Registrar, Alcohol and Gaming Commission of Ontario v. 2130845 Ontario Inc., 2009 CanLII 47522

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-

2130845 Ontario Inc. O/A The Heart & Crown Irish Pub and Restaurant Licensee

DECISION ON FINDINGS

Panel: Joan Lougheed, Board Member Alex McCauley, Board Member

Decision Date: July 31, 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 2130845 Ontario Inc., Licensee ) Jerry Levitan, Representative

Authorities

1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553

O'Callaghan's Pub & Grill (Re), [2004] O.A.G.C.D. No. 462

Allegations

1. A hearing into a Notice of Proposal number 16445 dated July 2, 2008 to suspend liquor licence number 812706 (the "Licence") of 2130845 Ontario Inc. (the "Licensee"), operating as The Heart & Crown Irish Pub and Restaurant, 353 Preston Street, Ottawa, Ontario, K1S 5N4, (the "premises" or the "establishment") on the basis of alleged violations of section 29 of the Liquor Licence Act (the "LLA") and subsection 45(1) of Ontario Regulation 719/90 (the "O.Reg") made pursuant to the LLA, was held on April 21, 2009 in the City of Ottawa.

Decision

2. The Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg, permitting drunkenness, and FINDS that the Licensee violated subsection 45(1) of the O.Reg, permitting disorderly conduct with regards to the events of August 10, 2007. The Board DISMISSES the allegation of a violation of section 29 of the LLA and subsection 45(1) of the O.Reg with regards to the events of January 30, 2008. Reasons follow.

Preliminary Matters

3. An order to exclude witnesses was made on consent of all parties.

Registrar's Evidence

4. Andrew Rowntree, an Inspector with the Alcohol and Gaming Commission of Ontario ("AGCO") since 2006, entered the establishment on January 30, 2008 at 11:08 p.m. He had followed a patron (Patron #1) from Absolute Comedy, another establishment within walking distance of the establishment.

5. When Patron #1 entered the premises, the witness continued his observation of the patron and his interaction with staff. Mr. Rowntree stated that he observed Patron # 1 exhibiting the following signs of intoxication:

• Glossy red eyes
• Slurred speech
• Unsteady on feet
• Swaying back and forth

6. At the bar, this patron asked for a sample of cider beer which was served in a short glass.

7. The witness saw the patron order and receive a glass of beer. At this time a female patron entered and jumped on Patron #1, who started to fall backwards, almost falling into the inspector. At this time Mr. Rowntree noted a "distinct odour of alcohol" on the breath of the male patron.

8. He spoke to the manager, Sean Gurmin, who stated that he did not think Patron #1 was intoxicated when first served, but agreed once he had the opportunity to further assess him that he was showing signs of intoxication.

9. The witness stated that the manager agreed to remove the beer and to ensure Patron #1 got home safely.

10. On cross-examination, Mr. Rowntree stated he had been in Absolute Comedy from 10:37 p.m. to approximately 11:07 p.m., observing Patron #1 and indicated that he had made notes of this visit.

11. Mr. Rowntree indicated that he did not alert staff of Heart & Crown to the patrons who had been in attendance at Absolute Comedy. He stated that he wanted to observe the staff managing the situation.

12. He stated he observed Patron #1 swaying, but not holding onto anything. He stated that he was approximately eight feet away from Patron #1. The Patron #1 sampled some beer and ordered a glass, but was not observed drinking the glass of beer.

13. The witness stated that another patron entered the premises and jumped on Patron #1 to give him a hug. Patron #1 did not fall, but almost bumped into Mr. Rowntree. At this time Mr. Rowntree went to the bartender to introduce himself and ask for the manager.

14. Mr. Rowntree stated that Absolute Comedy is approximately 60 or 70 feet from the Heart & Crown. He stated that Patron #1 was on the street with friends and safety was not a concern.

15. The inspector waited outside the premises for approximately one minute after Patron #1 and his friends entered Heart & Crown.

16. Gaietan Beaudry, an AGCO inspector since 1993, stated that on August 10, 2007 at 1:15 a.m., he was driving by the establishment and heard some "howling and some screaming." He noted that a patio patron had thrown a running shoe onto the road.

17. As he parked, he had a clear view of the patio area and noted patrons doing a "hoopla kind of thing – meaning wrestling, goofing around." No staff were visible and within a minute of parking another running shoe was thrown on the street.

18. The witness stated that it was his intention to give the shoes to the manager so he picked them up and was bringing them into the bar to the manager and to explain his observations. At this time two patrons yelled out, wanting their shoes back. The patrons in question confronted Mr. Beaudry who advised them that he was a liquor inspector and produced his identification, telling the patrons that he was giving the shoes to the manager.

19. The witness stated that he refused to give the patrons the shoes and that they became hostile and confrontational. In the entrance foyer, one patron pushed him and grabbed one of the shoes from him. No staff were present to intervene.

20. Mr. Beaudry stated the two patrons were close enough to see that they were intoxicated. He said both patrons demonstrated:

• Unsteady on their feet
• Slurred speech
• Glassy blood shot eyes
• Uninhibited behaviour, confronting and pushing the witness.

21. As he entered the premises, he asked a staff person to take him to the manager. Mr. Beaudry spoke to the manager, Michael Bradley, in the kitchen. The two patrons followed and Mr. Bradley told the two patrons to calm down and to go out to the patron area. Mr. Beaudry explained what he had observed and turned the one remaining shoe over to the manager. The manager who knew the patrons stated the shoe was "Nick's". The witness indicated that the manager had diffused the situation, returning the shoe to the patrons. He stated that he was asked to stay inside the establishment until Mr. Bradley was sure the males had exited and would not be a further problem.

22. The male named Nick was seen to be standing beside the inspector's car. After a few minutes, the witness stated he proceeded to his car to get in and drive away. The person standing at the car started shouting. When in his car, Mr. Beaudry called the police and drove up a city block to maintain visual contact. At this time Mr. Beaudry stated that he saw one of the persons and two other individuals coming his way. He drove away, circled north, stopping so he could see the individuals and the establishment.

23. The witness stated that when police arrived, they dealt with the patrons and talked with the witness telling him that the patrons were apologetic. He stated that he was satisfied that the police were going to deal with the situation and would be pressing charges.

24. Mr. Beaudry stated that he went back to the establishment to advise Mr. Bradley that he would be submitting a report related to permitting drunkenness and disorderly conduct of patrons.

25. Later he obtained a copy of the police report. In the report there was no indication that a charge was laid for either patron.

26. On cross-examination, Mr. Beaudry stated that he did not see the patrons drinking and was initially focusing on the disorderly behaviour. Mr. Beaudry stated that he believes he has the authority to take the shoes, as part of the evidence. He stated that the patrons saw him with the shoes as he approached the door. In the vestibule, the patrons were in his "personal space" for about 45 seconds to one minute and there were no staff present. He refused to give the shoes back. This was his first opportunity to observe the patrons closely.

27. In response to questions, Mr. Beaudry stated that the patrons were hostile, explaining that that this meant they were uninhibited. He noted that the patrons were not staggering or falling down, but swaying.

28. In response to questions about seeing the patrons drink or examining the bar bill, Mr Beaudry stated he did not see the patrons drinking and did not ask for a copy of their bar bill as part of his investigation. He was able to assess their state of intoxication with the close contact he had with them

29. When asked about the difference between intoxication and advanced intoxication, Mr. Beaudry replied that the police use a measure of .08, which is a preliminary stage, not necessarily drunk. He determined that, by their behaviour, the patrons were in an advanced state of intoxication.

30. Mr. Beaudry stated that it was wrong for the patrons to try take one shoe back in the manner it was done. He stated the patrons were drunk and he did not want to give the shoes back.

31. When asked if the police laid charges, he replied that he did not know.

32. He stated that his notes were prepared the next day and the notes indicated that the police "would consider" laying charges but that he recalled the officer saying he "would lay charges".

Licensee's Evidence

33. Michael Bradley is the print and media manager for the Heart & Crown Pubs. In 2007 he managed the affairs of the pub, which has a patio that accommodates 150 people.

34. He stated that on the night of August 10th, he was in the kitchen when a man came into the kitchen with two men following him asking for the shoe he was holding. The man was breathing heavily, appeared agitated and was difficult to understand. He was wearing sweat pants, a dirty shirt and running shoes.

