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-
2142575 Ontario Limited operating as XS
Licensee
DECISION
Panel: Jacqueline Castel, Board Member S. Grace Kerr, Board Member
Decision Date: November 16, 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 ) Richard Kulis, Representative
2142575 Ontario Limited, Licensee ) Randall Barrs, Representative
Allegation
- A hearing into Notice of Proposal (“NOP”) number 17162 dated April 2, 2009 to suspend liquor licence number 810853 (the “Licence”), issued to 2142575 Ontario Limited (the “Licensee”), operating as XS and formerly REPUBLIK NIGHTCLUB, 26 Richmond Street West, Toronto, Ontario, M5V 3M6, (the “establishment” or the “premises”), on the basis of alleged violations of subsection 30(4) of the Liquor Licence Act (the “LLA” or the “Act”) and subsections 41(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg.”), prescribed under the LLA, was held on October 16, 2009 in the City of Toronto.
Decision
- After carefully considering the evidence and submissions, the Board DISMISSES the allegations under subsection 30(4) of the LLA and subsections 41(1) and 45(1) of the O.Reg. Reasons follow.
Registrar’s Evidence
Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Tuesday Lyn Sandiland attended the establishment on at 1:34 a.m. on December 21, 2008 with OPP Detective Sergeant (“D/Sgt.”) Pierre and AGCO Inspector Strongman, as well as members of the Toronto Fire Department.
After conducting a walk through, she entered the women’s washroom at the south east end of the establishment. She observed a female exiting a stall who was staggering. The female had long, dark, straight hair, black boots, blue pants, and a black halter top. She hit the wall on the east side of the bathroom. While her back rested against the east wall, the female slid down to the ground and sat on the floor.
Inspector Sandiland identified herself to the female and asked to see her identification. According to Inspector Sandiland, the female appeared youthful, but her concern was initially with her sobriety. The female fumbled when taking out her identification. When Inspector Sandiland looked at the identification, an Ontario driver’s licence, she noticed that the photograph on the identification did not look like the female in front of her. The face on the driver’s licence was longer than the female’s face, which was smaller and more round. The nose on the driver’s licence was also longer and the chin wider than the female’s.
She inspected the identification with a flashlight. Inspector Sandiland engaged the female in conversation, in part, to determine her sobriety. She started by asking the female her name. She did not provide the name on the identification and kept giving different names. Then she asked her date of birth and the female provided an address. Her speech was slurred and occasionally it was inaudible. She was unable to converse in any form of logical manner.
The date of birth on the driver’s licence the female provided was in May 1998, making the true owner of the identification 20 years of age. The initials on the ID were L.A.M. At one point, the female indicated that the identification belonged to her sister. However, she subsequently said that the identification in fact belonged to her. Inspector Sandiland noticed that the female had a Toronto Dominion convenience card in her wallet which she asked to inspect. There is no name on these cards, only a number and signature on the back. The signature did not match the one on the driver’s licence. The female subsequently disclosed that she is 18 years of age and a student of the University of Toronto. Inspector Sandiland thought that the female looked to be between 16 and 18 years of age.
Inspector Sandiland requested the assistance of a female member of the establishment’s security department to help the female off the floor. The female fell to the ground when trying to stand up, and it was necessary for both Inspector Sandiland and the Security Officer (did not obtain her name) to help her. They escorted her to the stairwell area by an emergency exit. The female was staggering while walking. The female Security Officer and the head of Security, Murray Reynolds, were present in the stairwell. When they were in the stairwell area, a gentleman who identified himself as a promoter said he knew the female as “Cat”.
Inspector Sandiland noticed that the female’s eyes were blinking slowly. They were also glassy and out of focus. She was fumbling with her BlackBerry. At one point, the female’s right breast protruded from her halter top and she did not appear to notice. Inspector Sandiland asked the female Security Officer to cover the female’s breast with her shirt. Her conversation did not make sense. At one point she asked if Inspector Sandiland was looking at her passport.
She learned from D/Sgt. Pierre, who spoke to the female’s father on the telephone, that she was 18 years of age, with a birth date in June 1990.
Inspector Sandiland asked Security to swipe the driver’s licence through the TreoScope identification verification system. The system’s computer has a memory and can track the date and time when the identification was swiped. The system can detect identification which has been altered. The system cannot determine whether the identification belongs to the person who presents it. Security determined that the Ontario driver’s licence the female provided to Inspector Sandiland was swiped at 11:34 p.m.
