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-
1343737 Ontario Ltd. O/A Fiddleheads
Licensee
DECISION ON FINDINGS
Panel: Allan Higdon, Board Member Alex McCauley, Board Member
Decision Date: September 23, 2009
Hearing Location: Ottawa, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 ) Joyce Taylor, Representative 1343737 Ontario Ltd., Licensee ) Richard Knott, Representative
Allegations
- A hearing into Notice of Proposal number 16881 dated November 28, 2008, to suspend liquor licence number 807147 (the “Licence”), of 1343737 Ontario Ltd. (the “Licensee”), operating as FIDDLEHEADS, 53 Herriott Street, Perth, Ontario, K7H 1T5 (the “premises” or “establishment”) on the basis of alleged violations of section 29 of the Liquor Licence Act (the “LLA”) and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on July 23, 2009 in the City of Ottawa.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated section 29 of the LLA and subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
- Registrar's Counsel made a request for the exclusion of witnesses. On consent, the Board ORDERED the exclusion of all witnesses.
Registrar’s Evidence
Mark Lambert has been an inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”) since July 2006.
The witness was in attendance at the licensed premises, “Fiddleheads,” on the night of August 8, 2008, arriving at 12:15 a.m. on a regular compliance spot check.
The witness came into the premises through the main entrance on Herriott Street. No security was on duty at the door. The inspector conducted a walk through, noting about 50 patrons present.
The witness positioned himself at the round corner of a horseshoe-shaped bar in order to make observations. He noted some patrons were standing, others were sitting.
The inspector observed one of the bar staff, Kyle Sheard, walking up and down the bar talking to patrons.
One of the patrons was a female who was leaning forward in an awkward way facing Mr. Sheard. The witness noted the woman’s movements appeared lethargic, her hands were moving and she made unbalanced motions. She appeared tired but was able to converse.
Another bar staff poured the woman a full draft of beer and served it to her. She took the beer but appeared unsteady and unbalanced, rocking back and forth.
Mr. Sheard noticed the presence of the inspector. He quickly took hold of the woman’s draft beer and tried to coax it from her hand. She complied and the beer was passed to other bar staff, who placed it beneath the counter. The witness heard Mr. Sheard say to the woman, “Trust me.”
The woman motioned to the inspector. It appeared she had been told of his presence by the bartender, Mr. Sheard. The bartender then put his hand on the patron’s back to get her moving. The woman came face to face with the inspector and fell into a chair as she attempted to stagger out.
The woman went to pay her bill near the front door, accompanied by the bartender. She paid by credit card and had trouble signing the slip.
The woman was asked for identification. She stumbled as she attempted to get her purse over her shoulder and get her I.D.
Inspector Lambert spoke to the woman who stated she had had five or six drinks in a previous premises.
At this point Licensee's Counsel objected, saying the testimony was merely hearsay.
Registrar's Counsel responded that hearsay is permitted under the Statutory Powers and Procedures Act. Administrative tribunals have a different standard of evidence than court proceedings.
The panel ruled the testimony was admissible, but would be weighed accordingly.
The woman stated she had five or six Coors Light before coming to Fiddleheads. She arrived at Fiddleheads around 9:30 p.m. and drank two or three Stella Artois beer there.
The woman was described by the witness as very young looking, Caucasian, blonde, about 5’9” in height, of medium build, verging on thin.
The woman referred to Fiddleheads and stated she “had to drink here. It’s my home.”
The woman stated she had visited another premises, the Fox Bar, but had not consumed anything there. She later stated she had three beers at that bar.
The witness asked the woman if she knew why she had been asked to leave. She said, “Because I was a little bit sideways,” and started laughing.
The woman spoke with slurred speech and had a strong odour of alcohol on her breath. Her nose was bright red.
The witness attempted to speak to the bartender but the woman kept interrupting.
The witness stated to the bartender he had observed the infractions of selling and serving alcohol to an intoxicated person, and permitting drunkenness. He would be presenting this report for consideration to his supervisor for review.
The witness asked Mr. Sheard if the observations were fair and he replied, “It’s fair. It’s what happened.”
The bartender said he realized the patron was intoxicated but she was not served at Fiddleheads.
The witness exited the establishment with the woman. He noticed a police officer on the sidewalk. The female approached the police officer and shouted his name.
The woman said, “Excuse me Officer Crowe. The liquor inspector thinks I’m a bad person because I’ve had too much to drink.”
After the woman left, the witness spoke to the Officer. He asked the officer to provide a will-say of his conversation with her. The Officer agreed to do so.
The witness left the scene at 1:11 a.m. after completing his notes.
Subsequent to the event, the witness spoke to one of the owners, Patrick Moore, by telephone on August 13, 2008. It was a 14 minute conversation which began at 11:35 a.m.
Mr. Moore disputed the alleged infraction involving the intoxicated female. Her father had phoned and complained about the treatment of his daughter.
The witness told Mr. Moore of the infractions and advised him a report would be going to his supervisor.
On cross-examination the witness described his experience, educational and training background – a two year law and security course, five years as a security guard, and work with high risk youth. He has taken courses at the AGCO and has Smart Serve certification.
The witness stated that he did not announce his arrival at the premises to staff. The place was not full. There was no band but music was playing.
The witness testified he did not observe any intoxicated persons or unruly behaviour, other than the woman described. He observed her from about 15 feet away, with an unobstructed view.
The witness did not observe the bartender serving any other intoxicated patrons.
The witness acknowledged he did not see the woman order beer or consume it.
The woman was not argumentative, unruly, or boisterous. The witness stated he does not know the woman and has no knowledge of her normal behaviour.
The floor of the nightclub is level.
The woman left by herself. The witness had no concern for her safety. He was unable to recall what she was wearing.
The inspector did not question the woman as to where she had been previously drinking. She was too drunk to remember coherently.
The police officer and the woman spoke for several minutes. They were about five to six feet apart.
The woman walked away with several people. She was not driving.
On reply, the witness stated he was at times within one foot of the female.
Constable Richard Crowe has been a member of the Perth Police Service since 2000.
Officer Crowe was present in front of Fiddleheads on the night of August 8, 2008. His shift started on August 7 at 8:00 p.m. and ended the following day at 7:00 a.m.
The witness was investigating a hit and run that had taken place that night in front of the premises.
A woman called out his name but he did not recognize her. She said, “Tell them I’m not drunk. I’m going to get people in the bar in trouble. They could lose their licence because of me.” She was upset and crying.
The woman said she had been drinking, had spoken to a liquor inspector, and she felt guilty and responsible.
The woman was polite but emotional. She slurred slightly while speaking and was unsteady on her feet. The woman had clearly been drinking but she was able to take care of herself and think rationally. She was capable of providing for her own security.
The officer did not charge the woman with public drunkenness because it requires a higher level of intoxication than she exhibited.
However, the woman was clearly intoxicated. If she had attempted to drive, he would have had no hesitation in arresting her for impaired driving. As a pedestrian she did not need to be arrested for her own safety and protection.
On cross-examination, the officer stated he made notes at the request of Inspector Lambert.
The woman was very emotional and crying as she felt guilty about getting other people in trouble.
In response to a question from the panel, the officer stated the signs of intoxication exhibited by the woman included slurred speech, unsteadiness especially while walking, an odour of alcohol, and emotional behaviour inconsistent with normal sobriety.
Licensee’s Evidence
Kyle Sheard is 28 years of age and has been the bar manager at Fiddleheads for four years. Prior to that he was a bartender for six years. He is Smart Serve certified.
The duties of the witness include managing staff and dealing with the evening shift. He works from 4:00 to 5:00 p.m. until Midnight.
On the night of August 8 there were two staff on duty on the floor, two at the bar, and two at the door. After 9:00 p.m. only the front door of the premises is open. The night was fairly busy, which is normal.
Last call was made at 11:45 p.m. and the witness checked the bar area. It was at this time he became aware of the allegedly intoxicated woman. She is a former employee of the premises and a personal friend.
The witness noticed signs of over-service in the woman. Her voice was elevated and her footing was uneasy. The witness approached and took a half-full 20 oz glass of draft beer from her and gave it to the bartender.
The witness told the woman she had to leave. She stated she had to find her friend first.
It appeared someone had bought the woman a beer. It had been served but the witness took it away.
The witness asked the woman to pay for her bar tab. The inspector asked him to get the woman’s identification.
The woman did not have trouble walking and had no difficulty in getting her credit card.
The witness cut the woman off from alcohol service before the inspector had an opportunity to make his observations.
The woman paid for three Stella Artois pints and three other drinks, which may have been for friends.
The witness reiterated that the signs of over-service for the woman were an elevated voice and unsteady footing.
The witness stated measures have been taken to prevent over-service. The policy is now a maximum of five drinks per patron, an earlier closing with last call at 11:45 p.m., and more security.
On cross-examination the witness stated he had no idea who drank all the drinks on the woman’s bar bill.
The witness acknowledged that if the last beer placed in front of the woman had been bought by someone else, it was possible that additional drinks had been bought for her too.
The witness said the woman purchased six drinks herself. Others were bought for her. He had no idea when the woman entered the premises.
The witness acknowledged the bartender had sent the woman another beer after she had been cut off by him.
In response to the panel, the witness stated the five drinks per customer policy had been put in place after the incident took place at the end of the summer.
Registrar’s Submissions
The Registrar is seeking findings of a breach of subsection 45(1) of the O.Reg under the LLA in that the Licensee permitted drunkenness and contrary to section 29 of the LLA, supplied liquor to a person who appeared to be intoxicated.
The evidence is clear that a member of the bar staff supplied liquor to a woman who appeared to be intoxicated.
The bar manager cut the woman off from further service as he had concluded she showed signs of over-service. A bar staff member served her a beer without doing any assessment of her condition.
The inspector testified the woman was served and supplied with a Stella Artois beer when she was intoxicated. The bar manager admitted he removed a pint of beer from the woman only after he noticed the inspector.
The beer was removed without incident but an infraction had been committed.
The female patron had six drinks on her bar bill. It was suggested some of those drinks were purchased for others but no recipients of her hospitality were identified.
At least one pint of beer – the last one – was bought by someone else and presented to the woman.
Based on the above, the Licensee supplied liquor to a person who appeared to be intoxicated.
As to the breach of subsection 45(1) of the O.Reg, Inspector Lambert stated a woman showed clear signs of intoxication.
The observations of the inspector were corroborated by the bar manager who cut the woman off from further service.
Once outside the premises, the woman spoke to a police officer who testified the woman was “clearly impaired” when they had their conversation.
The evidence of these three individuals confirms the woman was drunk.
The Licensee “permitted” the woman to be drunk in that he knew or ought to have known that she was impaired to the level of intoxication.
The woman had been on the premises for some time before she was identified by the inspector. She told the inspector she had been there for approximately three hours. During this period she ordered at least six drinks. The inspector observed a member of the bar staff talking to the woman for at least five minutes before he intervened, yet the bar staff took no action.
Staff members should have acted to remove the woman before the inspector arrived.
Based on the above, the Licensee was in breach of subsection 45(1) of the O.Reg.
Licensee’s Submissions
The Licensee disputes the contention that a woman was drunk on the premises.
There is no doubt the woman was impaired. She had been drinking and exhibited some signs of impairment.
The bar manager never stated the woman was drunk or intoxicated; only that she was unsteady on her feet and had an elevated voice.
The allegedly intoxicated woman was not riotous, quarrelsome or violent.
Officer Crowe of the Perth Police Service stated the woman was “clearly impaired” but her state had not risen to the level of intoxication.
Evidence was given that a beer was served to the woman but it was removed by the bar manager.
The question is, “Was the woman intoxicated?”
The police officer stated the woman was emotional, but not argumentative or quarrelsome. She had a slight slur when speaking and was slightly unsteady on her feet when she walked away.
The officer concluded that she was able to take care of herself, was rational, and not a safety risk.
The woman may have been impaired but she was not intoxicated to the extent he would need to arrest her for her own safety and protection.
The evidence indicates the woman was on the premises from about 9:30 p.m. until midnight. Two or three beers in that space of time is not unreasonable for a person of reasonable build.
The bar manager erred on the side of caution when he cut the woman off. A member of the bar staff thought differently and served her. However, the beer served was removed.
Based on the above, it is clear the Licensee did not permit drunkenness and did not supply liquor to a person who appeared to be intoxicated.
Reply
The Licensee is attempting to split hairs.
It would be absurd to suggest the woman was drunk enough to have been charged with impaired driving if she had attempted to take control of a car but not drunk enough to be denied service at a licensed premises.
The distinction between impairment and intoxication is not one that should be drawn.
Analysis/Reasons/Findings
The Licensee is alleged to have breached subsection 45(1) of the O.Reg under the LLA in that he permitted drunkenness on the premises. In addition, he is alleged to have breached section 29 of the LLA in that he sold or supplied liquor to a person who was or appeared to be intoxicated.
The evidence indicates that three witnesses considered a female patron to have been impaired with noticeable signs of intoxication.
Inspector Lambert testified he had an unobstructed view of the bar area when he noticed a female leaning forward at an awkward angle while at the bar. Her movements were lethargic and she appeared unbalanced and tired.
The woman exhibited signs of intoxication in that she was unsteady, unbalanced, and was rocking back and forth on her chair.
The bar manager testified he noticed signs of over-service such as an elevated voice and unsteady footing in the woman. He cut off service and told the woman she had to leave. He tried to assist her to leave.
The woman came face to face with the inspector and fell into a chair as she attempted to exit the premises.
Upon exiting the premises the woman encountered a police officer and had a conversation with him. The officer testified the woman had clearly been drinking alcohol. She was emotional and crying, unsteady on her feet, had an odour of alcohol, and spoke with slurred speech.
The woman stated to the officer she had been drinking and felt guilty and responsible for getting other people into trouble.
The officer testified the woman was “clearly impaired.”
Based on the above testimony, the Board finds, on the balance of probabilities, the woman was intoxicated.
In his testimony, Inspector Lambert stated the intoxicated woman told him she had arrived at the licensed premises at around 9:30 p.m. By the time the inspector arrived at 12:15 a.m. the woman had been in the premises for approximately three hours.
The inspector described the woman as very young looking, medium build (on the thin side), and approximately 5’9” in height.
During the three hours on premises the woman accumulated a bar bill for six drinks. The suggestion was made that some of these drinks were bought for others. However, no evidence was presented to corroborate this suggestion. The Board finds that on a balance of probabilities these drinks were purchased for her own consumption.
In addition to the drinks the woman paid for, at least one additional drink was bought for her – the beer the inspector saw which he had been told was bought by somebody else.
Inspector Lambert testified the woman made various statements about drinking before arriving at Fiddleheads. However, the amounts suggested by her were contradictory and therefore unreliable.
A bar staff was observed by the inspector to be talking with the woman for at least five minutes prior to the inspector’s intervention. When the inspector arrived at 12:15 a.m. and began his observations the woman was exhibiting specific and recognizable signs of drunkenness, as noted in paragraphs 111 and 112 above.
As well, immediately upon exiting the premises, the woman spoke to a police officer. He assessed her signs of intoxication and concluded she was “clearly impaired.”
Therefore, based on the credible testimony of Constable Crowe, at some point before this encounter the woman became intoxicated while in the premises.
The Board therefore concludes, on the balance of probabilities, the woman became intoxicated earlier in the evening while on the premises. No action was taken by staff to remove her or cease service before that point and she was served alcohol while intoxicated.
The Licensee knew or ought to have known that the woman was drunk in the premises. The Licensee was therefore in breach of permitting drunkenness on the licensed premises.
The remaining alleged breach of section 29 of the LLA relates to whether liquor was sold or supplied to a person who was or appeared to be intoxicated.
The bar manager obviously concurred with Inspector Lambert’s assessment that the woman was intoxicated, as evidenced by his action of literally taking a beer out of her hands once he noticed the liquor inspector and escorting her to the door.
It is clear that the Licensee supplied liquor to a person who was or appeared to be intoxicated. The bar staff served the woman with yet another draft beer, notwithstanding her intoxicated state and after she had been cut off by the bar manager.
Conclusion
The Board therefore FINDS the Licensee was in breach of subsection 45(1) of the O.Reg under the LLA and also in breach of section 29 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 23rd DAY OF September , 2009
ALLAN HIGDON, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER