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-
719151 Ontario Limited O/A Ulster Arms Tavern
Licensee
DECISION ON FINDINGS
Panel: Allan Higdon, Board Member Alex McCauley, Board Member
Decision Date: July 16, 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
719151 Ontario Limited, Licensee ) Giuseppe Lodato, on behalf of the corporate licensee
Allegations
- A hearing into a Notice of Proposal (“NOP”) number 17100 dated March 6, 2009, to suspend liquor licence number 91719 (the “Licence”) issued to 719151 Ontario Limited (the “Licensee”) operating as ULSTER ARMS TAVERN, 1345 Gerrard Street, Toronto, Ontario, M4L 1Y8 (the “establishment” or “premises”), on the basis of alleged violations of section 29 and subsections 45(1) and 45(2) of the Liquor Licence Act (“LLA”) and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on May 26, 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, and section 29 and subsection 45(2) of the LLA. Reasons follow.
Preliminary Matters
The principal of the corporate licensee, Giuseppe Lodato, appeared without counsel. After being informed of his right to counsel he waived that right and chose to appear on behalf of the Licensee without other representation.
Mr. Kulis advised the Board that the Registrar wished to withdraw the allegation of a violation of subsection 45(1) of the LLA. The Board accepted the withdrawal.
A motion to exclude witnesses was put forward and, after discussion, agreed to by both parties.
Registrar’s Evidence
Neline Fernando has been an Inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”) since January 2007.
The Inspector visited the Ulster Arms Tavern on January 10, 2009, accompanied by Inspector Leadbetter, to investigate a complaint regarding service to minors.
A sign on the front door stated “No one under 18 allowed”. The inspectors entered via the front door.
Once inside, the witness observed two youthful looking females who appeared to be drinking Coke from clear glasses on the bar. The inspectors approached the two women, presented their I.D., and asked the patrons for their identification.
One woman presented a Birth Certificate showing her to be 22 years of age. The other had no I.D. but stated she was 22.
The inspectors asked the patrons what they were drinking. One said “Coke and Bacardi.”
The inspectors approached the bartender, presented their I.D., and asked if he knew the age of the female patrons. He said 22 or 23 years old.
The bartender was told one of the women did not have I.D. and he should always check the I.D. of those who appears to be underage.
The bartender pointed out the owner, Giuseppe Lodato, and Inspector Leadbetter went over to talk to him.
Inspector Fernando meanwhile noted a female on the dance floor who was staggering and stumbling with glazed and bloodshot eyes. The woman was dancing with two other people. She was laughing hysterically and crying. The woman went over to the bar and ordered two vodka and orange.
The woman was obviously very emotional and spoke with slurred speech. The bartender filled her drink order.
The female left the bar and went to the washroom. The Inspector followed her to the washroom area and the woman left a minute later.
The Inspector went to meet Inspector Leadbetter who was talking to the owner. He invited her to look around.
The witness pointed out the intoxicated woman to the owner and he immediately became irate and started yelling. The inspectors tried to calm him down. He yelled, “How many years experience do you have? How many?” The owner kept yelling and would not calm down. He pointed his finger in the face of both inspectors.
The inspectors left the owner and went to speak to the bartender. The owner told the bartender (his son), “Don’t talk to her”. He said to the inspectors, “Get out, get out of here,” and ordered his son to leave the bar area.
The owner grabbed the left arm at the bicep of Inspector Fernando. She told him to let go and had to pull her arm away.
The owner went behind the bar, pulled down his liquor licence, and threw it at the inspectors.
The inspectors felt threatened and Inspector Leadbetter called the Toronto police.
While waiting for the police, the witness spoke to the intoxicated female once she was outside the premises. She presented her I.D. and said she had drunk 10-12 vodka and orange at the Ulster Arms.
The inspectors told the woman she was not allowed back inside while intoxicated. The woman was crying and very emotional. The inspectors spoke to her for about 5 minutes.
The Toronto Police arrived. Inspector Fernando described the assault and was asked if she wished to press charges. She declined to do so.
The two inspectors then re-entered the premises accompanied by the police.
The inspectors reviewed the infractions with the owner and left the premises at 1:56 a.m.
On cross-examination the witness stated no minors were found on the premises.
The witness stated she did not see the woman who appeared to be intoxicated pick up the two drinks she ordered at the bar.
The witness stated the owner ripped down his liquor licence and it landed on her chest.
The witness said that approximately six people were present at the bar when she was grabbed by the owner.
On reply, the witness testified the owner grabbed her left bicep. She had to physically pull herself away. The owner was very irate and angry.
John Powrie has been a member of the Toronto Police Services for eight months.
He was a member of the Primary Response Unit at 55 Division that answered a radio call at 1:40 a.m. regarding an assault.