As the female was not cooperative and was alone at the establishment, D/Sgt. Pierre put handcuffs on her and placed her under arrest at 2:30 a.m. The female responded by yelling, “You can’t touch me, I’m a minor.” At 3:00 a.m. two uniform police officers, Constables Clark and Doyle, attended and placed her under arrest. She was argumentative with the police officers.
Inspector Sandiland departed the establishment at 3:12 a.m.
Mr. Reynolds did not tell her he believed the photo on the driver’s licence resembled the female.
On cross-examination, Inspector Sandiland indicated she did not try to ascertain how much beverage alcohol the female consumed, but one of her colleagues attempted to obtain this information from the female. She did not make inquiries of the establishment’s staff regarding who served the female and how much.
Inspector Sandiland does not know whether the female took any type of drug(s) on the evening in question. She does not know whether the slow blinking of the eyes could be caused by taking certain drugs. She also does not know whether the police did any type of urine or blood tests on the female. She does not know what the female was doing inside the private bathroom stall.
The capacity of the establishment is just over 1,000. She does not recall it being at capacity on the night in question.
She believes there were about four or five paid duty officers working at the establishment that evening.
Mr. Geringas, the General Manager for the establishment, regularly attends meetings of the Business Improvement Association (“BIA”) for the Entertainment District.
Inspector Sandiland does not have the authority to seize identification. The uniform police officers took the female’s driver’s licence. She never observed the female’s legitimate identification. Her reason for inspecting the identification with a flashlight was to see if it had been altered.
She does not recall whether the police searched the female. She remembers the police looking through her purse.
The TreoScope system flags whether patrons have been evicted from other establishments which use the system. To Inspector Sandiland’s knowledge, no other establishments in the entertainment district use the system, which is expensive to purchase and maintain.
Security at the entrance of the establishment checks the identification of all patrons. Although there is not a legal prohibition on persons under 19 being inside the establishment (only a prohibition on persons under 19 being served or consuming beverage alcohol), the establishment has a policy of requiring that all persons be 19 or over to enter.
On re-examination, Inspector Sandiland clarified that she believes the female’s signs of intoxication were caused by alcohol.
In response to a question from the Board, Inspector Sandiland stated that she did not smell alcohol on the female’s breath or person. She indicated that she did not get close enough to her to be able to smell alcohol on the female. She would have only smelled alcohol on her person if the female had spilled alcohol on herself.
AGCO Inspector Adam Strongman attended the establishment at 1:34 a.m. on December 21, 2008 with Inspector Sandiland, D/Sgt. Pierre and members of the Toronto Fire Department.
Inspector Strongman advised a Security Officer at the entrance that they would be conducting an inspection and proceeded to conduct a walkthrough of the establishment. Inspector Sandiland observed a female stumble and fall into the women’s washroom. When asked to clarify that this was the location Inspector Sandiland first observed the female he confirmed that it was.
Inspector Strongman made his observations of the female from outside the washroom while Inspector Sandiland entered the washroom. There was no door at the entrance of the washroom, so he was able to see the female and Inspector Sandiland inside the washroom. He saw the female sitting on the ground, leaning against the wall. When the female tried to stand up she fell down. The female ultimately needed assistance from Inspector Sandiland and a Security Officer to stand up. Inspector Sandiland and the Security Officer escorted the female to a nearby stairwell.
Inspector Sandiland told him the female’s identification did not resemble her. He looked at the photograph on the identification and agreed it did not resemble the female. He questioned the female regarding the validity of the identification and she told him it belonged to her brother’s wife’s sister.
Inspector Strongman advised Security Officer Reynolds that the female used someone else’s identification to secure entry. He accompanied Security Officer Reynolds to an office to confirm on the establishment’s computer system that the female used the same driver’s licence to secure entry to the establishment. The system confirmed that the driver’s licence had been swiped at 11:54 p.m.
The female told him she consumed two vodkas and two whiskeys at the establishment.
He asked one of the paid duty officers at the establishment to call for a police vehicle and assistance. Two officers from the Toronto Police Service arrived shortly thereafter and arrested and detained her, since she was intoxicated and there was no one else with her.
On cross-examination, Inspector Strongman stated he does not have the female’s identification.
He did not witness her consuming beverage alcohol.
He confirmed that his notes said she consumed “2 vodkas/2 whiskeys”, but he meant that she consumed two vodkas and two whiskeys even though he did not use the word “and” in his notes. He denies that the female may have been equating vodkas to whiskeys.
When asked by the Board to describe the female’s behavior, he indicated she was argumentative and belligerent and had to be assisted by Security when walking. Most of the time he observed her she was seated on the stairs. He did not notice the smell of alcohol on her breath or person.
D/Sgt. Andrew Pierre attended the establishment on December 21, 2008 with Inspectors Strongman and Sandiland. Shortly after arriving, Inspector Sandiland told him she was dealing with an intoxicated female patron, who she also believed to be a minor.
He observed the female sitting on the steps. He observed the Ontario driver’s licence the female provided with a date of birth in May 1988. He compared the picture on the identification to the female on the stairs. The photograph did not match the female on the stairs. The female on the stairs had a rounder face. The female insisted that she was the person on the driver’s licence.
The female was belligerent and arrogant. He detected an odour of alcohol on her person. The female had a cell phone which rang continually. He took the phone from her at 2:05 a.m. and noticed a number of “mom and dad” in her contact list. He went up the stairs and called the number for “mom and dad”. A male answered the phone and said his daughter’s name is KH, with a date of birth in June 1990, making her 18 years of age. He indicated that his daughter is a university student and that he does not live in Toronto and could not pick her up. He provided the name and number of his son, who lives in Toronto. D/Sgt. Pierre did not attempt to call this number.
D/Sgt. Pierre learned that the female had been at the establishment with someone by the name of Chrissy, who was also in the contact list of her cell phone. He called her number and learned that she had been ejected from the establishment earlier in the evening for being intoxicated. Chrissy provided a Toronto address for the female.
D/Sgt. Pierre believed the female was intoxicated because of her conduct and the smell of alcohol on her breath. As he was unable to confirm the female’s identify, he arrested her for failing to identify herself and for being an intoxicated minor. At 3:03 a.m., two uniform police officers transported her to 55 Division.
On cross-examination, D/Sgt. Pierre said he does not have the identification of the female in question. The driver’s licence was the older model which just shows one picture that is further back on the card.
He is not familiar with the TreoSystem.
He did not witness the female consume beverage alcohol. He did not attempt to determine what the female consumed. He does not know whether she took any drugs on the night in question.
In response to a question from the Board, D/Sgt. Pierre said the establishment was fairly busy but not at or near capacity. He felt that the level of Security staffing was adequate for the establishment.
Licensee’s Evidence
Mr. Kulis indicated that he would like it noted for the record that he did not receive witness statements from the Licensee, but notwithstanding the lack of disclosure he is not objecting to the Licensee calling witnesses.
Arthur Geringas has been the General Manager of the establishment since 2005. He has a degree in sociology and has worked as General Manager for two other night clubs before taking his current position.
The ownership of the establishment changed in 2007. While he has always operated the establishment to the best of his ability, in 2007 a number of changes were implemented to bring the establishment to the next level from a security and compliance standpoint. The new owner of the establishment, Peter, has given him complete autonomy to run the club. He purchased airport caliber metal detectors for the entrance, the TreoScope system for detecting false or altered identification and flagging customers who have been evicted from other clubs which use the system. They employ paid duty officers when they are at or near capacity, as well as a paramedic on the weekends.
Security checks the identification of all customers when they enter the establishment. All customers must then pass through a metal detector and they are searched by a female Security Officer. The Security Officer performing the search pats the body of the customer and has them open any purses, cigarette containers, etc. They are not permitted by law to do strip searches. Customers are not allowed to bring liquids into the establishment. According to Mr. Geringas, the establishment does everything it can under the law to make sure customers do not bring drugs onto the property, but acknowledged that its procedures are not full-proof. Mr. Geringas informed that a second security officer inspects every customer’s identification after they are searched and swipes it through the TreoScope system to ensure it has not been altered. If the customer makes it through all of these checks, she or he may approach the cashier.
Mr. Geringas stated that if Security smells alcohol on a patron’s breath, the patron is not allowed to enter the establishment.
Mr. Geringas saw the female in question, but he did not see the identification she presented. Graham Thompson is the Security Officer who swiped the female’s identification through the TreoScope system. Mr. Thompson has worked with the company for three years and is an exemplary employee. In Mr. Thompson’s opinion, the female looked very similar to the photograph on the driver’s licence.
