had worked that day and did not remember being told that he had a bad shoulder. He did admit that he had loosened the handcuffs at Mr. Massoudi’s request. The officer said that Mr. Massoudi did not tell him that he had a bad knee and he did not give Mr. Massoudi a breathalyser test.

12. In answer to a question on Mr. Morris’ re-direct examination, Officer Hunter stated that he had observed Mr. Massoudi walking and he did not seem to have any problem.

13. In response to the Board’s question, Officer Hunter stated that the criminal charges had nothing to do with Mr. Massoudi’s alleged intoxication in the bar.

14. Paul Norman Nixon has been a constable with the OPP for 22 years. He has had previous experience with the LLA and signs of intoxication. On April 30, 2008 he was the lead investigator when he and Officer Hunter entered the premises at 10:05 p.m. They were there to locate and arrest Mr. Massoudi on criminal code charges.

15. On entering, Officer Nixon asked the bartender, Ashley, to point out Mr. Massoudi, which she did. He was seated at the bar. When approached he indicated that his name was Tom and that he was the owner. When Mr. Massoudi was asked by the officer to talk in private, he complied. Officer Nixon stated that they did not tell Mr. Massoudi why they were there when they approached him. The officer noted that Mr. Massoudi smelled of alcohol, was unsteady on his feet and his speech was somewhat slurred, which was different from his speech at the hearing today. He was advised of the reason for his arrest, searched, handcuffed and put in a police cruiser. Once inside the car, Officer Nixon noticed that Mr. Massoudi’s eyes were bloodshot. From his observations, Officer Nixon believed Mr. Massoudi was intoxicated.

16. In response to cross-examination, Officer Nixon stated that he could see quite clearly in the car the Mr. Massoudi’s eyes were red. He also indicated that he did not remember Mr. Massoudi telling him that his knee or shoulder was hurting or that he was a diabetic. He noted that Mr. Massoudi was very cooperative.

17. Responding to the Board’s question, Officer Nixon stated that the criminal code charges were unrelated to Mr. Massoudi’s intoxication and that no charges of intoxication were laid.

Licensee’s Evidence

18. At this point, Mr. Massoudi asked the Board to accept a written statement of the bartender, Ashley, who was unable to attend the hearing. This had not been disclosed to the Registrar. Mr. Morris objected on grounds that without the person appearing there would be no opportunity for the Registrar to cross-examine the witness.

19. The Board accepted Mr. Morris’ objection and denied the introduction of the statement.

20. Mansour (Tom) Massoudi is the owner of the premises. On April 30, 2008 he went to work at 8:00 a.m., left for lunch at home in Oakville, at 2:00 p.m., where he took his diabetes medication. At 3:00 p.m. he went to his pizzeria in Mississauga and left there at 7:30 p.m. to return to Tumbleweeds. His kitchen staff left at 8:45 p.m. and he took over in the kitchen and began his clean-up at 9:30 p.m. When he came out to the bar, Ashley told him to change his clothes because when he had moved a keg of beer earlier, he had spilled some beer on his clothes and they smelled. He changed and on returning to the bar ordered a beer.

21. When he saw the officers arrive he believed it was to do with a liquor inspection. He did not know the officers. They then took him aside, told him about the criminal code charges and handcuffed him. By that time he had been working for 17 hours, which was why his eyes were bloodshot. He walked with difficulty because he had a bad knee and also a bad shoulder which made it hard for him to get up from his chair. He remembers everything about that night and therefore could not have been drunk. He told the officers when he was in the car about his shoulder and they pulled over and loosened his handcuffs. He also told them that he was a diabetic. He was at the police station overnight without his medication. In the morning when he was taken to Owen Sound, he refused the offer of donuts because they were sugar-coated. He does not drink alcohol, except for two beers, which are his limit, because of his diabetes.

22. In cross-examination he indicated that he did not call as witnesses at this hearing either of the people who were at the bar or the police officer from Shelburne who knew about his sore shoulder and knee. He stated that he could not have been drunk because he only drank one beer at 9:40 p.m. and had ordered another 15 to 20 minutes later and did not drink it.

23. Mr. Morris placed into evidence Mr. Massoudi’s signed witness statement faxed to the Registrar on November 6, 2008 (Exhibit #1).

