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-
1186540 Ontario Inc. O/A Rack & Q
Licensee
DECISION ON FINDINGS
Panel: David C. Gavsie, Chair, AGCO Eleanor Meslin, Board Member
Decision Date: September 1, 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 ) Daniel Alakas, Representative
1186540 Ontario Inc., Licensee ) Albert Smelko, Representative
Authorities
Rejeanne’s Bar and Grill Ltd. (c.o.b. Rejeanne’s Bar and Grill) v. Ontario (Alcohol and Gaming Commission, Registrar), [2009] O.J. No. 3176
Allegations
- A hearing into Notice of Proposal (“NOP”) number 17146 dated March 30, 2009, to suspend liquor licence number 803510 (the “licence”) issued to 1186540 Ontario Inc. (the “Licensee”), operating as RACK & Q, 63 – 67 Norfolk Street South, Simcoe, Ontario, N3Y 2W1 (the “premises” or the “establishment”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg 719/90”) made pursuant to the Liquor Licence Act (the “LLA”), was held on June 18 and July 31, 2009, in the City of Brantford.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of O.Reg 719/90 in respect of one patron, and DISMISSES the allegation of a violation of subsection 45(1) of O.Reg 719/90 in respect of a second patron. Reasons follow.
Preliminary Matters
At the June 18, 2009 sitting, Licensee’s Representative, Albert Smelko, requested an adjournment. His reasons were that although it appeared that matters had been resolved prior to the hearing, the owners, Jose Pereira and Jose Rodrigues had changed their position and could not come to an agreement with Alcohol and Gaming Commission of Ontario (“AGCO”) counsel. Because of this he has not given his witness list to Registrar’s Representative and was unable to locate two of his witnesses in time for this hearing.
Mr. Alakas opposed the adjournment request, indicating that his witnesses were present and the owners were the ones requesting that there be a hearing.
Mr. Smelko responded that the problem was that the partners were in disagreement about how to proceed.
The Board in its ruling denied the request for an adjournment. It indicated that the Registrar had provided a witness list and disclosure to the Licensee and had his witnesses present. The disagreement between the partners is not the concern of the Board. However, although the hearing will proceed, at the end of the Registrar’s case, if completed before day’s end, the Board will reconsider adjourning. The Board ordered the Licensee to provide the Registrar with a witness list and disclosure.
On consent, witnesses were excluded.
Registrar’s Evidence
Jay Eberley is a Constable (Const.) with the Ontario Provincial Police (OPP) who works patrol in Simcoe. On July 22, 2008 at 2:00 a.m., he heard a radio call for assistance outside of the Rack & Q regarding an altercation between two females and a male. When he arrived on scene, he was told by Const. Miron that the two females had entered the bar, so he and Const. Miron entered to investigate.
Const. Eberley was speaking with the owner, Jose Rodrigues, when he was bumped hard from behind. He testified that he also observed ”Mr. S.” to be highly intoxicated and almost unable to stand. He knew this patron had mental health problems and did not speak normally, but his speech was not his usual but slurred. He was argumentative and belligerent when approached and was arrested for being intoxicated in a public place, and escorted out to a police cruiser.
The officer observed a second male, “Mr. A.,” consuming alcohol. Const. Eberley then checked the police records and confirmed that Mr. A. was under a “no alcohol” condition and arrested him for breach of recognisance. As he was escorting Mr. A. out of the premises, a male on the sidewalk, later identified as “Mr. H.,” became very vocal over Mr. A’s arrest, screaming profanities at the police. He was cautioned for causing a disturbance, but continued his belligerent behaviour, had to be subdued and pepper-sprayed. He was then arrested by officers Eberley, Miron and Clerigo and taken into custody.
Const. Eberley described the lay-out of the premises which was separated into two areas separated by a bar. The front contained tables and bar seating, the rear had 12 pool tables and a video games area. A hall with washrooms separated the two areas. Const. Eberley testified that he observed Mr. S. near the washrooms and Mr. A. near the bar area. He did not speak to the Licensee or any staff about the arrests.
In response to Mr. Smelko’s questions, Const. Eberley said that he arrived about 30 seconds after the radio call and parked in front of the bar, where there was already one cruiser with another across the street. He was briefed by Const. Hall and entered the bar looking for the two females but could not locate them. The front area was very busy with about 15 to 20 people. He identified Mr. Rodrigues at the hearing, as the owner he had spoken to in the bar.
