Registrar, Alcohol and Gaming Commission of Ontario v. 1070879 Ontario Inc. O/A Zodiac Lounge, 2009 CanLII 29783

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-

1070879 Ontario Inc. O/A Zodiac Lounge (Licensee)

DECISION

Panel: Jacqueline Castel, Board Member Brian J. Ford, Board Member

Decision Date: April 14, 2009 Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission: Phillip Morris, Representative 1070879 Ontario Inc., Licensee: Randall Barrs, Representative

AUTHORITIES:

Jameson Restaurant, Unreported decision of the AGCO dated March 6, 2009 Birchmount Restaurant v. Ontario, [1998] O.J. No. 1367, No. 743/96

Allegations

1A hearing into Notice of Proposal (“NOP”) number 16598, dated August 26, 2008, to suspend liquor licence number 91639 (the “Licence”), issued to 1070879 Ontario Inc. (the “Licensee”) operating as ZODIAC LOUNGE, 2395 Eglinton Avenue East, Scarborough, Ontario, M1J 2J4 (the “establishment” or the “premises”), on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg.”), prescribed under the Liquor Licence Act (the “LLA”), was held on March 24, 2009 in the City of Toronto.

Preliminary Matters

2The Board ordered the exclusion of witnesses on consent of all parties.

Decision

3The Board FINDS the Licensee contravened subsection 45(1) in respect of one patron. Reasons follow.

Registrar’s Evidence

4Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Stephen Hetherington has been employed as an inspector for just over two years. He attended the establishment at 9:18 p.m. on April 4, 2008 with AGCO Inspectors Durham and Foley and By-law Officer King, a member of the Smoke Free Enforcement Team. The establishment is located in the basement of a strip mall at the corner of Kennedy and Eglinton. The establishment has an “L” shaped service bar and a glassed-in pool room.

5Upon entering the establishment, Inspector Hetherington spoke to the manager, Mr. Bernard Subramaniam, at the service bar. While speaking with Mr. Subramaniam, Inspector Hetherington observed a male (patron #1) in the pool room who was unsteady on his feet and swaying from side to side when walking. Patron #1 was wearing black pants, a grey jacket and a black ball cap. Inspector Hetherington approached patron #1, identified himself, and asked some general questions. Patron #1 responded slowly to the questions and his speech was slurred.

6In response to the question, “How are you getting home?” patron #1 said he was taking public transport. In response to questions, patron #1 also stated that he was not taking any medication and he had not consumed any beverage alcohol at another establishment before arriving. Patron #1 could not recall at what time he arrived at the establishment. While speaking to Inspector Hetherington, patron #1 was holding a bottle of Labatt’s Blue.

7Inspector Hetherington’s focus on patron #1 was interrupted by another male (patron #2), seated at a table in the pool room. Patron #2 said, “How are you doing ladies?” to the inspectors. His speech was slurred. He was wearing a blue jacket, jeans and a green hat. When Inspector Hetherington approached patron #2’s table, he noticed his eyes were glassy and red. Inspector Foley asked patron #2 several questions. Patron #2 began cursing Inspector Foley. Inspector Foley asked him if he played pool and if the pool cue on the table belonged to him, and patron #2 picked up the cue and threw it with his left hand back towards the pool area.

8Inspector Hetherington returned to the bar area to speak to Mr. Subramaniam. He pointed out patrons #1 and 2 to Mr. Subramaniam, indicated that they were drunk, and advised that he would be submitting a report to his supervisor in respect of the two patrons. Mr. Subramaniam denied that they were drunk. He told Inspector Hetherington that patron #1 was mentally handicapped and that patron #2 had consumed only four pints of beer since 4:00 p.m.. Mr. Subramaniam did not say anything to Inspector Hetherington about patron #2 having left the premises for a period of time or having been refused beverage alcohol service at the establishment.

9Inspector Hetherington departed the establishment at 9:35 p.m..

10Inspector Hetherington observed patron #2 again on the day of the hearing and indicated that his appearance and demeanour were entirely different. His eyes were clear, his speech was not slurred, and he appeared to be rational.

11On cross-examination, Inspector Hetherington stated that the establishment is about 6000 square feet and has a capacity of approximately 252. On the evening in question, there were approximately fifteen patrons in the establishment. Mr. Subramaniam and one waitress were working. The establishment caters to an older crowd.