Mr. Geringas first saw the female when she was in the washroom with Inspector Sandiland. He remembers her saying that she had consumed a couple of vodkas.
He asked his staff if they remembered serving the female. One of his servers, remembered her. The server told him she served the female a couple of drinks and that she did not observe the female behaving “crazy”.
Mr. Geringas thought, from the female’s behavior, she was more high than drunk. He did not observe whether her pupils were dilated. Given the industry in which he is employed, he knows a bit about designer drugs which can alter a person’s motor skills and make the person look drunk. He does not believe she was over-served.
The TreoScope system costs $300 to $400 per month to maintain. According to Mr. Geringas, it is an amazing second line of defence against false or altered identifications. The establishment, through the system, catches as many as 10 to 15 fraudulent identifications or double swipes (i.e., more than one person attempting to use the same ID to secure entry) a week.
The Entertainment District’s BIA has been focused on developing a paper with guidelines on best practices for operators. The AGCO will also be doing a series of seminars at the BIA and he plans to attend with all of his staff.
On cross-examination, Mr. Geringas confirmed his belief that the female was not over-served is based on the assumption that his bartender was telling him the truth about how much she served her. He had six bartenders and two wait staff working on the evening in question. He asked all of the servers if they remembered the female and only one of them remembered her. He believed they were telling him the truth and did not look into the matter any further.
Mr. Geringas acknowledged that he would have no way of knowing whether someone else purchased the female one or more drinks.
He does not have any training in toxicology.
Mr. Geringas confirmed that the TreoScope system cannot detect whether the identification belongs to the person presenting it. The system only detects altered identification.
He indicated that everyone’s identification is checked twice before they enter to make sure minors do not enter and the identification being presented is authentic and belongs to the person presenting it. The establishment does not use additional measures or due diligence for persons who appear to be under 19; everyone is subjected to the same high level of scrutiny irrespective of how old they look.
There were about 500 to 600 people in the establishment on the night in question.
Graham Thompson has been employed at the establishment for four years as a Security Officer. He always works at the front doors of the establishment checking identification. He has worked in Security for over 10 years.
On December 21, 2008 he was working at the front doors of the establishment. One of the AGCO inspectors told him that evening that they had detected an intoxicated female minor. Because he takes pride in his job, he went to look at the female they had identified and the identification she presented. She did not appear that intoxicated to him, and in his opinion, the photograph on the driver’s licence she presented resembled her.
He would have visually checked the female’s identification at the doors before she entered and another officer would have swiped her identification through the identification verifier. When he inspects identification, he checks the date and makes sure that the photograph resembles the person presenting it. The main features he looks for, in assessing whether the identification belongs to the person presenting it, are eyes, ears and cheeks. He inspected the identification when the female entered, on the stairwell when the inspectors were present, and then went back and looked at the photograph of the identification recorded in the system later in the evening. On all occasions, he believed the identification looked like the female who presented it.
As a Security Officer who works the doors of the establishment, he is constantly taking away fake or altered identification and denying persons under 19 or with false identification entry. On average, he takes away three or four identifications a night and turns them over to the police. He also often catches people using someone else’s identification and passing identification between each other.
On cross-examination, Mr. Thompson indicated he would have checked the identification of 500 to 600 people on the night in question.
He observed the female answering the officer’s questions while seated on the stairwell.
He would have prepared an incident report and filed it with the Security Director.
He described the female as having dark hair and a regular build. He indicated that she appeared to be about 19 years of age. The picture on the older model driver’s licence, including the facial features and hair colour, looked identical to the female. The actual age difference between the female and the true owner of the identification was not substantial.
Registrar’s Submissions
The Registrar submits that on a balance of probabilities, the person found in the washroom was drunk and under 19 years of age. There were considerable indicia of intoxication: staggering, falling, weaving, slurred speech. D/Sgt. Pierre also smelled the odour of alcohol on the female and noted that she was belligerent and arrogant towards the inspectors.
There was no evidence of the female consuming drugs, and the Licensee found one server who remembered serving her a couple of drinks. Whether or not the female ingested a narcotic is irrelevant. The effects of a narcotic would have only amplified the effects of the alcohol. The purpose of subsection 45(1) of the O.Reg. is to ensure that people do not hurt themselves or others. Whether the effects of alcohol may be accelerated by a narcotic is not the point of the subsection, nor does it relieve the Licensee of its duty to prevent drunkenness.