He indicated that he had been bumped on his right shoulder and there was an officer on his left side. Both were facing the bar. He stated the “bumper” was Mr. S. and that Mr. S. had not followed him into the bar. He did not tell Mr. Rodrigues about the bumping or about Mr. S. He had no trouble with Mr. S. after the arrest. When Mr. S. was asked where he had been drinking by an officer at the station, Mr. S. said it was at the Rack.
Regarding Mr. A., Const. Eberley told Const. Miron that he knew Mr. A. was on a condition for consuming alcohol and that when he saw Mr. A. he had a bottle of beer in his hand and later had admitted consuming. When arrested he was very cooperative.
To questions regarding Mr. H., Const. Eberley responded that he did not know if Mr. H. had been in the bar.
Regarding the Board’s questions, Const. Eberley said there were no other alcohol issues, only Mr. A.’s recognisance breach. He was not charged with intoxication, although Const. Eberley believed he was intoxicated. He also responded that he had only seen Mr. H. outside the bar.
Matthew Miron is a Constable with the OPP. On July 22, 2008 at approximately 1:50 a.m. he received another officer’s call for assistance for a disturbance outside the Rack & Q. He attended with Const. Eberley. When they arrived the crowd had dispersed so they entered the premises to investigate. Const. Eberley, while speaking to the owner, Jose Pereira, was bumped from behind, on his right shoulder, by a male who appeared to be extremely intoxicated, very unsteady on his feet, with an odor of alcohol and trouble speaking. Const. Eberley arrested him and Const. Miron escorted him outside to a police cruiser.
When he returned, Const. Eberley told him he had observed another male, Mr. A., holding a beer. Const. Eberley indicated that Mr. A. was under a court condition not to consume alcohol. Const. Eberley then advised Mr. A. that he was being arrested and both Const. Miron and Eberley escorted him to a cruiser. Const. Miron was not close enough to observe Mr. A.’s condition.
As they were taking Mr. A. outside, another male on the sidewalk became very vocal and aggressive towards the officers and they arrested him. Const. Miron had not seen this man inside the bar and had not noticed anyone following them inside when they first entered the bar.
In response to Mr. Smelko’s questions, Const. Miron indicated that he did not arrive with Const. Eberley but both entered the bar together, although Const. Eberley entered first. There was no one outside when they entered. He had seen Const. Eberley bumped on his right side. He had not spoken to Mr. Pereira after the bump.
Regarding Mr. S., he had not dealt with him before and did not see him when they arrived. He had no trouble from Mr. S. when they escorted him outside.
When he came back inside, Const. Eberley pointed to Mr. A., who was standing near the west bar, and said he had been drinking while under a “no alcohol” condition. He was not charged with intoxication.
In response to the Board’s questions, Const. Miron indicated that he did not see Mr. S. before he bumped Const. Eberley and did not know Mr. A. before he was pointed out by Const. Eberley. He only noticed Mr. H. outside the bar.
Kari DeBoer is a Constable with the OPP. She received a disturbance call before 2:00 a.m. on July 22, 2008. When she arrived Constables Eberley and Miron were exiting the bar and putting Mr. S. into a cruiser. He gave them no problem. They briefed her regarding his intoxication and Const. Eberley told her about another patron drinking while under a “no alcohol” condition. When they brought Mr. A. out he was placed in her car, without a problem and she drove him to the police station. He admitted that he had been drinking and knew he was under a no alcohol condition. He was intoxicated, but cooperative.
Responding to Mr. Smelko’s questions, Const. DeBoer indicated that she did not speak to either Const. Eberley or Const. Miron when she arrived. There were a number of people (about seven) and cruisers outside. She saw no one enter the bar after the officers.
At this point in the proceedings, Mr. Alakas requested an adjournment for personal reasons. The Board granted it and ordered the Licensee provide a witness list and disclosure to the Registrar within 10 days. The hearing was adjourned to July 31, 2009.
Licensee’s Evidence
Jose Pereira is one of the shareholders and partners of the establishment. Regarding July 22, 2008, his recollection is it was the day when police were involved in the arrest of Mr. H. Mr. H. was known to him as a patron. He arrived at about 11:00 p.m., left later and returned again at 12:30 a.m. when he had a drink and went to the back to play pool.
Mr. Pereira described the layout of the bar as fronting on Norfolk Street. The front of the bar is glass and the whole interior can be seen from the entrance. On entering there are 12 tables, a bar and TV to the left. A hall with washrooms is on the right, then an area with 12 pool tables and a bar with 10 bar stools. Past the pool tables is a gaming arcade. The back bar area is three to four times larger than the front bar area.
On that night, Mr. Pereira was working alone servicing both bars, since it was a very quiet night with one to two people up front and seven to ten people in the back.
There is a juke box located on the right side, 15 feet from the front door. Because of a wall, you cannot see from the back bar to the juke box and can only see people entering when you are standing in one area of the back bar.
Mr. Pereira stated that he did not know either Const. Eberley or Miron, but did see them at the bar. One officer saw Mr. A. and motioned for him. Mr. A. went to the officer and left, without any problem, with the officers. He did not have any trouble walking. He had served Mr. A. only one drink and Mr. A. did not show any signs of intoxication then or when he left.
Mr. Pereira reiterated that Mr. H. had come in twice that night and the second time he was at the back playing foosball and pool when Mr. A. and the officer left. When he heard Mr. A. had been arrested Mr. H. walked through the bar to the outside, since they were friends. Mr. Pereira stated that Mr. H. had one drink and showed no signs of intoxication.
When Mr. Pereira went outside to see what was happening at about 1:50 a.m., he saw three police cruisers, four male and two female officers. He asked them if he could help. Since all the patrons were now outside, he closed the bar.
Const. Eberley’s testimony that he had seen Jose Rodrigues, his partner, in the bar that night was incorrect. Mr. Pereira was the only one in the bar and did not speak to Const. Eberley. He spoke to a female officer, but not the one who testified here.
Mr. Pereira stated that he did not see Mr. S. in the bar that night, serve him or see him bump one of the officers. He knows Mr. S. from seeing him on the street. He lives at a nearby motel and drinks there. He does not drink at the Rack & Q.
Regarding Ms Johnston, she is a patron who comes in once or twice a week. She was at the bar on that evening with two friends. She lives nearby and usually has a couple of drinks but was not intoxicated.
In response to questions from Mr. Alakas, Mr. Pereira indicated that he knew Mr. S. from the street and that he lived in a motel where he usually drank. The first time Mr. Pereira saw any police officers that night was when they were taking Mr. A. outside. Mr. A. had been there for about one hour and had one drink. He did not see them arrest Mr. S. nor did they speak to him.
To the Board’s questions, Mr. Pereira indicated that the wall blocking his sight from the back bar, goes to the ceiling. He was the only person serving both bars. He noted that Mr. A. went quietly to Const. Eberley, they talked and then walked out together and Mr. A. showed no signs of intoxication. Mr. Pereira did not see Mr. S. at all. He also said that Mr. H. had come into the bar twice, once at 11:30 p.m. when he was served one drink and again at 12:30 a.m., when he had another drink. He then walked outside showing no signs of intoxication.
In redirect, when Mr. Alakas showed Mr. Pereira Exhibit 1 (the Licensee’s Disclosure Form), which indicated that he had witnessed the confrontation outside, Mr. Pereira stated that he had meant the later disturbance in which Mr. H. had been involved, not the earlier commotion. The statement was prepared by Mr. Smelko and is not correct.
Denise Annie Marie Johnston was a patron on July 22, 2008. She recalled the incident involving Mr. A., Mr. H. and Mr. S. Mr. A. and Mr. H. are friends and she knows Mr. S. from the street and seeing him in the bar on occasion. The incident involving Mr. A. and Mr. H. took place outside with about five officers involved.
Ms Johnston stated she arrived at the bar between 10:00 p.m. and 10:30 p.m. and had a few drinks with her friend. She saw both Mr. A. and Mr. H. in the bar. They were at the back playing foosball. She saw an officer pointing to Mr. A., who then went to the officer and left with him. Mr. H. followed them outside and she and the others in the bar also went out to see what was happening. She saw both Mr. A. and Mr. H. being arrested. Both did not seem intoxicated. Mr. Pereira was the only person working the bars.
Ms Johnston indicated that she knew Mr. S. from seeing him on the street, but did not see him in the bar that night. She did see him during the commotion walking down the street. He seemed to be intoxicated.
In response to Mr. Alakas, Ms Johnston stated that she had four Coors Light in the four to four and one-half hours she was in the bar. She did not know how many drinks either Mr. A. or Mr. H. had consumed, but did see them walking from the back bar area to the front.
Registrar’s Submissions
The Registrar is asking for a finding of a violation under subsection 45(1) of O.Reg 719/90, permitting drunkenness.
The evidence of the police officers was clear and detailed, while that of the Licensee lacked credibility.
Const. Eberley described the entry of himself and Const. Miron and how Const. Eberley was bumped from behind on his right shoulder. He then I.D.’d the person as Mr. S. and described him as “almost unable to stand, unsteady with slurred speech and reeking of alcohol.” Const. Eberley knew Mr. S. had some mental health problems, but said his actions showed public intoxication.
Const. Eberley related how he knew Mr. A. was under a “no alcohol” condition and escorted him outside. He also said that Mr. A. was intoxicated, unsteady on his feet and smelling of alcohol. Mr. A. told him he had consumed one beer.
Mr. Alakas advised the Board that Mr. A. was not included in the allegations under the NOP.
Const. Miron’s evidence was consistent with that of Const. Eberley regarding the bumping and Mr. S.’s intoxication.
Const. DeBoer transported Mr. A. and confirmed that he admitted drinking and was intoxicated, although very cooperative.
All three are experienced officers whose evidence is consistent and credible regarding Mr. S.’s signs of intoxication.
The fact that both Const. Eberley and Miron testified about Mr. S. bumping Const. Eberley, indicated that Mr. S. was in the bar.
The only discrepancy in the testimony of Const. Eberley was who was working that night, but both officers stated that they had not spoken to the Licensee.
The Licensee’s credibility is in question regarding the discrepancies between his written statement and his evidence at the hearing. Mr. Pereira’s evidence lacks accuracy since he cannot refute the officer’s observations regarding Mr. S.’s drunkenness, since he admits he did not go to the very back area of the bar and did not know what was going on outside.
Ms Johnston’s evidence is not relevant since she did not know how much Mr. A. had to drink and testified that she saw Mr. S. walking down the road when he’d already been arrested.
The Registrar submitted he had clearly made out the case for Mr. S. and Mr. A. being intoxicated. Regarding the term “permit”, the evidence clearly indicated that Mr. Pereira ought to have known that Mr. S. and Mr. A. were drunk, particularly because of the level of Mr. S.’s intoxication.
The bar was not busy but Mr. Pereira did not walk through at any time, as required or he would have seen Mr. S.
Regarding Mr. A., Mr. Pereira served him twice and had plenty of opportunity to assess his intoxicated condition as testified to by all three officers.
Licensee’s Submissions
Mr. Smelko submitted that of prime importance was not what happened inside the establishment, but what happened outside.
The struggle by two officers to attempt to subdue Mr. H. attracted the attention of six more officers, yet did not result in any charges of intoxication of Mr. H.
Inside two officers testified to one being bumped from behind by Mr. S. They stated that he was falling down drunk. Mr. Pereira said he did not see this, but indicated that from the back bar there was a point where he could not see the area where the officer was bumped. He also said he did not see or serve Mr. S. that night. Ms Johnston also testified that she did not see Mr. S. in the bar that night.
It is not credible that Const. Eberley and Miron were observing the entrance door in the midst of arriving to an altercation.
Perhaps Mr. S. came in when Ms Johnston and Mr. Pereira were at the back bar or he had been in the washroom before the bumping occurred.
Although Const. Eberley and Miron described Mr. S.’s condition as almost unable to stand, slurred speech and reeking of alcohol, there is no evidence that he was served by Mr. Pereira or in the establishment, except for the bumping.
Regarding Mr. A., Const. Eberley said he knew him and was beckoning to him because of a breach of a condition, not because he was intoxicated. Mr. A. left the bar with Const. Eberley, walking out with no problem and it is a tremendous stretch for Const. Eberley to conclude that Mr. A. was intoxicated. Mr. Pereira’s evidence was that he had served Mr. A. who was not intoxicated and he saw Mr. A. reacting to Const. Eberley’s call and complied with no problem.
Const. Eberley’s evidence was that he had been in the establishment a number of times and explicitly stated that he had spoken to Mr. Rodrigues, not to Mr. Pereira although Mr. Rodrigues was not there that night. He also pointed out Mr. Rodrigues at the hearing. There is no similarity in looks between the two men. This shows a lack of credibility on the part of Const. Eberley.
Mr. Pereira said he did not serve Mr. S. Regarding the term “permit”, there had to be knowledge by Mr. Pereira about Mr. S. and Mr. Pereira said Mr. S. was not there.
Const. DeBoer said the Mr. A. “had a glow”. This is not enough evidence to put aside the evidence of Mr. Pereira and Ms Johnston. Const. Eberley arrested him, not for intoxication, but for breaching a condition, which supports the evidence of Mr. Pereira.
Reply
The Mr. H. event is irrelevant, it happened after the violations of drunkenness of Mr. A. and Mr. S.
The argument regarding Mr. S. is that police did not see him when they arrived. This is irrelevant, he could have been anywhere. Mr. Pereira admitted that there was a portion of the bar from which he could not see. The bumping occurred when Mr. S. was in the bar. He was intoxicated when he bumped Const. Eberley. Therefore, he was intoxicated in the premises. On a balance of probabilities Mr. S. was in the bar, drunk and Mr. Pereira should have known it.
The criminal charge regarding Mr. A. is irrelevant to Const. Eberley’s testimony that Mr. A. was drunk.
Const. Eberley made a simple mistake in identifying Mr. Rodrigues as being in the bar.
Ms Johnston’s recollection of seeing Mr. S. walking down the road is not believable. This was after Mr. S. had been arrested.
Reasons and Analysis
The Board has carefully considered the evidence and submissions.
Const. Eberley’s testimony, corroborated by Const. Miron, was that after entering the bar he was bumped from behind by Mr. S. Although he knew that Mr. S. had some mental problems, Mr. S. was unsteady on his feet, had slurred speech and smelled of alcohol, indicating to Const. Eberley that he was intoxicated. The Board accepts this evidence as credible.
The Board prefers the evidence of the police officers to that of the Licensee’s witnesses. Their evidence was detailed and, on the whole, consistent. They, unlike the Licensee, do not have an interest in the outcome of this matter.
Mr. Pereira had two service bars in the establishment, one near the front and the other at the back area. However, on that night, he was the only person on duty and was serving from the back bar. He testified that from a part of the bar his vision was obscured by a wall and he could not see the area where Constables Eberley and Miron were when Const. Eberley was bumped by Mr. S.
The fact that Mr. Pereira allegedly did not see Mr. S. enter or serve him does not negate the fact that Mr. S. was intoxicated in the premises, as witnessed by Constables Eberley and Miron. Mr. Pereira’s evidence indicated that he did not move around the establishment regularly to check on patrons for drunkenness or other LLA violations. Mr. S. admitted to the police officer at the station that he had been drinking at the Rack. The Board finds, on a balance of probabilities that Mr. S. had been drinking at the establishment. Mr. Pereira knew or ought to have known, as part of his obligations as a Licensee, that Mr. S. was intoxicated in the premises. The Board finds that it is not necessary to the finding that Mr. S. had been served that night in the premises, as cited in the Rejeanne’s Bar and Grill Ltd. Divisional Court decision of June 19, 2009. Given Mr. S.’s intoxicated state, the Board concludes that he had been in the premises for a significant period of time. The Board finds that Mr. Pereira permitted drunkenness on the premises.
Therefore, regarding Mr. S., the Board finds a violation of subsection 45(1) of O.Reg 719/90, permitting drunkenness.
Ms Johnston’s testimony that she did not see Mr. S. in the bar is not credible, since she also said she saw him on the street, which was after he had been arrested.
Regarding Mr. A., the only reason for his arrest was that Const. Eberley had observed him holding a beer and knew he was under a court condition not to consume alcohol. Although Const. Eberley said he believed Mr. A. was intoxicated, he gave no reasons for saying so. Const. Miron testified that he was not close enough to Mr. A. to observe his condition, although he did see Mr. A. walk outside with Const. Eberley.
However, Mr. Pereira’s evidence was that he had served Mr. A. only one drink and when he was escorted out by the officer, Mr. A. showed no signs of intoxication. The Board finds that, on a balance of probabilities Mr. A was not intoxicated in the premises and declines to make a finding under subsection 45(1) of the LLA.
Further, Mr. Alakas submitted that the event regarding Mr. H. was irrelevant, since it happened outside the establishment and there were no allegations of intoxication. Therefore, the Board also declines to make findings about Mr. H.
Conclusion
For the reasons given, the Board FINDS the Licensee violated subsection 45(1) of O.Reg 719/90 in respect of one patron, and DISMISSES the allegations of violations of subsection 45(1) of O.Reg 719/90 in respect of a second patron.
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 1st DAY OF September , 2009
DAVID C. GAVSIE, CHAIR, AGCO ELEANOR MESLIN, BOARD MEMBER