12Inspector Hetherington admitted he had never seen patron #1 prior to the incident, nor has he ever seen him since the incident. He does not know patron #1’s name. He did not ask Mr. Subramaniam how much beverage alcohol patron #1 had consumed or been served. He has no experience with mental or physical handicaps.

13Inspector Hetherington did not observe a glass of water on the table in front of patron #2. He agreed that the redness in patron #2’s eyes could have been caused by something other than intoxication. He did not witness patron #2 consuming beverage alcohol or observe any beverage alcohol on his table. He did not know whether patron #2 had consumed any Tylenol 3 or the side-effects of this medication.

14AGCO Inspector Stephen Durham has been employed as an inspector since February 2008. He attended the establishment at 9:15 p.m. on April 4, 2008 with Inspectors Hetherington and Foley and By-law Officers Agassi and King. At the time, Inspector Durham was still in training. He was wearing street clothes on the night in question.

15While at the service bar area of the establishment, he observed a male patron (patron #1), in front of the pool room chalk board, who was unsteady on his feet. Patron #1 was wearing a grey coat and black pants. He was drinking from a bottle of Labatt’s Blue. Inspector Durham did not talk to patron #1, but heard his responses to another inspector’s questions, as he had approached patron #1 and was standing one or two feet from him. Patron #1’s speech was mumbled and slurred. Patron #1 said, in response to a question from an inspector, that he had three drinks. Inspector Durham does not recall anything else about the conversation with patron #1.

16Another male patron (patron #2) in the pool room greeted the inspectors by saying, “How are you ladies?” Patron #2 was wearing a blue coat, jeans and a green hat. Inspector Foley spoke to patron #2. Inspector Durham noticed that patron #2’s speech was slurred and his eyes were red. Patron #2 became angry with the inspectors and told Inspector Foley to “fuck off”. When Inspector Foley asked him how he was getting home, patron #2 said “in a big red truck”. He repeated this response three or four times. Patron #2 did not say anything about having left the premises and returned.

17Inspector Durham saw patron #2 at the hearing. On the date of the hearing, patron #2 was not intoxicated.

18He exited the premises at 9:35 p.m.

19On cross-examination, Inspector Durham acknowledged that, at the time of the incident, he did not have a lot of experience assessing patrons for signs of intoxication, although he had been informed of the signs. He has no experience with physical or mental handicaps, nor does he have any experience in the effects of pain killers.

20Inspector Durham never saw patron #1 prior to the incident, nor has he seen him since the incident. He would not know if patron #1 was handicapped, nor would he know his normal speech pattern or way of walking.

21He does not recall seeing a waitress at the establishment on the night in question.

22Inspector Durham did not notice a glass of water on the table where patron #2 was sitting.

23In response to questions from the Board, Inspector Durham said he did not observe patron #2 walking or smell alcohol on his breath. He did not smell alcohol on the breath of patron #1 either.

24AGCO Inspector Clay Foley has been an inspector since 1998. He attended the establishment at 9:15 p.m. on April 4, 2008 with Inspectors Hetherington and Durham and By-law Officers King and Agassi. He and his colleagues were dressed in street clothes.

25When he entered the establishment, he observed an individual with a “wobbly look” (patron #1) almost bump into Inspector Durham. Patron #1 walked into the pool room. He had a “wobble” to his walk and his gait was slow. Inspector Foley engaged patron #1 in conversation. He appeared sleepy and tired and had a slight slur to his speech. His eyes were reddish. He was holding and drinking from a bottle of Labatt’s Blue.

26In response to questions from Inspector Foley, he said he was not driving and was not on any type of medication. He indicated he would be taking public transit home and showed Inspector Foley his bus tickets. He did not indicate whether he drove, but said he always planned to take the bus home on the night in question. From this, Inspector Foley assumed that it was patron #1’s intent to become impaired.

27Inspector Foley’s conversation with patron #1 was interrupted by patron #2, who began yelling and laughing uncontrollably. Initially, patron #2 wanted to know why the inspectors were speaking to patron #1. Patron #2 seemed protective of patron #1. Patron #2 indicated he drove a big red truck. According to Inspector Foley, patron #2 was combative, loud and somewhat evasive. There was an umbrella or a pool cue on the table. At one point, he took the object and threw it across the room. For personal safety reasons, Inspector Foley decided not to engage patron #2 in further conversation.

28Inspector Foley observed patron #2 leave the establishment. His gait was unsteady. Inspector Foley asked him if he would be driving and patron #2 directed a threatening comment at him while exiting. Inspector Foley could not recall his exact words and did not make a note of them.

29The waitress on duty, “MM”, subsequently told Inspector Foley that she cut patron #2 off beverage alcohol service and that he had consumed three pints of beer. When he asked MM if she thought patron #2 was drunk, she refused to say one way or another. She informed that he had left the premises and returned but did not specify the time of departure or return.

30Inspector Foley departed the establishment at 9:35 p.m.

31On cross-examination Inspector Foley said he did not observe patron #1 standing at the chalk board. He also stated that he did not hear patron #1 say he had been harassed. Patron #1 responded readily to the questions Inspector Foley posed and cooperated fully.

32Inspector Foley admitted that he does not know patron #1’s normal gait, but his gait did not appear normal when compared to other patrons who were not intoxicated. He did not ask patron #1 for identification or his name. Inspector Foley also admitted that patron #1’s reddish eyes could be the result of something other than intoxication. Patron #1 did not smell of alcohol.

33Inspector Foley did not observe patron #2 drinking anything or make a note of there being a glass of water at his table. When speaking to patron #2, he was seated at the table with him. He did not ask patron #2 if he was on medication. The waitress told him patron #2 did not drive and his notes indicate that a cab came for him. Inspector Foley did not recall patron #2 saying, “How are you ladies?” He did not make a note of patron #2 smelling of alcohol.

Licensee’s Evidence

34Bernard Subramanian has been in the liquor business for ten years and is currently the manager of the establishment. He was working on April 4, 2008 when the inspectors attended the establishment. He began work that day at approximately 3:45 p.m.. A waitress, MM, was on duty with him. MM is no longer employed at the establishment.

35He saw patron #2 (“EW”) at around 4:00 p.m.. Patron #2 is a regular customer. He comes to the establishment about three times a week. Patron #2 consumed three draft beers on the date in question. He left the establishment at about 6:00 p.m. on his own volition and returned at around 9:00 p.m. before the inspectors arrived.

36Patron #2 looked bad when he returned to the establishment. He told Mr. Subramanian that he was not feeling well and that he was on medication. Mr. Subramanian told MM to give him a glass of water. He did not refuse patron #2 entry because he wanted to stay and said he had friends in the establishment.

37Patron #2 took a seat inside the pool room. Mr. Subramaniam and MM refused to serve him beverage alcohol. Mr. Subramaniam called him a taxi. Initially, the taxi’s phone line was busy. The second time he tried he got through and ordered the taxi. It took the taxi about five minutes to arrive. However, when the taxi arrived, patron #2 was speaking to the inspectors, so he released it and called another one a few minutes later.

38When the five inspectors arrived, they started harassing customers asking how much they had to drink. The inspectors asked six or seven customers how much they had to drink, making the customers feel very uncomfortable. The inspectors then went into the pool room and started speaking with a handicap customer (patron #1). Patron #1 had attended the establishment infrequently prior to the date in question, but he did not know his name. Patron #1 never returned to the establishment after the date in question.

39When asked to describe patron #1’s handicap, he stated he limps and does not talk properly.

40The inspectors asked patron #2 questions concerning the amount of beverage alcohol he consumed. Patron #2 told them not to give him a hard time and threw a pool cue. He also told them that he had a medical problem and had consumed some pills.

41On cross-examination, Mr. Subramaniam said he made notes after the incident which he referred to about two days ago, but he did not bring them to the hearing.

42At this time, Mr. Morris filed a letter of incident to Karim Karsan from Randall Barrs, dated July 15, 2008. The letter was entered as Exhibit 1. Mr. Subramaniam stated he does not recall reading the letter of incident before.

43Mr. Subramaniam admitted that patron #2 looked intoxicated when he re-entered at 9:00 p.m.. His speech was slurred, his eyes were a bit red, he was a bit unsteady on his feet, and his face was sweating. He was refused beverage alcohol service because he looked intoxicated.

44MM refused patron #2 beverage alcohol service and told Mr. Subramaniam that he does not look good. He told patron #2 he was going to call him a taxi, but patron #2 asked if he could relax a bit. Patron #2 told him he knows people at the establishment and wants to stay and play pool. Patron #2 told Mr. Subramaniam to leave him alone and get him a glass of water.

45Mr. Subramaniam did not hear patron #2 tell the inspectors he was going to drive a big red truck.

46Patron #1 arrived at around 7 or 7:30 p.m. and was served 3 bottles of Labatt’s Blue. Mr. Subramaniam said he could tell patron #1 had not consumed any beverage alcohol before arriving at the establishment. Patron #1 also told him he came straight from home.

47MM resigned five or six months ago when she had a baby. Mr. Subramaniam thinks she moved because he has not seen her in the area for some time and he does not know her new address.

48According to Mr. Subramaniam, all three inspectors made fun of patron #1 and Inspector Foley told patron #1 “he looked weird”. The other inspectors laughed when he said this.

49On re-examination, Mr. Subramaniam said he thought patron #2 looked drunk when he re-attended the premises at about 9:00 p.m..

50Patron #1 consumed about half of the third bottle of Labatt’s Blue which he was served.

51EW (“patron #2”) no longer works because of injuries sustained from a car accident in 2005. After the accident, he was taking two different painkillers, Tylenol 3 and Oxicodone. He is a regular customer of the establishment. At the time of the incident, he used to go to the establishment about twice a week. On the date in question, he attended the establishment at about 4:00 p.m.. He had a few games of pool and about three bottles of beer. He had taken four Tylenol 3 before arriving at the establishment.

52He started taking more painkillers after attempting to go back to work in November 2007. The work aggravated his injuries and he tried to compensate by taking more painkillers. His doctor prescribed one to three Tylenol 3 daily, but he was taking more than what was prescribed.

53At about 6:00 p.m. he left the establishment and went to do some shopping in the neighbourhood and had dinner at the Village Burger, located above the establishment. The Village Burger is a fast food restaurant and does not have a liquor licence. He took two more painkillers before returning to the establishment.

54He returned to the establishment at around 8:30-8:45 p.m.. He was there about five or ten minutes before the inspectors arrived.

55When he returned, he felt light-headed and a bit dizzy. He wanted to sit down. He sat down in the pool room and tried to order a drink. The waitress told him he had too much to drink and that she was cutting him off, but he had not consumed anything since 6:00 p.m.. Mr. Subramaniam also came over to his table and told him he could not serve him alcohol. Patron #2 told Mr. Subramaniam to just call him a cab, if he was not going to allow him to drink.

56Patron #2 saw two men talking to a handicapped customer (patron #1) he had seen at the establishment a few times before. He does not know patron #1’s name, but he has spoken to him before and could tell he had some sort of disability. His gait was not natural, his speech was a little slurred, and he picked up his glass with extra effort. The inspectors seemed to be bothering patron #1.

57One inspector sat down at his table and asked him how much beverage alcohol he had consumed. He told the inspector he had consumed three beers. He became aggravated with the questioning and threw a pool cue on the floor. He left by taxi.

58On cross-examination, patron #2 admitted that it is possible he told one of the inspectors to “fuck off” and that he also said “good evening ladies” to five male strangers.

59At this time, Mr. Morris filed a statement dated March 9, 2009 and signed by patron #2. The statement was entered as Exhibit 2. Patron #2 indicated that to prepare the statement, he and Lionel Subramaniam met at the bar and re-hashed what happened on the night in question. Lionel Subramaniam told him what his brother, Bernard Subramanian remembered, which helped to refresh his memory. Lionel Subramaniam later typed up the statement and then patron #2 signed it. He admitted that he would not be able to recall what part of the statement he remembered without any assistance from Lionel Subramaniam.

60Exhibit 2 indicates that patron #2 returned to the establishment at 6:30 or 6:45 p.m.. When asked about the inconsistency between the statement and his earlier testimony, he indicated that the statement is incorrect.

61Patron #2 said it is possible he had four draft beers on the date in question but he believes it was three. He was served the first beer at 4:05 p.m., the second one at 4:30 p.m. and the third one at 5:30 p.m..

62He is aware that there is a warning on the Tylenol 3 bottle not to take it with beverage alcohol. In patron #2’s experience, the combination of alcohol and Tylenol 3 intensifies the effect of the Tylenol 3.

63For about two to four weeks before the date in question, patron #2 was taking about six Tylenol 3 a day. Occasionally when he combined Tylenol 3 and alcohol he would slur his speech.

64When he returned to the establishment on the date in question, he did not feel capable of playing pool and he does not think it was his pool cue on the table. He thinks the alcohol would have been out of his system by the time he returned to the bar.

65Patron #2 initially said he was apologizing in the statement (Exhibit 1) for the Licensee having to attend a hearing and face consequences. Eventually, he admitted he was apologizing for his inappropriate conduct on the night in question.

66Lionel Subramanian and his brother, Noel, own the business. On the date of the incident he was on holiday. He returned from holiday on April 28, 2008.

67He spoke to patron #2 a number of times about the incident. Patron #2 gave him a handwritten statement which he typed.

68His policy is to try and stop intoxicated patrons from entering. They have a camera over the front doors and a video monitor at the bar, which enables them to check for intoxicated persons at the time of entry.

69He is not sure about the identity of patron #1.

70On cross-examination, he indicated that there is a video attached to the camera. The camera is on all the time and he keeps the video tapes for fourteen days. He admitted that a video tape would have been helpful in ascertaining whether the customers were in fact intoxicated on the date in question. He indicated that the relevant videotape was not kept, since he was on holiday on the date of the incident and did not return for three weeks. As such, the tape had already been destroyed, in accordance with the fourteen day retention period, on his return from holiday.

Registrar’s Submissions

71The Registrar submits that the Licensee permitted drunkenness on the part of patron #1 and #2. The Registrar also submits that the Licensee permitted disorderly conduct on the part of patron #2.

72There is clear case law from the Divisional Court which states that drunkenness and intoxication are synonymous.

73Regarding patron #1, the video tape could have been exculpatory, as it would have shown what patron #1 looked like when he entered and exited the establishment. Lionel Subramaniam and his brothers are experienced businessmen who would have kept the videotape if it supported the Licensee’s case. The Registrar asks the Board to draw a negative inference from the failure of the Licensee to produce the videotape.

74Inspector Foley described patron #1 as “wobbly”, with a slow, tired gait and reddish eyes. Inspector Hetherington said he was unsteady and spoke slowly with slurred speech. Inspector Foley’s assumption, that patron #1 was intending to get drunk because he came equipped with bus tickets, is a reasonable assumption. Bernard Subramaniam said at the time that patron #1 was mentally handicapped. The first time he said he was also physically handicapped was at the hearing.

75Bernard Subramaniam’s evidence was not credible. He was constantly making things up and pretending he did not understand certain questions. In particular, it is not credible that Inspector Foley would have said patron #1 looked weird and the other inspectors would have laughed at same.

76In the final analysis, there was no evidence that patron #1 was handicapped. Bernard Subramaniam’s evidence cannot be believed as he was not a credible witness.

77Regarding patron #2, Inspector Hetherington testified his speech was slurred, his eyes were glassy and red, and he greeted the five inspectors by saying, “How are you doing ladies?” A sober person would not say something like that to five male strangers. He was not behaving normally when speaking to the inspectors, swearing and stating he was going home in a red truck when this was not the case. He threw the pool cue. He was clearly drunk, aggressive and disorderly.

78Mr. Morris provided copies of the Board’s decision in the Jameson Restaurant case, where it was held that “whether intoxication occurs because of alcohol alone or a combination of medication and alcohol is immaterial.” Tylenol 3 alone would not produce the symptoms patron #2 was exhibiting on the night in question. Patron #2 testified that he felt light headed and a bit dizzy from the Tylenol 3, but the inspectors testified to him being aggressive, rude and violent.

79When patron #2 arrived at the establishment, Bernard Subramaniam and the server thought he was drunk. The Licensee’s obligation, under the law, is to refuse to allow customers who are drunk to enter or remain in the premises. Patron #2 was allowed to enter and remain in the premises while drunk. It makes no difference that the patron’s state of intoxication may have been caused by a combination of alcohol and Tylenol 3.

Licensee’s Submissions

80A videotape would not permit the differentiation between someone who was drunk, handicapped or on medication. The onus is on the Registrar to prove its case on a balance of probabilities. There is no onus on the Licensee to provide videotape evidence. The Registrar is improperly trying to shift the burden of proof to the Licensee.

81Two of the inspectors, one of whom was in training, did not have a lot of experience in assessing for signs of intoxication.

82Patron #2 provided credible testimony that he was not drunk on the night in question. After 9:00 p.m., the effects he was experiencing were solely of the Tylenol 3. The alcohol would no longer have been in his system, since he consumed three beers before 6:00 p.m. and subsequently ate dinner. There was no proof that patron #2’s behavior and physical condition were the result of alcohol.

83The server could tell he was under the influence of something when she approached his table after 9:00 p.m. and refused to serve him beverage alcohol. Bernard Subramanian agreed he should not be served any more alcohol and called him a taxi. Therefore, patron #2 was spotted almost immediately upon entering, assessed, and arrangements were promptly made to get him a taxi.

84Regarding the allegation that patron #2 was disorderly, Inspector Foley provoked him. Patron #2 felt patron #1 was being harassed. If the inspectors had not started questioning patron #2, he would have left earlier in a taxi. Patron #2 did not hurt or endanger anyone by throwing the pool cue on the floor.

85Patron #1 did not smell of alcohol and had only been served three bottles of beer. The third bottle of beer was still in his hand when he was speaking to the inspectors. He was cooperative and responded to all of the inspectors’ questions. None of the inspectors knew what patron #1 is normally like. Bernard Subramaniam and patron #2, who had seen patron #1 on other occasions, testified to him being handicapped. The inspectors should have obtained patron #1’s name and address, so he could have been called as a witness.

86Bernard Subramaniam is not a sophisticated individual. He tried to give evidence in a straight forward fashion. English is not his first language and sometimes he did not fully understand the questions being posed.

Reply

87It is well established, starting with the Birchmount Tavern case, that inspectors are under no obligation to obtain the names of drunks they observe in establishments.

88There was no evidence that Inspector Foley provoked patron #2.

89The Board should give no credence to the statement that the alcohol would have been out of patron #2’s system. Tylenol 3 alone would not account for patron #2’s behavior and physical condition.

Analysis/Reasons/Findings

90The Registrar is alleging that the Licensee permitted drunkenness on the part of patron #1 and drunkenness and disorderly conduct on the part of patron #2, in contravention of subsection 45(1) of the O.Reg.. For a finding under subsection 45(1) of the O.Reg. there is a two part test. First, it must be established that drunkenness or disorderly conduct occurred in the premises or any of the other specified areas under the exclusive control of the licence holder. Second, it must be established that the Licensee permitted the drunkenness or disorderly conduct.

Patron #1

91Inspector Hetherington described patron #1 as unsteady on his feet, swaying from side to side when standing, and having slow, slurred speech. Inspector Durham testified that patron #1 was unsteady on his feet while standing by the chalk board and had slurred, mumbled speech. Inspector Foley testified that patron #1 had a “wobbly look” and almost bumped into Inspector Durham. He also testified that his gait was slow, he appeared tired, his eyes were reddish and he had a slight slur to his speech. Inspector Durham did not testify to patron #1 almost bumping into him.

92According to the testimony of all three inspectors, patron #1 had no problem understanding or responding to the questions they posed. The inspectors also agreed he was cooperative. Inspector Foley testified that he showed him the bus tickets he planned to use to get home. Inspector Foley did not testify to him fumbling or having difficulty finding the tickets or taking them out of his pocket or wallet, as might be the case if he was drunk. Inspector Foley’s assumption that he brought bus tickets because he was planning to become impaired was pure speculation and even if correct does not address his condition when speaking to the inspectors. None of the inspectors confirmed whether patron #1 even had a driver’s licence or owned a vehicle.

93The Board finds the inspectors’ evidence of drunkenness on the part of patron #1 to be unconvincing. Reddish eyes, speech which was slow, and according to the most experienced of the three inspectors had only a “slight” slur, and a slow, wobbly gait, in and of themselves, are insufficient evidence of drunkenness, particularly when the patron was polite and cooperative and had no problem understanding or responding to questions.

94Inspector Durham testified that patron #1 told them, in response to a question, that he had three drinks at the establishment. Inspector Hetherington testified that patron #1 told them he did not consume any beverage alcohol before arriving at the establishment and that he did not take any medication at all. Given that all inspectors found patron #1 to be cooperative, the Board gives credence to the hearsay evidence about the quantity of consumption. Bernard Subramanian also gave independent evidence corroborating that patron #1 was served three bottles of beer at the establishment. In addition, Mr. Subramaniam indicated that patron #1 arrived at the establishment at approximately 7 or 7:30 p.m. and that he was still working on his third beer while speaking to the inspectors.

95It was open to the inspectors to question the server, MM, about patron #1’s time of arrival and the quantity of beverage alcohol she served him, but none of them did so. Quantity of beverage alcohol consumption is generally insufficient, in and of itself, to prove drunkenness or lack thereof, since tolerance levels vary. In this case, the evidence on the quantity of beverage alcohol consumed by patron #1 does nothing to strengthen the Registrar’s case that patron #1 was drunk.

96Bernard Subramaniam told Inspector Hetherington on the evening of the incident that patron #1 had a handicap and patron #2 also corroborated that patron #1 had a handicap. Bernard Subramaniam and patron #2 also testified to having seen patron #1 at the establishment on prior occasions, whereas the inspectors all testified that they had never seen patron #1 before this incident. The inspectors could have only observed patron #1 on the date of the incident for a few minutes, since they were in the premises for a total of twenty minutes, and their attention was quickly diverted from patron #1 to patron #2. Given that Bernard Subramanian disclosed that patron #1 had a handicap on the date of the incident, the Board believes, on a balance of probabilities, that he did not concoct the disability after the fact and that the disability explains some of patron #1’s physical condition and/or behavior.

97For the above reasons, the first part of the test under subsection 45(1) has not been met with respect to patron #1. Since the first part of the test has not been met, it is not necessary for the Board to consider the second part of the test. Accordingly, the Board DISMISSES the allegation under subsection 45(1) in respect of patron #1.

Patron #2

Permitting Drunkenness

98According to the inspectors’ testimony, patron #2 was sarcastic (“How are you doing ladies?” and “big red truck” comment), rude (telling Inspector Foley to “fuck off”), and agitated (throwing the pool cue). In addition, his speech was slurred, he had red, glassy eyes and an unsteady gait. The server, MM, thought he was intoxicated since she cut him off beverage alcohol service. Bernard Subramanian agreed with the server’s decision to cut him off beverage alcohol service, and at the hearing, testified that he thought patron #2 looked intoxicated when he re-entered the premises. On re-examination, he clarified that he understood intoxicated to mean drunk.

99The Board does not accept as credible the Licensee’s assertion that the alcohol would no longer have been in patron #2’s system and that he was solely under the influence of Tylenol 3 when he re-entered the premises. Patron #2 was very precise in cross-examination about the times in which he consumed the three beers (4:05 p.m., 4:30 p.m. and 5:30 p.m.). However, he did not include these times in his signed written statement. The omission of the times from his statement causes the Board to doubt the accuracy of the timing of the consumption of the beers. Further, patron #2 was not at all precise about the time in which he re-entered the premises. In his signed written statement, he said he re-entered at about 6:30 p.m. or 6:45 p.m.. At the hearing, he initially stated he re-entered between 8:30 and 8:45 p.m.. He then stated he was there about five or ten minutes before the inspectors arrived (i.e., 9:15 p.m.). The various conflicting versions about the time he re-entered also causes the Board to doubt his testimony on the times in which he allegedly consumed the beers.

100In addition, patron #2 acknowledged that Lionel Subramanian assisted him in remembering the events of the evening in question when he prepared the statement. If he required assistance in recalling more general information about the evening, it is not believable that he would remember the precise times in which he consumed beverage alcohol. By patron #2’s own admission, he consumed 8 Tylenol 3 and 3 beers on the date of the incident, which presumably would affect his ability to recollect precise details such as the time of beverage alcohol consumption and time of re-entry.

101Therefore, for the above reasons, the Board places no weight on patron #2’s testimony regarding the times in which he consumed the beers. On a balance of probabilities, the Board believes his behavior and physical condition, on the date of the incident, was caused by a combination of alcohol and Tylenol 3 and not solely by the Tylenol 3 as asserted. The Board agrees with the Jameson decision that it is immaterial whether the drunkenness was caused solely by alcohol or by a combination of alcohol and medication.

102Accordingly, the Board finds that patron #2 was drunk and, therefore, that the first part of the test under subsection 45(1) has been met with respect to patron #2.

103For the purpose of the second part of the test under subsection 45(1), the Licensee must have known, or should reasonably have known in the circumstances, that the patron was drunk and permitted same.

104Bernard Subramanian admitted to knowing patron #2 was intoxicated when he re-entered and to allowing him to stay anyway because patron #2 wanted to stay and relax and had friends in the establishment. Accordingly, the second part of the test under subsection 45(1) has also been met with respect to patron #2.

105The Board will consider, when determining the appropriate sanction, that the server cut patron #2 off beverage alcohol service when he re-entered and Bernard Subramanian called him a taxi shortly thereafter.

Permitting Disorderly Conduct

106“Disorderly conduct” is not defined under the LLA or regulations. Black’s Law Dictionary, 5th Edition, defines “disorderly conduct” as:

“A term of loose and indefinite meaning (except when defined in statutes), but signifying generally any behavior that is contrary to law, and more particularly such as tends to disturb the public peace or decorum, scandalize the community or shock the public sense of morality.”

“A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in a violent or tumultuous behavior; or (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”

Therefore, to qualify as “disorderly” the conduct in question must be against the law, or if not against the law, very extreme, with the intent to cause public inconvenience, annoyance or alarm or recklessly create a risk thereof.

107Inspector Foley testified to patron #2 being loud and laughing uncontrollably. The other inspectors described some of his sarcastic comments, but made no mention of him being loud. According to the inspectors’ evidence, which was not refuted by the Licensee, patron #2 told Inspector Foley to “fuck off” and threw a pool cue on the floor. They did not testify that he threw the pool cue in the direction of any patrons or staff, nor did they testify to any injuries or damage in property from the throwing of the pool cue. Inspector Foley testified that patron #2 said something threatening to him on departing, but he could not recall what he said and did not make a note of it. The Board finds it questionable that an experienced inspector would not make a note of a comment he deemed to be threatening and believes that the use of the word “threatening” was an exaggeration and that the comments were not threatening. In addition, none of the other inspectors gave evidence about patron #2 making a threatening comment to Inspector Foley on departing.

108While the Board in no way condones patron #2’s conduct on the date of the incident, it does not find that it rises to the level of disorderly for the purpose of subsection 45(1) for the following reasons. First of all, it is not uncommon for patrons to be loud in a bar and only one inspector made a note of patron #2 being loud, which leads the Board to believe that his level of noise was not unreasonable for a bar.

109Secondly, while it was indeed inappropriate of patron #2 to swear at Inspector Foley and make other sarcastic comments, verbal utterances must be quite extreme (i.e. offensively course or abusive, with the purpose of causing a public inconvenience or annoyance) or threatening to rise to the level of disorderly conduct. With the exception of the one obscenity, the comments were more sarcastic in nature and there was no evidence of an intent to cause a public disturbance. The Board also does not believe the inspectors felt threatened by patron #2. They made no mention of requiring police assistance or even enlisting the assistance of the Licensee in stopping patron #2. Patron #2 also left voluntarily when his taxi arrived, and the entire exchange with the inspectors could not have lasted more than a few minutes.

110Finally, while the throwing of the pool cue was also inappropriate, since it was not aimed at a person and did not injure anyone, endanger anyone, or cause damage to property, the Board cannot find that it rises to the level of disorderly conduct for the purpose of subsection 45(1).

111Since the first part of the test under subsection 45(1) has not been met, it is not necessary for the Board to consider the second part of the test.

112Accordingly, the Board FINDS that the Licensee contravened subsection 45(1) by permitting drunkenness in respect of patron #2, but DISMISSES the allegation of permitting disorderly conduct in respect of patron #2.

113Finally, it bears mentioning that the Board gave no credence to the Licensee’s allegations that Inspector Foley provoked patron #2 or that the inspectors made fun of patron #1 or harassed other patrons in the establishment. These allegations appeared self-serving and were unsubstantiated.

Conclusion

114The Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg. by permitting drunkenness with respect to one patron.

115The 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 14th DAY OF APRIL, 2009