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-
1682401 Ontario Inc. O/A Queen’s Hotel
Licensee
DECISION
Panel: Grace Kerr, Board Member Joan Lougheed, Board Member
Decision Date: November 5 , 2009
Hearing Location: Thorold, 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 ) Joyce Taylor, Representative 1682401 Ontario Inc., Licensee ) Christos Kotsios, on ) behalf of the corporate licensee
Authorities
1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553 (Ont. C.A.)
Allegations
- A hearing by the Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) into Notice of Proposal number 17252 dated May 28, 2009 to suspend licence number 0010046 issued to 1682401 Ontario Inc. (the “Licensee”), operating as Queen’s Hotel, 19 Nickel Street, Port Colborne, ON L3K 1B1 (the “premises” or the “establishment”), on the basis of alleged violations under section 29 of the Liquor Licence Act (the “LLA”) and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) under the LLA, was held on August 25, 2009 in the City of Thorold.
Decision
- After considering all the evidence and submissions the Board DISMISSES the allegations that the Licensee violated section 29 of the LLA and subsection 45(1) of the O. Reg. Reasons follow.
Preliminary Matters
Mr. Christos Kotsios, who is the principal of the corporate licensee, appeared on its behalf and waived the right to a legal representative.
The Board ORDERED the exclusion of witnesses on consent of the parties.
Registrar’s Evidence
Inspector Brad Foster, an inspector with the AGCO for the past 5 ½ years testified that on November 1, 2008, he arrived at the establishment at 12:29 a.m. to conduct a liquor inspection.
Upon entering the premises, he conducted a ‘walk-through’. He noticed that the establishment was fairly busy with patrons. In particular, he observed several youthful patrons within the bar. Concerned that they might not be of age, he approached a youthful-looking female and asked for her identification. She did not have any identification on her, and so she left to get and ultimately returned with satisfactory proof as to her age.
While the female was away getting her identification, Inspector Foster, who was accompanied by his AGCO colleague, Inspector Passmore, remained inside the establishment and observed a male patron, located near the bar, who was exhibiting signs of intoxication.
In particular, the patron was unsteady on his feet, was swaying from side to side, was speaking loudly, and had red, glossy eyes. At approximately 12:40 a.m., while Inspector Foster was still observing the male, he also saw a female bartender serve the male a bottle of beer.
At this time, Inspectors Foster and Passmore spoke with Mr. Kotsios, who was also present, advising him that the male patron was showing signs of intoxication and that this patron had been served a beer. Mr. Kotsios responded that the male was “like this all the time”.
The Inspector decided that he wanted to assess the male patron for intoxication and ensure that his observations were correct as well as to assess the veracity of Mr. Kotsios’ statement. So, Inspectors Foster and Passmore, together with Mr. Kotsios and the male patron, proceeded outside.
The Inspectors had contacted the Niagara Regional Police (“NRP”) to attend the premises. They were in the area and were working a regional project with the AGCO inspectors, which included the night in question. The Inspector also felt that police presence was necessary for his and Inspector Passmore’s safety as they were intending to approach an intoxicated person.
Outside of the establishment, Inspector Foster observed the male patron to be unsteady on his feet, to have slurred speech (that was difficult to understand and incoherent at times), to drop his lighter due to his poor motor skills, and to have a strong smell of alcohol coming from his breath.
While in conversation with the patron, Inspector Foster advised the patron of his concerns regarding the man’s level of intoxication. According to Inspector Foster, the patron agreed that he was drunk and had had too much to drink. Inspector Foster recalled that Mr. Kotsios was present during this conversation and that Mr. Kotsios had agreed that the patron was intoxicated.
The inspectors spoke with Mr. Kotsios, advising him of the infractions, and left shortly after 1:05 a.m.
A taxi was called to get the intoxicated patron home safely.
In cross-examination, Inspector Foster testified that the male patron was compliant when asked to take a taxi home.
Inspector Foster clarified that he did not specifically ask the patron if he was “drunk”; rather, based on his observation, Inspector Foster concluded that he was drunk. In turn, the patron himself said that he was drunk and had too much to drink.
Inspector Foster agreed that he did not have any knowledge as to whether the male patron was mentally challenged or disabled.
In re-examination, Inspector Foster testified that he did not recall any mention, at the time, of the male patron being disabled. He also said that he did not see any evidence that this patron was either mentally or physically disabled.
In response to questions from the Board, Inspector Foster said that he conducted his indoor observations of the male patron for about six minutes and from a distance of about 15 to 20 feet. While outside, the Inspector was standing about four feet away from the patron. The patron did not resist being asked to go outside with the inspectors who had shown him their AGCO identification.
There was music playing inside the establishment while the inspectors were conducting their observations, but Inspector Foster did not recall if it was amplified music or came from a band.
Inspector Foster did not ask Mr. Kotsios to explain what he meant when he said the male patron was “like this all the time”.
The Niagara Regional Police arrived about five minutes after being called. Inspector Foster stated that safety is always a concern when approaching a patron with a high level of intoxication, which was his assessment of the level of intoxication in this patron.
The Registrar’s next witness was Inspector Joseph Passmore, who has been an inspector with the AGCO since April 2002.
Regarding the November 1, 2008 alleged incident
Inspector Passmore’s evidence regarding arrival and departure times as well as his and Inspector Foster’s dealings with the female who left to obtain identification agreed in all material respects.
Inspector Passmore observed the same male patron as Inspector Foster, and described what he believed were signs of intoxication, as follows. While trying to dance, the man was unbalanced and unsteady on his feet with poor motor skills. Also, he was loud. The man was drinking a bottle of Coors light beer.
At 12:40 a.m., Inspector Passmore observed the male patron being served (another) bottle of Coors Light beer by a female server.
While the male patron was not showing signs of aggression, Inspector Passmore felt it best to obtain the NRP’s assistance due to the man’s size. NRP officers arrived a few minutes later.
The male patron was pointed out to Mr. Kotsios, who told the inspector that the male patron was not drunk although he did not say why he felt that about the patron. Inspector Passmore decided to approach the patron so Mr. Kotsios could see why he and Inspector Foster thought the patron was drunk.
A band was playing in the establishment at the time of the inspection. Inspectors Passmore and Foster were standing at the end of the bar, towards the back of the establishment. He guessed that to be about 40 feet from the patron who, during the time of the Inspector’s observations, was located in the middle of the dance floor except for when he went to the bar to be served another beer. No obstructions blocked his view of the patron.
The patron was approached and asked if he would step outside; the patron did not resist the request. At this time, Inspector Passmore noticed that the patron’s eyes were bloodshot, that his speech was slurred, and that he had a strong odour of alcohol on his breath.
The NRP officers were waiting outside, standing back but available if a problem arose. They were there “more for security” and did not ask the patron any questions.
Standing within speaking distance of the patron, Inspector Passmore asked the patron how much he had to drink and was told “probably too much.” When the patron was asked the same question later, he said, “I don’t understand the question.”
The patron was asked but denied being on any medication.
While trying to take out a cigarette, the patron dropped his lighter. The inspector thought this showed that the patron had poor motor skills.
Mr. Kotsios again was asked if he thought the patron was drunk, and this time, he agreed that the patron was intoxicated. Mr. Kotsios called for a cab and waited until the patron got into it to be taken home.
Regarding the November 22, 2008 alleged incident
At 10:21 p.m., Inspector Passmore arrived at the establishment with Sergeant (“Sgt.”) Serianni and members of the NRP to conduct an inspection. As these officers entered the establishment, there was a female walking towards the exit; she was holding a bottle of beer.
The female was unsteady on her feet. She bumped into the inspector as she passed him but did not apologize for doing so. While the other officers entered the establishment, he decided to remain there and to observe the female.
The female exited the establishment’s vestibule/entry-way and stood beside one of the tables on the patio. She was 40-ish, and was wearing a baby blue jacket and high white boots.
The female, who was by herself, looked like she was going to throw the bottle of beer she was holding in her hand, although she did not throw it. She stood on the patio for only a couple of minutes, if that, when she came back in. The inspector decided to engage her in conversation because he suspected she was intoxicated and wanted to verify his suspicions.
When Inspector Passmore told the female that she had left her bottle of beer on the table, she replied that she did not have a bottle of beer. The inspector also noticed that the female had red, bloodshot eyes and that her speech was slurred. He told the female ‘they’ would get a cab for her. [At this time, Sgt. Serianni had rejoined Inspector Passmore, who had his conversation and made his observations of the female just inside the establishment, having moved there from the vestibule. Mr. Kotsios and a staff member were now also present.]
The female became agitated by the fact she had to leave. Sgt. Serianni spoke with her and calmed her down. The female decided to walk home with a friend.
Inspector Passmore testified that he has not seen this female since the night in question. He had seen the two women who were present at the hearing to testify, but did not think that one of them was the female in question.
Inspector Passmore was standing essentially face-to-face with the female while having his discussions with her.
Inspector Passmore did not recall seeing a staff person on the patio during the time the female was there. Neither did he recall seeing any door staff while he was at the establishment for this inspection.
The friend who agreed to walk the female home came from inside the establishment.
In cross-examination regarding the November 22, 2008 alleged incident, Inspector Passmore said he did not notice any spillage from the beer bottle the female was holding. Neither did he observe her drinking on the patio. She was not arguing with anyone; there was no one else around her when she was out on the patio. He would have called the NRP if he had felt the female to be a threat to anyone, but he never felt that need.