Given the extreme signs of intoxication, and given all of the Security staffing that the Licensee bragged about, surely the female would have been apparent to the staff if they had been acting responsibly. The Licensee knew or should have known the female was drunk.
Inspector Strongman and D/Sgt. Pierre determined that the female’s true date of birth was in June 1990, making her 18 years of age. She admitted to consuming liquor in the establishment and a server admitted to serving her liquor.
The TreoScope system is irrelevant to the issues before the Board in this case and does nothing to help the Licensee’s case. All the TreoScope system does is detect altered identification. It does not detect authentic identification which does not resemble or belong to the person presenting.
Security officers must compare the face of the person before them with the face on the identification and make sure they closely resemble each other. The female did not resemble the photograph on the driver’s licence she presented and Inspector Sandiland and D/Sgt. Pierre specified the differences. The differences should have been obvious to a Security Officer, who was diligently inspecting the identification to ensure it belonged to the person presenting it. In this case, the Licensee appears to have relied too heavily on an expensive piece of machinery and failed to properly inspect the photograph on the identification to ensure it closely resembled the female presenting it.
The Registrar submits that the Board has sufficient evidence to make findings under subsection 30(4) of the LLA and subsections 41(1) and 45(1) of the O.Reg.
Licensee’s Submissions
A 14 day suspension is a very serious matter for a Licensee of this size. It would amount to a loss of substantial revenue and also impact on the employees of the establishment.
The Registrar must prove its case on a balance of probabilities, the civil burden of proof. There is insufficient evidence to meet the civil burden of proof in this case. The inspectors and the staff of the Licensee have different opinions about whether the female looked like the photograph on the driver’s licence. The Board cannot assess whose opinion is correct without seeing the female and the identification she presented. The OPP could have seized the identification. The Registrar did not even prove, on a balance of probabilities, that the identification did not belong to the female or that the female was in fact under 19.
Mr. Barrs acknowledged that hearsay evidence is admissible in hearings before the Board, but indicated that in this case the hearsay evidence was not reliable.
This Licensee has excellent due diligence including airport caliber metal detectors and Security officers who check everyone’s identification twice, once before they enter and once inside the doors, when they also swipe it through TreoScope system to ensure it has not been altered. Mr. Thompson routinely refuses people at the doors and turns over false identification to the police.
The picture on the older model of driver’s licence is not as good as the newer licences, but this is not a situation where alarm bells should have gone off since the age of the female was close to the date of birth on the driver’s licence.
There was no evidence that someone under 19 was permitted to consume beverage alcohol. One of the servers indicated she remembers serving the female a couple of drinks but no one saw her drinking. The Licensee does not concede that drugs exacerbated the effects of the alcohol; there was no evidence she consumed alcohol. No one asked her if she consumed drugs. Disorientation, loss of motor skills and slow movement of eyes are symptoms of drug use. The evidence of the inspectors was not consistent. D/Sgt. Pierre said he smelled alcohol on her, but the other two inspectors did not. If the female appeared as a witness, she could have answered whether she had consumed drugs on the night in question.
Reply Submissions
Section 15 of the Statutory Powers and Procedures Act empowers the Board to admit hearsay and rely on it to make conclusions.
There was substantial evidence from the inspectors and police, as well as some from the Licensee, that the female consumed liquor in the establishment. It is in the server’s advantage to underestimate the amount of liquor she served the female, particularly if she thought she might be disciplined for over-service.
Inspector Sandiland noted clear differences between the appearance of the female and the photograph on the driver’s licence.
The Board should not consider the impact of the penalty when considering whether there is evidence for findings. It is a two-step process. Sanction should only be considered if the Board makes findings, and after both parties have had an opportunity to make submissions addressing the appropriate sanction.
Reasons and Analysis
- The Board agrees with Mr. Kulis that the impact of the potential sanction is not relevant to the Board’s decision on findings. As such, the Board did not consider the implications of the penalty proposed by the Registrar in the NOP on the Licensee when considering the allegations of contravention.
For a finding under subsection 30(4), there is a three part test or inquiry. First it must be established that the person in question appeared to be under 19 years of age. Second, it must be established that this person had or consumed liquor. And third, it must be established that the licensee or an employee or agent of the licensee permitted same.
There was conflicting evidence on whether the female in question appeared under 19. The Licensee’s witnesses, Mr. Geringas and Mr. Thompson, both of whom the Board found to be credible and genuinely committed to promoting effective security and LLA compliance at the establishment, testified that she appeared to be 19. The Registrar’s witnesses testified that she appeared under 19. Inspector Sandiland admitted that initially she asked for the female’s identification because of concerns about her sobriety not her age, but then concluded she looked between 16 and 18 years of age. As there were some inconsistencies between the evidence of the Registrar’s witnesses which tainted the reliability of their evidence overall, the Board is not prepared to prefer the evidence of the Registrar’s witnesses over the evidence of the Licensee’s witnesses, regarding the appearance of the female.
The inconsistencies in the evidence of the Registrar’s witnesses included Inspector Sandiland testifying she observed a female exhibiting signs of intoxication exiting a stall in the women’s bathroom, and Inspector Strongman testifying that Inspector Sandiland saw a female stumbling and falling into the women’s washroom. A second inconsistency was that Inspector Sandiland and D/Sgt. Pierre testified that the female said the identification belonged to her sister, whereas Inspector Strongman testified she said it belonged to her brother’s wife’s sister. A third inconsistency was the fact that Inspector Sandiland and Inspector Strongman testified they did not smell the odour of alcohol on the female, whereas D/Sgt. Pierre testified he did. It is not credible that D/Sgt. Pierre smelled alcohol on her when Inpsector Sandiland, who had the most contact with her and the most thorough notes regarding her behavior and appearance, did not smell it. Inspector Sandiland’s explanation that she did not come close enough to the female to smell alcohol on her was not consistent with the evidence that she helped her to stand up and supported her as they walked to the stairwell.
The Board recognizes that there are difficulties associated with compelling a customer, particularly one who may not have complied with the law and/or who may have done something embarrassing, to attend at a hearing of this nature. Nevertheless the inspectors or the police could have taken a photograph of the individual at the establishment on the night in question or even at the police station and introduced it as evidence at the hearing. Without seeing the individual or a photograph of the individual, given the conflicting testimony on the appearance of the female, the Board has insufficient evidence, on a balance of probabilities, to conclude that the female appeared under 19.
Since the first part of the test or inquiry under subsection 30(4) has not been met, it is not necessary for the Board to consider whether the female had or consumed liquor and whether the Licensee permitted same. Accordingly, for the above reasons, the Board DISMISSES the allegation under subsection 30(4).
Subsection 41(1), O.Reg.
For a finding under subsection 41(1), there is also a three part test or inquiry. First it must be established that the person in question was apparently under the age of 19. Second it must be established that the licensee failed to inspect such a person’s identification. Implicit in the requirement that the licence holder inspect the identification is that the licence holder will check to ensure that the identification resembles the person presenting it and that the identification is authentic, since the purpose of the subsection is to ensure that liquor is not sold or served to persons under the age of 19. And third, it must be established that liquor was sold or served to such a person.
As outlined in paragraph 92 above, there was insufficient evidence to conclude, on a balance of probabilities, that the individual was apparently under the age of 19. Nevertheless, the Licensee did inspect the identification of the female, as it is the Licensee’s practice to inspect everyone’s identification twice and swipe it through the TreoSystem before allowing customers entry regardless of how old they appear. The Inspector was also able to confirm, through the TreoSystem, the time in which the female’s driver’s licence was swiped through the system, a procedure which is followed only after another Security Officer visually inspects the identification and confirms, among other things, that it resembles the person presenting it.
The Licensee believed that the photograph on the identification resembled the individual presenting it. Mr. Thompson gave reasons why he felt the photograph resembled the female, and Inspector Sandiland and D/Sgt. Pierre gave reasons why they felt the photograph did not resemble the female (Inspector Strongman provided no reasons). Given that there were other inconsistencies in the evidence of the Registrar’s witnesses, as outlined in paragraph 90 above, the Board is not prepared to prefer their evidence over the evidence of the Licensee’s witnesses.
In these circumstances, for the Board to determine whether, on a balance of probabilities, the Licensee ought to have concluded that the photograph resembled the female, the Board would need to examine the identification or at least a copy of the identification and compare it to the female or a photograph of the female. In the absence of such evidence, the Board has insufficient evidence to conclude, in these circumstances, that the Licensee failed to properly inspect the female’s identification for the purpose of subsection 41(1).
Therefore, although the Licensee admitted to serving the female a couple of servings of beverage alcohol, there is insufficient evidence, on a balance of probabilities, that she was apparently under 19 and that the Licensee ought to have concluded that the photograph on the identification she presented did not resemble the female.
Accordingly, the Board DISMISSES the allegation under subsection 41(1).
Subsection 45(1), O.Reg.
For a finding under subsection 45(1), there is a two part test. First, it must be established that drunkenness or one of the other enumerated forms of prohibited conduct occurred. And second, it must be established that the Licensee permitted same.
The Board is satisfied that the female was exhibiting pronounced signs of intoxication, including poor balance, staggering, disorientation, slurred speech, inability to converse in a logical manner, glassy eyes which were out of focus and blinking slowly, belligerency, etc. Indeed, the police believed that it was necessary to detain and arrest her for her own safety given that she also was not with another sober adult. Further, the Licensee did not dispute that the female was intoxicated, but instead disputed what caused the intoxication.
According to Inspector Strongman, the female told him she consumed two vodkas and two whiskeys (recorded in his notes as “two vodkas/two whiskeys”), and according to Mr. Geringas, one of his servers admitted to serving her a couple of servings of beverage alcohol. The Board is satisfied that this hearsay evidence is reliable to the extent that it reflects, on a balance of probabilities, that the female was served and consumed beverage alcohol at the establishment. The Board did not place any weight on the evidence regarding the amount of beverage alcohol she was served or consumed, given that the evidence was hearsay from an individual who was intoxicated, and according to Inspector Sandiland incapable of logical conversation, and from a server who would have had a self-interest in underestimating the amount she may have served the female. Further, no one witnessed what she actually consumed.
There was no evidence that the female consumed a narcotic. Although Mr. Geringas opined that her behavior was more reflective of someone who was high rather than drunk, he did not give any reasons for his opinion and did not possess the necessary qualifications to give such an opinion in any case. As such, the Board did not place any weight on his opinion on this subject. Moreover, even if the Board were to accept that the female also consumed a narcotic, which accentuated or exacerbated the effects of the alcohol, it would not negate a finding of drunkenness for the purpose of subsection 45(1). Given the indicia of intoxication and the evidence that she consumed some beverage alcohol, the Board is satisfied, on a balance of probabilities, that the female was drunk for the purpose of the first part of the test under subsection 45(1).
For the purpose of the second part of the test under subsection 45(1), it must be established that the Licensee knew or ought to have known, in the circumstances, that the female was drunk.
Inspector Sandiland first observed the female exhibiting signs of intoxication when exiting a private stall in the women’s washroom. The Board accepts her evidence over Inspector Strongman’s on this point because Inspector Strongman was basing his testimony (i.e., that Inspector Sandiland saw the female stumbling into the women’s washroom) on what he understood Inspector Sandiland to have told him. There were no other employees present when Inspector Sandiland initially observed the female in the washroom. There was no evidence regarding how long she was in the private stall in the women’s bathroom. There was no evidence about when the female began exhibiting signs of intoxication, how long she exhibited them for, whether she had any interaction with staff while exhibiting them, whether any staff members observed her exhibiting them, or whether any staff members had an unobstructed view of her while she was exhibiting them (i.e., prior to detection by the inspectors). D/Sgt. Pierre also testified that he believed the staffing was adequate for the establishment on the evening in question.
As such, in the unique circumstances of this case, where the intoxicated female was detected exiting a private stall in the women’s bathroom and where there were no witnesses to her being intoxicated prior to this time, the Board is not satisfied, on a balance of probabilities, that the Licensee knew or ought to have known that the female was drunk. While sympathetic to Mr. Kulis’ argument that, given the female’s advanced state of intoxication, she was probably exhibiting signs of intoxication for some time and the Licensee ought to have been aware of same, there was no supporting evidence on which the Board could rely.
For the above reasons, the Board is not satisfied that the Licensee permitted drunkenness on the part of the female, for the purpose of the second part of the test under subsection 45(1). As such, the Board DISMISSES the allegation under subsection 45(1).
Therefore, the Board DISMISSES the allegations under subsection 30(4) of the LLA and subsections 41(1) and 45(1) of the O.Reg.
DATED AT TORONTO THIS 16th DAY OF November , 2009
JACQUELINE CASTEL, BOARD MEMBER S. GRACE KERR, BOARD MEMBER