Registrar, Alcohol and Gaming Commission of Ontario v. 2066819 Ontario Inc. O/A King Station Pub, 2009 CanLII 47530

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-

2066819 Ontario Inc. O/A King Station Pub Licensee

DECISION ON FINDINGS

Panel: Patricia McQuaid, Vice-Chair, AGCO Joan Lougheed, Board Member

Decision Date: June 17, 2009

Hearing Location: Toronto, Ontario

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

Appearances

Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative 2066819 Ontario Inc., Licensee ) Jerry Herszkopf, Representative

AUTHORITIES:

516532 Ontario Ltd. (c.o.b. Jameson’s Restaurant)(Re) [2009] O.A.G.C.D. No. 64

Allegations

1A hearing into an Amended Notice of Proposal number 16615 dated September 8, 2008 to suspend liquor licence number 200364 (the “Licence”) issued to 2066819 Ontario Inc. operating as KING STATION PUB, 4528 Kingston Road, Unit 1, Scarborough, Ontario, M1E 2N8 on the basis of alleged violations of subsections 45(1) and 34(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on April 14, 2009 in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board finds the Licensee violated subsection 34(1) of the O.Reg on January 4, 2008 and March 15, 2008, and subsection 45(1) of the O.Reg and on January 4, 2008 in respect of one patron and on March 15, 2008. The Board dismisses the allegation of a violation of subsection 45(1) on January 4, 2008 in respect of a second patron. Reasons follow.

Preliminary Matters

3On consent of the parties, the Board ORDERED the exclusion of witnesses.

Registrar’s Evidence

4Shayne Worsdale is an officer with the Toronto Police Services and attended at the licensed premises twice on the night of January 4, 2008. As no disclosure was provided regarding his first attendance (nor any violation cited regarding that attendance), the panel ordered no reference be made to that attendance in witnesses’ testimony.

5Police Constable (“P.C.”) Worsdale was working with two Alcohol and Gaming Commission of Ontario (“AGCO”) inspectors, in plainclothes. Inspector Sookdeo was the first to enter the premises. He entered at 11:00 p.m. When P.C Worsdale entered shortly thereafter, accompanied by Inspector Baird, he estimated there were about 26 patrons inside. He approached two females, one of whom looked under eighteen years of age. He identified himself, and then requested to see their identification. She produced an expired, though otherwise valid, driver’s licence which showed her to be of age.

6While speaking to the female, a male walked past them towards the rear of the establishment and exited through the back door. He was unsteady on his feet and appeared mildly intoxicated. Together with P.C. Davies, also part of the inspection team, he followed the male outside to speak with him. The male’s speech was slurred and his eyes, unfocussed. He kept repeating “not giving you a hard time”.

7The male, who said his name was “Anthony” refused to take his hands from his pockets. A physical search of his person was done. When Anthony refused to provide identification, they advised he would be arrested for “intoxication in a public place” and for “failing to identify himself.” Anthony was then handcuffed, at which point he sobered up a bit, providing his name and address. He became less belligerent and more compliant. A records check revealed he was on probation for drug offences. He had a large amount of cash on his person. At 11:45 p.m. he was released without charge, but advised he could not go back into the establishment because of his inebriated state. A second male, who was standing nearby, said he would take Anthony home.

8At this point, he and P.C. Davies re-entered the establishment. Anthony tried to follow. They explained he was not allowed in, however he did enter, stating that he had to pay his tab. Other patrons approached Anthony to speak to him. He eventually did leave.

9The owner of the establishment then approached P.C. Worsdale. They spoke about the intoxicated male and while doing so, he observed a second, older male who appeared to be intoxicated. He was swaying on his feet, his movements were slow and deliberate and his eyes unfocussed. In P.C. Worsdale’s view, he was clearly under the influence of alcohol.

10P.C. Worsdale advised the owner that he would be charged with “permit drunkenness”. The owner offered no explanation. He departed at 11:58 p.m.

11On cross-examination, P.C. Worsdale clarified his description of “mildly intoxicated”, meaning drunk, but not falling down. The male, Anthony, was slightly incoherent, was belligerent and uncooperative. He smelled of alcohol. He did not ask Anthony if he had consumed drugs, but in P.C. Worsdale’s view, he did not seem to exhibit signs of drug use.

12In respect of Anthony’s re-entry to the establishment, he was told several times that he had to leave. It took some effort to get him out of the bar and he was finally escorted out.

13P.C. Worsdale did not see either of the alleged drunken patrons consume alcohol.

14P.C. Daniel Dion also attended on January 4, 2008. He, too, was in plainclothes. When he entered, shortly after 11:10 p.m., he observed a male, 45-50 years of age leaning on the bar. He appeared to be intoxicated. P.C. Dion recalled in his testimony that there was a smell of alcohol on his person, though this was not recorded in his notes. His speech was slurred. This male was making derogatory comments about the appearance of a group of females and about a group of black males. P.C. Dion was, as a result, concerned for the male’s safety. He also observed, and heard, another male, who showed no signs of intoxication, making derogatory comments about police officers.

15Regarding the first male, no one from the establishment appeared to be dealing with him though he believes he left following P.C. Dion’s discussion with the bartender.

16On cross-examination, P.C. Dion stated that the first male’s conduct was not quarrelsome, nor disorderly in his view. Rather, his comments were, he felt, an attempt to attract attention by inciting the crowd.

17P.C. Robert Davies also attended on January 4, 2008. He estimated that there were 25-30 patrons in the bar. He was at the rear of the establishment, at the fire door, when he observed a black male patron walk past. There was a strong odour of alcohol emanating from him. He was unsteady on his feet and his eyes were glossy. He identified himself to the male, engaging him in conversation. The male, when first asked, refused to provide identification. His speech was slurred. The male’s hands were in his pockets and despite numerous requests, refused to take them out from his pockets. He and P.C. Worsdale were concerned about the possibility of drugs or weapons on the male’s person. He was given a “pat down”. No weapons nor drugs were found, however, a large amount of currency was discovered. The male, identified as “Anthony” was arrested. He noted that the male’s eyes were extremely bloodshot, he was having trouble focussing and was sweating profusely.

18At this point, they were in the alleyway at the rear of the establishment. Another male, showing no signs of intoxication, was asking questions as they conducted their investigation. He was advised to cease interfering which he did.

19They advised Anthony that he was no longer welcome in the bar; the second male said he would transport him home.

20Anthony, however, re-entered the bar, two or three more times. He was cautioned to leave. He was still belligerent and very intoxicated. P.C. Davies spoke to the bar staff who did not seem, to him, overly concerned about Anthony’s behaviour, nor his use, or that of others, of the rear fire door which was propped open. Anthony had to be physically removed from the bar by P.C. Worsdale and himself.

21P.C. Davies stated, on cross-examination, that he never saw Anthony consume alcohol, nor did he know the length of time he was in the bar. Anthony did, however, return inside the bar to settle a tab. Though Anthony was very intoxicated as he went in and out of the bar, perhaps as many as 3-4 times over a fifteen minute period, they did not think it necessary to arrest him for intoxication. Some of the symptom he displayed were also consistent with drug use. He was sober enough to go home with friends. P.C. Davies had no recollection of seeing the owner at the bar. No staff person was instructed to assist police officers.

22Devin Sookdeo, an AGCO Inspector, attended, as well, on January 4, 2008 at 11:07 p.m., arriving a few minutes ahead of the police officers and Inspector Baird. He first observed a female, in the unlicensed area, a hallway leading to the washroom near what appeared to be a stock or storage area, consuming a bottle of Budweiser beer.

23He next observed a male standing at the bar, swaying. The male moved from the bar toward him, bumping into him. His eyes were red and glossy, closing at times. The male spoke to him; his speech was slurred and very loud. There was an odour of alcohol emanating from him. Inspector Sookdeo asked him if he was drinking, he responded that he was drinking beer, though this was not in the Inspector’s notes. Mr. Sookdeo then spoke to the owner, advising that a report would be submitted indicating that two intoxicated males were in the establishment (the second being the male the police officers dealt with) and that the female had been permitted to remove liquor to an unlicensed area. He could not recall whether the owner had a response.

24On cross-examination, Inspector Sookdeo stated that at the time of the inspection the establishment had not obtained the endorsement permitting alcohol in the washroom area. He has not been back since this date and was not aware whether the endorsement was subsequently acquired. He did not ask the female why she took her beer with her, for example, whether she was being harassed.

25Ryan Baird, an AGCO Inspector, also attended on January 4, 2008. He observed a male with gray hair, wearing jeans, a brown jacket and a black toque displaying the classic signs of intoxication. He appeared to be having trouble keeping his eyes open. He was leaning against the bar for balance. Inspector Baird spoke to the male. His speech was slurred and a strong smell of alcohol emanated from him.

26Ka Ng, an AGCO Inspector, attended the premises on March 15, 2008, arriving at 1:05 a.m. with Inspector Helen Giorgoudakis. Approximately 20 patrons were present. Sophia Tensenko, a bartender, and Arunasalam Sivakumaran, the person in charge, were working at that time.

27Inspector Ng observed a female, who he presumed was in her mid-fifties, sitting at a table by herself. A bottle of beer was on the table in front of her. He observed her drinking from the bottle. Her eyes appeared to be closed, and at times her body swayed from side to side. He was standing about 20 feet from her table, but did walk closer to the table during the course of his inspection. She then stood and walked to the washroom. He noted that she was unsteady on her feet, and seemed to have difficulty putting on her jacket. He spoke to her when she left the premises and noted that her speech was slurred. She left at about the same time as he did. His recollection was that the female was asked to leave the establishment by someone, though not himself.

28The bartender seemed to notice that he was watching the patron, and, without speaking to him or Ms Giorgoudakis, walked to the patron’s table and removed the bottle of beer.

29Inspector Ng then observed a male wearing a white cap and a sweater with a bottle of beer in his hand, walk to the washroom, once on his own and on a second occasion the male met Mr. Sivakumaran in the hallway and the two entered the washroom at the same time.

30Inspector Ng did speak to Mr. Sivakumaran pointing out the intoxicated patron and advising that without the appropriate endorsement there was a further violation “permit removal of liquor from the licensed area”. He and Ms Giorgoudakis left the bar at 1:42 a.m.

31On cross-examination, Inspector Ng stated that he first observed the female patron about 3-4 minutes after their arrival. The bartender went to the table 10-15 minutes later and removed the beer bottle which was about 1/3 full. He believed the bartender may have recognized him. He made eye contact with her when he entered and she nodded her head in recognition.

32Regarding the bottle of beer, while he did not examine it, he recalled that it was a dark brown bottle and it was not empty. When he advised Mr. Sivakumaran that the patron was intoxicated, he did not dispute it. With respect to the male, he did not see him consume liquor in the unlicensed area. On questioning from the panel, Inspector Ng stated that he did not know how long the female had been in the bar nor how much she had consumed there.

33Helen Giorgoudakis attended with Inspector Ng on March 15, 2008. Upon their arrival, she first observed the female patron who appeared to be sleeping. She spoke to Mr. Sivakumaran and asked him to attend to the female to ensure she was OK. He then approached the female and spoke to her. Ms Giorgoudakis noted that the female had slow motor skills. Her eyes were glossy. As the female stood and walked away from the table, she had to use the chairs for balance. Inspector Ng advised Mr. Sivakumaran of the infraction; she remembered that there was no response from him.

34On cross-examination, Inspector Giorgoudakis stated that she did not recall seeing the female bartender removing the beer bottle from the female patron.

Licensee’s Evidence

35Parthipan Rajendran is the principal of the licensee and has been operating King Station Pub since 2007. He has a Smart Serve certificate as do all of his employees. He was not working on March 15, 2008. Ms Tensenko, the bartender on both dates in issue, is no longer working for him.

36Mr. Rajendran was working on January 4, 2008. He recalled seeing the inspectors arrive. Two of the police officers spoke to him about 10 minutes after their arrival regarding the black male who they stated was intoxicated. The male had been drinking beer, but in his view he was OK; he was walking fine and talking perfectly. He told the police officers to take the male out of the premises if they believed him to be intoxicated. They allowed him back in 4-5 times.

37A liquor inspector also approached him, stating that another male patron was intoxicated. This patron did have a few drinks, but he had cut him off already. The male was waiting for someone to pick him up.

38Regarding the female in the hallway, he said that the hallway is short, less than 10 feet in length. She took about 2-3 steps into the hall; he told her she could not enter the area with a drink so she stepped back. Mr. Rajendran stated he has since applied for the endorsement; he was not aware that special permission was needed to take a drink into that area. Ka Ng explained to him that an endorsement was required, after the March incident.

39On cross-examination, Mr. Rajendran stated that he did not, at first, see the police officers go outside to the rear of the premises. He did see the police arguing with the male, but would not interrupt them to determine what was going on. The male came in and out at least three times, and paid his tab, of two beers, on the third occasion. This patron though not a “regular” is in occasionally. He never asked him to attend the hearing.

40Regarding the white male, he knows him as “Bob”. He was often in 2-3 days per week, a “regular”, though he has not seen him in a couple of months. Bob is often loud. On the night in question, he did cut him off. Bob told him that he was waiting for a friend to pick him up, after he had offered to call a cab for him.

Reasons and Analysis

41Regarding the violations alleged on January 4, 2008, the Board found the evidence of P.C. Davies and P.C. Worsdale, in particular, to be credible. Their evidence was thorough, consistent and fair. They were the two officers with direct contact with Anthony. There were 25-30 people in the bar. That estimate was not disputed. Both officers, very soon after their arrival, noted Anthony’s presence. He displayed the classic signs of intoxication: odour of alcohol emanating from his person, slurred speech, unfocussed glossy eyes, and unsteadiness on his feet. He had been consuming alcohol in the premises. Mr. Rajendran stated so and evidence, undisputed, that he returned inside to settle his tab, confirms that. While the two officers in their evidence differed on the degree of intoxication and whether drug consumption may have been a factor, the Board does find, on the facts that Anthony was drunk. To suggest that drugs were the cause of Anthony’s behaviour is speculative. The existence of a large amount of cash may be consistent with drug activity, but there is insufficient evidence on which the Board can fairly draw any conclusions, and as noted in the decision, Jameson’s Restaurant, whether intoxication occurs because of alcohol alone or a combination of drugs and alcohol is immaterial.

42In contrast to the officers’ testimony, Mr. Rajendran concluded that the male, Anthony, though he had been drinking beer, was OK, both walking fine and talking perfectly. Mr. Rajendran did not provide any further information about his interaction with Anthony, or over what period, on which he based his conclusions. In contrast, the officers’ interaction was noted in some detail.

43Having concluded that Anthony was drunk, the issue is then, whether the Licensee permitted the behaviour. The Board heard evidence that Anthony went back into the bar, after being told by police that he could not re-enter on several occasions, perhaps four times. While the Board can understand Mr. Rajendran’s sense that the police were somehow in charge at that point, his comment that the police “allowed” Anthony to re-enter, is to the Board, indicative of Mr. Rajendran’s reluctance to bear any responsibility. The establishment was perhaps half full. Anthony appeared on the evidence, to have some presence within the establishment. He had run a tab, indicating a few drinks. His signs of intoxication made him fairly obvious to the police. On the evidence, the Board concludes that the Licensee knew or ought to have known of the drunkenness on the premise. The Board therefore finds that the Licensee permitted drunkenness, in violation of subsection 45(1) of the O.Reg, in respect of the patron, identified as “Anthony”.

44There is a second allegation of a violation of subsection 45(1) on January 4, 2008 in respect of the male identified as “Bob”. P.C. Dion and Inspector Sookdeo made observations of him, each noting that he appeared to be intoxicated. Mr. Rajendran did confirm that he had a few drinks and had been cut off. He remained in the premises while he waited for a pick-up. That, on its face, would appear to be responsible action by the Licensee. Mr. Kulis submits, however, that the Licensee nevertheless permitted disorderly conduct by allowing him to abuse other patrons, specifically the loud ugly comments so derogatory on P.C. Dion’s evidence that he was concerned for the male’s safety. Yet, there was no evidence before the Board regarding particulars of Bob’s conduct or that Bob’s comments garnered any reaction from patrons. There was no evidence of elevated emotions manifested verbally or physically as a result of his comments, suggesting that the group of females or black males either did not hear him or paid him no mind.

45While in no way condoning Bob’s behaviour, assuming derogatory comments were indeed made, the Board does not find on the evidence before it that it rises to the level of disorderly conduct. There was no evidence that Bob was unreasonably loud, that his comments created any public disturbance or even annoyance. As P.C. Dion stated on cross-examination, he was trying to attract attention, but he did not characterize this as disorderly. He was asked to leave and appears to have done so without further incident. Accordingly, the Board dismisses the allegation of a violation of subsection 45(1) of the O.Reg regarding the patron identified as “Bob”.

46Finally, with regard to the allegation of a violation of subsection 34(1) of the O.Reg on January 4, 2008, the Board accepts the evidence of Inspector Sookdeo. He observed a female, consuming a bottle of beer in the unlicensed hallway. There is no issue that this area was unlicensed. The endorsement permitting conveyance and consumption in washrooms, stairwells and hallways of the licensed premises was not in place on this date, or on the later date, March 15, 2008. The Licensee’s evidence is inconsistent regarding his knowledge of requirement for permission to remove liquor to this area. In his evidence, he suggested both that he did not initially know that he needed special permission. This was explained to him by Ka Ng. Yet he also stated that he observed the female step into the hallway with her beer in hand, and asked her to step back which she did. The Licensee’s evidence is not credible on this point. Regardless of why the female took her beer with her, and there is no evidence that she was being harassed; to suggest that she was is pure speculation, the fact is that she had removed liquor from the licensed area contrary to subsection 34(1) of the O.Reg. The Board accordingly makes a finding of a violation of subsection 34(1) of the O.Reg on January 4, 2008.

47The same allegation is made regarding the incident of March 15, 2008, however, on this occasion Inspector Ng observed a male on two occasions, once in the presence of a staff person, walk into the washroom with a beer in hand. There was no endorsement in place on this date. The Licensee was not present at the premises on that date and there is no evidence from the Licensee’s staff who were present.

48Mr. Herszkopf submits that the best evidence has not been put to the Board in that Inspector Ng cannot state how full the bottle was or whether the patron consumed from the bottle in the unlicensed area. Subsection 34(1) of the O.Reg does not require consumption, and on a balance of probabilities it is unlikely that a patron would take an empty beer bottle to the washroom, twice. The Board has heard evidence that the endorsement is now in place; what seems more probable is that the staff person was not aware such permission was required. However, ignorance of the requirements of the LLA or its regulations by a licensee or his staff, is no excuse. The Board therefore finds a violation of subsection 34(1) of the O.Reg on March 15, 2008.

49Regarding the female observed by both Inspectors Ng and Giorgoudakis to be seated at a table by herself, with her eyes closed, perhaps sleeping, again, there is no evidence from the Licensee. As Mr. Kulis candidly noted, the burden of proof is, nevertheless, on the Registrar. The Registrar’s evidence is that it was approximately 1:05 a.m. There were approximately 20 patrons present. Inspector Giorgoudakis stated that having observed the female she asked the person in charge, Mr. Sivakumaran, to attend to her to ensure she was OK. He did approach her. When the female opened her eyes, they appeared glossy. Her motor skills were slow; she used chairs to steady herself as she walked out. Her speech was slurred. There was a bottle of beer in front of her. Staff did ask the female to leave, which she did. Further, staff did not, on the inspectors’ evidence, dispute their statements that the female was drunk.

50Though there is no evidence as to how long the female was sleeping, nor of how much she had consumed, it did not appear to be a busy night at the bar. Staff only approached the female when asked to do so by Inspectors, or, at best, when they noted the Inspectors’ presence and the attention being paid to the patron. The Inspectors concluded that the patron displayed indicia of intoxication. The Board agrees that, on a balance of probabilities the female patron was intoxicated and that the staff, knew or ought to have observed she was drunk and sleeping and acted to address the situation. The Board therefore finds a violation of subsection 45(1) of the O.Reg on March 15, 2008.

Conclusion

51For the reasons given, the Board FINDS the Licensee violated subsections 34(1) and 45(1) of the O.Reg.

52The 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 17th DAY OF JUNE, 2009