24. In response to Mr. Morris’ questions, Mr. Massoudi stated that he has had five years of experience in dealing with intoxicated patrons and they do not often remember details after the fact, but he remembered everything. He also indicated that he does not believe the officer could have seen his eyes in the car because it was too dark inside.

25. Responding to the Board’s questions, Mr. Massoudi stated he has been a diabetic for eight or nine years and, at the Board’s request, produced a container of pills (Ramipril 5 mg) of which he takes one a day for high blood pressure. He has taken these for about 10 years. He stated he also takes diabetic medication two to three times per day, and one pill a day for cholesterol. He told the Board that he usually orders a second beer to keep in front of him to stop customers from buying him more.

Registrar’s Submissions

26. Mr. Morris withdrew the allegations under section 29 of the LLA. He asked for a finding under subsection 45(1) of permitting drunkenness on the licensed premises.

27. Although police attended the premises for another reason, they observed Mr. Massoudi during the time they took him aside and found him to be intoxicated. Constable Hunter testified that there was a strong odour of alcohol on his breath, his eyes were red and glossy and his walk was unsteady. Constable Nixon corroborated some of the same observations. Constable Nixon also testified that his speech was slurred. Both officers believed he was intoxicated. Officer Nixon also stated that the witness was not limping and his speech at this hearing was different from that night.

28. Mr. Morris submitted that there were no witnesses at the hearing to support Mr. Massoudi’s statements regarding his shoulder and knee problems. He did not bring either the bartender or the Shelburne police officer to testify.

29. He was not truthful when he stated he only had one beer. He admitted to ordering two beers within 15 to 20 minutes. His health reasons did not stop him from consuming beer.

30. Mr. Morris further submitted that Mr. Massoudi was drunk at work in the premises and asked for a finding under subsection 45(1).

Licensee’s Submissions

31. Although both officers said they did not remember his telling them about his shoulder problem, they still stopped and loosened his handcuffs in the middle of the road while transporting him. They did not ask him about the alcohol smell or to walk a straight line. Mr. Massoudi submitted that because of his type 2 diabetes he did not drink more that two beers at a time and was not drunk at the time.

32. He had been working for 17 hours and was very tired. He would not harm his business in these hard times by getting drunk in his premises.

33. He had tried to get the bartender to come as his witness, but she now works for a competitor and could not get off work to testify, but gave him a written statement.

Registrar’s Reply

34. There was no evidence that the Licensee was tired or sleepy. There was no evidence from his patrons. The officers’ focus had been on the criminal code arrest.

Reasons and Findings

35. Officers Hunter and Nixon both testified that on observation, Mr. Massoudi smelled of alcohol, was unsteady on his feet and had red, bloodshot eyes. Both believed he was intoxicated. They also did not recall Mr. Massoudi telling them he had a “bad” knee and shoulder, but did admit to loosening his handcuffs in the police vehicle.

36. Mr. Massoudi’s testimony that he had a bad shoulder and knee, that he worked for 17 hours, and that he had spilled beer on his clothing was not backed-up by any witnesses. There is, however, no requirement per se to have contrary evidence. He admitted to drinking a beer and ordering a second one, but informed the Board that he was diabetic. He showed the Board his medication, indicating that because of his diabetes and the medication he takes for it and other medical concerns, he does not drink more than two beers at any one time.

37. The Board accepts Mr. Massoudi’s testimony regarding his diabetes and other medical conditions and that he told the police about his shoulder, since the police gave no reason for loosening his handcuffs.

38. The Board does not doubt the police observations, but they were focused on arresting Mr. Massoudi on the criminal charges and not looking specifically for liquor licence infractions. Therefore, they may not have paid close attention to Mr. Massoudi’s attempts to explain his situation and weigh the possibility that he was not intoxicated.

39. The Board concludes that the Registrar has not made the case, on a balance of probabilities, that Mr. Massoudi was intoxicated in the premises on April 30, 2008.

40. Therefore, the Board DECLINES to make a finding of a violation of subsection 45(1) of OR 719/90 of the LLA. The Board also notes that the Registrar has withdrawn the allegation of an LLA, section 29 violation.

DATED AT TORONTO THIS 7th DAY OF May , 2009

DAVID C. GAVSIE, CHAIR, AGCO ELEANOR MESLIN, BOARD MEMBER