In cross-examination regarding the November 1, 2008 alleged incident, Inspector Passmore agreed that the inspection was part of a “blitz” of establishments, called Operation “Sustained Impact”. Having some background in working with disabled persons, Inspector Passmore did not note anything to lead him to believe that the male patron was disabled. He said that the man looked happy and that he was trying to dance.
Three male NRP officers, called as a safety precaution, responded to Inspectors Passmore’s and Foster’s call to attend the establishment on November 1, 2008.
Inspector Passmore believed that the male patron’s sister came out of the establishment to speak with him and Inspector Foster.
In re-examination regarding the November 1, 2008 alleged incident, Inspector Passmore testified that he did not make any note that the male’s sister mentioned anything about the male being either mentally or physically handicapped. He had made a note that the sister did not want to take the male home; rather, she wanted to go back into the establishment to enjoy her night.
Inspector Passmore said that the male patron’s behaviours were consistent with him being intoxicated rather than indicative of a physical or mental disability.
In response to questions from the Board regarding the November 1, 2008 alleged incident, Inspector Passmore agreed that the male patron’s poor motor skills while on the dance floor could have meant the man was a poor dancer: it seemed as if his legs were not moving with the rest of his body. The man never fell down.
Inspector Passmore recognized one of the female witnesses for the Licensee as being the bartender on the night of November 1, 2008.
Sgt. Renee Serianni also testified on behalf of the Registrar. She has been with the Ontario Provincial Police (OPP) since 1989. Her evidence as to the time of arrival and purpose of the inspection of the establishment on November 22, 2008 accords with that of Inspector Passmore in all material respects.
Sgt. Serianni recalled that two females exited through the establishment’s vestibule as she, Inspector Passmore and the other NRP officers arrived for their inspection. To Sgt. Serianni, one of the females appeared intoxicated and so she signalled Inspector Passmore to maintain observations on the female.
After going into the establishment to discuss an unrelated matter with Mr. Kotsios, Sgt. Serianni asked him to accompany her to the patio in order to show him the female.
Sgt. Serianni noticed that the female had slurred and loud speech, and that she kept repeating “I’m not drunk.” The officer concluded these were signs of intoxication. The female was already engaged with Inspector Passmore and members of the NRP, who were trying to make arrangements to get the female home and not have to arrest her for being drunk in a public place. Ultimately, a (sober) friend of the female accompanied her home on foot. Sgt. Serianni did not think the female could have returned home safely on her own.
Sgt. Serianni testified that she has not seen the female since the night in question. She had seen, but denied that one of the Licensee’s two female witnesses was the female in question.
The female was wearing white winter boots and a baby blue winter jacket and had long, thick blond hair. Sgt. Serianni did not obtain the female’s identification.
All of the officers dealing with the female were trying to calm her down and make her reasonable.
Initially, Sgt. Serianni made her observations in the vestibule where she was face-to-face with the female. While on the patio, the female and Sgt. Serianni were standing about three feet apart. Although it was night time, the area was well lit with lighting coming from the street, the nearby residential area and the premises itself.
Mr. Kotsios was very co-operative. She believed he supported the officers’ attempts to keep the female safe. Mr. Kotsios did not dispute the officers’ assessment that the female was intoxicated.
Sgt. Serianni left the premises at 10:30 p.m.
In cross-examination, Sgt. Serianni testified that the female was very upset that she was being sent home.
Sgt. Serianni determined upon initially arriving at the establishment that the female was intoxicated because the female had a beer in her hand, and her eyes were glazed and staring. Later, when the officer observed the female on the patio, she noted that the female was very argumentative, but not coherent. Also, the female was engaged in a very repetitive disagreement with the other officers, and then, also her friends came out to try and persuade the female to calm down and go home. The female seemed willing to jeopardize her status (i.e. be arrested) rather than be reasonable and agree to just go home. Based on the officer’s professional experience, she concluded that these signs indicated that the female was intoxicated and not just upset.
Sgt. Serianni did not see the female consume alcohol at any time.
In response to questions from the Board, Sgt. Serianni testified that the second female who exited with the female in question was sober and ultimately became the person who walked home the female in question. While she and the other officers were awaiting the arrival of a taxi (that is, before it was determined that the second female would walk the female in question home), she had time to make note of the relevant female’s hair. She again stated that neither one of the two women waiting outside of the hearing room was the female in question.
In questions arising from those of the Board, the officer stated that she did not take the name or address of where the female was going to be dropped off.
Licensee’s Evidence
Christos Kotsios was present in the establishment on November 1, 2008.
That night, a patron of the establishment, who is mentally challenged, was there and was observed by the Inspectors. The male was holding a beer, but was not drinking it, according to Mr. Kotsios. The establishment does not make money from his drinking, but he just likes to be there with the other people. The man has crossed-eyes.
Mr. Kotsios was also present in the establishment on November 22, 2008. The female in question did try to come into the establishment, but she was stopped at the patio. Also, she did not have any drinks in the establishment.
Mr. Kotsios thought that the officers were getting their dates mixed up with respect to the events of November 22, 2008 and the female at issue.
In cross-examination, Mr. Kotsios agreed that he is not medically-trained nor is he an expert in mental disabilities.
While Mr. Kotsios also agreed that there had been a whole series of inspections in a short period of time, he disagreed that he was getting his dates mixed up.
His business was described as “a neighbourhood bar”; Mr. Kotsios said that he has come to know a lot of his patrons quite well over the years. Ms Morin, a female, is a regular patron of his bar.
His dispute with the November 22, 2008 allegations is that when the intoxicated female patron was sent home, she had not had anything to do with the establishment. Specifically, he disagrees that the female was walking out of the establishment; rather, he says she was trying to walk into it but was diverted before gaining entrance to it. He agrees that the female was intoxicated.
Mr. Kotsios was inside the establishment, near the front door, when the inspectors and NRP officers arrived. He then went into the kitchen with Sgt. Serianni and did not see what happened on the patio until when he went out there with her, after completing his other discussions with her.
In response to questions from the Board, Mr. Kotsios testified that the drunken female was Ms Morin and that she was coming from the street and trying to get inside the establishment. She was taken to her father’s home, which is just around the corner from the establishment.
For a couple of months around that time, Mr. Kotsios’ establishment was being inspected every second day. Ms Morin used to come into the establishment every day; more recently, she comes in once or twice a week or even less frequently, such as once every two weeks.
On the night in question, he had two to three staff working (i.e. servers and a bartender), plus himself.
The next witness for the Licensee was Marie Morin. She recalled that, on November 22, 2008, she attempted to enter the patio of the establishment, but was stopped by the Licensee, the inspectors and NRP officers. She was walked home by a friend. According to Ms Morin, she was upset but not drunk.
In cross-examination, Ms Morin testified that she remembers the date was November 22, 2008 because her friend had just started a job and she and the friend were out celebrating. They had entered the establishment to use the washrooms and when she tried to order a beer, she was denied it as she had had enough.
She exited the establishment carrying an empty beer bottle that she was going to put into the case that usually sits just outside the door. Instead, she thinks she put it on the table on the patio.
Ms Morin could not estimate how many drinks she had had; she was “past her limit.”
Ms Morin agreed that it was possible she did not recall speaking with the inspectors because she was past her limit. She remembers going outside with him, just not speaking with him.
Only when she went outside and realized she was being upset, Ms Morin became belligerent. She said this was because she had not had a drink in the establishment, yet was being sent home.
Ms Morin lives just down the road from the establishment. She is a regular patron and “definitely feels bad” about what happened. Ms Morin went into the establishment the next day and apologized for being belligerent. She said she felt guilty that the establishment’s licence is being jeopardized because of her (behaviour); however, she was telling the truth and is sorry she was at the establishment on the night in question.
In re-examination, Ms Morin confirmed that she never purchased any alcohol in the establishment on the night in question.
In response to questions from the Board, Ms Morin clarified that it was the bartender that denied her service. She had been drinking in someone’s home before going to the establishment that night.
Crystal Kirkness testified next on behalf of the Licensee.
Regarding the November 22, 2008 alleged incident
- She told the Board that when Marie Morin entered the establishment on November 22, 2008 she did not serve Ms Morin any alcohol. The police officers asked Ms Morin to leave.
Regarding the November 1, 2008 alleged incident
On November 1, 2008, she was bartending. According to Ms Kirkness, the male patron at issue is a “very simple man”. He comes into the bar occasionally, just to be social, and stays for about two to three hours at a time. He will have one beverage that lasts him the evening. He does not get drunk.
When the Inspectors asked the male patron to leave, he did not argue with them. When they told him he was drunk, Ms Kirkness does not think the man would understand what it means. She thinks he would agree, “as he’s had a drink and now he’s happy”. This man always agrees on anything he is asked.
Ms Kirkness testified that the male patron was happy to be sent home by taxi; his sister remained in the establishment.
In cross-examination, Ms Kirkness agreed that not everyone gets upset if/when they are asked to leave the establishment; she also agreed that the male patron was this type of person.
Regarding the November 22, 2008 alleged incident, Ms Kirkness agreed that the liquor inspectors and NRP officers told Ms Morin it was time for her to leave. She testified that she saw Ms Morin come in from the patio to the bar and Ms Morin told her she was not allowed to have a beverage. She then asked Ms Morin’s friend, who was standing there, to take her home.
While Ms Kirkness does not bartend at the establishment every night, she described Ms Morin as a “regular patron” whom she might see every few weeks.
Ms Kirkness believed Ms Morin was upset because she could not have a beverage. The night in question was the only time Ms Morin has been asked to leave.