He arrived at the site of the Ulster Arms Tavern at 1:42 a.m. and met with two females who presented photo I.D. showing them to be AGCO inspectors Leadbetter and Fernando.
The witness went into the premises and contacted the owner, Giuseppe Lodato, who presented a Driver’s Licence for identification.
The owner was agitated and voluble about the actions of the inspectors. He admitted he had physical contact with one of the inspectors. He agreed to close the bar and the patrons all left at around 2:15 a.m.
There was no cross-examination.
In response to the panel the witness stated he considered the demeanour of the owner when he spoke to him as “out of control.” His actions were abrupt and he spoke in short, curt responses. The owner did admit to grabbing the Inspector’s arm.
Paul Beauparlant has been a member of the Toronto Police Services for 19 years. He is a Sergeant.
On January 10, 2009, at 1:44 a.m. he responded to a radio call regarding an assault. The complainant identified herself as an AGCO Inspector and stated she had been grabbed by the owner of the bar she was inspecting.
The witness entered the establishment and found approximately 10 patrons inside. The bartender was upset, agitated and aggressive. When the witness demanded to see the licence the bartender appeared to realize the severity of the situation.
The owner behaved in a very aggressive manner. He was verbally aggressive, using profanity. He stated he did not want the police or AGCO in his establishment as he had done nothing wrong. He was angry he was being investigated.
The officer joined the inspectors as they continued their investigation. The complainant declined to press charges.
The witness cleared the premises at 2:08 a.m.
On cross-examination the witness confirmed the owner used profanity in addressing the inspectors, saying “fuck” numerous times and “asshole” frequently.
Jade Leadbetter has been an inspector with the AGCO since June 2004.
On January 10, 2009 she conducted an inspection of the Ulster Arms Tavern with Inspector Fernando in response to a complaint regarding the service of minors.
The witness entered the tavern at 1:23 a.m. and observed several youthful patrons exiting the premises.
The witness observed two youthful looking females at the bar drinking a dark liquid that appeared to be rum and coke.
The inspectors approached the two women and asked for I.D. One had no identification but stated she was 22 years of age.
The woman with no I.D. said she was not asked for identification. She knew the bartender as he was dating her sister.
The Inspector identified herself to the bartender, Mark Lodato, who is a son of the owner. He confirmed that he knew the woman and thought her to be 22-23 years old.
The witness reminded the bartender of the importance of asking youthful looking patrons for their identification.
The witness asked to speak to the owner and Mark pointed to his father.
The witness went to Mr. Lodato and identified herself. The man vehemently denied that he served minors and told her to come by any time and look around.
The witness made observations around the bar area and observed a youthful looking female enter the premises with a male and go to the bar. The female ordered a vodka and cranberry juice.
The bartender appeared very nervous and in a hesitating voice asked for her I.D. The woman appeared shocked at this request and said, “I don’t have any I.D.”
The bartender did not serve her and refused to even serve her a pop.
Inspector Fernando approached and said she had observed a female with signs of intoxication. The witness had seen this woman dancing in a very sexually provocative way with a male.
The Inspector saw the woman go to the bar and order two vodka and orange. The woman had droopy eyes and spoke with slurred speech.
The bartender appeared uncertain. The woman said, “Why are you hesitating? It’s me.”
The bartender poured the drinks at the bar. The female staggered off to the washroom, followed by Inspector Fernando.
The Licensee approached the witness. He seemed very upset by the inspection. He said he had been in the business for 30 years and invited her to look around.
Inspector Fernando returned from the washroom and advised the witness of the intoxicated female.
The Licensee became irate and started yelling at both inspectors.
The witness advised the Licensee to calm down. He refused and told Inspector Fernando to get out of his establishment. He yelled, “Bye, bye” very loudly and stormed away.
The Licensee returned and got physically close to the inspectors and began pointing his finger in their faces and yelling, “How many years experience do you have? How many?”
The inspectors felt very threatened by the owner’s physical proximity. He would not calm down despite repeated requests. He shouted at Inspector Fernando and told her to get out of the bar.
The Licensee grabbed Inspector Fernando by the left bicep. She told him to let her go. He went behind the bar, ripped his liquor permit off the wall, and threw it at her.
Inspector Fernando ripped her arm out of his grasp. As the patrons appeared to be getting involved the witness called the police. They arrived at the scene at 1:46 a.m. and left at 1:56 a.m.
On cross-examination the witness stated the liquor licence was thrown at the inspectors.
The witness said the intoxicated woman carried two glasses of beer and was working to get other patrons involved in the altercation between the owner and Inspector Fernando.
The witness stated the sexually suggestive dancing was significant in that it showed a lack of inhibition often indicative of intoxication.
Licensee’s Evidence
James Taylor is a patron of the Ulster Arms Tavern and was in the establishment on the night of January 10, 2009. He had arrived at approximately 11:30 p.m.
The witness noticed two people who entered the bar around 1:00 a.m. and went to the service area. The witness was sitting close by.
The witness heard one of the women say they had reports of underage drinking at the establishment. The owner was at the back and he came to talk to the women, who turned out to be AGCO inspectors.
The inspectors told the owner they could close him down for serving minors. They asked for and received his Licence.
A woman was dancing to music from the jukebox while her boyfriend was playing pool. The woman went to get drinks. She did not have I.D. as she was a regular patron.
The woman went up to the bar and carried back her drinks. She did not appear intoxicated.
The witness saw a conversation happen between the owner and the inspectors after which the police were called. That was all he saw.
On cross-examination the witness stated the inspectors went up to the bar and stayed there. One Inspector spoke to a young woman.
The owner handed over his liquor licence. It fell on the floor and he handed it back to them.
Most of the conversation was between the owner and Inspector Fernando.
The witness stated he has been a patron of the Ulster Arms for two years. The owner asked him to come to the hearing.
On reply, the witness said he noticed only one woman patron in the bar.
In response to the panel, the witness stated the owner was upset after he was told he could be closed down for serving minors
The owner did touch one of the inspectors.
Giuseppe Lodato is the Licensee and 50% owner of the Ulster Arms Tavern.
The witness was at the premises on the night of January 10, 2009. Business was slow with about six patrons present. There was no music.
At approximately 1:20 a.m. two inspectors came in, identified themselves, and said they had received reports of minors being served on the premises.
Inspector Leadbetter observed two female patrons, one drinking rum and coke, the other drinking vodka and orange. The Inspector asked the rum and coke patron for I.D. The patron said she had none.
The Inspector said the woman looked to be 17 years of age. The owner said she was 22 or 23 years old.
The Inspector got very upset and said, “We will close you down.”
Inspector Leadbetter went to the bar and joined Inspector Fernando. They talked to the witness’ son, the bartender, and told him, “You are serving minors.”
The son replied that he knew the woman. She was his girlfriend’s sister.
The witness became very agitated and upset. He asked the inspectors to leave his son alone and talk to him but they ignored him.
The witness touched Inspector Fernando at the bicep to get her attention. That was a mistake and he apologized.
Inspector Leadbetter appeared very happy and said, “That’s assault. We can charge you.” She called the police.
The witness went behind the bar and threw the liquor licence on the bar. The inspectors claimed he hit them with the licence.
The inspectors were upset they could not charge him with serving minors so they tried to get him for serving an intoxicated patron.
The woman was not intoxicated. He has more experience than the inspectors to know. The woman who ordered drinks, went to the washroom and carried two highball glasses from the bar to her table without spilling.
The police came. The inspectors asked the witness to calm down and stop yelling and screaming. It is true he was agitated.
The police did not lay any charges for drunkenness.
On cross-examination the witness said his son still helps out at the bar.
The witness did not agree that he was swearing. He does not use the “f” word when sober, only when he is drunk. He cannot drink as he is a diabetic and takes three insulin injections a day.
The witness stated he thinks Inspector Leadbetter came to his premises with the intention of malice. She wanted to close him down.
The witness said he had never dealt with either Inspector before this incident.
The witness said he was particularly concerned because police had shown up in his premises every week for the preceding three weeks in search of minors. They found nothing.
Registrar’s Submissions
Registrar's Counsel first addressed the allegation of a breach of subsection 45 (2) of the Liquor Licence Act in that the licence holder failed to facilitate an inspection relevant to the licence.
On January 10, 2009, inspectors visited the premises following a complaint of service to minors. This inspection followed three prior police inspections and the Licensee had probably had enough and “lost it”.
The evidence of the inspectors was clear and precise. The Licensee grabbed Inspector Fernando by the arm at the bicep. She had to forcibly extract her arm from his grip.
The Licensee continually yelled, berated, and insulted the inspectors. He caused a scene which made any continuation of an inspection difficult.
The independent testimony of Sergeant Paul Beauparlant provided corroboration of the inspectors’ testimony. He described the Licensee as being agitated and aggressive towards the police and inspectors. The Licensee was profane, “pissed off,” and did not want police or inspectors in his establishment.
The Licensee used the “f” word many times to the police. The Sergeant stated Const. Powrie told him the Licensee admitted he had grabbed the arm of the Inspector.
The inspectors felt threatened by the Licensee to the extent that they left the premises, called police, and did not re-enter until they had a police escort.
The evidence clearly justifies a finding of failure to facilitate an inspection.
The same evidence applies to a finding of a breach of subsection 45(1) of Ontario Regulation 719/90 in that the licence holder permitted quarrelsome conduct to occur on the licensed premises.
