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-
Sharks Club & Grill Inc. O/A Sharks Club & Grill (Licensee)
DECISION ON FINDINGS
Panel: Kirsti Hunt, Vice-Chair, AGCO Bruce Miller, Board Member
Decision Date: July 30, 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 Sharks Club & Grill Inc., Licensee: Michael Taylor, Representative
Authorities
Franco v. White 2001 CanLII 24020 (ON CA), [2001], O.J. No. 847 Rasanen v. Rosemount Industries Ltd. 1994 CanLII 608 (ON CA), [1994], O.J. No. 200 Tilden Rent-A-Car Co. v. Clendenning 1978 CanLII 1446 (ON CA), [1978], O.J. No. 3260
Allegations
- A hearing into Notice of Proposal number 17106 dated March 16, 2009 to suspend liquor licence number 0201444 issued to Sharks Club & Grill Inc. (the “Licensee”), operating as Sharks Club & Grill (the “establishment” or the “premises”), 7007 Islington Avenue, Unit 7, Woodbridge, Ontario, L4L 4G5, on the basis of alleged violations of section 39 and subsections 19(1), 31.1(1), 34(1) and 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (the “LLA”), was held on June 23, 2009, in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated subsections 19(1), 31.1(1) and 45(1) of the O.Reg, and the Board CONSENTS to the Registrar’s request to withdraw the alleged violation of subsection 34(1) of the O.Reg and the alleged violation of section 39 of the 0.Reg. Reasons for the decision follow.
Preliminary Matters
Mr. Kulis advised the Board that the Licensee was admitting that fruit flies were found in a bottle of Glenlivet Scotch and in a bottle of Cragganmore Scotch contrary to subsection 19(1) of the O.Reg. This occurred when Alcohol and Gaming Commission of Ontario (“AGCO”) Inspectors and York Regional Police Officers conducted a liquor licence inspection on September 5, 2008 at 1:31 a.m.
Mr. Kulis advised the Board that the Licensee was admitting that Inspectors found a Remy Martin bottle in the bar containing grenadine syrup contrary to subsection 31.1(1) of the O.Reg. This occurred when AGCO Inspectors and York Regional Police Officers conducted a liquor licence inspection on September 5, 2008 at 1:31 a.m.
Mr. Taylor agreed with the facts and that the Licensee was admitting the two allegations.
Mr. Kulis stated he would be withdrawing the allegation of a violation of subsection 34(1) of the O.Reg.
Mr. Kulis stated he would be withdrawing the allegation of a violation of section 39 of the O.Reg as the Licensee had now provided proof of Smart Serve training.
Mr. Kulis stated that the only outstanding matter was the allegation of two drunken patrons in the premises.
Mr. Taylor agreed with the remarks made by Mr. Kulis.
Registrar’s Evidence
John Hesch has been an AGCO Inspector since March 2008. Inspector Hesch had made notes shortly after the incident and the Board allowed him to refer to them to refresh his memory, with the consent of the Licensee.
He went to the Sharks Club & Grill on September 5, 2008 at 1:31 a.m. with AGCO Inspectors Joseph, Giorgoudakis and Noseworthy and York Regional Police Officers Haze, Grigsby and Yang.
He noticed two males on the patio. The first male (“patron one”) was with a group of friends at a table. The second male (“patron two”) was sitting with his back towards the bar.
Patron one was boisterous and very loud. He showed aggressive behavior when he slammed his hand on the table spilling the drinks. A waitress came over to patron one and he said “I’m drunk” and the waitress replied “I know you’re drunk”. She continued to serve patrons at the table but he could not tell if patron one was served. The waitress made no move to remove patron one.
Patron one was asked to pay his bill and leave after they advised staff about his state of intoxication. Patron one had difficulty entering his pin number when he attempted to pay his bill.
Patron two was sitting in a chair and was asleep. He spoke to patron two with York Regional Police Constable Grigsby. Patron two told them that he was drunk but he did not recall the exact words used by patron two. Patron two had watery eyes and could barely keep them open. He had poor balance. He had difficulty keeping his balance while standing. He had poor motor skills, there was an odour of an alcoholic beverage on his breath and he had difficulty speaking clearly. He left the premises with his brother.
He spoke to the manager of the Sharks Club & Grill, Mr. Salvatore (Sal) Scavuzzo. Mr. Scavuzzo told him the business was owned by his father. He pointed the two intoxicated patrons out to Mr. Scavuzzo.
The police officers from the York Regional Police Service laid charges against the Licensee. He believes the Licensee pled guilty to an intoxicated patron and the rest of the charges were withdrawn.
On cross-examination he stated he had been an Inspector for less than six months at the time of the incident.
He has Smart Serve training. He has some medical training. He has lots of experience dealing with intoxicated persons. He has worked in casinos. He also worked as an Auxiliary OPP Officer on RIDE programs.
He did not try to obtain breath tests or do any physical tests on patron one or patron two.
They arrived at the premises at 1:30 a.m. and left at 3:00 a.m. He talked to the manager for about 5 minutes in total.
The patio had lighting but it was not bright.
He did not ask patron one how much he had to drink. Patron two stated he had “7 vodkas and seven” to drink.
Patron one resisted leaving and two police officers arrived and spoke to him. He left in a cab.
Mr. Taylor then attempted to submit an affidavit from patron two. Mr. Kulis stated that the Licensee had already pled guilty to one drunken patron and the matter cannot be retried. He wished to know which of the two allegations of drunken patrons the Licensee was disputing.
Mr. Taylor stated that 18 charges were laid and that a decision was made in the interest of expediency to plead guilty to one intoxicated person on a non-specific basis. The trial would have taken two days. The Licensee was busy and Mr. Taylor has a busy practise.
Mr. Kulis replied that expediency is no excuse. It was the Licensee`s mistake not to clarify whether patron one or patron two was the intoxicated individual to which they pled guilty.
Mr. Taylor stated he would not have dealt with the quasi-criminal proceeding if he had known he was going to be “hung” at this hearing.
Mr. Kulis replied that the Licensee had a choice to delay the other matter but decided to plead to permitting drunkenness in a licensed premise. As a result, the question of there being at least one drunk has already been decided.
Mr. Taylor stated there was no specificity as to which patron was drunk.
Both Mr. Taylor and Mr. Kulis agreed to proceed with the hearing and to leave the argument for submissions.
Mr. Taylor then submitted the affidavit of Alexandro Saccoccia (patron two), dated June 22, 2009 which was entered as Exhibit #1. In the affidavit Mr. Saccoccia stated he worked from 9:15 a.m. until 8:00 p.m. and he was very tired that night. He stated he only had two double vodka and seven-ups and was not intoxicated.
In reply Inspector Hesch stated he did not perform tests on patron one or patron two because his observations indicated that both patrons were intoxicated.
Mr. Taylor requested that witnesses be excluded and the Board excluded witnesses on consent.
Carla Noseworthy was an Inspector with the AGCO from March 2008 until April 2009. She had made notes shortly after the incident and the Board allowed her to refer to them to refresh her memory, with the consent of the Licensee.
She attended the Sharks Club & Grill on September 5, 2008.
She saw a male who was very loud and was wearing shorts and a tank top. He was sent home in a cab by York Regional Police Officers.
She saw a second male who was sleeping. Inspector Hesch dealt with that male.
On cross-examination she stated she had been an Inspector for just under six months when she attended the Sharks Club & Grill.
Trevor Joseph has been an AGCO Inspector since July 1993. Inspector Joseph had made notes shortly after the incident and the Board allowed him to refer to them to refresh his memory, with the consent of the Licensee.
He attended the Sharks Club & Grill on September 5, 2008 with Inspectors Hesch and Noseworthy. He was accompanied by three York Regional Police Officers whose badge numbers were 1477, 1779 and 1837. He did not know the names of the police officers.
He spoke with Mr. Salvatore (Sal) Scavuzzo who was the Licensee of record.
He dealt with two patrons. Patron one had loud slurred speech and poor motor skills. He had difficulty putting a bottle of beer to his mouth. He was unsteady on his feet and was very confrontational. He had glossy bloodshot eyes. He took another individual’s bottle of beer after he was cut off by staff. The waitress took the bottle from him.
Patron two was on the patio. He was passed out. He had difficulty keeping his eyes open when he woke up.
He went inside the bar while Inspector Hesch watched the two patrons.
The Licensee was told about the two intoxicated patrons. The police officers from the York Regional Police Service issued the Licensee with tickets. He went to provincial court when the matters were heard but did not recall the disposition.
On cross-examination he stated he did not know what patron one had to drink. Patron one was drinking a glass of beer when he saw him but he did not know the brand or size of glass.
He did not deal with patron two.
He did not perform any sobriety tests on patron one.
On reply he stated he did not perform any sobriety tests on patron one as his job is to observe and he has no expertise in testing.
Licensee’s Evidence
Sal Scavuzzo has been Smart Serve trained for five years. He has been in the hospitality business since he was 18 and he is now 42 years of age.
His father is the principal owner. It is a father and son operation but he runs it. They started the business in 1989 and in 1992 they changed the name to the Sharks Club & Grill.
It is a family operation. His sister works there part-time and her son also works there.
They are open seven days a week and a family member is always on duty. The family member is there to observe.
All staff must be Smart Serve trained. Their policy is to follow Smart Serve. They do not serve intoxicated persons. They have a capacity of 174 persons inside and 24 persons outside.
The day in question was his birthday. He stated he was “relatively sober”.
Patron one arrived around 8:00 p.m. and he had four bottles of Labatt’s Blue beer and a shot of Remy Martin. Patron one was loud but was not intoxicated. He showed no signs of intoxication.
Patron two arrived between 10:00 p.m. and 10:30 p.m. He saw patron two order two drinks while he was there.
He reviewed Exhibit #1 and agreed with the statement of patron two.
He did not look at patron two when he was on the patio and did not know if he was sleeping.
He went to court on June 5, 2009 regarding the night in question. The police laid 18 charges. He pled guilty to one count of permitting intoxication and was fined $500. He pled guilty to end the matter and did not feel that they did anything wrong.
On cross-examination he stated September 5 was his birthday and he had a couple of beers and a shot that patron one bought him.
He started work at 11:00 a.m. that day. He had a beer at 11:00 p.m., and a beer and a shot at 12:30 a.m.
He has receipts for every purchase at the Sharks Club & Grill. He did not bring the receipts for the night in question. He admitted they could have clarified the amount of alcohol served to patrons one and two.
He had counsel with him when he pled guilty in court.
On reply he stated the Sharks Club & Grill has never been charged with serving drunks prior to this incident.
Registrar’s Submissions
The Board should make a finding that the Licensee permitted drunkenness with respect to two patrons.
Inspectors Hesch and Joseph spoke of the condition of patron one. The patron was loud and drew attention to himself so the Licensee would have been aware of him. Inspector Hesch said he slammed his fist on the table and told the waitress he was drunk. He exhibited poor motor skills. Inspector Joseph testified to his slurred speech, unsteadiness on his feet and that he had glossy bloodshot eyes.
Patron two was passed out and when he woke up he had difficulty keeping his eyes open. Patron two stated he was drunk.
Patron two stated in his affidavit that he consumed two doubles. He could have consumed alcohol elsewhere before arriving at the Sharks Club & Grill. The issue is intoxication and not consumption.
Little weight should be applied to by the Board to the affidavit as patron two did not testify and was not subject to cross-examination.
The Licensee ought to have known that patron two was intoxicated due to the amount of time he spent on the premises and the fact that he had passed out.
The admission of a conviction for permitting drunkenness is important. Mr. Kulis referred the Board to the case of Rasanen v. Rosemount Industries Ltd. This Ontario Court of Appeal case involved an allegation of constructive dismissal that was pursued through a claim under the Employment Standards Act and also via a civil process. The court stated, “at its simplest, issue estoppel is intended to preclude a relitigation of issues that have been determined in a prior proceeding”.
Mr. Kulis also referred to Franco v. White. This Ontario Court of Appeal case involved a civil case which followed on the heels of a criminal trial in which the court stated that “one cannot ignore the prior determination”. Mr. Kulis stated the Licensee admitted guilt in relation to one intoxicated person in a court of competent jurisdiction and the Board can make a finding on that fact.
The Licensee stated that he was “relatively sober” on the night of the incident. Also the Licensee failed to bring the evening’s receipts to clarify the amounts consumed.
Licensee’s Submissions
The real issue is whether there were one or more intoxicated patrons.
Intoxication is a real concern in a licensed premise as bad things such as disturbances and impaired driving can emanate from it. In this case, there were no harmful consequences even if there was intoxication.
Intoxication is not an exact science but is a matter of opinion.
The Board heard from a number of witnesses with a varying degree of experience. Mr. Scavuzzo was the most experienced person and has been in the hospitality business for 24 years. He has never been charged with a similar offence. He was the only witness who observed patrons one and two from beginning to end. He saw them arrive and he saw them leave.
Mr. Scavuzzo was very credible. He even admitted to drinking on his birthday. He was very precise on all details.
Patron one came into the bar after 8:00 p.m. He consumed four bottles of Labatt’s Blue beer and one shot. Mr. Scavuzzo talked to him a number of times. He was loud and obnoxious but was not intoxicated. He did not drink enough to become intoxicated.
Patron two came into the bar at 10:00 p.m. He was tired. He had worked a long day. There is a sworn affidavit from him that he only had two drinks and was not intoxicated. Mr. Scavuzzo also watched patron two.
It should be noted that if one is suddenly awoken, as was patron two, that this may cause one to display signs of intoxication.
Inspector Hesch must have misunderstood patron two when he said he had 7 vodka and sevens to drink.
This is not a regular bar. There is always a family member on the premises to observe and to ensure compliance with the law.
One needs to remember the presumption of innocence embodied in the Charter of Rights and Freedom. The Registrar has not met the burden of proof in this case.
A suspension will have a grievous economic impact on the family and the staff.
Three inspectors and at least three more police officers went to the premises. They went on Mr. Scavuzzo’s birthday. They laid 18 charges and “aimed in all directions”. They aimed wide and landed short as they only got one conviction. The Board should take a harsh view of the overcharging that took place.
Mr. Taylor pointed to the three essential requirements of estoppel which are listed in Rasanen v. Rosemount Industries Ltd. They are (1) that the same question has been decided, (2) that the judicial decision which is said to create the estoppel was final and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel was raised.
Mr. Taylor stated this was not a relitigation as there was no adversarial process in court.
Franco v. White involved a finding of guilt after a full trial. The Licensee pled guilty and no trial was involved, so there is no similarity.
Mr. Taylor pointed to the case of Tilden Rent-A-Car Co. v. Clendenning. Mr. Taylor argued that the case is a parallel and that one is not hamstrung by a capitulation to a court.
The Licensee would have never pled guilty if he knew he would be hamstrung by the decision.
There is a real possibility of two tribunals considering the same issue and coming to two different decisions. The Board will be forced to find that there was only one intoxicated patron if they follow Mr. Kulis’ logic.
There were no intoxicated patrons on the premises and the Board should make that finding.
Registrar’s Reply
The Court of Appeal recognizes estoppel to try and prevent one forum from being used against another.
The three tests listed in Rasanen v. Rosemount Industries Ltd. were met. The Licensee pled guilty and that is prima facie evidence.
The Board does not have to rely solely on the conviction. There is substantial evidence to prove the case.
Any allegation of overcharging is a red herring. Two allegations before this Board were admitted by the Licensee at this hearing.
There is nothing in Tilden Rent-A-Car Co. v. Clendenning that deals with estoppel. The case is about the need to point out onerous conditions in a contract and the word estoppel is not even mentioned in the decision.
The Board should find that there were two intoxicated persons on the premises.
Analysis/Reasons/Findings
The Board has carefully considered all the evidence and the submissions presented.
The Licensee admitted that fruit flies were found in a bottle of Glenlivet Scotch and a bottle of Cragganmore Scotch contrary to subsection 19(1) of the O.Reg when AGCO inspectors and York Regional Police Officers conducted a liquor licence inspection on September 5, 2008 at 1:31 a.m.
The Licensee also admitted that AGCO Inspectors found a Remy Martin bottle in the bar containing grenadine syrup contrary to subsection 31.1(1) of the O.Reg when AGCO inspectors and York Regional Police Officers conducted a liquor licence inspection on September 5, 2008 at 1:31 a.m.
Counsel for the Registrar requested that the allegations of violations of subsection 34(1) of the O.Reg and of section 39 of the O.Reg be withdrawn. The Board consents to the request.
The only allegation remaining concerns an alleged violation of subsection 45(1) of the O.Reg which reads as follows:
“The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”
There was no evidence of any gambling and very limited evidence of any riotous, quarrelsome, violent or disorderly conduct where patron one was reluctant to leave and police had to intervene. The question for the Board in this matter is whether the Licensee permitted drunkenness.
It seems clear from all the evidence that both patron one and patron two were intoxicated. Inspector Noseworthy had very limited involvement but both Inspector Joseph and Inspector Hesch gave considerable evidence of the signs of intoxication exhibited by both patrons. Inspector Joseph is an experienced inspector while Inspector Hesch has had considerable experience in dealing with intoxicated persons.
Patron one was described by Inspector Hesch as boisterous and exhibiting aggressive behaviour. He slammed his fist on a table spilling drinks. He told the waitress that he was drunk and she agreed with him. He had difficulty entering his pin number when he tried to pay his bill. He resisted leaving and did not do so until police intervened.
Inspector Joseph noted that patron one had loud slurred speech and poor motor skills. He had difficulty putting a bottle of beer to his mouth. He was unsteady on his feet and was confrontational. He had glossy bloodshot eyes. He tried to take another individual’s beer when he was refused service by staff.
Inspector Hesch first noticed patron two who was asleep and sitting in a chair. When awoken, he stated he was drunk and had consumed 7 vodka and seven-ups. His eyes were watery and he could barely keep them open. He had difficulty keeping his balance while standing. He had poor motor skills, an odour of an alcoholic beverage and had difficulty speaking clearly. Inspectors Joseph and Noseworthy did not deal with patron two but both observed him sleeping on the patio. Inspector Joseph also noticed he had difficulty keeping his eyes open when he was awake.
The Licensee submitted the affidavit of patron two. The Board did not put a great deal of weight on the affidavit as the person who signed the affidavit was not present at the hearing, and was not subject to cross-examination. The Board finds the testimony of the inspectors, who were at the hearing and subject to cross-examination, to be more reliable.
The Licensee only called one witness, Mr. Scavuzzo. Mr. Scavuzzo has a self-interest in the outcome of this matter.
Mr. Scavuzzo testified that both patrons one and two were not intoxicated. However, Mr. Scavuzzo candidly admitted he was celebrating his birthday and was, in his words, “relatively sober”. The Board finds that his observations and his recollection of the events not that reliable, and certainly less reliable than that of the Inspectors.
Finally, the waitress who dealt with patron one did not testify and no explanation was given as to why she did not testify.
The evidence of the Inspectors was clear and consistent. The Inspectors had no self-interest in the outcome of the inspection. The Board prefers the evidence of the Inspectors over the evidence from the Licensee.
The Board must consider whether the Licensee knew or ought to have known that patron one and patron two were intoxicated. It seems clear from all the evidence that this was in fact the case.
Both patrons were on the premises for a considerable amount of time. Mr. Scavuzzo testified that patron one arrived around 8:00 p.m. and patron two arrived between 10:00 p.m. and 10:30 p.m.
Patron one was described as loud and boisterous. He was observed to slam his fist on a table spilling drinks. Of particular significance was the fact that he was overheard telling a waitress that he was drunk and she replied, “I know you’re drunk”. Mr. Scavuzzo also testified that patron one bought him a shot at 12:30 a.m. There is no doubt that there was considerable interaction with staff.
Patron two was observed by all three Inspectors to be asleep on the patio. It seems inconceivable that staff would have not made the same observation. Mr. Scavuzzo also observed him on two occasions when he went to the bar to order drinks. It should be noted he was at the premises for at least three hours. There would have been considerable interaction with staff.
Finally, the Board did not find it necessary to consider the arguments surrounding the fact that the Licensee had previously pled guilty to having one intoxicated patron on the premises. It was clear to the Board from all the other evidence that there were two drunken patrons in the premises and that the Licensee permitted drunkenness by allowing them to remain on the premises.
Conclusion
Therefore, for the reasons given, the Board FINDS the Licensee violated subsections 19(1), 31.1(1) and 45(1) of the O.Reg and the Board CONSENTS to the Registrar’s request to withdraw the alleged violation of subsection 34(1) of the O.Reg and the alleged violation of section 39 of the O.Reg.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his 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 his 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 30th DAY OF JULY, 2009.
KIRSTI HUNT, BOARD MEMBER BRUCE MILLER, BOARD MEMBER