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-
894764 Ontario Limited O/A Olde Stone Cottage Pub & Patio (The) Licensee
DECISION
Panel: Kirsti Hunt, Vice-Chair, AGCO Brian J. Ford, Board Member Bruce Miller, Board Member
Decision Date: June 23, 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 894764 Ontario Limited, Licensee ) Peter Swales, Representative
Allegations
- A hearing into a Notice of Proposal (“NOP”) number 16807 dated November 6, 2008, to suspend liquor licence number 91078 (the “Licence”) issued to 894764 Ontario Limited (the “Licensee”) operating as OLDE STONE COTTAGE PUB & PATIO (THE), 3750 Kingston Road, Scarborough, Ontario, M1J 3H5 (the “establishment” or “premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on February 27, 2009 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg. Reasons follow.
Registrar’s Evidence
Ryan Baird is an AGCO Inspector with five years experience. Inspector Baird advised the Board that he attended the Olde Stone Cottage on July 18, 2008, at approximately 1:50 a.m. Inspector Baird stated that he and his partner, Inspector Stephen Hetherington, did a walk through inside the premises and then went out onto the patio.
On the patio Inspector Baird noticed a male patron who he stated was showing the classic signs of intoxication. He was unsteady on his feet, swaying back and forth. At the time the male tried to grab a straw out of a friend’s mouth with his mouth.
Inspector Baird stated this male patron then vomited in his left hand, laughed and dropped his vomit on his feet. He also stated that the patron had slurred speech.
Inspector Baird stated that he and Inspector Hetherington spoke to the manager of the establishment, Sandra Hollyoak, and pointed the male out to her. He noted that the male was spoken to by a security person but was allowed to remain on the patio.
Inspector Baird did not know how many people were on the patio. He was approximately 5-8 feet away from the patron and heard him speak, but could not discern what he said.
Under cross-examination Inspector Baird stated that both he and Inspector Hetherington approached the manager. He also said he was a few feet away from the patron and could not make out what the patron said, but that it was very loud and slurred.
Inspector Baird said he did not walk into the patio area and did not see the vomit in the patron’s hand, he only saw the patron’s action. He also stated he did not smell the vomit. He stated that he told staff to deal with the matter.
When asked about the patron attempting to take a straw from another patron using his mouth, Inspector Baird admitted it could be horseplay or fooling around. He also reiterated that he never saw any vomit on the ground and did not see the patron leave the area.
Under re-direct Inspector Baird stated that the patron had a drink in his other hand. He stated the lighting was not good.
Stephen Hetherington is an AGCO Inspector with two years experience. He advised the Board that he and Inspector Baird attended at the Olde Stone Cottage on July 18, 2008 at approximately 1:50 a.m.
Inspector Hetherington stated that they did a walk through and then attended to the patio area. He stated he observed patrons standing on the patio and one male, in particular, was showing signs of intoxication.
Inspector Hetherington stated that the patron was weaving back and forth on his feet. He noted that the male covered his mouth with his hand and appeared to gag and vomit. The patron showed his companion and both laughed.
Inspector Hetherington stated that Sandra Hollyoak, the manager, approached them and he and Inspector Baird identified themselves to her and pointed out the patron.
Inspector Hetherington stated that the male patron appeared to be leaning on his friend’s shoulder for support. He also stated that this patron’s eyes were closing and he seemed to be having a hard time staying awake.
Inspector Hetherington stated that a male security staff person spoke to the male patron but did not eject him from the patio. He advised the manager of the infraction and then left.
Inspector Hetherington stated that he was 5 feet away from the patron and noted that there was something in his hand but did not recall the conversation between the two patrons except that they laughed.
Inspector Hetherington stated that the manager, Ms Hollyoak, approached them as the doorman told her that they were there. He stated that they spoke to Ms Hollyoak for approximately 10 minutes. Inspector Hetherington stated the manager agreed with him that the patron was drunk. He stated that security went and spoke to the patron, he believes, on her instruction.
Under cross-examination Inspector Hetherington stated they were in the establishment approximately 17 minutes and that they spent approximately 10 minutes with the manager.
Inspector Hetherington stated that he did not tell the staff to eject the person, but only advised that he could not remain.
Inspector Hetherington stated that patron was weaving back and forth and vomiting, also hugging his friend for support. He also stated that he believed the patron was drinking but could not recall.
Inspector Hetherington described the patron’s vomiting as a gagging motion into his hand. Inspector Hetherington did not see what the patron did with the vomit as he turned away. He stated the patron put his hand over his mouth and there was an indication that there was vomit. He stated that he spat a large amount on the patio. He also said that he did not hear any conversation as the music was loud.
Inspector Hetherington stated again that he did not smell vomit nor did he see any on the ground. He did not look.
When asked if the patron was gagging he stated he could have been gagging. When asked what the patron did with the material in his hand Inspector Hetherington stated that he did not see what he did with what he had in his hand. He also stated that he did not hear the patron speak.
In response to a question from the Board, Inspector Hetherington stated he did not see any vomit come out of the patron’s mouth, and he did not see or smell any vomit, nor see any on the ground.
Inspector Hetherington stated that the only signs of intoxication that he observed from the patron was swaying, leaning, vomiting and his eyes were closing.
Licensee’s Evidence
Jim Boyd informed the Board that he was working at the Olde Stone Cottage on July 18, 2008, in the capacity of bouncer (security). Mr. Boyd stated he had been working there for a year and has worked in the industry for 19 years. Mr. Boyd stated he has self defence training, as well as Smart Serve training.
Mr. Boyd stated he was working the door at the Olde Stone Cottage on July 18, 2008 when two AGCO Inspectors identified themselves. Mr. Boyd informed the manager, Sandra Hollyoak, and she went out and spoke to the two Inspectors.
The Inspectors mentioned to Ms Hollyoak about their observations of a patron who was with a party of 6 or 8 friends. The patrons were joking around. Mr. Boyd stated Ms Hollyoak told him that the Inspectors saw this person vomit and asked him to check it out.
Mr. Boyd testified that he went over to the party and that there was no vomit on the patron or on the ground. Mr. Boyd also stated that he could not smell vomit on the breath of the patron. Mr. Boyd described the patron as between 5' 8" and 5'10" with short hair, a baseball hat, shorts and a white T-shirt.
Mr. Boyd stated that the patron was removed because he was verbally aggressive when questioned about vomiting. The patron stated that he did not vomit. He described that patron as wearing a white T shirt and drinking a bottle of beer.
Mr. Boyd stated that he did get a little angry when he felt that he had been accused of something that did not happen. He was escorted off the property without incident. Mr. Boyd stated that at the time he was assisted by Ms Hollyoak.
Mr. Boyd stated that the male was a twenty year old who had been enjoying himself. He was not causing a disturbance and was not intoxicated.
Mr. Boyd reiterated that there was no sign of any vomit or smell of any vomit.
Under cross-examination Mr. Boyd said that Ms Hollyoak called him because a guy may have vomited. He also said that the male was pointed out to him by Ms Hollyoak.
Sandra Hollyoak is the manager of the Olde Stone Cottage and she testified that she was there on the night of July 18, 2008. Ms Hollyoak stated their policy is that intoxicated persons are not served in the establishment and if they become intoxicated they are asked to leave.
Ms Hollyoak stated she has Smart Serve training which is used in identifying intoxicated persons. If a person is intoxicated they stop serving that individual and the person is asked to leave. They are also asked if they would like a taxi.
On July 18, 2008, Ms Hollyoak stated she was working and was informed by security that AGCO Inspectors were on the premises. She stated she went to the Inspectors and introduced herself to them. At that time they were on the east side of the patio.
Ms Hollyoak stated that she had a brief conversation with the Inspectors that lasted about 15 minutes. Ms Hollyoak stated Inspector Hetherington advised that a person had vomited and he pointed a male patron out to her.
Ms Hollyoak got the attention of security (Mr. Boyd) and pointed out the individual to him. She stated she spoke to the Inspectors and they told her the patron had to leave.
Ms Hollyoak stated she approached the patron with Mr. Boyd and told the patron he would have to leave. She also stated that the Inspectors could see her when she was talking to the patron. She said the patron left and she went back over and spoke to the Inspectors. She also said that the patron did not seem intoxicated, nor did she see or smell any vomit.
Under cross-examination Ms Hollyoak stated she did not recall if anything was written down. Nothing was prepared in writing regarding the incident except something in the log book. She stated that she did look at her statement but did not remember looking in the log book.
Ms Hollyoak also stated that there had been no interaction with the patron prior to him being pointed out by AGCO Inspectors.
Registrar’s Submissions
Mr. Kulis, in submission, stated that the only consistent evidence is that of the two AGCO Inspectors, Hetherington and Baird. Both gave similar descriptions of the male patron, whereas, Ms Hollyoak could not remember what clothing he wore and Mr. Boyd stated he had on a white T shirt. Both Inspectors described him as wearing a brown and white plaid shirt.
The evidence is, Mr. Kulis noted, that the patron was swaying and that Inspector Baird said he had slurred speech. Mr. Kulis also notes that Inspector Hetherington stated that the patron was swaying, his eyes were closing and he had a hard time staying awake.
Mr. Kulis submitted that Mr. Boyd was dealing with another patron, not the one observed by the Inspectors. Mr. Kulis also noted that vomiting is not a sign of intoxication on its own, but there were other signs.
Mr. Kulis submitted that the evidence of Mr. Boyd cannot be relied on. He also noted that Ms Hollyoak did not observe the patron until he was pointed out to her.
Licensee’s Submissions
Mr. Swales submitted that there are vastly different approaches to the incident. He noted that the employees did not believe there was an incident that might lead to a problem and they did not note the clothing worn by the patron.
Mr. Swales noted that Mr. Boyd, who is trained to see intoxicated persons, did not see any and his attention was only drawn to the patron because the Inspectors pointed him out. He noted that Mr. Boyd looked to see if there was any vomit, but did not see any evidence of this.
Mr. Swales noted that if the patron had vomited there would be a smell of it on the person’s breath, yet there was not. There was no vomit on the ground.
Mr. Swales submitted that the evidence of the two employees is steady and that the only issue is in regard to the patron’s clothing. They both felt that the patron was not intoxicated. He also noted the AGCO Inspectors did not approach the patron to speak to him to confirm whether or not he was intoxicated.
Mr. Swales also noted that Inspector Baird testified that he and Inspector Hetherington gave specific instructions to remove the patron. Mr. Boyd and Ms Hollyoak stated that the patron was removed.
Mr. Swales stated that evidence of the Inspectors was that a member of the staff talked to the patron that they had pointed out. He also stated that the Inspectors never mentioned the further conversation they had.
Mr. Swales noted that Inspector Baird testified the patron's speech was slurred but that he could not understand what the patron said. The Inspector did not ascertain what language was spoken. The staff stated that the individual spoke clearly and without signs of intoxication.
Mr. Swales also noted that the Inspectors testified the patron vomited in front of them but neither confirmed the observation.
Mr. Swales noted that the Inspector stated the patrons were joking around with one another which is consistent with Mr. Boyd's testimony.
Mr. Swales submitted a person being unsteady on their feet is not enough to conclude intoxication. He submitted that he does not believe that an offence took place.
Reasons and Analysis
The Registrar’s evidence is that two AGCO Inspectors went into the Olde Stone Cottage and while making observations on the patio noted that a patron was seen to be swaying on his feet and vomiting into his hand.
Both Inspectors stated that the patron was swaying and both said that he vomited. However, neither of the Inspectors saw any evidence of vomit in his hand or on the ground in front of the patron.
One Inspector stated that the patron vomited into his hand, laughed and showed his friend. The other Inspector, however, said that the patron spat it onto the ground, but later said that he did not see anything because he looked away.
One of the Inspectors stated that the patron’s speech was slurred but that he could not understand what was being said. The other Inspector, however, stated that he could not hear the patron talking because of the loud music.
Both of the Inspectors testified that the patron was spoken to by a member of the staff. Both employees stated that they spoke to the patron.
One Inspector stated the patron was fooling around and trying to grab a straw out of the mouth of another patron’s, and laughing. However, the other Inspector said that the patron was leaning on a friend’s shoulder and his eyes were closing and that he was having a hard time staying awake.
Both of the employees of the Old Stone Cottage stated that they approached the patron and there was no sign of any vomit on the breath of the patron or on the ground. Both employees stated the patron was not intoxicated.
One of the employees stated the patron was with other patrons, joking around and having fun.
The Board notes that neither Inspector went over to the patron to confirm what they believed to be an intoxicated patron. Neither Inspector saw the patron walking.
The testimony of the two Inspectors is consistent with respect to the clothing worn by the patron and the fact that he was swaying. However, the Board notes, there is a discrepancy in the Inspectors’ testimony in that one Inspector stated the speech of the patron was slurred but he could not understand what was said, and the other stated he could not hear the patron talking because of the loud music.
The Board agrees with the Licensee’s representative that observations of a patron swaying, on its own, are not a sign of intoxication. The issue of vomiting is inconclusive as both Inspectors stated that they saw no evidence of vomit either on the ground or in the hand of the patron. Both of the employees who went and spoke to the patron saw no signs of vomit.
The Board finds that there is insufficient consistent and reliable evidence to make a finding of intoxication.
Conclusion
- For the reasons given, the Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg by 894764 Ontario Limited operating as OLDE STONE COTTAGE PUB & PATIO (THE), 3750 Kingston Road, Scarborough, Ontario, M1J 3H5, liquor licence number 91078.
DATED AT TORONTO THIS 23rd DAY OF JUNE, 2009
KIRSTI HUNT, VICE-CHAIR, AGCO BRIAN J. FORD, BOARD MEMBER
BRUCE MILLER, BOARD MEMBER