35. The witness said the two patrons looked upset and were known to him. They were directed to leave the kitchen.

36. The man identified himself as an AGCO inspector and told the witness that he had stopped when he noticed some people on the patio yelling and observed shoes being tossed onto the street. The inspector told him that he could be fined or have the licence suspended.

37. Mr. Bradley spoke with the two patrons who agreed to leave. He did not observe any signs of intoxication, stating that the patrons were upset but did not make a fuss about being asked to leave the premises.

38. Mr. Bradley accompanied Mr. Beaudry to the door and when he saw another person at the inspector's car, he asked a doorman to make sure nothing happened. The doormen reported that he did not have to intervene.

39. The witness stated that the police arrived a short time later, speaking to him, to the inspector, and to people on the street.

40. Mr. Bradley stated that the patrons had been on the patio about two and one-half hours. He did not see the shoes being thrown and stated that Mr. Beaudry did not say anything about being assaulted. He said that his staff serve the patio as well as picking up orders at the bar and kitchen and would not necessarily be on the patio all the time.

41. On cross-examination, Mr. Bradley stated that the patrons had been on the premises for approximately two and one-half hours. He had not observed the shoes being thrown and had not served the patrons.

42. He had two door staff on duty, one assigned to the inside of the premises and one at the door. Mr. Bradley stated that he would expect them to deal with problems immediately.

43. The witness confirmed that there were approximately 100 patrons on the patio. He confirmed that he was the person who asked the two patrons to leave. He stated that the patrons were observed leaving and did not have to be escorted out.

44. On re-examination, Mr. Bradley stated that his server showed him the bill for the patrons, indicating that at this table of six to eight people they had a round of shots, an order of tacos and three or four pitchers of beer.

45. There were six servers, two doormen, and himself, working that night.

46. He noted that the person at the car was not the same as the two who came inside the premises and did not know if this person was from the same group.

47. Mr. Bradley confirmed that the incident report was not prepared on the same night.

48. Sean Gurmin, a bartender and manager, was working at the Heart & Crown on January 30, 2008. There was a snowstorm that night and he was working with two other servers. There was no door staff on duty.

49. He stated that a group of 15 people came into the pub. All were asked for identification.

50. One patron, Patron #1, was offered a two ounce taster of another product, since they did not have the drink that Patron #1 wanted to order. Mr. Gurmin said he did not observe signs of intoxication during this brief conversation. Patron #1 was talking with friends and asked a friend to order his drink. He was not loud or obnoxious and Mr. Gurmin did not observe him staggering. Mr. Gurmin saw a girl jump on Patron #1. After pouring two pints, he was going over to see how Patron #1 was when he was stopped by a person who identified himself as a liquor inspector.

51. Mr. Gurmin stated that the inspector informed him that he had served an intoxicated person. He responded to the inspector saying that he had only given him a taster and was going over to see how he was.

52. In cross-examination, Mr. Gurmin stated that he had only talked with Patron #1 for about 20 seconds. Patron #1 had been in the bar about five minutes, having come in with six people. He gave him a two ounce taster. He confirmed that the male had shown identification before being given the sampler of draft cider.

53. The witness stated that he had already poured two pints when he saw a female jump on Patron #1. He asked the friend of Patron #1 not to give Patron #1 the pint. He stated that he placed the two pints beside the friend asking him not to give them to Patron #1 until he had followed up with the male, who had moved near the stage.

54. In response to questions, Mr. Gurmin stated that he had served two pints to the patron who was paying. He denied serving one to the patron who paid and one to Patron #1.

55. The witness confirmed that he was on his way to Patron #1 when the inspector stopped him. He stated that he did not recall telling the inspector that he had observed signs of intoxication in this patron.

Registrar's Submissions

56. Ms Taylor, in her written submissions, stated that on August 10, 2007, patrons were behaving in a disorderly manner and no staff were present to deal with the matter. At the time of the inspection there were approximately 100 patrons on the patio.

57. Ms Taylor submitted that Mr. Bradley, the manager, had indicated during testimony, that he would have expected at least some of the staff to be on the patio. Staff ought to have known that this behaviour was taking place and by failing to prevent, the Licensee permitted the disorderly conduct to take place on the patio.

58. Ms Taylor wrote that the Licensee permitted the disorderly behaviour to continue when the patrons confronted Mr. Beaudry, impeding his progress and pushing him. As well, no staff intervened, as these two patrons followed the inspector to the kitchen to speak to the manager.

59. The evidence shows that these patrons were drunk, their behaviour being clumsy and uninhibited, their speech was slurred and they stumbled around Mr. Beaudry, who was very close to them.

60. Ms Taylor noted that no other staff, who should have been around at the time, were called to give evidence and requested that the Board consider this as further evidence that the Licensee permitted drunkenness.

61. The Registrar asked for findings of a breach of subsection 45(1) of the O.Reg.

62. Referring to January 30, 2008, Ms Taylor stated that evidence has shown that the Licensee permitted the drunk patron to remain, when staff knew or ought to have known he was drunk and that the manager, Sean Gurmin, also served the drunken patron when he was showing signs of intoxication.

63. Inspector Rowntree described strong signs of intoxication observed inside the establishment before the server gave the free sample to the drunken patron. Ms Taylor stated that the patron had already been inside a while, before the inspector entered.

64. Ms Taylor wrote that Mr. Gurmin admitted he did not see the patron enter and did not assess the patron before serving him the two free ounces of alcoholic cider. He did no other assessment before pouring a pint of hard cider and serving it.

65. When a female jumped on the drunken patron, he fell backwards and almost fell into Inspector Rowntree, who was standing at the bar. Mr. Gurmin turned to the inspector to ask if he needed anything, instead of dealing with the patron. It was only when the inspector identified himself that Mr. Gurmin started to deal with the drunken patron.

66. Mr. Gurmin did not take the time to assess the patron's condition. He knew or should have known that the patron was intoxicated before he served anything. He failed to take action until the patron was pointed out to him, which means that the Licensee also breached subsection 45(1) of the O.Reg respecting this patron.

Licensee's Submissions

67. In response to the events of August 10, 2007, the Licensee's Representative, Mr. Levitan, submitted that Mr. Bradley, the manager, said it was possible that no staff were on the patio, because of the going in and out process of serving. It is not an offence that staff were not on the patio at critical times.

68. Referring to the Sin City decision, the violations of section 29 of the LLA and subsection 45(1) of the O.Reg, Mr. Levitan stated that there is no evidence that staff saw the shoe being thrown or permitted drunk or disorderly conduct.

69. Mr. Levitan stated Mr. Beaudry confiscated private property, the shoe belonging to a patron and refused to return it, before determining the intoxication of patrons.

70. Mr. Levitan submitted that Mr. Beaudry was in a heated argument with the patrons and could not have been objective when he became suspicious about intoxication.

71. Staff directed Mr. Beaudry to the manager and Mr. Bradley dealt with the matter immediately.

72. There was no evidence of the amount of alcohol consumed or by whom. The inspector had no evidence relating to any consumption of alcohol on the patio. The inspector caused the disturbance, is in a conflict as to an objective assessment of intoxication and his evidence does not support the allegations.

73. Referring to the incident on August 10, 2007, Mr. Levitan submitted that the Licensee did assess the patron. There was no reason to assume intoxicated behaviour when he entered. The bartender was concerned when a friend jumped on the patron and the drink was poured but this was set aside.

74. There is no evidence that the Licensee permitted any violation.

75. Mr. Levitan stated that the Inspector followed Patron #1 from Absolute Comedy in an apparent state of intoxication and was under duty to share this information with the Licensee. The Inspector admitted that it was possible for someone who was intoxicated not to exhibit those signs upon entry.

76. Mr. Levitan submitted a request for a dismissal of the Notice of Proposal in its entirety.

Registrar's Reply

77. Referring to the Court of Appeal in Sin City, Ms Taylor stated that the decision relates to the definition of permit, stating that the staff of Heart & Crown did not properly supervise the patrons.

78. Ms Taylor stated that section 45.2 of the O.Reg requires the Licensee to have a manager who maintains control over the activities that are permitted to occur and must know or ought to know what activities are going on. Failing to have staff present when there are 100 patrons drinking in a licensed area can give rise to an infraction.

79. In response to the Licensee's Counsel, Ms Taylor stated that the inspector is not required to provide names of drunken patrons. She noted that the manager knew the patrons, referring to them by name.

80. Ms Taylor wrote that it is not required that the Registrar prove a drunken patron has been drinking by the amount consumed, but that a finding of permitting drunkenness can be determined by the conduct and comportment of the patrons.

81. Citing the case of O'Callaghan's, Ms Taylor stated that it is the Licensee's obligation to deal with the drunken patrons, not the liquor inspector's.

Analysis/Reasons/Findings

82. The Board has considered all the evidence and the written summations.

83. The Board FINDS that on August 10, 2007, disorderly conduct occurred on the premises. The inspector stopped his car to investigate after hearing shouting and stated that he saw patrons wrestling and "goofing around," tossing shoes onto the roadway.

84. The Board is concerned that the response by the patrons and the deterioration in conduct and behaviour may have been provoked at least in part by the inspector's refusal to return the shoes. The shoes were not presented as evidence to this Board and the Board questions the need for the inspector to keep the shoes.

85. The patrons did not initially know that the person was an inspector. The inspector was dressed very casually, in sweat pants, a dirty t-shirt and running shoes. The Board finds that the manner of dress and deportment on the part of the inspector caused doubts with the patrons as to his legitimacy as an inspector, resulting in the incident escalating, becoming argumentative and confrontational between the inspector and two patrons.

86. However, the inspector produced his identification as an AGCO inspector and explained his proposed actions to them. Notwithstanding this, they became hostile and confrontational, with one patron pushing him and grabbing one of the shoes from the inspector.

87. The Board accepts the evidence given by Mr. Beaudry that there were no staff visible at the entrance to the premises and no one intervened when he was confronted by two patrons in the entranceway. Clearly Mr. Beaudry felt threatened in the foyer, with one patron in front of him, one behind him and being pushed. His distress was noted by the manager, Mr. Bradley, who stated that when he was approached by Mr. Beaudry, the inspector was short of breath, appeared agitated and was having difficulty speaking.

88. The Board agrees with the Licensee's Representative, that the inspector could have readily observed the number of people on the patio and the alcohol evident on the table of these patrons. He did not take the time to make these observations after he parked his car and walked across the street to the establishment.

89. There were six servers and two door staff on duty and the Board accepts Mr. Bradley's evidence that server staff would be working both inside and outside, serving the clients on the patio, clearing tables, and serving food and drinks. It is very possible that no staff were on the patio at the time the shoes were thrown.

90. This was part of the problem. There were approximately 100 patrons on the patio, including the two patrons who had been there for about two and a half hours. The Board notes that with the noise, physical activity on the patio, the throwing of the shoes, the hostile and threatening confrontation in close quarters of the two patrons with the inspector, including their following him until he managed to meet the manager of the premises, the Licensee knew or ought to have known that there was disorderly conduct on the premises in view of the series of circumstances mentioned above. The Licensee, in view of the circumstances, by not supervising conduct of the patrons cannot then say that it did not know.

91. The Board is concerned that the doormen were not readily positioned at the entrance, especially since there were more patrons on the patio than inside the premises. The situation in the vestibule could have been managed, had a doorman been present and assigned to the front door.

92. Once inside, the staff did direct Mr. Beaudry to the manager who was in the kitchen. The manager appears to have immediately understood the situation, including recognizing the patrons involved, and took the necessary steps of removing the patrons from the premises to ensure that the inspector was able to safely proceed to his car.

93. There was conflicting testimony from Mr. Beaudry about the patrons being intoxicated. He stated that he had observed signs of intoxication but he was unclear in his evidence, seeming to go from describing intoxication versus extreme intoxication. The Board is concerned that Inspector Beaudry's ability to describe the state of intoxication of the two patrons in the vestibule may have been muted by the actions taking place which put Inspector Beaudry in some concern for his safety He had not taken the time to observe the activities on the patio. As the Board has pointed out, Inspector Beaudry was vague in defining his use of the words "intoxicated" and "advanced intoxication," also he was very distressed by the circumstances of the confrontation. He also disputed the content of his own notes, stating that his personal recollection of his conversation with police was more accurate.

94. The Board believes that having decided to stop and investigate, the inspector could have readily observed the number of people on the patio and the alcohol evident on the table of these patrons. He did not take the time to make these observations after he parked his car and walked across the street to the establishment.

95. Mr. Bradley stated that the patrons were upset about their personal property being taken and not returned to them. He stated that the patrons calmed down when their property was returned. These patrons cooperated when asked to leave the premises and that he did not see any signs of intoxication. Mr. Bradley's evidence was clear and concise and the Board finds his testimony regarding the alleged intoxication to be credible. The Board finds that there has not been adequate evidence supporting the allegation of permitting drunkenness.

96. The Board notes that while there is evidence that the patrons were under the influence of alcohol, the evidence stops short to make a determination that they were intoxicated.

97. Therefore, the Board DISMISSES the allegation of permitting drunkenness and FINDS that the Licensee permitted disorderly conduct.

98. The Board carefully considered all the evidence relating to the incident on January 30, 2008.

99. For a finding under subsection 45(1), there is a two part test. First it must be established that there was drunkenness in the licensed establishment under the Licensee's control and second, it must be established that the Licensee knew or ought to have known, thereby permitting drunkenness.

100. The Board heard evidence that Inspector Rowntree observed the alleged drunk patron, Patron #1, at another establishment, from 10:37 p.m. to 11:07 p.m. before following him and a group of friends to the Heart & Crown.

101. The inspector noted that he had been observing signs of intoxication, including glossy red eyes, slurred speech, unsteady gait and swaying.

102. The inspector waited outside the Heart & Crown for approximately one minute before he entered and approached the bar area. He stated that he waited in order to observe how staff at Heart & Crown handled the situation.

103. On entering, the inspector observed Patron #1 sampling two ounces of an alcoholic beverage. This patron was seen to be asking a friend to order him a pint of the alcoholic drink. At this time a female jumped on him, causing him to become unbalanced almost falling onto the inspector.

104. Evidence was given that the manager was coming out from behind the bar to follow up on this situation with Patron #1 when he was stopped by the inspector. The Board has no evidence contrary to this and accepts the evidence as credible.

105. None of the witnesses observed Patron #1 drinking more that the two ounces of the sample alcoholic drink at the Heart & Crown. As well, Mr. Gurmin, although he had poured a pint of an alcoholic beverage, indicated he had set it aside. Before going to Patron #1, Mr. Gurmin directed Patron #1's friend not to give it to Patron #1 even though it had been purchased for him.

106. From all the evidence, it is apparent that Patron #1 was in the premises for only a very brief time. The Board is satisfied that staff was in the process of taking the appropriate steps to address Patron #1, when the inspector stopped Mr. Gurmin to speak with him.

107. The Board does not accept Ms Taylor's suggestion that the staff permitted drunkenness. The inspector had been observing signs of intoxication for Patron #1 both while at another establishment and while following him on the street. The Board does not have sufficient evidence to find that the staff at Heart & Crown had adequate time to assess Patron #1 or other members of his party for intoxication thereby permitting drunkenness. The inspector, because of his earlier observations, was in a very different and much better position than the bartender at Heart & Crown to make this assessment. Keeping in mindThe Board notes also that the bartender was faced with an influx of patrons and had a very short time to make close observations.

108. There is also evidence that the bartender had become aware of Patron #1 and was taking steps to address the situation. The Board notes as well that Inspector Rowntree chose not to remain to ensure that Patron #1 was removed from the premises, or that staff adhered to his request. Instead he trusted that staff would follow through appropriately. One would think that the inspector if concerned that an intoxicated patron was on the licensed premise, would ensure that said patron was safely removed. Even if worried about his safety he could have taken up observations from a safe location outside of the premises.

109. The Board does not believe that the bartender at Heart & Crown on the night in question had an adequate opportunity to assess the condition of the alleged intoxicated patron.

110. For the stated reasons, the test for permitting drunkenness has not been met. Accordingly, the Board DISMISSES the allegation of a violation of section 29 of the LLA and subsection 45(1) of the O.Reg.

Conclusion

111. For the reasons given, the Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg, permitting drunkenness, and FINDS that the Licensee violated subsection 45(1) of the O.Reg, permitting disorderly conduct with regards to the events of August 10, 2007. The Board DISMISSES the allegation of a violation of section 29 of the LLA and subsection 45(1) of the O.Reg with regards to the events of January 30, 2008..

112. 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 31th DAY OF July , 2009

ALEX MCCAULEY, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER