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-
902209 Ontario Limited O/A Magnum’s Pub
Licensee
DECISION
Panel: Patricia McQuaid, Vice-Chair, AGCO
Beryl Ford, Board Member
Decision Date: July 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 ) Phillip Morris, Representative
902209 Ontario Limited, Licensee ) Greg Burd, Representative
Authorities:
1207745 Ontario Limited(c.o.b. Armani’s Nightclub) v. Ontario (Alcohol and Gaming Commission), [2007] O.J. No. 5317
Allegations
- A hearing into a Notice of Proposal number 16861 dated November 24, 2008 to suspend liquor licence number 804451 (the “Licence”) issued to 902209 Ontario Limited (the “Licensee”) operating as MAGNUM’S PUB, 21 McMurchy Avenue North, Brampton, Ontario, L6X 1X4 (the “establishment” or “premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on March 31 and April 24, 2009 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg, with respect to two patrons. The Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg with respect to a third patron. Reasons follow.
Preliminary Matters
- The Board ORDERED, on consent of the parties, the exclusion of all witnesses.
Registrar’s Evidence
Trevor Joseph is and has been an Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector for 16 years. He attended Magnum’s Pub on August 8, 2008, arriving at approximately 1:38 a.m. with his partner John Hesch.
The door to the establishment was locked. They waited for less than a minute before gaining entry. They identified themselves to security and were let inside. Mr. Joseph works regularly in the Brampton area where Magnum’s is located and had previously discussed the issue of delayed access to the establishment with the Licensee. Upon entering the establishment, he raised the issue again with security staff.
It was a busy night at the bar. Within several minutes of his arrival, he observed a male seated at the bar exhibiting signs of intoxication; the male was engaged in conversation with a staff member named Nicole.
At this point, he was standing within a couple of feet of the male who was identified as CM. CM was unsteady on his feet when he stood, weaving from side to side. He did not need to be propped up nor did he fall or bump into anyone. His eyes were glossy and bloodshot. CM told him that he had been in Magnum’s for approximately 3 hours and had five drinks – 2 shots and 3 beers. He had no difficulty understanding CM nor CM, him.
While he was dealing with CM, his partner advised him that he had observed a female, identified as MK, also showing signs of intoxication. Inspector Joseph then spoke to her. Her speech was slurred, her eyes glossy and bloodshot and she was unsteady on her feet as she walked from her table to the bar area with them. When asked what she had to drink, MK responded that she usually only drank beer, but had some wine earlier in the evening and smoked a joint. He had no difficulty understanding her words.
Inspector Joseph stated that MK’s state of sobriety seemed to deteriorate as he talked to her. She seemed very excited and her conversation was repetitive. He learned that she was celebrating her birthday that night and was, in fact, staff at Magnum’s. MK did tell him that there was a designated driver with her, or alternatively, Rob Sandford, identified as a manager, would send her home in a cab.
Inspector Joseph spoke to Mr. Sandford and Nicole Peddlar, the supervisor that evening, about the situation he observed, advising them that the Licensee, Mr. Jakobsons, would not be happy with the result of his inspection. He told the same to MK. Inspector Joseph stated that he had had good discussions with Mr. Jakobsons in the past and was confident that he was aware of his obligations as a licensee.
While he was engaged in conversation with Ms Peddlar and Mr. Sandford, Inspector Hesch had some interaction with a male at the bar who, Mr. Hesch advised, was unruly and intoxicated. Mr. Joseph was not, prior to this, aware of the individual. They, Inspector Hesch and the male, were standing to his right. His focus was not on this individual. The male yelled profanities, which Inspector Joseph heard as the male left the bar.
After they advised Mr. Sandford and Ms Peddlar that a report would be submitted regarding MK and CM, they, effectively “turned over” the individuals to Ms Peddlar. However, Mr. Hesch observed that both individuals remained in the establishment, and that CM was given another draft beer and pointed this out to him, at which point he, in turn, advised Mr. Sandford that the patrons had to leave the establishment. Mr. Sandford then took action and asked door staff to remove them and put them in a cab. He made no notation about CM’s gait or demeanour as he exited.
He and Inspector Hesch left the establishment at 2:50 a.m.
On cross-examination, Inspector Joseph denied being upset at being delayed at the door. He stated that his demeanour at all times was professional. Inspector Joseph spoke to MK at some length, perhaps half an hour. During that time, she got very emotional and started to cry, not because he was belligerent with her or badgering her, in his view, but because she was upset that she could lose her job. Her emotional state deteriorated through this conversation and as he stated that Mr. Jakobsons would not be happy on learning of her behaviour that evening.
Regarding the third individual, the yelling did catch his attention. He did not know of why the individual was yelling. He did not note signs of intoxication exhibited by the individual. The individual was reported as “disorderly” due to his raised voice and the yelling of profanities in the Inspectors’ direction. Inspector Joseph had no conversation with this individual nor did the individual interfere in his conversations with Ms Peddlar and Mr. Sandford.
John Hesch began his employment as an AGCO Inspector in March, 2008. Inspector Hesch recalled that the door was locked when they arrived though he made no note to that effect. His identification was around his neck under his jacket when they showed their badges. He believes that Inspector Joseph spoke to the security, advising that the door should have been unlocked.
Upon entering, he observed CM at a table with a number of people, near the entrance to the patio. He was with Inspector Joseph at this point, standing about 12 feet away from CM. As he got closer to him, he observed that CM was showing signs of intoxication: red watery eyes, slurred speech, and a strong odour of alcohol. When he stood, he was unsteady on his feet. CM was asked to walk to the main bar area with the Inspectors – it was at this point that he observed his unsteadiness and poor balance.
While Inspector Joseph (and Inspector Joseph did most of the initial investigation of CM) was speaking to CM, Inspector Hesch observed a waitress walk over to the table, at which 8 – 10 patrons were still seated and pick up three empty beer pitchers. He heard her tell the table that liquor inspectors were in the building. It was at this point that he observed MK. He approached her, asked that she walk to the service bar with him and then asked to see identification. She fumbled through her wallet to find her driver’s licence, which in fact was readily apparent to him, indicating to him her poor motor skills. As they were speaking, he noticed that her speech was slurred, by which he meant, not clear, crisp or concise. She was unsteady on her feet as she walked, swaying side to side thought she did not stumble or fall. There was a strong odour of alcohol on her breath.
At no time did she seem concerned by his demeanour. She was cooperative. She told him, when asked, that she had several glasses of wine before arriving at the bar, and two draft beer there. MK stated that she was celebrating her birthday with friends and volunteered that she was an employee of Magnum’s though not working that evening.
Inspector Hesch noticed that MK’s pupils were dilated so he asked again how much she had to drink. At this point, she stated that she had smoked a “joint” earlier that evening.
While speaking with MK at the bar area, a male seated at a stool near them tried to involve himself in their conversation. At first he paid little attention to him, but the male got more vocal. He was loud, and boisterous, and increasingly agitated, questioning why they were bothering the bar when they should be out “busting” drug dealers. He noted that the male’s speech was slurred, his eyes were glossy and watery and there was a strong odour of alcohol on his breath.
At this point, Mr. Sandford and Ms Peddlar were standing nearby. They did not intervene to deal with the male. He and Inspector Joseph were explaining to them that CM and MK were intoxicated, advising them of the violation and that they needed to ensure that the patrons got home safely and did not consume more alcohol while waiting for a drive home.
Inspector Hesch then saw CM consuming a draft beer at 2:16 a.m. He brought this to the attention of Mr. Sandford. At 2:19 a.m., he again observed CM with a beer. Mr. Sandford at this point removed the beer from CM and removed CM from the premises. He recalled that CM and MK left together.
