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-
1443614 Ontario Inc. O/A Tila Tequila Bar
Licensee
amended DECISION ON FINDINGS
Panel: Kirsti Hunt, Vice-Chair Alex McCauley, Board Member
Decision Date: January 27, 2009
Hearing Location: Ottawa, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Joyce Taylor, Representative
1443614 Ontario Inc., Licensee ) Charles Gibson, Representative ) Jerry Levitan, Representative
Allegations
- A hearing into Notice of Proposal number 15601 dated August 22, 2007, to suspend liquor licence number 805577 (the “Licence”) issued to 1443614 Ontario Inc., operating as TILA TEQUILA BAR, 104 – 108 Clarence Street, Ottawa, Ontario, K1N 5P6, (the “establishment” or the “premises”) on the basis of alleged violations of section 29 of the Liquor Licence Act (“LLA”) and section 43 and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on April 8 and 9, July 2, July 3 and October 16, 2008, in the City of Ottawa.
Decision
- After considering all the evidence and submissions, the Board FINDS that the Licensee breached section 43 and subsection 45(1) of the O. Reg and section 29 of the LLA.
Preliminary Matters
The Board ordered the exclusion of witnesses on consent of parties.
Charles Gibson, represented the Licensee on April 8 and 9, July 2 and 3, 2008 and Jerry Levitan represented the Licensee on October 16, 2008.
Registrar`s Evidence
February 9, 2007
Inspector Mark Lambert, an AGCO inspector, attended at the licensed premises on February 9, 2007 at 1:21 a.m. in an undercover capacity. He noted that the premises was about three-quarters full with about 300 patrons. He described the interior of the premises with the aid of a floor plan (Exhibit #1a) and marked his approximate position against the wall opposite the service bar with an “O”. He agreed that he was in a high traffic area.
He observed eight allegedly intoxicated patrons at the bar and service of alcohol to four of them. He marked the location of the patrons on Exhibit #1a as P1, P2 etc. and described what they were wearing and their demeanour and actions which led him to conclude that they were drunk.
Patron 1, with KARN on the sleeve of his shirt (K written backwards), was drinking from two red drinks with ice in them. He had a hard time standing and appeared unbalanced, bumping into people standing and walking past. His eyes were squinty and half closed. He had lethargic hand motions and would give a thumbs-up sign several times while speaking to his friends. At one point, he leaned on the bar and put his head down on his arms on the bar. He appeared not to be able to hold himself up under his own power. The male poured one drink into the other and it spilled onto the ground. He continually missed the straw in the glass when he brought the drink toward his mouth.
A female bartender spoke with him and served him another drink into which she poured vodka.
While standing at the bar, the male took pictures of himself with a digital camera but the camera was backwards and he kept taking pictures of the crowd. The inspector demonstrated how the male kept looking at the picture on the camera in an unfocussed way, frowning and taking another picture.
Several staff walked by the male and the female bartender but they took no notice of his condition.
Patron 2, wearing a hoodie with Canada written on it in red, appeared extremely unbalanced and would continuously fall into the friends around him. When leaning towards the bar, he kept falling sideways. His eyes were very droopy and sleepy. He ordered a tequila shooter which was served to him by a male bartender wearing a plaid shirt and a tie. The patron drank the shooter.
Patron 3, wearing a green hooded sweatshirt, lost his balance while trying to cut a corner and walked into the inspector. He tried to talk to the inspector as if he knew him but the inspector did not know him. The inspector could not make out what the male was saying because his speech was extremely slurred. He had a strong smell of alcohol on his breath. The inspector could not say what language the male was speaking. The inspector said nothing to him but the male started to laugh to himself as he moved off into the crowd. A security person standing at the bottom of the stairs appeared to notice the male but did not acknowledge his condition.
Patron 4, with extremely baggy blue jeans, staggered when he walked past the Inspector and stepped on his foot. That was because of the pants. He was noticeably intoxicated. His eyes appeared very tired. On his way to the dance floor, he fell sideways and bumped into a table. The inspector did not see anyone knock into the male to make him stagger.
Patron 5, the very well dressed male, was chugging from a green tinted bottle consistent with a Heineken which was served to him by the female bartender. As he finished drinking, he fell backwards into the people behind him. A female who came from the area of the entrance grabbed his hand pulling him towards her. He followed her toward the exit doors. He appeared very unbalanced, had lethargic head motions and lazy movements as she held his hand.
Patron 6 was a female with a black bandanna as a belt. She was being carried by two friends from the dance floor area. She did not appear to be able to walk at all. She had her arms over their shoulders and they appeared to drag her toward the exit area. She held a beer bottle in her hand. The inspector scanned the area right and left and no staff addressed her.
Patron 7 was a 6 foot tall female who was dancing with a girlfriend at the bar and was constantly bumping into people in front and behind her while dancing with wide movement as if she was unsteady. The bar area was crowded so there was no room to dance but she was flailing while dancing. She chugged a mixed drink at the bar.
She danced backwards until she was in front of the inspector but not touching and she started to grind her hips moving from upright to crouching. When she turned to look at him, there was a strong odour of alcohol on her breath. Her eyes were extremely unfocussed. When he did not acknowledge her, she danced back to her friends.
A few minutes later, the female danced toward the catwalk to the security guard at the bottom of the stairs and began to flirt with him and straddled her leg on his hip and hugged him. The security person was very friendly and acknowledged her but not her level of intoxication since he did not ask her to leave.
When she spoke with the shooter girl in French, her speech was so slurred that he could not make out what she was saying. She returned to the bar and spoke with the bartender who served her a mixed drink with vodka in it.
Patron 8 was a female with red hair. As she walked to the exit, she was very unbalanced. She lost her footing, staggered and jabbed the inspector in the stomach with her elbow. In trying to keep her balance she pushed off the inspector.
She met a male by the entrance and was hugging and groping at him by grabbing his buttocks. Her movements were lethargic. Her speech was slurred but he could not hear what she was saying to him. It appeared that she wanted to dance with him and as they proceeded to the dance floor, she was unsteady and was pulling him with dishevelled movements.
On cross-examination, Inspector Lambert indicated that he did not speak to any of the people he observed. He did not identify himself to any staff nor did he speak to any staff about the people he observed because he was in an undercover capacity.
February 16, 2007
Inspector Stephane Godard of the AGCO visited Tila Tequila on February 16, 2007 at 1:35 a.m. with AGCO Inspector Rowntree on a routine inspection. He advised the manager, Andy Straunich, of the findings of the undercover operation on February 9, 2007 when an inspector had observed eight intoxicated patrons, four of whom had been served alcohol. He indicated that the matter had been forwarded to the Deputy Registrar for his consideration. He advised Mr. Straunich to monitor for drunkenness and over-service.
On cross-examination, he observed no infraction that evening. He agreed that there had been many inspections where no infractions were found. He stated that Mr. Mahmoud was a hands-on operator and was frequently in the premises. He had an active interest in the business and was interested in respecting the liquor laws.
May 12, 2007
Inspectors Stephan Godard and Andrew Rowntree of the AGCO and Constables Carr and Cox of the Ottawa Police Service (“OPS”) attended at Tila Tequila around midnight on May 12, 2007. After identifying themselves, Inspector Godard and Constable Cox went to the west side of the main area of the bar and made observations. Inspector Rowntree and Constable Carr went to the east side raised area behind the main service bar. That area is the width of a normal doorway.
Constable Carr observed two females who appeared intoxicated by alcohol. They were unsteady on their feet and were slurring their words. Both were drinking at the time. One of the females bumped into him three times while dancing at the bar, not on the dance floor. He pointed out the females to Inspector Rowntree.
Inspector Rowntree indicated that two female patrons bumped into him as they were dancing in the raised area. He could not recall if they bumped into the police officer. They were showing signs of intoxication. Their movements were very erratic. They were unsteady on their feet, had slurred speech and glossy red eyes. Both were consuming from a bottle of beer.
He informed Mr. Mahmoud about the signs of intoxication displayed by the two females. Mr. Mahmoud took the alcohol away from them. Before he could do so, Female 1 put out her arm to stop him from taking her beer while trying to gulp it down as fast as she could. He gave them a couple of bottles of water but allowed them to stay in the premises.
The inspector told Mr. Mahmoud that allowing them to remain in the premises would be allowing drunkenness to continue. However, he found that Mr. Mahmoud acted professionally and did a good job looking after his patrons. Mr. Mahmoud seemed sincere about observing the patrons so they would not consume any more alcohol. The inspector told Mr. Mahmoud that he could issue a warning regarding the females and Mr. Mahmoud could observe the patrons.
Constable Carr observed that the females remained in the premises and continued to dance with their bottles of water.
As he was exiting, Constable Carr observed the females in the entrance area with alcoholic beverages in their hands. The officer smelled the drinks and they were consistent with rum and coke. He asked the females to leave because of public intoxication. Female 2 went back into the bar and he escorted Female 1 outside. Female 1 said that she was there with friends and could not leave. She did not want to go and argued with him. She was very unsteady on her feet. She walked into the glass window thinking it was a doorway. At the coat check, she had difficulty locating the receipt. She dropped her wallet three times and went through her pockets several times. She was unsteady, moving side to side.
Outside, he served her with a Provincial Offences Notice for public intoxication. As he was doing so, Female 2 came out on her own. She did not agree with the removal of her friend and was argumentative but not excessively belligerent.
Female 1 said she was calling her father to come and pick them up. She did not say she had friends who had a car across the street. He could not recall seeing Mr. Mahmoud outside.
Outside, Inspector Rowntree observed that the speech of Female 1 was slurred. She was agitated and said that she was cold. She did not have a coat. She said that she had arrived around 10:00 p.m. with her friends and had been consuming alcohol. She explained that she had friends inside and she wanted to stay. After being cut off, she had gone to the back of the bar and was served a rum and coke by a female bartender.
Inspector Rowntree indicated that when Female 2 exited the premises, she was aggressive. She began yelling at Constable Carr asking him why her friend had been asked to leave the premises and issued a ticket. Inspector Rowntree and Constable Cox spoke to her to try to find out how she and her friend were getting home. She was showing signs of intoxication. She was unsteady on her feet. She had slurred speech, glossy red eyes and was very aggressive. At one point, a friend tried to calm her down. She admitted that after being cut off, she had been served a rum and coke by a bartender or server at the back of the premises. She was issued a ticket for public intoxication by Constable Carr.
On cross-examination, Inspector Rowntree stated that Constable Carr did a good job in dealing with the two females.
Inspector Godard added that Inspector Rowntree informed him that he had observed two intoxicated females and had pointed them out to the owner, Mr. Mahmoud who had cut off the females and removed the alcohol from them. The patrons were allowed to remain in the premises and Inspector Rowntree did not indicate that he had a problem with that.
As they were exiting the premises, Constable Carr advised them that one of the patrons who had been cut off was consuming alcohol again. Inspector Godard observed Female 1 outside. She was swaying back and forth, almost falling while the officer issued her the ticket for being intoxicated in a public place. Her speech was slurred, her eyes were glossy and she had a fixed stare.
The Inspector interviewed Female 1 and she said that she had arrived in the premises shortly after 10:00 p.m. and had consumed around 10 drinks. She admitted to purchasing Captain Morgan’s spiced rum from a female bartender at the back of the bar after being cut off by Mr. Mahmoud who was present during this interview.
Female 2 was retrieved and brought outside by Mr. Mahmoud. She was also issued a ticket by the police for public intoxication. She was unsteady on her feet and was swaying from side to side. Her speech was slurred. She was crying while she was being issued the ticket. As she walked away, she was staggering.
After informing the Licensee of the infractions, the Inspectors and officers left around 1:16 a.m.
Over-Capacity
May 13, 2007
Inspector Godard arrived at the premises at 1:33 a.m. on May 13, 2007 with Acting Detective Sergeant Luc Bouvier and Constables McDougal and Lord. From the sidewalk directly in front of the outdoor patio, he observed that the patio exceeded its lawful capacity of 11 persons. He counted 16 persons and right after that he counted 14 persons on the patio. Access to the patio is through a large garage door that was open. He counted only the people outside the edge of the building. He could not recall seeing anyone monitoring patron traffic to and from the patio.
He advised Mr, Mahmoud to monitor the capacity on the patio. Mr. Mahmoud said that he would add door staff to that area. The inspector left around 1:46 a.m.
Inspector Godard indicated that he has dealt with Mr. Mahmoud on several occasions. He agreed that Mr. Mahmoud is cooperative. He is proactive and asks about things he can do to operate better and is receptive to suggestions made. Mr. Mahmoud set up a cord across the front of the patio area to control patrons’ access.
Detective Constable Luc Bouvier added that Inspector Godard told him the capacity of the patio and asked him to do a count. He did three counts with a couple of minutes between counts and got counts of 17, 14 and 14 persons. He counted the people who were outside of the wall. He advised the Inspector of his counts and the Inspector spoke to the manager.
June 3, 2007
Inspector Andrew Rowntree attended at Tila Tequila on June 3, 2007 with Constables Wightman and Constable Villeneuve of the Ottawa Police Service. This was during the Ottawa Senators play-off run. From the sidewalk, he counted 21 people on the patio licensed for 11 persons. The garage doors were open. He counted only the people outside and not those under the overhang. He told the officers the capacity of the patio and asked the constables to do a count. Constable Wightman counted 21 patrons.
Inspector Rowntree went to the front of the premises to spoke to Mr. Mahmoud who instantly asked one door staff to go to the patio to resolve the over-capacity issue. A staff member was positioned inside the premises at the entrance to the patio. Mr. Mahmoud explained that it was a busy night and that there were patrons causing problems at the front of the premises. He had requested door staff to be relocated to the front of the premises to resolve issues there. That is why the patio was overcrowded. The Inspector did not notice a disturbance at the front of the premises although there was a line-up.
During their conversation, the inspector counted 13 people on the patio. When he pointed that out to Mr. Mahmoud, he had two more people removed from the patio.
Constable Andrew Wightman confirmed that he counted 21 persons on the patio and that Inspector Rowntree also counted 21 persons.
On cross-examination, the officer stated that he counted people who were outside the garage doors which were open. He did not notice anything happening at the front door or in the line-up because his attention was focussed on the patio.
Licensee’s Evidence
February 9, 2007
Mr. Abbas Mahmoud, the manager and owner/operator of Tila Tequila, was on duty on February 9, 2007. There were eight doormen and two floaters, two managers and himself and eight bartenders working. Exhibit #1b shows the location of security staff marked with a star and serving staff marked with a circle. The area inside the double doors opposite the main bar, with traffic also to the washrooms, is a high traffic area and security personnel are posted there to move people along. All four servers were working at the main bar.
Nothing out of the ordinary stood out to him prior to being told by the AGCO that there had been a problem. He could not recall seeing any of the patrons described by Inspector Lambert. Half the people present were in their 20’s and dancing. Dozens of people could have been wearing red shirts or hoodies. If Patron 1 was acting as described and bartenders did not report that to the managers or doormen, they would be in serious trouble.
Patron 2 was described as being served a drink by a bartender, with a plaid shirt and tie. The dress code for servers does not allow plaid shirts or ties. They wear white or black shirts.
The inspector could not make out what Patron 3 was saying but it is a dance club with loud music and one can only hear a person standing very close. Patron 4 stepped on the inspector’s foot but the inspector was in the high traffic area. If he had been there for any time, he would have been asked to move aside by security because he was blocking traffic.
May 12, 2007
Mr. Mahmoud was present on May 12, 2007 and recalled seeing Inspectors Godard and Rowntree who were each accompanied by a police officer. He spoke to Inspector Godard for about 15 minutes. The inspector said everything was fine and complimented him for keeping the sidewalk outside clear.
He observed Inspector Rowntree on the steps to the raised area behind the bar and went to speak with him. At that point, there were no issues.
The officer with the inspector, Constable Kerr, was almost on the dance floor in a high traffic area and almost blocking traffic. The dance floor was busy and some people had spilled outside the designated dance area. Constable Carr spoke to the inspector about being bumped by two females and pointed them out. Mr. Mahmoud told the Inspector that the officer was in a high traffic area.
The females got off the dance floor and walked past Mr. Mahmoud and the inspector and in doing so bumped the officer again. They went up the stairs to the middle of the area behind the bar where their friends were.
Inspector Rowntree said that they could potentially be intoxicated. Mr. Mahmoud spoke to the females who were a part of a group of eight. He told the females that they were not allowed any more drinks and he gave them each a bottle of water. He did not know the females. He told one of their friends, a regular customer, that he could get in trouble because of the girls and asked him to keep an eye on them. The gentleman said that he would be driving them home. Mr. Mahmoud asked the females to leave but they argued with him because they did not think they were intoxicated and could not understand why they had to leave. He asked the gentleman to take the group and go home.
Mr. Mahmoud told Inspector Rowntree what he had done and that the gentleman was taking the females home. The group left and went down the stairs.
While he was speaking to Inspector Rowntree, Constable Carr left and they eventually went looking for the officer. They ended up in the lobby with Inspector Godard and his escort. Mr. Mahmoud noticed Constable Carr arguing fairly heatedly with Female 1. He then grabbed her arm and walked her out of the bar. Mr. Mahmoud found this annoying because usually when police officers are in the bar, they notify staff and staff takes over, but this officer took the patron out himself.
Inspector Rowntree spoke to the officer and was told that the officer had seen the female with another drink.
Outside the Female 1 was yelling and swearing at Constable Carr and he was getting agitated and upset. When Female 2 came outside, there were two females yelling at him and mocking him. Female 1 did not have her coat and was complaining that she was cold. Mr. Mahmoud sent a doorman to get her coat. She had no problem getting her ticket. In his opinion, the females were not intoxicated. He had cut them off inside because he did what the Inspector wanted.
The police officer was threatening to arrest Female 1 and she was crying. The situation was escalating so Mr. Mahmoud talked to her and asked her to cooperate with police and she gave the officer her ID. At that time, her friends were waiting in a car across the street.
The officer issued the two females a ticket and left them standing there. They ripped up the tickets and tried to throw them at the officer. They were upset with the officer and himself too because they did not know why they had to leave. They were embarrassed by the situation. They continued to yell at Mr. Mahmoud after the Inspectors and officers left. Afterwards, there were no problems in the establishment.
On cross-examination, Mr. Mahmoud indicated that he had not seen Constable Carr before. He had a problem with the officer inside standing in a high traffic area and then complaining about being bumped by the females. Constable Carr told Inspector Rowntree that they were intoxicated. When the inspector told him that, he asked them to leave and they left for the lobby. He did not see the female with a drink in the lobby. One female said that she had a spiced rum and they do not sell spiced rum.
The testimony of the officer regarding the female getting her coat is not true. She was complaining outside that she was cold. He and Inspector Godard felt sorry for her and he went inside to get her coat.
He did not see the signs of intoxication observed by both of the inspectors.
Over-Capacity
May 13, 2007 and June 3, 2007
Mr. Mahmoud was present on May 13, 2007 and June 3, 2007 which were during the Senators’ play-off run. He explained that the streets were overwhelmed with people. He kept his capacity down inside because there was chaos on the street and took his doormen outside to form a shield. He keeps two doormen at the patio. One watches the exit door and the second sits on the patio in front of the theatre ropes to keep count of patrons on the patio. He keeps two doormen there because if people are refused entry, they sometimes hop the railing of the patio.
On June 3, 2007, Mr. Mahmoud was at the front entrance where they had a line-up. A gang of 12 to 13 people from Montreal wearing bandannas and jerseys arrived. They did not want to wait in line and were pushing their way through everybody. When told that they could not come in, they said that nothing was going to stop them. They pushed one doorman. Mr. Mahmoud called the doormen from inside to form a shield at the front doors. He waved over police officers who were walking by and the officers restrained the males and got rid of them.
Mr. Mahmoud indicated that he was still nervous and flustered from that situation when Inspector Godard and his police escort arrived and told him that they were over-capacity on the patio. He explained to the inspector what had happened and why there was no doorman at the patio. He admitted that they were over the legal capacity on the patio. They only had a brief conversation because he was worried that the gang would return and try to rush them again because the police had left. There were no problems on the patio, before and after the incident at the front door.
Findings/Analysis/ Reasons
February 9, 2007
The allegation of the Registrar is that on February 9, 2007, there were eight drunk patrons in the licensed premises. Four of these patrons were served liquor in spite of their intoxicated appearance.
The Board heard detailed evidence from Inspector Lambert about the dress, appearance and actions of the eight patrons. He made his observations while in an undercover capacity from an area across from the main service bar. He did not speak to staff about the patrons he observed. Mr. Mahmoud did not see any of the patrons observed by the Inspector and stated that it was impossible after the fact to make a defence.
The Board notes that Inspector Godard informed the manager on February 16, 2007 of the findings of the undercover operation. Therefore, there was not a lengthy delay in informing the Licensee. Also the evidence of Mr. Mahmoud was that there were four bartenders at the main service bar and at least three security personnel in close proximity to it (Exhibit #1b). Given the clear signs of intoxication displayed by some of the patrons at the bar or in the area patrolled by security, even if Mr. Mahmoud did not see the patrons in question, staff should have noted the patrons’ behaviour and demeanour and dealt with them if they were diligent in their duties. However, the staff took no action.
Based on the detailed evidence of the demeanour and actions of Patron 1, the Board finds, on a balance of probabilities, that patron 1 was drunk.
In considering whether the Licensee permitted drunkenness, the Board notes that this patron was at the bar. It is reasonable that the bartenders, who have completed a server training program as was the evidence of Mr. Mahmoud, should have noticed a person at the bar who was unbalanced, bumping into people, having lethargic hand movement, putting his head down on his arms at the bar, spilling his drink and continually missing the straw in his glass. The evidence of Inspector Lambert is that the female bartender at the bar took no notice of him. Instead, she served another drink with vodka in it. Mr. Mahmoud agreed that if the patron acted as described, and bartenders did not report that to the manager or doormen, they would be in trouble.
The Board finds that the Licensee permitted drunkenness in the case of Patron 1 and served alcohol to that drunk patron.
Patron 2 had droopy and sleepy eyes. He was extremely unbalanced and continuously kept falling into the friends around him or falling sideways when leaning towards the bar. This patron ordered, was served and drank a tequila shooter. Given the multiple signs of intoxication that he exhibited, the Board finds, on a balance of probabilities, that Patron 2 was drunk. Given that the male was at the bar, bar staff should have noted his indicia of intoxication and removed him. Instead, he was served a tequila shooter which he drank.
Therefore, the Board finds that the Licensee permitted drunkenness in the premises and served alcohol to Patron 2 who was drunk.
Patron 3 also showed strong indicia of intoxication. He staggered, had incoherent slurred speech and was laughing to himself. The security guard at the bottom of the stairs observed him but did not remove him. The Board finds that Patron 3 was drunk and by not removing him, the Licensee permitted drunkenness in the licensed premises.
Patron 4 had problems with balance as he walked but his droopy, sleepy or tired eyes could have been from mere tiredness after 1:21 a.m. Absent other clear signs of intoxication, there is not sufficient evidence to conclude that they were drunk.
Patron 5 was chugging from a bottle of Heineken served to him by a female bartender and fell backwards into the people behind him. While walking, he appeared very imbalanced, had lethargic head motions and lazy movements as well. Given the number of signs of intoxication that he exhibited, the Board finds that this patron was drunk and was served alcohol while drunk. He was not removed by staff but was led toward the exit by a female companion. By taking no action regarding this patron, the Licensee permitted drunkenness.
Patron 6 appeared unable to walk and was dragged out by friends. She was holding a beer bottle but there is no evidence that she consumed from it. The Board is not prepared to draw the conclusion that she was intoxicated by alcohol merely because she held a beer bottle. Absent any other indicia of intoxication besides being dragged out, there is insufficient evidence to conclude that she was intoxicated by alcohol.
Patron 7 was dancing off the dance floor in a crowded area with wide motions and she danced in front of the Inspector and a security person in a sexually provocative way. She had unfocussed eyes and slurred speech. The Board agrees with Registrar’s representative that alcohol can loosen inhibitions but dancing off the dance floor with wide or “flailing” motions or in a sexually provocative way are not necessarily signs of intoxication. Patron 7 was under the influence of alcohol, in the view of the Board, but absent any signs of imbalance while dancing, the Board makes no finding that she was intoxicated.
Patron 8 was unbalanced and staggered into the Inspector. Her movements were lethargic. Her speech was slurred and she was unsteady and had dishevelled movements as she pulled her companion towards the dance floor. Given the multiple signs she exhibited, the Board finds that Patron 8 was drunk. To get to the dance floor she had to pass the bar with four bartenders and at least one security guard and no staff took any notice of her. Therefore, the Board finds that the Licensee permitted drunkenness.
Conclusions regarding February 9, 2007
Based on the reasons above, the Board FINDS that the Licensee breached subsection 45(1) of the O. Reg in the case of Patrons 1, 2, 3, 5 and 8 and a breach of section 29 of the LLA in the case of Patrons 1, 2 and 5.
The Board makes no findings of a breach in the case of Patrons 4, 6 and 7.
May 12, 2007
The allegation of the Registrar is that on May 12, 2007, there were two intoxicated patrons in the licensed premises. One was served liquor despite her intoxicated appearance.
Mr. Mahmoud’s position was that the females were not drunk but he cut them off because that was what the inspector wanted. He felt the Inspector Rowntree arrived at his conclusion about the females because the police officer had told the inspector that the females were drunk because they had bumped into him.
The Board accepts the inspector’s initial conclusion that the females were drunk based on his own observations of the indicia of intoxication that they exhibited. He also observed them outside exhibiting further signs of intoxication and his observations were corroborated by Inspector Godard.
In deciding whether the Licensee permitted drunkenness, the Board considered that fact that Inspector Rowntree was not overly concerned about the females staying in the premises after Mr. Mahmoud cut them off because Mr. Mahmoud indicated that he would keep an eye on them. He felt that at this point, Mr. Mahmoud was being diligent and looking after his patrons. However, the evidence of Mr. Mahmoud was that he asked one of their friends, a regular customer, to keep an eye on them and to take them home. Instead of monitoring them himself, as he told the Inspector, or having staff monitor them, Mr. Mahmoud left the females in the care of a patron thus setting up a situation where at least one of the females obtained and consumed more liquor. In allowing the females to remain in the premises in care of a patron instead of staff, Mr. Mahmoud permitted drunkenness to continue and further consumption of alcohol by a drunk patron.
The Board heard a great deal of evidence regarding the scene outside where Constable Carr issued tickets to the females for being drunk in a public place. The position of Mr. Mahmoud was that the situation was created by the officer who took Female 1 outside himself instead of leaving that to staff. He held that the females were upset and were yelling at the officer because they were asked to leave the premises, not because they were drunk.
The Board finds that the officer acted entirely appropriately. The females had been cut off but not removed by staff so he removed Female 1 after seeing her consuming alcohol again.
Given the contradiction between the evidence of Constable Carr and that of Inspector Godard and Mr. Mahmoud regarding Female 1’s coat, the Board disregards the evidence of Constable Carr regarding this female’s actions at the coat check, which in any event is not central to the Board’s finding. Even without that evidence, the evidence of the two inspectors is sufficient to conclude that Female 1 was drunk.
Conclusion Regarding May 12, 2007
- Based on the reasons given above, the Board FINDS that the Licensee breached subsection 45(1) of the O. Reg in the case of Females 1 and 2 and section 29 of the LLA in the case of Female 1.
Over-Capacity Issues
May 13, 2007
The allegation of the Registrar is that on May 13, 2007, the front patio licensed for 11 persons had 14 patrons present.
The Board heard clear and credible evidence from Inspector Godard, corroborated by Detective Constable Bouvier, and unrefuted by the Licensee, that there were 14 patrons on the patio licensed for 11 persons.
June 3, 2007
The allegation of the Registrar is that on June 3, 2007 the front patio licensed for 11 persons had 21 patrons present.
The clear and credible evidence of Inspector Rowntree and Constable Wightman is that they both counted 21 persons on the patio licensed for 11 persons. Mr. Mahmoud admitted that the patio was overcrowded and gave an explanation that the Board will deal with when considering sanction.
Conclusions regarding May 12 and June 3, 2007
The Board finds that the Licensee breached section 43 of the O. Reg on May 13 and June 3, 2007.
Therefore in the view of the above, the Board FINDS that the Licensee breached section 43 and subsection 45(1) of the O.Reg and section 29 of the LLA.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file her written submissions within seven (7) days of the date of this amended decision. The Licensee’s representative shall have seven (7) days to serve and file her 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 27th DAY OF January , 2009
KIRSTI HUNT, VICE-CHAIR ALEX MCCAULEY, BOARD MEMBER