Registrar, Alcohol and Gaming Commission of Ontario v. Rockwood Nightclub Inc., 2009 CanLII 70467

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-

Rockwood Nightclub Inc. O/A Rockwood/Grass Licensee

DECISION ON FINDINGS

Panel: Patricia McQuaid, Vice-Chair, AGCO Joan Lougheed, Board Member

Decision Date: November 5, 2009

Hearing Location: Toronto, 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 ) Phillip Morris, Representative Rockwood Nightclub Inc., Licensee ) Nicholas Macos, 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

1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553

Shooters Sports Bar (Re), [2006] O.A.G.C.D. No. 288

Allegations

1. A hearing into Notice of Proposal number 17306 (the “NOP”) dated June 12, 2009, to suspend liquor licence number 805164 (the “Licence”), of Rockwood Nightclub Inc. (the “Licensee”), operating as ROCKWOOD/GRASS (the “premises” or “establishment”) on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA” or the “Act”), was held on September 24, 2009, in the City of Toronto.

Decision

2. After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg in respect of one patron and DISMISSES that allegation in respect of a second patron. Reasons follow.

Registrar’s Evidence

3. Tuesday Lyn Sandiland, an Alcohol and Gaming Commission of Ontario (“AGCO”) inspector, attended at the licensed premises on December 6, 2008 at 12:58 a.m. She was one of a team consisting of AGCO inspectors, Ontario Provincial Police (“OPP”) officers and Toronto Police Services (“TPS”) 52 Division vice unit. Rockwood was one of a list of establishments scheduled for inspection on the particular December weekend. Among those with her were AGCO Inspector Saldarriaga and OPP Sergeant (“Sgt.”) Siebert.

4. Inspector Sandiland described the physical layout of the premises as it related to her observations that night. Entrance to Rockwood is through a vestibule area where patrons pay a cover charge. From there, patrons enter through a door to the main floor licensed area. The centre area is a dance floor. To the right (west) is the service bar area. To the south-east is a unisex bathroom area. There is, on both floors, a VIP bottle service area. Toward the left of the main area is a doorway leading to a second vestibule which is the coat check area. From there, a stairway leads to the second floor area, which mirrors the first floor lay-out.

5. Upon entry, Inspector Sandiland did a general walk through on the main floor, noting it was a busy evening though not overcrowded. She then proceeded to the coat check area where, at 1:10 a.m., she observed three females being escorted down the stairs from the second floor. She made note that they were being escorted out quickly by a staff member. They passed her and she followed them as they walked through the establishment to the main vestibule area. There, she identified herself to one of the females and requested identification from her. The female, identified as “M.N.” from a passport, told her that she arrived at Rockwood at approximately 11:45 p.m. She had not drunk before her arrival, but had consumed between four and six tequila shots, a Vodka Smirnoff and a vodka shot at Rockwood. It was this female, M.N., who Inspector Sandiland had observed staggering down the stairs as she was being escorted out. She was unsteady on her feet, weaving once she reached the bottom of the stairs. Inspector Sandiland made no observations of staff once the females were in the main vestibule area. She stated that security staff is generally assigned to the main floor.

6. As she questioned M.N., she noted an odour of alcohol on her breath. Her eyes were glossy and tired looking. She was holding on to a door for balance. Sgt. Siebert checked the identification of the two females with M.N., and together they determined that these two were fine, exhibiting no signs of intoxication. She had no conversation of note with them. A determination was made though that the two friends would ensure that M.N. was safely taken home.

7. Inspector Sandiland then left this area and proceeded to the unisex bathroom area where Inspector Saldariagga was dealing with an intoxicated patron. She did not involve herself in that particular investigation.

8. At 1:21 a.m., she spoke to the general manager, Mr. Tyrovolas, and advised him that they had noted two infractions for “permit drunkenness.” She did not recall if Mr. Tyrovolas asked any questions of her. She had no discussions with any other staff. Inspector Sandiland then left the premises with Inspector Saldarriagga and Sgt. Siebert at 1:22 a.m.

9. On cross-examination, Inspector Sandiland stated that she did not know if the three females, who seemed, from their demeanour to be friends, were leaving of their own will or whether they were asked to leave. It seemed to her, given that they appeared to be leaving quickly that they were being ushered out. Her first visual contact with the women was when they were on the stairs. She had no knowledge of their state, in particular that of M.N. before this. She noted M.N.’s unsteadiness on her feet. She did not make note of her attire.

10. As she followed the women to the vestibule, she was not able to observe M.N. as she walked across the floor as there was a staff member between them. She interceded when the women were in the vestibule area, about to leave.

11. Inspector Sandiland stated that her job involves an education aspect: ensuring that licensees’ practices lead to compliance with the LLA and its regulations. In her view, licensees need to be proactive, monitoring service and patrons’ consumption to ensure patrons do not become intoxicated. Once a patron is exhibiting three or more signs of intoxication, it is a matter of damage control. In her view, at that point, the licensee has a violation of drunkenness and issues of public safety arise. When a licensee observes one to two signs of intoxication, removal from the premises may not be necessary. It is up to the licensee to assess the situation, asking themselves whether they can talk effectively to the patron and whether the patron is likely to cause a problem in the establishment. Inspector Sandiland is not aware of Rockwood’s policies and procedures, though she has spoken to front entrance security before this date, and subsequently, and is aware that there are policies in place to ensure that intoxicated persons are not allowed to enter.

12. In her evidence, Sgt. Sonya Siebert, an OPP officer with the Inspection and Enforcement Branch of the AGCO, confirmed her attendance at Rockwood on December 6, 2008 with the AGCO inspectors. In particular, she was involved with the investigation of the three females about whom Inspector Sandiland testified. Sgt. Siebert did not make any particular observations of M.N., but did confirm that there was no concern about the state of sobriety of the other two females. She did not speak to staff.

13. Lina Saldarriaga, an AGCO inspector, was also in attendance at Rockwood on December 6, 2008. She stated that the team identified themselves to security staff at the front door, entered and did a walk through the main floor. She observed a female showing signs of intoxication. This female, subsequently identified as “K.S.,” was staggering and was being helped by a male. Inspector Saldarriaga followed them from the coat check area where she first observed them into the unisex bathroom area, an interval of about one minute. She described the female as staggering, so severely that the male was losing his balance as his arm was around her waist, with her arm, in turn, over his shoulder.

14. When in the bathroom area, she identified herself to the couple at which point the male stated the female really needed to use the bathroom. He took her into a stall and when they re-appeared a couple of minutes later, Inspector Saldarriaga asked for the female’s identification. K.S. had difficulty with this, fumbling with her wallet. At about this time, a second female joined the couple. She stated that she, too, was a friend of K.S. Both she and the male were sober.

15. K.S., however, was swaying so badly that she had to lean against the wall for support. Her movements were slow and deliberate. Her speech was slurred and she was slow to answer questions, and was, at times, incoherent. K.S.’ boyfriend answered Inspector Saldarriaga’s questions in a forthright manner. He stated that they arrived at approximately 10:30 p.m. They were in the bottle service area where K.S. consumed three vodka shots and two vodka orange. He was taking K.S. home.

16. Inspector Saldarriaga estimated that she was in the bathroom area for eight to nine minutes. No staff approached. Staff are required to monitor the washroom area, but she saw none.

17. On cross-examination, Inspector Saldarriaga stated that she did not know whether the couple had been in the upstairs or main floor area initially nor did she know that they were headed for the bathroom area when she first followed them. It did seem that they were in the process of leaving.

Licensee’s Evidence

18. Peter Tyrovolas has been the general manager at Rockwood since July 2006 when it opened. He confirmed the layout as described by Inspector Sandiland and went on to outline the staffing for the premises. Mr. Tyrovolas stated that the head doorman consults with him regarding staffing needs and placement on a given night. December 6^th was a regular night of operation. There were three to four security on the exterior to ensure that the line-up was secure and orderly and to ensure that persons exhibiting signs of intoxication are not allowed to enter. Identification is checked. Once inside, patrons pay a cover charge to a cashier and another security person takes tickets. A hostess is in this area to attend to the bottle service reservations.

19. Mr. Tyrovolas stated that it is the responsibility of all staff to monitor the conduct and consumption by patrons and to watch for signs of intoxication.

20. In addition, three to four security are on each floor with two bathroom attendants per floor. As well as himself, there is a floor manager, a team of bartenders and bar-backs per floor and two waitresses on each floor. If staff spot an issue, security or management is called to handle the situation in a safe and effective manner. Security staff wear a security printed tag on their shirts. Bathroom attendants wear a black collared dress shirt and black pants. They do not wear a name tag.

21. Mr. Tyrovolas stated that the best opportunity to observe patrons is as they enter, and in his view, there is “no way to tell a person’s state when they are sitting down.” If a determination is made by staff that a person is intoxicated, usually security staff physically close to the area will ask the person to leave. One or two others will assist, walking the patron to the door. If the patron is just leaving, or offers to leave, they are still escorted out to ensure their safety.

22. On December 6^th, he was advised by Inspector Sandiland that a report would be submitted regarding two infractions. The individuals were not pointed out to him and he stated that he had no opportunity to investigate.

23. On cross-examination, Mr. Tyrovolas acknowledged that front entrance staff notified him, by radio, that inspectors were present. Inspectors on the premises are a part of the normal course of business. He did not know which staff accompanied the three females to the front vestibule area. There were no logbooks for that evening. He did not make inquiries of front door staff or of the bathroom attendants regarding their observations that evening nor did he ask any questions of Inspector Sandiland.

24. Regarding the practice in the bottle service area, he stated that a table can order two bottles of liquor. The waitress will pour the first round, in one ounce shots. The patrons can serve themselves thereafter. The waitress will continuously visit the table, but she is not there 100% of the time.

Analysis/Reasons/Findings

25. The NOP alleges two violations of subsection 45(1) of the O.Reg, that the Licensee “permitted drunkenness” with respect to two females, M.N. and K.S., on December 6, 2008. Counsel agree that the decision of the Court of Appeal in 1213963 Ontario Ltd (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), hereinafter referred to as Sin City, definitively states that two components must be established before a finding under subsection 45(1) can be made: drunkenness on the premises and permitting that drunkenness. Further, the Court of Appeal stated that permitting drunkenness requires proof that the Licensee knew or ought to have known of the drunkenness on the premises.

26. With regard to the first component, “drunkenness on the premises”, Mr. Morris in submissions recited the evidence of the two very experienced inspectors. M.N. was observed to be staggering, her eyes were glossy and tired, an odour of alcohol was detected and she held on to a door frame for balance. M.N. stated she arrived approximately one and one-quarter hours before, had not drunk alcohol before her arrival, but consumed between six and eight drinks in that time period. K.S. is observed staggering and swaying, having difficulty with her coordination, and slurred speech. Over a two and one-half hour period she consumed five drinks.

27. Mr. Macos does not strongly dispute those observations. The Board finds the inspectors’ evidence to be credible, fair and forthright and therefore finds with respect to the two female patrons that they were drunk.

28. The question is whether, on the evidence, the Licensee can be said to have “permitted” that drunkenness.

29. Questions were asked of Mr. Tyrovolas about the practice of bottle service at Rockwood. The Board, in this instance, regards as irrelevant, that the two patrons may have been in a bottle service area, where consumption and serving size may have been less closely monitored. There is no allegation of a violation of section 29 of the LLA (service to intoxicated patrons), there is no substantive evidence of what in fact transpired on this evening in the bottle service area, and while there may be perils associated with bottle service, it is as Mr. Macos submitted, specifically permitted.

30. Turning to M.N., Mr. Morris asserts, in effect, that the Licensee got her drunk and did nothing to prevent that. Simply getting her out at that point does not absolve the Licensee from responsibility. The Board does not disagree with that latter statement, but cannot agree that the evidence suggests nothing was done. Inspector Sandiland quite candidly states that she first observed M.N. as she came down the stairs from the second floor, apparently being ushered out by staff. Neither of the inspectors were upstairs. The Board has no evidence about what transpired before 1:10 a.m. when Inspector Sandiland made her first observations of M.N., in particular, what signs of intoxication M.N. may have exhibited upstairs, and for how long. Indeed, Inspector Sandiland, who was standing in the vestibule area at the bottom of the stairs, had her attention drawn to M.N. and her two friends (who were not intoxicated) as they were quickly being escorted out. The Board notes that there is no suggestion on the evidence that the quick escort was the result of security’s awareness of the inspectors’ presence.

31. Inspector Sandiland described a pro-active approach to monitoring patrons’ consumption and behaviour, stating that with one or two signs of intoxication, removal of the patron may not be necessary – that is a decision for the Licensee in a particular fact situation. In her view, with three or more signs of intoxication, the conclusion can be drawn that the patron is drunk and a violation of subsection 45(1) has occurred. The Board has, as stated, no evidence of when signs of intoxication were apparent. The Board only knows that at one and one-quarter hours post entry, and as M.N. was being escorted out, three signs of intoxication were present.

32. While the Licensee’s evidence was scant on its policies and procedures, the Board did hear that there is a practice that if a patron is deemed to be drunk or showing signs of intoxication, security is designated to remove them. The evidence suggests this was done and it was only at that point, when proactive measures were being taken that the inspector made her observations. This is not a situation like that of Rejeanne's Bar and Grill Ltd. (c.o.b. Rejeanne's Bar and Grill) v. Ontario (Alcohol and Gaming Commission, Registrar), cited by Mr. Morris, in which the inspector immediately noticed a patron exhibiting signs of intoxication, enjoying an activity offered by the bar, namely a game of pool, pointed the patron out to the manager who did not dispute those observations, but allowed the patron to remain. In the circumstances, the Board cannot conclude that the Licensee “permitted drunkenness” with respect to M.N. and therefore DISMISSES that allegation of a violation of subsection 45(1) of the O.Reg.

33. Regarding K.S., the evidence was that she was in Rockwood for approximately two and one-half hours and had five drinks in that time period. When Inspector Saldarriaga sees her, she is on her way out of the premises, assisted by her boyfriend. Unlike M.N.’s departure, there is no sign of staff. Inspector Saldarriaga’s interaction with K.S. and her boyfriend is not brief. She is in the bathroom area for approximately eight to nine minutes. She does not see a bathroom attendant nor does staff present themselves to her or to K.S. Mr. Tyrovolas stated that all staff, including bathroom attendants are charged with the task of monitoring patrons for signs of intoxication. While it may be easier to detect those signs while patrons are in motion, the onus upon the Licensee does not diminish because the patrons are seated. It is true, as Mr. Macos submitted, that K.S. was with friends who were sober, and was in the process of leaving. Further, the Board does not know whether K.S.’ actions were such before this that she would have drawn attention to herself, however, as described by the inspector, K.S. was exhibiting obvious signs of intoxication. There is no suggestion that the couple was leaving because of a request to do so, and as Inspector Saldarriaga stated, the boyfriend was forthright in providing information and would presumably have offered that up.

34. What the Board is left with, in terms of the evidence regarding K.S., is a drunken patron with no indication of any intervention by staff. In the context of all of the facts, the Licensee knew or ought to have known of KS’s drunkenness. The fact that K.S.’ two friends had decided to take her home does not relieve the Licensee of its responsibilities under the Act not to permit drunkenness on the premises. Therefore, the Board makes a FINDING of a violation of subsection 45(1) of the O.Reg with respect to K.S.

35. Mr. Macos, in submissions, relying upon the decision in Shooters Sports Bar Inc., states that the Licensee is entitled to sufficient notice of the case he has to meet in order to have a meaningful opportunity to answer the case against him. This is indeed a foundational principle. But the facts of this case are very different from Shooters where the inspector was working in an undercover capacity and no notice was received until 103 days after the night in question. Here, Inspector Saldarriaga identified herself upon entry, had engaged K.S. in conversation in a very public area and thereafter Inspector Sandiland advised Mr. Tyrovolas of two violations for “permit drunkenness”, albeit a very brief exchange. Yes, more information might have been offered by the inspector. Equally so, Mr. Tyrovolas could have asked for more information. As stated in the evidence, he did not, nor did he make any inquiries of front door staff of patrons seen departing in or about that time. He did not avail himself of that opportunity.

Conclusion

36. For the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg in respect to one patron on December 6, 2008.

37. 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 5th DAY OF November , 2009

_______________________________ ___________________________________

PATRICIA MCQUAID, VICE-CHAIR JOAN LOUGHEED, BOARD MEMBER