At approximately 2:23 a.m., the male at the bar got up to leave, shouting profanities at them as he left. Though he had some conversation with this individual, Inspector Hesch could not recall what he said to him.
He continued speaking to Ms Peddlar and Mr. Sandford about the signs of intoxication observed in CM and MK, and advised them that both patrons admitted to him and Mr. Joseph that they had consumed too much though he did not believe he asked CM specifically what he had to drink. Ms Peddlar stated that she did not, based on her server training, believe them to be intoxicated.
On cross-examination, Inspector Hesch stated that he could not remember if MK was swaying as they questioned her nor did he recall that she began to cry. He did not point out the male patron to Mr. Sandford or Ms Peddlar even though he made note of his signs of intoxication. He had no idea of how long the patron had been there. Other than the three patrons referenced in his evidence, he did not observe any other intoxicated patrons.
Licensee’s Evidence
John Patrick Stivani, age 52, was a patron of Magnum’s on August 8, 2008, arriving at approximately 1:30 a.m. He described himself as a “regular” of Magnum’s, perhaps attending once every two weeks through the summer. That night he sat at his usual spot, a chair at the bar, and ordered a pint of Alexander Keith’s, 20 oz., his usual. Mr. Stivani explained that he usually works construction in the summer and drives a taxi in winter, but he was driving taxi that summer and had just got off work when he arrived at Magnum’s.
When he had been seated at the bar, for about 15 – 20 minutes, he noticed two men making notations in books. They were standing in the service bar area. He made a comment to them, meaning to be funny, inquiring whether they were doing a survey of single women.
One of the two men, identified later as Inspector Hesch, turned to him and told him, in profane terms, to mind his own business.
Mr. Stivani thought the tone was aggressive which, as he described, “got his ire up”. He felt that there was no need for such a reaction. Magnum’s is a quiet, problem free bar, which he assessed based on his experience driving taxi. He knows from that which bars to avoid. So his response was to question Mr. Hesch’s authority, who in turn retorted in a threatening way, “Peel Police”.
At this point, Mr. Stivani said he was furiously angry. He had ordered a second pint, but decided leaving was the better course of action. He paid his tab and left, cursing the Inspectors as he walked out. His continued presence could cause the bar more harm than good. He believes he was in the bar between 30 – 45 minutes. He recalled that the waitress did ask him why he was leaving. He did not return to the bar for at least a month.
Mr. Stivani did provide a statement (Exhibit 1), about 4 weeks prior to the hearing, at the request of Mr. Sandford. He had no knowledge that there were charges against the bar at that point.
On cross-examination, Mr. Stivani stated that he was angered by the conduct of Inspector Hesch, especially the comments about him being Peel Police. Mr. Stivani stated that the Inspectors did not say they were from the AGCO nor did he see a badge. If they had responded “AGCO”, he would have asked what it meant. Mr. Stivani admitted that he used a few choice expletives in conversation with Inspector Hesch at this point, and questioned the aggression and the Inspector’s agenda, but thought it best to leave the bar.
At the conclusion of this evidence, Mr. Morris did raise some concern regarding Mr. Stivani’s evidence as it related to Inspector Hesch as it was, in his submission, contrary to certain rules of evidence. Mr. Morris was given the opportunity to consider whether he wished to re-call Inspector Hesch. At the commencement of the second day of hearing, he advised the Board that he was content, upon reviewing the evidence, that the concern was addressed and hence there was no need to re-call the witness.
Jacob Ferguson Gill is 24 years old and a doorman at Magnum’s where he has been working for approximately 3 ½ years. He was working on August 8th and at the door when the Inspectors arrived. The doors are locked at 1:30 a.m., for security reasons. He did not recognize them and told them the premises were closed. One of the men then flashed his badge, identifying himself as a liquor inspector. He let them in.
When the Inspectors entered, one of them walked to the bar to speak to the bartender. Then their focus was on a table decorated with balloons for a patron’s birthday. There were approximately 10-16 people in that party. Inspector Joseph grabbed one of the patrons, to have her come with him to the bar area so he could talk to her there. Mr. Gill did clarify that the Inspector did not, in fact, physically grab the patron, identified as MK. In his view, MK was sober, showing no signs of intoxication. He had spoken to her several times that evening, though did not know what she had to drink. The Inspector questioned MK for about a half an hour.
Mr. Gill stated that he had also interacted with CM that evening. CM was with MK’s party. CM also spent some time speaking with the Inspectors. In his view, CM was not intoxicated, and was, in fact, very coherent. When he spoke to him, his speech was not slurred. He did not know how much he had to drink that night.
Mr. Gill recalled that Mr. Stivani arrived at Magnum’s shortly before the Inspectors arrived. Mr. Stivani had just gotten off work and was totally sober when he arrived. Mr. Stivani did have a conversation with one of the Inspectors. He did not hear the conversation, however, Mr. Stivani left not long after that. He was visibly upset when he left.
Mr. Gill had met Mr. Joseph, perhaps once before, though not Mr. Hesch. He recalled that Mr. Hesch was carrying a notepad which said “police”. Neither Inspector asked him for assistance regarding the patrons.
Mr. Gill did prepare a statement following the incidents of August 8th. The staff discussed what had transpired that evening. They felt there could be charges as a result. His statement (Exhibit 2) is his recollection of the evening in terms of his observations and anything noted of significance.
On cross-examination, Mr. Gill stated that the demeanour of the Inspectors, in particular, Mr. Joseph, was different than usual. They were there longer than normal for an inspection. Regarding his statement that: “the inspectors were extremely disappointed at the fact that they had to identify themselves”, he meant that Mr. Joseph was not as friendly as usual. He usually has lots to say, but on this night he said little. In his view, Inspector Joseph was intimidating in his questioning of MK, standing quite close to her and with an aggressive manner, for about half hour.
Robert Hugh Sandford is 52 years old. He started working at Magnum’s in May, 2008 as the kitchen manager, having been in the business almost 40 years. He was present on August 8th, as he was fulfilling a supervisory or advisory role on weekends at Mr. Jakobson’s request. His experience is as a chef, not in the management of liquor service but he has worked nevertheless in licensed establishments. His practice at Magnum’s was to check through the bar area, keeping an eye on things every half hour or so, after 11:00 p.m. when work in the kitchen tapers off.
He was in the kitchen, when, at about 1:45 a.m., Jacob Gill came in to advise that Inspectors were present. Mr. Gill stated that the Inspectors were irritated because they were not initially allowed in; they had to show their badges. Mr. Sandford wondered what he should do, but let Ms Peddlar deal with the situation. When he entered the bar area, he noticed MK being interviewed by an Inspector. He positioned himself at the bar area to hear what was being said.
While there, another patron (Mr. Stivani) got up from his chair and left, angrily, swearing as he went out the door. Mr. Stivani had been speaking with the other Inspector but he did not hear what was said. He had seen Mr. Stivani come in earlier, not long before the Inspectors arrived, and greeted him at that time. Mr. Stivani had just gotten off work. He was not displaying any signs of intoxication.
He continued to watch, and listen to the interview of MK. Inspector Joseph questioned her for about a half hour, asking her if she had been drinking, where and how much, and whether she had any drugs. He did not hear her responses as her back was to him.
MK was an employee, but was there as a patron to celebrate her birthday. He had spoken to her earlier, at about 11:30 p.m., and thought she was fine. She had not been cut off from service.
When Inspector Joseph finished his interview with MK, he introduced himself to the Inspector as he had not met him before. He felt that the Inspectors’ exchange with Ms Peddlar was not handled well and he thought that he might help calm the situation. He had a pleasant and businesslike conversation with the Inspector.
Inspector Joseph did point out CM to him, but, he had not seen the Inspectors speak to CM.
Mr. Sandford made notes of the incident later that evening. His statement (Exhibit 3) is based on his handwritten notes. It does not refer to the state of sobriety of either CM or MK, nor does it refer to anything said by the Inspectors or anything in their demeanour to suggest that they were irritated that evening.
When he first saw Inspector Joseph he was speaking to MK at the bar, in a heavy traffic area, in front of the touch screen used by the servers. He was not aware that anyone asked the Inspectors to move from that area. It was a “tight” spot so they were standing in close proximity. He did not see the Inspector touch MK. Inspector Hesch was standing behind him. His recollection was that Inspector Joseph spoke to MK for about ½ hour. While he could not hear all the conversation standing 3 – 4 feet away, the questions posed did seem repetitive. Mr. Sandford could not say that the questioning was improper though he did feel it went on too long.
He did not know how much MK drank that night not could he make a statement about her speech or appearance of her eyes. He did not see either MK or CM walk.
Regarding Mr. Stivani, he did not hear the conversation between him and Inspector Hesch, nor was he aware of who had initiated the conversation. He was standing about 12 feet from Mr. Stivani. What did concern him was seeing Mr. Stivani leave angrily.
He intervened in the situation when, after this, he saw Ms Peddlar apparently having difficulty with the Inspector. The issue seemed to be that she was not providing identification to the Inspector quickly enough. Ms Peddlar left the bar’s employ shortly after this incident. He did not know the details of her departure but assumed it was related to this incident. He was not aware of any previous concerns about her.
Melissa Eldridge has worked at Magnum’s for five years, as a server, bartender and occasionally as acting manager. She was aware of the Inspectors’ arrival at approximately 1:30 a.m. on August 8, 2008. She was working the service bar that evening. She knew who Inspector Joseph was from previous occasions. She saw him approach MK, a friend and a fellow employee, though MK was not working that night. MK was celebrating her birthday; her table was near the front of the bar. Ms Eldridge explained that the initial booking for the party was for a group of 15, with three pitchers of beer ordered, and two platters of wings, paid for by MK’s mother. They arrived around 10:00 p.m. and at any time there were more than 10 people at the table. She served the pitchers to the table, but nothing else. A server may have delivered other drinks to the table. Inspector Joseph brought MK up to the bar area and demanded how much she had to drink, asserting that she was looking visibly intoxicated. Inspector Joseph “grilled” her for about 25 minutes, asking her whether she was driving. He had her “cornered” against a wall.
In Ms Eldridge’s assessment, MK was not intoxicated. She answered the questions put to her and was very cooperative. Ms Eldridge heard Inspector Joseph say to MK that Mr Jakobsons would be very disappointed in her. MK was visibly upset and in tears. Ms Eldridge felt that MK was nervous and intimidated by Inspector Joseph. He had asked MK for her identification and when she pulled her wallet out, he took it out of her hands and asked her, Ms Eldridge, to get the I.D. out. He would ask MK a question, but not wait for her response. In her view, it should not have taken almost 30 minutes for him to assess whether MK was intoxicated.
She saw Inspector Hesch go around to several tables before coming to the service bar area. Inspector Hesch spoke to CM who was concerned for MK. CM answered the Inspector’s questions and was cooperative. She believed she served him one drink at the bar. His speech was not slurred and he walked without a stumble or trip. CM and MK eventually left together, though she did not actually see them leave.
Regarding Mr. Stivani, she did not see him until just prior to his departure. He seemed upset at the questioning of MK. Mr. Stivani usually comes in at the end of his shift around 12:30 a.m. He had one pint of beer and had ordered a second, with some left in his first, when there seemed to be an argument with Inspector Hesch. She did not hear what was said, but Mr. Stivani seemed very upset.
Inspector Joseph also asked Ms Peddlar for her identification. At that point Ms Peddlar was cashing out customers. Inspector Joseph suggested that she was not being cooperative. Neither Ms Peddlar nor MK are still working at the bar.
On cross-examination, Ms Eldridge stated that she did prepare a statement (Exhibit 4) from hand-written notes made the night of August 8, 2008. Staff were aware that night after the Inspectors’ attendance that there was a problem that could result in issues before the AGCO. She knew that the Inspectors thought MK was drunk. She, as a friend, has seen MK drunk before, but in her view did not show signs of intoxication that she would normally see in her.
As is evident in her written statement, she was very “fuelled” about the way the Inspector was acting that night, though she said that the statement was not written to be inflammatory. Ms Eldridge stated that Inspector Joseph’s comments to MK, moving her to tears, about the reaction of Mr. Jakobsons, were out of line, and his demeanour, standing in such close proximity to MK was inappropriate though asking her for identification was not.
Inspector Hesch was not involved in the questioning of MK. He did speak to CM. In her view, Inspector Hesch was not very friendly. CM did answer all questions put to him.
Arvids Jakobsons is the owner of Magnum’s. He was not present on August 8th but spoke to his staff the following day about the incident. Mr. Jakobsons had prior dealings with Mr. Joseph and believes he met Mr. Hesch once before.
In particular, Mr. Jakobsons had dealt with Inspector Joseph regarding the issue of the door being locked late at night. He thought that issue had been resolved. As well he had one prior infraction (his only one in 18 years), a seven day suspension served in January 2008 for events that occurred in April 2007.
When he called and spoke to Inspector Joseph on August 9th, Inspector Joseph reiterated that the locked door was an issue as was Ms Peddlar’s nonchalant behaviour on August 8th. Inspector Joseph explained that it was clear to him that MK and CM were intoxicated, but that Ms Peddlar disagreed. No mention was made of Mr. Stivani being intoxicated.
After his conversation with Inspector Joseph, with whom he felt he had a good working relationship, he spoke with Ms Peddlar, with Mr. Sandford present. He had had a few issues with Ms Peddlar prior to this, regarding scheduling, so they decided to part ways as her continued presence at the bar would not be beneficial. He had hoped to have her attend the hearing.
He also spoke to MK who described being interrogated by Mr. Joseph. Regarding her comment to the Inspector that she had smoked a joint, she stated to him that she only said that to protect the bar, otherwise the Inspector would assume she became intoxicated in the bar. She denied she was intoxicated that evening; she said she had two glasses of wine at dinner earlier in the evening and four drinks at the bar. His concern was that MK had lied to Inspector Joseph about the marijuana and for that reason he did not want her to work for him anymore.
Mr. Sandford told him, when they discussed the matter, that he did not believe MK or CM to be intoxicated. They were neither a problem to themselves or others. He has known Mr. Sandford for some time and relied on his experience and assessment of people.
Reasons and Analysis
Mr. Morris and Mr. Burd provided written submissions, which have been carefully considered by the panel in reaching its decision.
Before dealing with the particular allegations, the Board wishes to comment on the evidence led regarding the Inspectors, particularly Mr. Joseph’s alleged annoyance that the front door was locked. While it may have been a minor annoyance, given discussions with Mr. Jakobsons in the past, the Board is not prepared to infer that it thereby tainted the Inspector’s behaviour that evening. Inspector Joseph said the delay in gaining entry was about a minute – not lengthy. Inspector Hesch, who made note of much, did not record it at all. The evidence on this point comes substantially from Mr. Gill. He implies that Inspector Joseph was not his friendly self, being extremely disappointed. Their demeanour was different. Yet in his evidence he also states that he had perhaps met Mr. Joseph once before and had never met Mr. Hesch before that night. The Board finds Mr. Gill’s evidence on this point, and by extension in with other areas where they contradicted that of the Inspectors, less than credible.
The Board will first deal with the allegation of a violation of subsection 45(1) of the O.Reg as it relates to John Stivani. Mr. Morris submits that Mr. Stivani was not a credible witness. The Board disagrees. While there may have been some degree of hyperbole by a colourful witness, on the whole this did not detract from his credibility, especially when his evidence is viewed in context with the evidence of other witnesses.
In particular, the Board notes that Inspector Joseph, an experienced inspector was not, prior to Inspector Hesch’s advice to him, aware of Mr. Stivani, though they were both in the service bar area. Mr. Stivani’s behaviour was not so disorderly that Inspector Joseph’s attention was drawn to him initially. When Inspector Joseph did notice him, he made no notation regarding signs of intoxication. Nor did he, as the lead inspector that evening, discuss Mr. Stivani with either Ms Peddlar or Mr. Sandford. Inspector Joseph did not suggest in his evidence that Mr. Stivani by his behaviour interrupted or disrupted his investigation.
The evidence is consistent that Mr. Stivani had consumed a 20 oz. pint of beer and ordered another, though he had not consumed any of the second pint. Neither Inspector inquired what he had to drink. He arrived at the bar at approximately 1:30 a.m., after finishing his shift as a taxi driver. Was he tired? Perhaps. That may well explain his demeanour. Inspector Hesch gave, at certain points, detailed evidence about what transpired that evening, but he could not recall what he may have said to Mr. Stivani nor did he point out Mr. Stivani to Mr. Sandford or Ms Peddlar as a third intoxicated patron.
Mr. Stivani did leave, on his own volition, abruptly and angrily swearing at the Inspectors as he left. All witnesses did attest to that. Mr. Stivani did provide an explanation for his behaviour, attributing it as a reaction to Inspector Hesch’s comments. The Board puts little weight on what may or may not have been said. Rather, the fact is that profanities were uttered and loudly, as Mr. Stivani departed and, perhaps, before.
While in no way condoning Mr. Stivani’s conduct as he departed (and it is of note that he did depart of his own accord so as to avoid escalating the situation) it was not, on the evidence a verbal utterance of an extreme nature so as to be offensive, abusive or threatening. Unfortunately, utterances such as his are likely heard by inspectors (and indeed the general public) on a daily basis. It did not rise to the level of disorderly conduct, nor was there sufficient evidence for a finding of drunkenness (let alone “permitting” the same). The Board therefore DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg as it relates to Mr. Stivani.
With regard to MK and CM, the evidence is at times equivocal. Dealing first with CM, the two Inspectors, who arrived together, both made note of CM soon after their arrival, though in different spots within the bar. Inspector Joseph sees him seated at the bar speaking with Ms Peddlar. Inspector Hesch sees him at the table near the entrance to the patio. Inspector Joseph does speak to CM. He made no note of slurred speech, but noted glossy bloodshot eyes, and unsteadiness on his feet. CM had five drinks in the three hours he was present at the bar. There is no evidence of whether he consumed alcohol before arriving.
The Inspectors discussed their finding with staff, who thought CM’s behaviour was fine. While the Board does not, as proposed by Mr. Morris, discount Mr. Sandford’s ability after 40 years in the hospitality business, to assess whether a patron is drunk simply because he has been involved in the food side of the business, the evidence of a clear assessment of CM’s state of sobriety by either Mr. Sandford or Ms Eldridge was scant.
There was a suggestion, again, in Inspector Hesch’s evidence, which was recounted by, but not witnessed by Inspector Joseph, that CM was served after staff were told of their concerns about him. There was, however, no allegation before the Board of service to an intoxicated person.
What is before the Board is relatively consistent evidence between the two Inspectors of CM’s state of intoxication. On this point, the Board does take note of the decision cited by Mr. Morris, 1207745 Ontario Limited o/a Armani’s Nightclub v. Registrar of the Alcohol and Gaming Commission of Ontario, [2007] O.J. No. 5317, wherein the Divisional Court accepts, for the purpose of the Regulation, that “intoxication” equates to “drunkenness”.
CM was a part of the birthday celebration and it appears that he interacted with the staff. The Board, having accepted the Inspectors’ evidence regarding CM, does not accept the Licensee’s evidence that in their various interactions with CM nothing in his demeanour could alert them to his drunkenness; especially in light of the Inspector’s discussions with staff that evening about him. CM may not have stumbled or tripped, but that alone does not mean he was not intoxicated. Clearly, the staff knew or ought to have known that CM was drunk. The Board therefore FINDS a violation of subsection 45(1), “permit drunkenness”, in respect of CM.
Regarding MK, she was at Magnum’s that night to celebrate her birthday. She had consumed several glasses of wine before arriving and, she told the Inspectors, two beers there. She also indicated to the Inspectors that she had smoked a joint which may have exacerbated the signs of intoxication. The Inspectors were consistent in their assessment of those signs: slurred speech, glossy bloodshot eyes and unsteadiness on her feet. Inspector Hesch noted as well an odour of alcohol – not perhaps surprising after a few drinks, and not necessarily, in and of itself, an indication of intoxication.
Inspector Joseph spent some time – as much as 30 minutes – in conversation with MK. In Mr. Sandford’s view, this was too much time and repetitive questioning. In Ms Eldridge’s view, he was intimidating, both in his questioning and close physical proximity. She did not make note of interaction between Inspector Hesch and MK and to this extent she and Inspector Joseph were consistent: beyond initial contact with Inspector Hesch, it was Inspector Joseph who dealt with MK. Unfortunately, the Board did not hear from MK herself. However, it is not the Inspector’s behaviour that is the issue for the Board’s determination. In the past, the Board has on occasion taken issue with the small amount of time taken by Inspectors to investigate possible violations. Absent MK’s evidence, the Board cannot assess whether the time and approach taken by Inspector Joseph in particular was such that it was inappropriate and therefore could in any way impact his credibility. Mr. Burd submits that it ought not to have taken the Inspectors so much time to assess a level of intoxication that should be apparent to any lay person upon momentary observation. In fairness to both the Licensee and to the patron in issue, the Board discourages conclusions drawn on momentary observations.
In contrast to the Inspectors’ observations and evidence of the amount consumed, the evidence adduced by the Licensee includes Mr. Sandford’s inability to assess MK’s appearance and his lack of knowledge as to how much she had consumed, and Ms Eldridge and Mr. Gill’s bold statement that MK was sober, and showing no signs of intoxication. Weighing all the evidence, the Board prefers the evidence of the Inspectors, who were clear, consistent, detailed and had no interest in the outcome of the matter.
Both Inspector Joseph and Ms Eldridge were consistent on one point: MK was upset and was moved to tears, though she was at no time uncooperative. MK appeared to express worry and concern about the impact of the incident on her continued employment, and subsequently that was determined to be a well founded concern. She did lose her job, though not because she was intoxicated that evening, having told Mr. Jakobsons that she had two glasses of wine earlier and four drinks (two more than she told the Inspectors) at the bar that evening, but because she had said she smoked a joint, an untruth, to protect the bar. This rationale for termination of MK’s employment strikes the Board as somewhat unusual however, the Board concludes based on his evidence, and that of Mr. Sandford, that Mr. Jakobsons is a Licensee who is responsible and responsive, to which Inspector Joseph testified as well.
For these reasons, the Board therefore FINDS a violation of subsection 45(1) of the O.Reg regarding MK. The evidence supports a finding of drunkenness and in the face of the lack of knowledge as to what she consumed there was no evidence to suggest that MK was being assessed in any way by staff – only the conclusion that she was sober or not displaying the signs she usually does when drunk. MK was well known to staff, her celebration was highlighted in the bar that night. Staff knew or ought to have known of her state and therefore they permitted her to be drunk on the premises.
Conclusion
For the reasons given the Board FINDS the Licensee violated subsection 45(1) of the O.Reg, with respect to the patrons MK and CM. The Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg with respect to Mr. Stivani.
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 17th DAY OF JULY, 2009
PATRICIA MCQUAID, VICE-CHAIR, AGCO BERYL FORD, BOARD MEMBER