If the incident occurred on November 22nd, 2008, and it was a day Ms Kirkness was working, then she remembers the incident. She was not exactly sure what day it happened, but she remembers there was an incident involving Ms Morin.
In response to questions from the Board, Ms Kirkness testified that she was the only bartender working the night of October 31/November 1st, and that she only served the male patron in question one drink that night.
According to Ms Kirkness, there are no physical manifestations of the male patron’s disabilities other than that his speech is slow so that it can be difficult to understand him sometimes.
Ms Kirkness does not agree that the male patron was drunk on the night in question.
Ms Kirkness said that Ms Morin had not been in the establishment earlier the night of November 21/22nd, 2008. Also, she could not say if Ms Morin was intoxicated as she came into and left the establishment so quickly. She testified that she had not asked Ms Morin to leave; rather, she overheard Ms Morin say that she was not allowed to be served and that she had to leave.
In questions arising from those from the Board, Ms Kirkness agreed that she did not know if someone else had purchased a bottle of beer for the male patron the night of November 1, 2008.
Also in questions arising from those of the Board, Ms Kirkness testified it was not possible that Ms Morin had been in earlier the night of November 21st /22nd and just had not been seen because Ms Kirkness was busy with customers. She said that Ms Morin came in to get her friend and to use the washroom. She knew that there was a “ruckus” in the doorway going on and that “a bunch of them” were talking. She was not privy to what happened outside on the patio that night.
Registrar’s Submissions
The Registrar submits that the Licensee breached subsection 45(1) of the O. Reg (that is, “permitted drunkenness”) on two dates, that is, on November 1, 2008 and again on November 22, 2008. Also, the Registrar alleges that the Licensee breached section 29 of the LLA (that is, “served someone who was showing signs of intoxication”) on November 1, 2008.
On November 1, 2008, a male patron was observed by two AGCO inspectors for some minutes and, during that time and while the patron was showing signs of intoxication, he was served a Coors Light beer by the bartender of the establishment.
The inspectors’ evidence supports a conclusion that the male patron was showing signs of intoxication.
The bartender admits that she was busy that night; she was also unable to say whether someone else bought the male patron a beer or not. Notwithstanding the evidence as to how the male patron looked and behaved, she yet served him a beer.
There is no evidence that the male patron suffers from anything. There is no evidence that either Mr. Kotsios or Ms Kirkness have any medical training. The male patron told one of the inspectors that he had not taken any medication that night.
The male patron admitted that he had had too much to drink.
The Registrar submits that all of this evidence proves, on the balance of probabilities, that the male patron was intoxicated.
The Registrar further submits that the evidence supports the conclusion that the Licensee knew or ought to have known that this patron was drunk. The inspectors were watching the patron for a period of time before he was served, and then, after he was served and until the NRP arrived. During that time, no staff took any action with respect to this patron.
In Inspector Passmore’s opinion, the male patron “stood out”. It is also clear that the signs of intoxication were evident at the time when the patron was served the bottle of Coors Light beer. At that point, the bartender “knew or ought to have known” that this patron was intoxicated.
Further, the Licensee is responsible for the conduct of its employees.
Therefore, the Registrar submits that, on the balance of probabilities, both subsection 45(1) of the O. Reg and section 29 of the LLA were breached on November 1, 2008.
Regarding the November 22, 2008 alleged incident, the Registrar submits that there is no issue that there was a drunken patron at the establishment that night. At issue is whether that patron was Ms Morin or not. Also at issue is whether the Licensee permitted her to be on the premises or not.
Inspector Passmore and Sgt. Serianni both testified that they did not see Ms Morin at the establishment on November 22, 2008. Their evidence is reliable because they made their notes shortly after the incident. Also, there is no issue as to them getting confused between dates.
However, during Mr. Kotsios’ questioning of Inspector Passmore, he was getting the November 22nd date confused with another incident where Mr. Kotsios did deal appropriately with another drunken female who was trying to get into the establishment.
The Board heard evidence that Ms Morin lives on the same street as the establishment, yet Ms Morin’s evidence was that her friend took her home, and not to her father’s place which is where the blond female whom the inspector and the sergeant saw, was being taken.
There was a “blitz” going on in the area, and the inspectors were in the establishment on a regular basis for about six weeks. Therefore, it is entirely possible that Mr. Kotsios is getting two different incidents confused.
In the Registrar’s submission, there is no evidence that she was being escorted out by staff or that she was dealt with by staff at any time.
What happened on that night is that a female patron was encountered by the inspectors and police officers leaving the establishment. Even then, the female never left a licensed area. She remained on the patio for a few minutes, waving around a bottle of beer, and then started to re-enter the establishment where she began talking with Inspector Passmore. The inspector and police officers were the ones who decided the female needed assistance getting home, not Mr. Kotsios or his staff.
It is this lack of staff intervention in these foregoing circumstances, in the Registrar’s submission, that shows the Licensee “knew or ought to have known” that the female was drunk. They ought to have dealt with that situation and not have left it to the inspectors and police officers to do so.