In addition, the license holder permitted drunkenness. Inspector Fernando testified about a female who was observed drawing attention to herself with very suggestive, sexual dancing. The woman was staggering, had bloodshot, droopy, glazed eyes and was excessively emotional, at times laughing and then crying. She also exhibited slurred speech.
The evidence of the Inspector was credible and consistent at all times.
Based on the above, the Licensee is in breach of subsection 45(1) of the O.Reg.
The remaining allegation is a breach of section 29 of the LLA in that liquor was sold or supplied to a person who was or appeared to be intoxicated.
The evidence of Inspector Leadbetter was that the intoxicated woman went up to the bar. She had droopy eyes and slurred speech when she ordered two vodka/orange. The bartender served the woman and placed the drinks on the bar. The woman went to the washroom, returned, and took the drinks to her table.
The evidence of the Inspector was clear, cogent, strong and credible.
The Registrar therefore asks for a finding of a breach of section 29 of the LLA.
Licensee’s Submissions
Inspector Leadbetter came to the premises with the intention of malice. She was looking to find minors.
The two inspectors asked a woman for identification who was 22, not 17. They are obviously not good judges of minors.
Inspector Leadbetter got very upset when told the young looking woman was 22 or 23. She stated, “We will close you down.”
The Licensee grabbed Inspector Fernando by the arm merely to get her attention. She did not have to forcibly remove her arm from his grip.
Police laid no charges resulting from the incident – neither drunkenness nor assault.
The inspectors stated a woman was drunk. How is that possible when she took two drinks from the bar to her table without spilling any liquor?
The Licensee did not obstruct the inspection. The Licensee did not hit the inspectors.
The Licensee did not use profane language with the police. The Licensee has been in the liquor business for forty years and never has had any problems. This is the first time there has been any difficulty.
There was no reply submission.
Reasons and Analysis
The Licensee is alleged to have contravened subsection 45(1) of the O.Reg in that he permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the premises.
The evidence of both inspectors regarding an intoxicated woman on the premises is clear and compelling. Inspector Fernando described the woman as staggering, stumbling, with bloodshot, glazed eyes. She was excessively emotional, sometimes laughing or crying hysterically.
Inspector Leadbetter heard the woman order drinks and noted her slurred speech and droopy eyes.
Evidence from a patron and the Licensee was that the woman ordered drinks at the bar and carried them back to her table without spilling any of the contents.
The Board finds the testimony of the inspectors more credible than the patron and Licensee. The inspectors are disinterested parties and they provided a very detailed and complete description of the woman’s intoxicated state and behaviour. The fact that the female patron was able to carry drinks back to her table does not preclude her being intoxicated. The Board finds based on the inspectors’ observations that this woman was drunk. Given the woman’s open state of intoxication the Licensee knew or ought to have that she was drunk, yet she was served additional alcohol drinks.
Based on the detailed evidence provided by the inspectors, the Board FINDS that the Licensee was in breach of subsection 45(1) of the O.Reg.
Registrar's Counsel alleges the Licensee was in breach of section 29 of the LLA in that liquor was permitted to be sold or supplied to a person who appeared to be intoxicated.
The Board has found that a woman on the premises was intoxicated. The inspectors, patron and Licensee all testified that the woman ordered drinks, was served, and returned to her table.
Inspector Leadbetter testified that the female patron had slurred speech and droopy eyes at the time she was ordering her two vodka and orange. Clearly, at the time the bartender supplied the liquor to the woman, she was or appeared to be intoxicated. The Licensee, through its staff, knew or ought to have known this.
Based on the evidence above, the Board FINDS that the Licensee was in breach of section 29 of the LLA.
The remaining allegation is that contrary to subsection 45(2) of the LLA the licence holder failed to facilitate an inspection relevant to the licence.
The evidence for this allegation is compelling. Both inspectors testified to the aggressive, abusive behaviour of the Licensee. Inspector Fernando stated she was grabbed at the arm by the Licensee. The Licensee acknowledged in his testimony that he “touched her at the bicep to get her attention”.
The inspectors were sufficiently intimidated by the threatening nature of the Licensee that they called the police, left the premises, and did not return until they had a police escort.
The testimony of the inspectors was corroborated by Sergeant Beauparlant who stated the Licensee was verbally aggressive, used frequent profanity, and stated he did not want the police or AGCO inspectors in his establishment.
The evidence clearly indicates the Licensee went well beyond failing to facilitate an inspection – he actively opposed it using verbal and physically aggressive behaviour.
Based on the evidence above, the Board FINDS the Licensee was in breach of subsection 45 (2) of the Liquor Licence Act.
Conclusion
For the reasons given, The Board FINDS that the Licensee was in contravention of subsection 45(1) of the O.Reg, and section 29 and subsection 45 (2) of the LLA.
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 16th DAY OF JULY, 2009
ALLAN HIGDON, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER