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-
1053007 Ontario Inc. O/A Endzone Bar and Grill
Licensee
DECISION ON FINDINGS
Panel: David C. Gavsie, Chair, AGCO
Allan Higdon, Board Member
Decision Date: July 7, 2009
Hearing Location: Burlington, 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
1053007 Ontario Inc., Licensee ) Ivan Marini, Representative
Allegations
- A hearing into a Notice of Proposal (“NOP”) number 16543 dated August 5, 2008 and NOP number 16550 dated August 8, 2008 to suspend liquor licence number 811932 (the “Licence”) issued to 1053007 Ontario Inc. (the “Licensee”) operating as ENDZONE BAR AND GRILL, 1900 King Street East, Unit 7, Hamilton, Ontario, L8K 1W1 (the “premises” or “establishment”), on the basis of alleged violations of and subsections 30(2), 30(4) and 45(2) of the Liquor Licence Act (“LLA”) and section 29 and subsection 41(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on May 11, 2009 in the City of Burlington.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(2) of the LLA and section 29 of the O.Reg. The Board DISMISSES the allegations of a violation of subsections 30(2) and 30(4) of the LLA and subsection 41(1) of the O.Reg. Reasons follow.
Preliminary Matters
- On consent of parties, the Board ORDERED the exclusion of all witnesses.
Registrar’s Evidence
R. S., a minor, lives in Hamilton where he works in the family business. He is 18 years of age. His date of birth is June 8, 1990.
The witness stated he was in Endzone on March 20, 2008, being at the time 17 years and 9 months old.
R.S. testified he entered Endzone with false identification which showed he was a student at Concordia University College of Alberta. The identification had June 8, 1988 as his date of birth.
The witness showed the fake document at the door. He was not questioned further and was admitted.
Once in the establishment the witness testified he went upstairs and had “a beer or two.” The waitress served him while he was standing as part of a larger group which was ordering liquor.
The waitress did not ask him for I.D. The beer came on a tray.
The witness was drinking beer when he was caught drinking underage. He said he might have had one beer prior to the arrival of the inspectors.
The witness was asked for I.D. by an Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector and he showed his false I.D. He was asked to wait in the hallway and questioned where he lived.
The witness then showed the Inspector his real identification. The Inspector took his false I.D. and told him to leave.
On cross-examination the witness stated his height was 6’2” and he weighed 175 lbs. At the time of the incident he was possibly an inch shorter and weighed 170 lbs.
The witness stated he probably wore jeans and a shirt at the time of the incident. He did not have a moustache or beard.
The witness testified his parents were not present in the licensed establishment on March 20, 2008. He met his brother and a few friends in the bar.
R.S. stated there was one security man at the door when he entered the establishment. The man asked for I.D. and he gave him two pieces.
The witness estimated his time of arrival at between 8:00 p.m. and 9:00 p.m. It might have been later. His brother and sister were there with their dates and friends.
The bar was very busy, “crammed”, and the witness did not have a seat.
The witness and his group were in the back corner of the establishment when he was served by a waitress. Her name is Natasha Gardner.
The witness was standing at the time the AGCO Inspector approached him around 10:00 p.m.
The witness recognized the server as he knows her son. The witness stated he was not sure if Ms Gardner was working at the establishment. The server might have been somebody else.
The witness was asked if he knew a person pointed out to him in the hearing room. He identified the person as Lillian Novosulac. The witness stated she is a server at Endzone and he has seen her at the bar.
The witness stated he never went up to the bar to order liquor. He asked his brother for a beer and was given one. He did not order directly from a server.
On redirect the witness stated his brother got a beer for him, possibly two. He did not recall his brother going to the service bar. His brother is currently 23 years of age, his sister 25.
The witness stated he often goes to the establishment between 6:00 p.m. and 8:00 p.m., usually with his mother and father. He normally sits at a table.
The witness knows Ms Gardner through his school connection. His mother also knows her.
On a question from the panel, the witness stated he drank Budweiser beer from a bottle. His siblings knew he had false I.D.
The witness stated he does not drink when his parents are present.
The witness testified he might have visited the establishment once before with false I.D. He bought the I.D. from a store in Toronto in order to access licensed establishments.
Darren Swartz has been an AGCO Inspector for 11 years.
The witness was in Endzone on the night of March 20, 2008. The establishment is a one storey building in a strip mall. It is a sports bar with a heavy food service component and a family clientele.
The Inspector arrived on site around 10:35 p.m., accompanied by AGCO Inspector Brad Foster. The clientele inside the premises ranged from young twenties up to 40 and 50 year olds, typical of a Thursday night karaoke crowd.
The witness went in through the front door. A big, heavy male was at the door as security.
The Inspector observed there were lots of younger patrons so he began to randomly check the I.D. of the younger looking patrons.
The Inspector went up to an elevated area. Inspector Foster approached and said he had located a minor drinking beer at the lower level. The young male was 17 and had showed false I.D.
Inspector Foster gave Inspector Swartz the false I.D. It was an Alberta I.D. card made out to R. S., with an address in Calgary, Alberta. The date of birth was 1988/06/08.
The Inspector stated such I.D. generally sets up a red flag as out-of-province I.D. is usually false.
Inspector Foster gave the witness the proper I.D. given to him by R.S. It showed the minor’s date of birth as 1990/06/08.
The witness met with the manager and advised her of the infraction.
The Inspector left the premises at 11:10 p.m.
On cross-examination the witness stated he had dealt with Endzone for about 7 years, but more specifically during the last 2-3 years.
The managers are sons of the owner, Judy Koropatnicki. The business is located in a quiet residential area.
The witness has found the operators of the establishment to be generally forthright and co-operative.
The witness stated he does not know how the minor got his beer. He does not recall speaking to him.
On redirect, the witness testified he visited the premises on February 8, 2008 and gave a warning that all signs of sale and service must be removed by 2:45 a.m. The witness had found evidence of liquor service and patrons consuming after 2:45 a.m.
The witness said he spoke to the duty manager, Greg Koropatnicki, and told him all drinks had to be cleared.
The Inspector was told the people consuming were all staff, however, the manager finally admitted patrons were present after hours.
Brad Foster has been an Inspector with the AGCO for 5 years.
The Inspector arrived at the establishment at around 10:35 p.m. with Inspector Swartz and several members of the Hamilton Police Service. The inspection was part of an inter-agency task force inspection.
The premises were very busy with a line-up out front. The witness entered the establishment through the front door.
The Inspector did a walk through, checking the I.D. of youthful looking patrons. He observed a youthful looking male drinking a bottle of Budweiser beer.
The Inspector saw this young male at the hearing. He looks the same now as he did then, about 17 or 18 years of age.
The witness approached the young man and identified himself as an AGCO inspector. He asked the youth for identification. The youth produced Alberta I.D. that looked false. He had been trained that such I.D. was usually fake.
The youth appeared nervous and avoided eye contact. In addition, he did look very young.
The youth stated he was 17 years of age and visiting from Alberta.
The Inspector then asked for and received the youth’s real identification. The police were advised of the minor and were given the fake I.D.
The witness, accompanied by Inspector Swartz, the owner, and manager went to the office to discuss the minor. The owner was advised of the infraction regarding a minor.
R.S. told Inspector Foster his Alberta I.D. was checked by door staff and not challenged in any way.
The inspection team left the premises at around 11:10 p.m.
On cross-examination the witness stated he had dealt before with the two sons, Greg and Grant, who were managers of the premises.
The witness thought R.S. had purchased the beer he was drinking.
The inspection team found no other minor patrons during their inspection.
The witness stated he did not speak to the doorman. He did speak to Greg and Judy Koropatnicki regarding the minor and the need for them to follow up and ask questions of those who present suspect I.D. They seemed receptive.
In response to the panel, the witness stated there were approximately 150-200 people present in the establishment.
The witness was not aware of any provincial charges laid.
No mitigating circumstances were offered by the manager or owner.
Inspector Foster stated this was his first time visiting these premises.
Brian Sharp has been an Inspector at the AGCO for over two years. The Inspector visited the premises on the morning of Sunday February 24, 2008 at 3:42 a.m. He was alone.
The windows of the establishment were tinted but the witness observed through a window four people sitting on a couch in the front area of the bar.
The Inspector noted the table in front of the couch had two large drink cups and a bottle of Smirnoff Ice (vodka cooler).
A male voice said “Closed.” The Inspector put his badge up to the window.
The Inspector observed the man he knows to be door security move the Smirnoff bottle off the table. The male was large and about 5’9”. He is present at the hearing.
The manager, Greg Koropatnicki, got up and let the Inspector in.
The Inspector advised the doorman to take the Smirnoff bottle out of hiding. He did so.
The manager told the witness that only himself, his girlfriend, the doorman, and another male were present.
The Inspector took the manager aside and advised him he had committed an infraction of the LLA – failure to remove signs of service.
The manager stated he was unaware of a time limit for clearance of service. The Inspector advised him the time limit was 2:45 a.m.
The cups on the table were 2/3 full. The manager did not deny they contained alcohol.
The Inspector left the premises at 3:57 a.m.
On April 20, 2008 the witness arrived alone at the establishment at 3:00 a.m.
The Inspector observed people leaving via the front door and he entered the establishment through the unlocked front door.
The Inspector identified himself to one of the security personnel who had a ½ full bottle of Coor’s Light beer in front of him.
The witness observed another male with a bottle of Corona 2/3 full in his hand. A different male was seated on a couch beside a table with empty wine glasses.
The Inspector was approached by the manager, Greg Koropatnicki, who appeared very agitated and upset by the presence of the Inspector.
The manager was yelling and screaming at the Inspector, using the word “fuck” often. He claimed the Inspector was harassing him and had some sort of bias towards him. He said 3:00 a.m. inspections were not O.K.
The manager asked the Inspector to talk to him outside the premises. The manager then picked up two bottles of beer and pounded them on a table so hard that the beer contents foamed out.
The witness told the manager he would go outside once he had completed his inspection. The manager asked for a business card and was given one. The manager still appeared extremely upset and demanded that the Inspector speak to him outside.
The Inspector was concerned about his personal safety and acquiesced to the demand. The Inspector was unable to complete his inspection as a result.
The Inspector exited the building with the manager at 3:06 a.m. The manager continued to swear at the Inspector and accuse him of harassment.
The manager told the witness it was hard to clear up by 2:45 a.m. on busy nights. The Inspector told him he had to abide by the law.
The Inspector left the premises at 3:17 a.m.
On cross-examination the witness stated the people seen leaving the premises on April 20, 2008 may have been bar staff.
The Inspector counted thirteen people present on April 20, 2008. He did not inquire as to how many were staff.
The manager repeatedly yelled, swore and screamed at the Inspector, accusing him of harassment. When the two of them spoke in the parking lot they were alone.
Once they were outside, the manager continued to rant and swear.
On February 24, 2008 the Inspector was let into the premises unhindered. The manager was co-operative and said he was unaware he could not serve after 2:45 a.m.
On reply, the witness stated he did not resume his inspection after the discussion in the parking lot because all evidence of signs of service would have been removed.
In response to the panel, the witness stated he was intimidated by the manager to leave the premises before completion of his inspection.
Licensee’s Evidence
Grant Koropatnicki has worked in the family business since its opening in 1985. He is a manager of the business and one of two sons of the owner.
The establishment originally operated as Cricket’s Eatery. It expanded from 1600 square feet to 3,800 square feet in April 2006 and opened as Endzone Bar and Grill. The place has a family, neighbourhood clientele.
The establishment is open seven days a week and caters to families, the business lunch crowd and, on weekends, to a younger set with karaoke nights.
Its current identity is a sports bar. The place employs 50 people counting servers, kitchen staff, security and bartenders. A family member is always present.
The expansion from Cricket’s to Endzone was a big move up in the size of the business and capacity of the premises.
The night of April 20, 2008 was an Ultimate Fighting Championship night on T.V. This is a big event with parties in the afternoon and a busy schedule. The establishment was “packed” from 8:00 p.m. on. On duty were 6 servers, 3 security, 3 bartenders and 6 kitchen staff.
The Inspector arrived late, about 2:55 a.m. The witness was in the back room dealing with his computer when a staff member came and told him someone was in the premises who was not staff.
The witness said 13 staff were still in the premises. The place was “still in chaos” with staff putting up chairs, sweeping floors, clearing beer bottles and empty glasses, and putting tables away.
The tables were not cleared at 2:55 a.m. but were in the process of being cleared. The witness stated the place had not been cleared because it had been a very busy night with over 200 patrons present. Also, a computer glitch had put him behind schedule.
The witness approached Inspector Swartz who was wearing a hat and a hooded sweatshirt with no visible identification. He noticed the man writing on a pad and asked who he was.
The man stated he was an AGCO Inspector doing a liquor inspection. The witness asked for identification and it was presented.
The witness was unused to late night inspections and annoyed the Inspector had said staff was drinking.
The witness stated he did swear and was loud in responding to the Inspector. He asked the Inspector to discuss things outside because his staff was busy cleaning up.
Inspector Swartz did not say he wanted to continue his inspection.
The witness stated he questioned the Inspector as to why he was on site. The witness admitted he raised his voice, he swore, and he did “use the F word”.
The witness was outside with the Inspector for about 15 minutes.
He explained the bar was his livelihood and he was trying to run a business. The witness did apologize for being heated. They both shook hands and everything appeared to be fine.
The witness stated the altercation was an isolated incident and admitted he did overreact.
The witness stated he has had no problems with inspectors since the incident and has not seen Inspector Swartz again.
The witness admitted signs of service had not been cleared when the Inspector conducted his visit.
The witness stated procedures have now been changed to prevent a repetition of such an incident. Last call is now at 1:40 a.m. and no drinks are served after 2:00 a.m. No customers are drinking after 2:15 a.m. and management has put in place a new security team. Regular staff meetings are held to update staff on policy.
On cross-examination the witness stated this is the first hearing the establishment has had since it opened.
The witness agreed that his size – 6’2”, 260 lbs. – could be intimidating.
The witness acknowledged Endzone was a much bigger operation than Cricket’s Eatery. Staff has quadrupled, capacity has tripled and the premises are twice as big.
The witness said the Inspector never yelled, screamed or swore at him and that his conduct was at all times professional.
Regarding the events of February 24, 2008 he was aware a minor had been found on the premises consuming liquor.
On April 20, 2008 the witness agreed he was “completely agitated and frustrated” by the inspection. He did not accuse Inspector Swartz of harassment.
The witness said he did not force the Inspector to go outside. He would not impede an inspection.
Natasha Gardner has been employed as a server at Endzone Bar and Grill for 3.5 years. On March 20, 2008 the witness began her shift at 5:00 p.m. at Endzone.
The witness knows the minor, R.S., who is alleged to have been served on the premises. He lives a block away and went to the same nursery, public school and high school as some of her children. She also knows the minor’s parents and siblings.
The witness stated she was the server for the family on the evening in question. The party was in her section and other servers would not intrude in her section.
The family made a reservation for 8:00 p.m. They had a meal and after about an hour to hour and a half later most of the older adults had left.
The witness took orders for drinks from the adults at the table. She did not take an order from the minor because she knows his age. She never handed the minor a bottle of beer.
The witness stated she would not serve the minor because it would risk her job. She never saw the minor drinking either a glass or bottle of beer.
The witness was in the premises when the Inspector found the minor with a beer. The witness did not speak to the Inspector. She left that to the managers.
On cross-examination the witness stated any I.D. has to be government issued and have a photo.
The witness noted it would be possible for underage minors to enter the premises if they came in before 9:00 p.m. when security starts at the door.
The witness said she never wrote down any details of the incident. She knows the minor would not have ordered from her since she knew he was underage. The minor’s parents would not have ordered liquor for him either.
The witness stated the family group arrived about 8:00 p.m. The parents left around 9:30 p.m. but the younger people stayed.
The witness did not see the Inspectors enter and speak to the minor.
Bradley Orgill has been employed as a doorman at Endzone for the last four years. There is one primary entrance to the premises.
The witness acts as door security. Two other security personnel roam the premises monitoring the crowd.
The weekends are very busy. Thursday night has a D.J., Friday has karaoke, and Saturday and Sunday have live music.
The witness comes on duty at 9:30 p.m.
The night of March 20, 2008 the witness was on duty and saw the false I.D. incident with a minor.
The witness stated he did not know the minor, although he knows of the family.
The witness has no memory of seeing Alberta I.D. He is not allowed to accept out-of-province identification. It is against policy.
On April 20, 2008, the witness stated he recalled a confrontation between an Inspector and the owner of Endzone. He was working that night as a doorman.
The evening was very busy, near capacity, and he had to stop people entering until space was available.
The witness stated a person came in around 2:55 a.m. wearing a baseball cap. The witness was working near the stage area. He was in the premises with about 15 other people, all staff.
The person came in and identified himself as an AGCO inspector to the manager, Grant. Grant had been called out to meet the Inspector.
The witness stated Grant raised his voice in frustration and said, “Why don’t you fucking go down to Hess Village?”
The manager and Inspector kept talking then went outside where they appeared to be getting along. They concluded by shaking hands.
The witness never heard Grant say the Inspector could not finish his inspection.
February 24, 2008, was a Saturday night and the witness was on duty. The staff had left between 3:00 a.m. and 3:15 a.m. The witness was present with the musician who had performed that night. The owner’s son Greg came by with his girlfriend.
The witness was not drinking. He was helping to put the stage away and cleaning up bottles of beer, wine and shot glasses. They had been put on a table.
A car pulled up, a man knocked on the window and flashed identification. Greg got up and unlocked the door.
The remains of alcoholic drinks were on the table but the group was not drinking. Nobody attempted to remove signs of service.
The witness observed the manager and Inspector talking and the Inspector making notes in a book. The Inspector then left and the cleanup continued.
On cross-examination the witness stated he was aware that all signs of sale and service are required to be removed by 2:45 a.m.
The witness said that prior to 2008 there had been no problems with the AGCO.
The witness said Inspector Swartz had given the premises a warning about failure to clear by 2:45 a.m. during an inspection on February 8.
The witness saw the Inspector come to the window on the night of February 24, 2008, and flash his identification.
The witness testified he removed a bottle of Smirnoff Ice from the table and put it on the floor because he was nervous and realized the bottle should have been cleared.
The witness said he thought liquor bottles could be left out overnight. It was not his job to clear liquor. He denied that liquor was being consumed at 3:42 a.m. The glasses and bottles had only remnants of alcohol. They were not 2/3 full.
On the night of March 20, 2008, the witness stated the minor’s family were in the premises before he came on duty.
The witness did not examine the I.D. of any person who presented out-of-province I.D. It is possible for a person to enter without identification and remain in the premises after 9:00 p.m.
Regarding the alleged April 20, 2008, incident the witness stated he did not know the person who came into the premises after hours was an inspector.
The witness stated he should have locked the front door after the last patron left but it was open as he had forgotten to lock the door that night.
The witness stated “a couple of bottles” were on the table when the Inspector arrived. They belonged to the band that had been playing.
Judy Koropatnicki is the sole owner of Endzone Bar and Grill. Her two sons, Grant and Greg work there as managers.
The witness previously owned Cricket’s, an establishment of 1,500 square feet which was expanded to become Endzone Bar and Grill with 4,300 square feet and 40 employees.
The witness acknowledged the transition from small premises to a much larger one was difficult and she was not on top of some details as much as she should have been.
The witness was present on March 20, 2008 when Inspectors came in to check identification. They were accompanied by fire and health officials as well as two police officers.
The witness spoke to Inspector Swartz and she invited him into her office where he told her about the out-of-province identification problem.
Previous to the latest incidents the premises had a very good compliance record.
The witness asked the server who had server the minor’s family if she had served the minor any alcohol. The server said no. She also asked the doorman if he had seen any out-of-province identification and he said no.
The witness stated procedures have been revised due to the incidents before the Board. They used to close at 3:45 a.m. and now close at 2:30 a.m. with last call at 1:45 a.m.
The witness stated out-of-province identification is now not accepted. If a person appears underage they must present two pieces of government I.D. Regular meetings are held with servers and they are asked to check I.D. also.
In response to cross-examination the witness stated staff had never been instructed to accept out-of-province I.D. The current policy is to ask those who are under 19 years to leave after 9:00 p.m.
The witness stated a new security team has been in place since May 2008. There are now two door staff on duty Thursday to Sunday after 9:30 pm, and three more security are on duty inside.
Shirley Ross is a retired clerk from the Hamilton-Wentworth Police Service. She has known the owner and her husband for 20 years and has been a customer during that time also.
The witness stated she enjoys the premises very much. It is a relaxing place with excellent food. She has never seen anything unpleasant take place in the premises during the daylight hours when she visits.
There was no cross-examination.
Registrar’s Submissions
On the evening of February 8, 2008, Inspector Swartz arrived on the premises of Endzone Bar and Grill at around 2:45 a.m. He found evidence of patrons consuming with drinks still on the bar.
The Inspector spoke to the manager about service after hours and warned him that all signs of sale and service of alcohol should be removed by 2:45 a.m. The Inspector gave the establishment a break and let the Licensee off with a warning.
On February 24, 2008, Inspector Swartz returned to the premises at 3:42 a.m. Through the window he saw four people sitting on a couch with two large drink cups and a bottle of Smirnoff Ice vodka cooler on the table in front of them.
The Inspector saw a large male look at him and then remove the Smirnoff bottle from the table and place it behind the couch. This person was a member of staff and clearly knew it was illegal to be consuming liquor at that hour.
The Inspector entered the premises and spoke to the manager Greg Koropatnicki. The Inspector also asked door security Brad Orgill where the Smirnoff bottle went. Orgill reached for the bottle and replaced it on the table.
Mr. Koropatnicki stated the two cups on the table contained Pepsi and rye. They were 2/3 full. The manager testified he and his girlfriend were drinking alcohol.
Based on the admission of the manager, the evidence clearly shows staff was drinking alcohol on premises at 3:42 a.m.
The establishment is in breach of section 29 of the O.Reg in that it failed to clear signs of sale and service within 45 minutes after the end of the period during which liquor may be sold or served under the Licence.
On March 20, 2008, a minor entered the premises. He testified he was with his brother and sister and showed I.D. to the doorman in order to enter.
Inspectors Swartz and Foster stated the minor looked young. That is why they asked for his I.D. when conducting an inspection. The I.D. presented was obviously false.
The I.D. was not government issued and should have been recognized as false by the doorman.
The means by which the minor was served alcohol is unclear. The server for his section knew the minor and his family and knew him to be underage. She denied serving him and it is unlikely he would have asked for liquor from someone who knew he was underage.
The minor was served in some manner. He testified he drank at least one beer and was drinking beer when the Inspectors approached to ask for I.D.
The Licensee is clearly in breach of subsection 30(4) of the LLA in that he permitted a person who appeared to be under the age of 19 to have or consume liquor in licensed premises.
On April 20, 2008, an Inspector arrived at the premises at 3:00 a.m. and identified himself. The doorman had a half full Coors Light in front of him.
There were also at least two other people present that were drinking, contrary to section 29 of the O.Reg in that signs of service and consumption had not been removed within 45 minutes of service.
The Inspector was met by the manager, Grant Koropatnicki, who admittedly yelled, shouted and swore repeatedly at him. The Inspector admitted he was intimidated by this aggressive behaviour.
The confrontation between the manager and the Inspector was not a dialogue. All the yelling, insults and intimidation came from the manager who admitted the Inspector behaved very professionally and never shouted or swore at him.
The Licensee asked the Inspector to leave the premises at least twice, thus hindering his inspection, in contravention of subsection 45(2) of the LLA, failure to facilitate an inspection.
Licensee’s Submissions
Counsel for the Licensee admitted to the allegations made under Section 29 of the O.Reg in the NOP of August 5, 2008.
Specifically, on February 24, 2008, there was a failure to clear signs of service and consumption in the licensed premises within 45 minutes after the end of service. Four people were still consuming alcohol in the licensed premises at 3:42 a.m.
Counsel also admitted that on April 20, 2008, at approximately 3:00 a.m. people were still consuming liquor in the licensed premises, as alleged in the NOP of August 8, 2008. Signs of service and consumption had not been cleared within 45 minutes of end of service.
The allegation regarding service to a minor, R.S., is based on the evidence of a minor witness with no credibility whatsoever. He gave two completely different versions as to how he was served beer.
First R.S. stated he was served by a waitress but he cannot identify or describe her. He later stated beer was given to him by his brother – two hugely different stories.
The testimony of server Natasha Gardner is very credible. She stated she has known the minor and his family for many years. She would never have served him because she knows him to be underage.
Ms Gardner stated if the minor got beer, it was by some means behind her back. She would not risk her livelihood by serving a person clearly known by her to be a minor.
The minor was never served beer by a server. He was given beer by his irresponsible brother without the knowledge of his server.
The establishment clearly did not “permit” the minor to consume liquor as contemplated by the Act. It was done without the knowledge of staff and in a manner designed to evade their notice.
The minor also made claims regarding his false identification. He claims he showed it to the doorman, an allegation the doorman denies.
The doorman stated it is against the policy of the establishment to accept out-of-province I.D. A person showing such I.D. would not be permitted in the bar.
The issue boils down to one of credibility. The doorman was very frank in his testimony whereas the minor presented two completely contradictory stories as to how he came to be served beer.
The Registrar has failed to meet the onus required to support allegations 4 (a) (b) and (c) in the NOP of August 8, 2008.
Allegation 4 (d) relates to failure to facilitate an inspection.
The evidence of manager Grant Koropatnicki and doorman Bradley Orgill is that although Inspector Swartz and the manager had a disagreement it concluded with them shaking hands.
The manager stated he apologized to the Inspector for being somewhat heated after a long day.
Admittedly there was screaming and yelling, but at no time did the manager tell the Inspector he could not continue his inspection.
There is insufficient evidence to support failure to facilitate an inspection. Allegations 4 (a) (b) (c) and (d) should be dismissed for insufficient evidence and evidence lacking credibility.
Reply
The minor was very clear on how he obtained beer. He took it off a tray.
The minor had no reason to mislead the Board. He could have said he got into the premises before the time requiring I.D.
There is no attempt to mislead. The minor is just like any other young man trying to access beer in licensed premises. There is no basis for questioning his credibility.
The minor was able to obtain beer and walk around the room with it while he socialized. He made no attempt to hide.
As for the confrontation between the manager and Inspector, the Inspector stated the manager was aggressive and extremely upset. The Inspector acquiesced to leave the premises to calm the manager down.
There is no doubt the level of aggression exhibited by the manager, enough to intimidate the Inspector, constituted a failure to facilitate.
Analysis and Reasons
The allegations against Endzone Bar and Grill are contained in two NOPs, one dated August 5, 2008, the other August 8, 2008.
Licensee’s Counsel admitted to the allegation contained in the first NOP that on February 24, 2008, people were still consuming alcohol in the licensed premises at 3:42 a.m. in breach of section 29 of the O.Reg which requires all signs of service and consumption to be cleared within 45 minutes after the period when liquor may be sold.
The Board therefore FINDS that on February 24, 2008 the Licensee was in breach of section 29 of the O.Reg.
Licensee’s Counsel also conceded that on April 20, 2008 the Licensee was again in breach of section 29 of the O.Reg in that people were still consuming liquor in the licensed premises at approximately 3:00 a.m.
The Board therefore FINDS that on April 20, 2008 the Licensee was in breach of section 29 of the O.Reg.
The remaining allegations are noted as 4 (a), (b), (c) and (d) in the NOP of August 8, 2008.
The evidence regarding 4 (a), the alleged sale or supply of liquor to a person who appears to be under the age of nineteen years, is unclear.
The minor initially stated he was served by a waitress while standing. However, he could not offer any description of which server did so. He could not confirm he was served by the waitress responsible for the section in which he was located that night. That waitress, Natasha Gardner, testified no one else would have served in her section that evening. She also stated that she would never have served the minor because she knows his family well and knows him to be underage.
The minor stated he never ordered a drink from the bar and never paid for a beer. The beer was purchased by his brother.
The minor testified he took his beer from a tray of drinks that had been ordered by another member of his party.
It appears to the Board that the minor resorted to subterfuge to obtain alcohol in the establishment. No direct evidence was presented to indicate an employee or agent of the Licensee sold or supplied liquor to the minor.
The Board regards the testimony of the minor regarding the alleged liquor service to him to be contradictory, vague, and insufficient to make a finding on a balance of probabilities.
The Board therefore DECLINES to make a finding on the alleged breach of section 30(2) of the Liquor Licence Act.
The next allegation regards a breach of subsection 30 (4) of the LLA in that an employee or agent of the Licensee permitted a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises.
The minor gave contradictory testimony on this issue. He first stated he was served beer by a server. Later, he stated he did not place an order but took beer off a tray that had been ordered by someone else, probably his brother.
The server responsible for the section in which the minor was located was categorical in denying she served the minor. She knew the minor and his family and knew him to be underage. She would not have served him and risked her job.
The minor was a member of a party served alcohol although he stated he did not order or pay for liquor.
The minor testified he had consumed at least one beer when he was apprehended by the AGCO Inspector. No evidence was presented to refute testimony that the minor consumed beer on the premises.
Although the evidence is irrefutable that the minor was drinking on the premises, as noted previously it appears to the Board that the minor resorted to subterfuge to obtain alcohol in the establishment.
Given the above, the Board finds that the licensee did not “permit” the minor, within the meaning of the Liquor Licence Act, to have or consume liquor in the premises
The Board therefore DECLINES to find that on March 20, 2008 the Licensee was in breach of subsection 30(4) of the Liquor Licence Act.
The evidence cited for the previous allegation is equally applicable to the alleged breach of subsection 41(1) in that the licence holder failed to inspect a piece of I.D. of a person apparently under the age of nineteen years prior to selling or serving liquor to that person.
The panel has found that the minor resorted to subterfuge to obtain alcohol. He did not purchase liquor and was not directly served liquor by any employee or agent of the Licensee.
The Board therefore DECLINES to find that on March 20, 2008 the Licensee was in breach of subsection 41(1) of the O.Reg.
The remaining allegation is that the licence holder failed to facilitate an inspection.
Inspector Brian Sharp testified that on the night of April 20, 2008, he entered the premises and was accosted by a very irate manager, Grant Korpatnicki, who screamed, yelled and repeatedly swore at him.
The manager accused the Inspector of harassment and asked if he had something to prove.
The manager picked up two bottles of beer and pounded them on the table so strongly that beer foamed out of the bottle.
The manager then asked the Inspector outside where he continued shouting and swearing at him.
The manager admitted he did raise his voice, and shouted and swore at the Inspector. He stated he was very frustrated and it had been a busy night. The manager admitted he was heated and over-reacted.
The Inspector stated he was intimidated by the behaviour of the manager and tried to calm him down.
The Board considers the conduct of the manager on this occasion to be inexcusable and completely unprofessional for a person placed in charge of a large establishment with a significant staff complement.
The manager described himself as being 6’2” and 260 lbs. Someone of that size in a towering temper would clearly be intimidating, leaving the Inspector - who was alone without immediate backup - with no option but to leave the premises when requested by the manager, who continued his harangue outside.
The Inspector testified there was no point in continuing the inspection after this episode as signs of sale and service would have been removed in the interim.
The Licensee asserted that as the manager did not tell the Inspector he could not continue his inspection that there was no failure to facilitate an inspection. The Board disagrees.
The Board considers the behaviour of the manager to be obstructive, intimidating, abusive, and designed to prevent the Inspector from carrying out his duties.
The manager went well beyond failing to facilitate an inspection. His conduct was openly aggressive, threatening, and intended to prevent the continuation of an inspection.
The Board therefore FINDS that on April 20, 2008 the Licensee was in breach of subsection 45 (2) of the LLA.
Conclusion
For the reasons given, the Board FINDS the Licensee violated subsection 45(2) of the LLA and section 29 of the O.Reg. The Board DISMISSES the remaining allegations.
The 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. 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 7th DAY OF JULY, 2009
DAVID C. GAVSIE, CHAIR, AGCO ALLAN HIGDON, BOARD MEMBER