The evidence also shows that the patio was in use on November 22, 2008, but there is no evidence of any staff members monitoring the patrons there.
Licensee’s Submissions
Regarding the November 1, 2008 alleged incident, Mr. Kotsios submitted that Ms Kirkness, the bartender on duty that night, is Smart Serve certified. She served the male patron, but he was not drunk.
The evidence shows that the male patron was sober. When he went home, he was happy; he did not argue with anyone. His eyes are crossed, but this relates to a disability, not intoxication.
Mr. Kotsios says that the November 22, 2008 alleged incident involved Ms Morin. The Licensee’s evidence confirms that Ms Morin entered the establishment in an intoxicated state; she had become drunk elsewhere. She was never served and did not consume alcohol while in the premises. She was provided safe transportation to her father’s home.
Mr. Kotsios asked what responsibilities a Licensee has if someone walks in and asks to use the washroom. He suggested that it would be proper to let that person use the washroom, but immediately after that, to have them leave. The person would not be given any service. Also, if someone walks into the establishment already drunk, is it the Licensee’s responsibility to “buy them” a taxi ride home. In other words, how far do a Licensee’s responsibilities go?
He has been in business since 1974 and this is the first time his establishment has had to “face the Board”. He asks the Board to “throw out” both matters.
Reply Submissions
With respect to the November 1, 2008 incident, the Registrar submitted that not everyone gets angry when they are drunk; some people are “happy drunks”. Thus, that the male patron was co-operative is not indicative of his sobriety. Also, persons with physical and/or mental handicaps can become drunk as much as anyone else. It is not a matter of discrimination when the Registrar seeks to hold Licensee’s accountable for permitting drunkenness, regardless of whether the person may or may not have a disability.
Regarding the November 22, 2008 incident, the issue is that none of the staff members dealt with the drunken female; they did not take, but should have taken charge of her. If they had been dealing with her at the time the inspector and the police officers arrived, the establishment would not have breached the legislation.
The Registrar is not alleging that the Licensee served the female patron on November 22, 2008.
Analysis and Reasons
- The Board has carefully reviewed the evidence and the submissions of the parties. It declines to make findings under either subsection 45(1) of the O. Reg or section 29 of the LLA with respect to either of the two alleged incidents, for the following reasons.
Subsection 45(1) of the O. Reg
- For a finding under subsection 45(1) of the O. Reg, on the balance of probabilities the evidence must, first, demonstrate that the patron of the establishment was drunk while there. Next, the Board must find that the establishment “permitted” the drunkenness. In this case, both parts of this two-pronged test fail.
Regarding the November 1, 2008 alleged incident
Was the patron in question drunk on November 1, 2008? To that end the Board has assessed and weighed the conflicting evidence of the Registrar’s and the Licensee’s witnesses.
The main witnesses on behalf of the Registrar, Inspectors Foster and Passmore, concluded, based on their professional experience, that the male patron in question was severely intoxicated. Both inspectors testified that the male was unsteady on his feet and loud. Inspector Foster said the man had red, glassy eyes. Inspector Passmore testified that the man’s eyes were bloodshot, but only made this observation when the gentleman was taken outside and was closer in proximity to him.
When the inspectors first noticed the male patron, he was dancing on the dance floor and was holding and drinking from a bottle of beer. Both inspectors saw the man leave the dance floor to be served a bottle of beer by the bartender. The bartender, who is Smart Serve certified, testified that when she served him the male patron was not intoxicated. While observing the man dancing, he was described as having poor motor skills - as if his legs were not moving with the rest of his body; in response to questions from the Board, the Inspector Passmore agreed that this description could as easily have been that of a man who was simply a poor dancer.
Once the male was taken outside, both inspectors also noted what they described as a “strong odour of alcohol on (the male patron’s) breath”. There, Inspector Foster also noticed that the man was uncoordinated, having dropped his lighter; Inspector Passmore also noted that the man’s speech was slurred.
The inspectors agreed in their evidence that the male patron was co-operative with them and that he agreed with them that he had had too much to drink.
Conversely, the Licensee’s witnesses, Mr. Kotsios and Ms Kirkness deny that the male patron was intoxicated. Both spoke to the man having a mental disability of sorts. In particular, Ms Kirkness, who has known this man as a regular patron of the establishment, testified that he is a “simple” person, whose speech is normally slurred and can be difficult to understand. She also indicated that he would not necessarily understand but typically would agree with anything he is asked. According to Ms Kirkness, typically, the man only has one bottle of beer to drink during the two to three hours he tends to spend there and that after having had his bottle of beer, he would be happy.
Ms Kirkness was working on the night in question and testified that she served the male one Coors Light beer.
The Board does not doubt that the AGCO inspectors observed what they believed to be the signs of intoxication in this patron. When the inspectors pointed the man out to Mr. Kotsios and expressed their concerns about his sobriety, Mr. Kotsios’ immediate reaction was to the effect that the man was “always like this”. In other words and in this case, the evidence is equally credible that the subject male has a disability, probably mental, that manifested itself in what the inspectors saw and experienced in relation to the man.
Even though neither Mr. Kotsios nor Ms Kirkness has medical training, they are familiar with the man in question generally and, importantly, with his drinking habits. The Board accepts that the man had one, and possibly a second beer (given that he was seen to be drinking from a bottle of beer while on the dance floor) on the night in question. Furthermore, taken in the context that the man is usually only present in the establishment for a couple or three hours at most, the Board cannot conclude that the man consumed sufficient alcohol to cause intoxication.
Also, given his simple-mindedness, the Board believes that the man may not have appreciated the implications of what Inspector Passmore was asking him in relation to his “admission” that he had had too much to drink. His slurred speech could have been as a result of his disability, as Ms Kirkness testified. The odour of alcohol may have been the result of the man having recently consumed from a bottle of Coors Light beer; it is not determinative of drunkenness, per se.
The Board agrees that the fact that the man was happy and co-operative is also not determinative of his sobriety; as the Registrar argued, he could simply have been a “happy drunk”. However, it is also quite common for patrons to become angry and physical, and thereby pose safety risks to staff and/or inspectors or police when such patrons are asked to leave an establishment. In fact, this is the reason both inspectors gave for calling in and waiting for the NRP to be present as back-up before dealing with this man. That is not what happened in this case, though, and as such, it provides further evidence in support of the Licensee’s position that the man was not drunk but rather, was a happy, simple-minded man.
In other words, all of the evidence the Board heard is inconclusive on the issue of whether or not the male patron was drunk in the premises on the night in question. As a result, the Registrar has not met its onus, on the balance of probabilities, on the first part of the two-pronged test under subsection 45(1) of the O. Reg.
Even if the Board is incorrect in concluding that the male patron was not drunk, it nevertheless concludes that the allegations against the Licensee must fail because the Registrar has also failed to prove the second prong of the test for a finding under subsection 45(1) of the O. Reg. That is, the Registrar has not proven, on the balance of probabilities, that the Licensee “permitted” the male patron’s intoxicated state. Specifically, it must determine whether the Licensee “knew or ought to have known” that drunkenness was occurring in the premises (1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission). The Board declines to make that finding.
First, Mr. Kotsios’ immediate reaction to being advised by the inspectors that the male patron was drunk was to say that the man was “always like this”. Ms Kirkness’s evidence supports this evidence. The inspectors saw the man consume from, at most, two bottles of beer; Ms Kirkness testified that she only served him one beer. In other words, the evidence before the Board is insufficient for it to conclude on the balance of probabilities that the Licensee either “knew” or “ought to have” known that the male patron was drunk, which in any event the Board does not find.
For all of these reasons, the Board DISMISSES the allegation that the Licensee permitted drunkenness in the establishment on the night of November 1, 2008.
Regarding the November 22, 2008 alleged incident
As regards this alleged incident, the Board has assessed and weighed the evidence of Inspector Passmore and Sgt. Serianni against that of Mr. Kotsios, Ms Morin, and Ms Kirkness within the context of the two-fold legal test required for a finding under subsection 45(1) of the O. Reg. Based on that evidence, the Board cannot conclude on the balance of probabilities that the Licensee permitted the female person to become drunk while in the establishment. Therefore, it declines to make a finding under this subsection, for the following reasons.
First, the Board finds that the female in question was intoxicated. All of the relevant witnesses testify to this fact: it is unnecessary to detail the particulars as it is an agreed matter. Thus, the first part of the test under subsection 45(1) has been met: a drunken person was in the establishment on the night in question.
The Board then moves on to whether the Licensee permitted the drunkenness. In order to make that assessment, the Board must first determine whether Ms Morin was the female in question on the night in question because her evidence, taken with that of Mr. Kotsios and Ms Kirkness could support the conclusion that the Licensee did not “know or ought to have known” about her drunkenness, and thus, that the Licensee did not “permit” it.
Inspector Passmore and Sgt. Serianni both testified that Ms Morin was not the female they observed at the establishment on November 22, 2008. In contrast, Ms Morin says that she was that woman. Mr. Kotsios and Ms Kirkness believe that Ms Morin was the intoxicated female. In giving their evidence, it became evident that Mr. Kotsios and Ms Kirkness might have the events of the November 22, 2008 inspection confused with another inspection/incident on another date that involved Ms Morin. This is possible since the establishment was being inspected approximately every other night as part of a blitz operation involving all establishments in the area during that time.
On the evidence before it, however, the Board concludes that Ms Morin was the intoxicated female in question on the night in question. Even though she was drunk, the event stood out in her mind to make her a credible witness (e.g. she remembered the night because she had been celebrating that her friend had found employment, and she felt so badly about how she had behaved that she came in the next day to apologize to Mr. Kotsios). Also, the details of what happened that night are sufficiently consistent and common between all the witnesses’ testimonies that point to Ms Morin being the person involved that night.
Specifically, all of the witnesses agree that a female on the patio was belligerent towards the inspector and police officers, insisting that she was not drunk. The witnesses also concur that the female ultimately agreed to leave the establishment, escorted by a female friend. Whether or not they walked to Ms Morin’s or her father’s home, the witnesses agree that where she was taken was located nearby the establishment, or within safe walking distance. Also, none of the witnesses saw the female being served or consuming any alcohol on the premises. Ms Morin’s testimony accords with all of these facts.
Also, having observed Ms Morin at the hearing, the Board also notes that her height and hair colouring fit with Sgt. Serianni’s description of her. Lastly, the Board found Ms Morin to be a credible witness; any omissions or contradictions in her testimony, which were minor and few, were likely due to lapses in memory due to her state of intoxication on the night in question. In the essential matters, her evidence bore up under cross-examination.
Having concluded that Ms Morin was the intoxicated female at the establishment on November 22, 2009, did the Licensee know or ought the Licensee to have known that she was drunk. The Board concludes that, by coincidence, Ms Morin arrived at the establishment at more or less essentially the same time as the inspector and police officers: it was a simple matter of timing.
While Ms Morin acknowledges that she entered the establishment, she also testified that she only went in briefly to use the washrooms: Ms Kirkness’s recollection is consistent in this regard. Further, Ms Kirkness denies having served Ms Morin any alcohol, which also accords with Ms Morin’s evidence on that point. Ms Kirkness denied that Ms Morin had been in the establishment earlier the night in question. She also testified that, although Ms Morin is a regular customer of the establishment, this is the only time ever she was denied service. She agreed that Ms Morin was drunk.
Mr. Kotsios and Ms Kirkness candidly acknowledged that the inspector and police officers, not staff members or Mr. Kotsios, were the ones who told Ms Morin that she would not be getting service at the establishment. Ms Kirkness testified that Ms Morin said something to that effect when she came in to use the washrooms and Ms Kirkness suggested that Ms Morin’s friend walk her home.
Based on all of this evidence, the Board concludes that the specific and somewhat peculiar circumstances of this case did not afford the Licensee a reasonable opportunity or time to meet its obligations to not “permit drunkenness” in the establishment. What’s more, in this case, as soon as the Licensee too saw Ms Morin on the patio and believed her to be drunk, he too refused her entry to the establishment and co-operated with the authorities, who had already determined that Ms Morin should be denied service, to be sent (safely) on her way.
For all of these reasons, the Board concludes that the Licensee did not know, nor ought it to have known, that Ms Morin was drunk in the establishment. As such, the Board DISMISSES the allegations that the Licensee breached subsection 45(1) in respect of the November 22, 2008 alleged incident.
Section 29 of the LLA
- The Board has already concluded that the male patron involved in the alleged incident on November 1, 2008 was not drunk. Further to the provisions of section 29, it must also determine if the male patron “appeared to be intoxicated, but yet was served alcohol in the establishment. It also concludes that this was not the case.
To this end, the Board accepts and relies on the evidence of the bartender, Ms Kirkness, who was the only bartender on duty on November 1, 2008. Furthermore, Ms Kirkness knows the male patron as a regular patron of the establishment, and as such and importantly, she is also familiar with the man’s typical behaviours and usual drinking habits. She did not believe him to be drunk on the night in question. She also testified that she served him only one drink that night, although she candidly agreed that it was possible that someone else could have given the man a second drink.
Significantly, Ms Kirkness described the male patron as a “simple” man whose speech is typically slow and can be difficult to understand. What’s more, the man is generally happy to come to the establishment for two to three hours and have a drink, and will generally answer affirmatively to whatever he is asked. In the Board’s view, the male patron’s behaviour and levels of alcohol consumption on November 1, 2008 seemed typical and consistent with Ms Kirkness’ descriptions.
Based on the foregoing evidence one cannot reasonably conclude that the male patron would have appeared intoxicated to Ms Kirkness when she served him the bottle of beer on the night in question. It follows that the allegation that the Licensee served alcohol to someone who appeared to be intoxicated must also fail.
- The Board therefore DISMISSES the allegation against the Licensee in this regard.
Conclusions
For the reasons given, the Board DISMISSES the allegations that the Licensee violated subsection 45(1) of the O. Reg on November 1, 2008 and November 22, 2008.
The Board also DISMISSES the allegation that the Licensee violated section 29 of the LLA on November 1, 2008.
DATED AT TORONTO THIS 5th DAY OF November , 2009
S. GRACE KERR, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER