Registrar, Alcohol and Gaming Commission of Ontario v. Coco’s Place Restaurant & Bar Ltd., 2009 CanLII 78672

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: ALCOHOL AND GAMING REGULATION AND PUBLIC PROTECTION ACT S.O. 1996, C.26, S.14.1, SCH

B E T W E E N:

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

Coco’s Place Restaurant & Bar Ltd. O/A Coco’s Place Licensee

DECISION

Panel: S. Grace Kerr, Board Member Bruce S. Miller, Board Member

Decision Date: December 10, 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 Coco’s Place Restaurant and Bar Ltd., Licensee ) Julia De Vuono, Representative

Authorities

1197801 (Body English/Body Rok) (Re) 2008 CanLII 52551 (ON A.G.C.) — 2008-09-16 Alcohol and Gaming Commission of Ontario — Ontario

3234720 (Raxx Billiards and Bar) (Re) 2008 CanLII 6168 (ON A.G.C.) — 2008-01-10, Alcohol and Gaming Commission of Ontario — Ontario

3234720 (Raxx Billiards and Bar) (Re) 2008 CanLII 6167 (ON A.G.C.) — 2008-02-07 Alcohol and Gaming Commission of Ontario — Ontario

Salty Dawg Roadhouse Restaurant, [2001] O.A.G.C.D. No. 426

Salty Dawg Roadhouse Restaurant, [2002] O.A.G.C.D. No. 21

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

1. A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 120 dated June 23, 2009, issued to Coco’s Place Restaurant & Bar Ltd. (the “Licensee”), operating as COCO’S PLACE, 2480 Eglinton Avenue East, Toronto, Ontario, M1K 2R4 (the “establishment” or the “premises”), liquor licence number 21168 (the “Licence”), pursuant to section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, in respect 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”), was held on December 4, 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 and CONFIRMS the Registrar’s Order of Monetary Penalty number 120 dated June 23, 2009. Reasons follow.

Registrar’s Evidence

3. Scott MacDonald is a Police Constable (“PC”) with the Toronto Police Service and has served there for eight years.

4. He went to Coco’s Place on August 26, 2008 at 10:07 PM. He had information that people were selling stolen property from a nearby Shoppers Drug Mart store. He had a description of a suspect.

5. He went to Coco’s Place with PC Robertson and PC Hind.

6. He saw a male matching the suspect’s description in the bar. He walked over to the male and asked him to come outside and speak to him, which the male did.

7. He spoke to the male in front of Coco’s Place on the sidewalk and ascertained that the male was not involved.

8. He then saw another male, now known to him as Stephen Jay, walk out of Coco’s Place and stand in front of the doorway. PC Robertson went over and spoke to Mr. Jay.

9. Mr. Jay was lighting a cigarette.

10. He heard Mr. Jay begin to yell and swear at PC Robertson.

11. Mr. Jay then staggered aggressively towards PC Robertson who pushed Mr. Jay back.

12. He walked over to them. Mr. Jay was intoxicated. Mr. Jay’s eyes were bloodshot, there was a strong odour of alcohol on his breath and he was unsteady on his feet. Mr. Jay’s hands were clenched at his side and he was grinding his teeth.

13. He warned Mr. Jay about his aggressive behavior.

14. Mr. Jay’s speech was very slurred and he was difficult to understand.

15. Mr. Jay continued to swear at him.

16. He told Mr. Jay that he had enough to drink and should leave. Mr. Jay swore at him and said he didn’t have to leave.

17. He warned Mr. Jay about causing a disturbance and being intoxicated in a public place.

18. Mr. Jay urinated in his pants. He seemed confused and started to stumble.

19. He told Mr. Jay to turn around and place his hands on the wall. Mr. Jay swore at him and staggered backwards.

20. He told Mr. Jay he was under arrest for being intoxicated in a public place and grabbed Mr. Jay’s left wrist and tried to pull it behind his back. Mr. Jay clenched his right fist and pulled it back in a punching motion. PC Robertson and he wrestled Mr. Jay to the ground and handcuffed him. Mr. Jay was arrested at 10:24 PM.

21. After Mr. Jay was taken to the police station, Mr. Jay stated he was drinking at the “fucking Coco”. Mr. Jay stated he had been at work prior to that. When Mr. Jay was asked how many drinks he had he stated “What the fuck is it to you?” When PC MacDonald asked again Mr. Jay stated he had six beers.

22. On cross-examination PC MacDonald stated he didn’t see Mr. Jay when he went in Coco’s Place.

23. Mr. Jay was charged with being intoxicated in a public place and PC MacDonald does not know what the end result of the charge was.

24. He does not know why Mr. Jay came out of the bar.

25. He thinks Mr. Jay became aggressive because police spoke to him.

26. He didn’t note anything unusual about Mr. Jay at first, other than he was staring at him.

27. There is another licensed establishment near the Shoppers Drug Mart where the theft the police were investigating occurred.

28. The Registrar’s counsel did not re-examine PC MacDonald.

29. Stephen Jay is familiar with Coco’s Place and he was there on the night in question. He went there from work. He is not sure when he left work or when he arrived at Coco’s Place.

30. He “probably” consumed six beers at Coco’s Place. He doesn’t think he had anything to drink prior to that.

31. He does not know who served him.

32. He went out for a cigarette. He got into an argument with the police as he thought they were “hassling” someone.

33. On cross-examination he stated he was not sure of the times that night.

34. He thinks he was drinking bottles of Molson Canadian.

35. He can’t remember if he asked someone for a cigarette.

36. He went there by himself.

37. He was served his drinks by the bartender. He could not remember what the bartender looked like.

38. He denied drinking elsewhere and just going inside Coco’s Place to ask for a cigarette.

39. He doesn’t remember if he sat at the bar or at a table.

40. He had been to Coco’s Place before the night in question.

41. He doesn’t remember how much he paid for his drinks.

42. He lives in the area of Coco’s Place.

43. He does not recall urinating in his pants.

44. He does not remember how many people were in the bar.

45. He did not know the other person that police were talking to.

46. He thinks he was under control when he was in the bar area and that he was well behaved.

47. The officers were speaking to the male in the parking lot and he was standing at the west wall of Coco’s Place.

48. He shops at a pharmacy in the same mall where Coco’s Place is situated.

49. Registrar’s counsel did not re-examine Mr. Jay.

50. In response to questions from the Board, he stated he would have gone to Coco’s Place about five times during the year prior to this incident.

51. He remembers he was at Coco’s Place that night because he was arrested.

52. Bill Robertson is a PC with the Toronto Police Service and has served there for 10 years.

53. He went to Coco’s Place on August 26, 2008 to look for a male believed to be involved in a theft. He went into the bar with PC MacDonald.

54. PC MacDonald located a male matching the suspect’s description and brought the male outside.

55. As they were heading towards the door he noticed another male, now known to him as Mr. Jay, who seemed “very intent” on what they were doing.

56. Mr. Jay was near the bar area. PC Roberstson couldn’t remember if Mr. Jay was at the bar or at a table.

57. Mr. Jay followed them. He was unsteady on his feet. PC Robertson stopped Mr. Jay at the doorway and asked Mr. Jay if he was okay. Mr. Jay stated, “I just want to make sure you’re treating that guy okay”.

58. He noted Mr. Jay’s speech was slurred and there was an odour of alcohol on his breath.

59. He and PC MacDonald went outside and Mr. Jay followed and lit a cigarette.

60. He told Mr. Jay he couldn’t smoke under the overhang. Mr. Jay stated, “I can smoke wherever the fuck I want”.

61. He took the cigarette from Mr. Jay. Mr. Jay became very agitated and clenched his teeth and fists and came towards him. He pushed Mr. Jay back.

62. PC MacDonald came over and they arrested Mr. Jay.

63. He went back in the bar and asked to speak to someone in charge. He spoke to Mr. Reardon. He got the liquor licence information for the premises from Mr. Reardon and would have most likely advised Mr. Reardon of the intoxicated male.

64. On cross-examination, he stated he did advise Mr. Reardon of the infraction and that Mr. Reardon went outside.

65. Mr. Jay lit his cigarette directly in front of Coco’s Place and was not at the west wall.

66. He could not recall seeing Mr. Jay with a drink while he was in Coco’s Place.

67. He noticed Mr. Jay as he seemed very interested in what police were doing and also because he was very unsteady on his feet.

68. Registrar’s counsel did not re-examine PC Robertson.

69. In response to questions from the Board, he stated that Mr. Jay was arrested for being intoxicated in a public place but he does not know what happened to the charge.

70. The other signs of intoxication that he noted about Mr. Jay were slurred speech, aggressiveness and unsteadiness on his feet.

Licensee’s Evidence

71. Anthony Reardon works at Coco’s Place which is owned by his niece.

72. On August 26, 2008 he worked as the bartender until F.N. took over at 6:00 PM.

73. There was a pool league that night which started at 7:30 PM and he was playing in it.

74. He does not drink alcohol.

75. Four police officers walked in the bar. It looked as if they were looking for someone. They talked to a customer and asked him to come outside.

76. There were about 20 people in the bar. The capacity for the bar is 30.

77. Mr. Jay walked in and asked him for a cigarette. Another male gave him a cigarette.

78. Three minutes later an officer came in and he went outside to talk to him. He told the officer he didn’t know Mr. Jay. He told the officer that Mr. Jay had just come in and asked for a cigarette.

79. He saw another officer speak to Mr. Jay. There was a scuffle and the officer he had been talking to went back outside.

80. He hasn’t seen Mr. Jay since the incident.

81. He and F.N. are Smart Serve trained.

82. F.N. could not attend the hearing as he is very ill.

83. Sixteen of the people in the bar were playing in the pool league. There were a few people at the bar and only the pool players were sitting at the tables.

84. He would have told F.N. not to serve anyone whom he thought was intoxicated.

85. There is another bar in the same plaza as Coco’s and it is a few doors away.

86. On cross-examination, he stated he started work at 11:00 AM and worked to 6:00 PM. He then started to practice playing pool. The pool league started at 7:30 PM. He was talking to the other pool players and was concentrating on the pool game.

87. The officers were leaving the bar when Mr. Jay walked in.

88. Licensee’s counsel did not re-examine Mr. Reardon.

Registrar’s Submissions

89. Mr. Jay was not merely drunk but, in the vernacular, was “wasted”.

90. There were numerous signs of intoxication.

91. PC MacDonald described Mr. Jay as having bloodshot eyes, being very unsteady, having the smell of alcohol on his breath, having slurred speech, being difficult to understand, being highly aggressive, swearing, trying to throw a punch, urinating in his pants, grinding his teeth and clenching his fists.

92. PC Robertson saw Mr. Jay inside Coco’s Place in the area of the bar. He noticed Mr. Jay because of his intense staring.

93. Mr. Jay followed the police officers outside and PC Robertson saw Mr. Jay stagger prior to leaving the establishment.

94. PC Robertson spoke to Mr. Jay inside Coco’s Place and noted that Mr. Jay’s speech was slurred and that there was an odour of alcohol on his breath. They went outside and Mr. Jay got upset when PC Robertson removed the cigarette from Mr. Jay.

95. Mr. Jay was positive that he was in Coco’s. This is one of the few things he was positive about.

96. Mr. Jay denied that he just went in for a cigarette.

97. There is no evidence that Mr. Jay was in any other bar on the night in question.

98. Mr. Reardon was concentrating on the pool tournament and was not involved in the operation of the bar.

99. Mr. Jay was drunk in the licensed premises based on Mr. Jay’s evidence that he was there consuming beer and his intoxicated condition as described by the police officers.

100. The Licensee knew or ought to have known that Mr. Jay was intoxicated.

101. Mr. Kulis submitted the Board’s decisions on findings and sanction for Salty Dawg. The decision involved a female who was in a motor vehicle collision after leaving the Salty Dawg Roadhouse and Restaurant. The issue for the Board was whether she would have been exhibiting the same sings of intoxication in the premises as she was exhibiting at the accident scene. The Board, in their decision, arrived at “an inescapable conclusion that the signs of drunkenness exhibited by (the female) at the scene of the accident would have also been discernable when she was at the Salty Dawg”.

102. Mr. Kulis submitted the Board’s decisions on findings and sanction for Raxx Billiards and Bar which involved a patron who drove into a snowbank after leaving the premises. The Board, in their decision, drew the conclusion that the patron would have been intoxicated while in the premises and that this should have been noticed by staff.

103. Finally Mr. Kulis submitted the Board’s decision on findings for Body English/Body Rok. In that decision the Board ruled the advanced and pronounced signs of intoxication that a customer was exhibiting showed that staff were not monitoring and regulating his service.

104. The Board should make a finding that the Licensee permitted drunkenness.

Licensee’s Submissions

105. The evidence of the police officers corroborates the evidence of the Licensee. PC MacDonald did not see Mr. Jay inside Coco’s Place and PC Robertson only saw Mr. Jay on the way out. PC Robertson did not see Mr. Jay with a drink.

106. Mr. Jay was having a cigarette outside. Mr. Reardon stated Mr. Jay asked him for a cigarette.

107. PC Robertson stated Mr. Jay attracted his attention because Mr. Jay seemed overly interested in what was going on and not because of any signs of intoxication.

108. Mr. Reardon is the most reliable witness. He was not drinking and has a good recollection of the events. His evidence should be preferred over that of Mr. Jay’s.

109. The Board cannot rely on Mr. Jay as he did not provide any detail.

110. Mr. Jay had no reason to tell the truth when he answered PC MacDonald’s questions about where he had been drinking on the night in question.

111. The act of walking in a licensed establishment and asking for a cigarette does not constitute the offence of permitting drunkenness.

112. If the Board decides to accept Mr. Jay’s evidence that he was in Coco’s Place, there was no evidence that staff could have known that he was intoxicated.

113. Salty Dawg does not apply as there was no evidence of significant interaction with staff in this case as there was in Salty Dawg.

114. There was evidence of intoxilyzer results in the Raxx Billiards decision. This matter does not have that type of concrete evidence. The observations of intoxication result from Mr. Jay becoming upset at the police officers. His behavior may not have been as obvious if this had not occurred.

115. The Board should not make a finding in this matter.

Registrar’s Reply

116. There were no reply submissions.

Analysis/Reasons/Findings

117. The Board has carefully considered all the evidence and the submissions presented.

118. This matter concerns an alleged violation of subsection 45(1) of the O.Reg which reads as follows:

“The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”

119. There are a number of issues for the Board to address. The first concerns whether Mr. Jay was intoxicated.

120. Mr. Jay testified that he “probably” had six beers.

121. PC Robertson noted Mr. Jay’s slurred speech, his swearing, the odour of alcohol on his breath, his aggressiveness and his unsteadiness on his feet. In fact, PC Robertson had to push Mr. Jay away when he became aggressive.

122. PC MacDonald described Mr. Jay as having bloodshot eyes, being very unsteady, having the smell of alcohol on his breath, having slurred speech, being difficult to understand, being highly aggressive, swearing, trying to throw a punch at a police officer, urinating in his pants, grinding his teeth and clenching his fists.

123. Mr. Jay exhibited all of the classic signs of intoxication. Clearly Mr. Jay was intoxicated and the evidence indicates that in fact, he was very intoxicated.

124. The next issue centers on the question of whether the Licensee permitted drunkenness.

125. The witness for the Licensee, Mr. Reardon, testified that Mr. Jay walked in the premises and asked him for a cigarette while the police officers were dealing with another male. Mr. Jay received a cigarette from another customer and walked outside. Mr. Reardon stated this was the first time he had ever seen Mr. Jay.

126. Mr. Jay was very adamant that he went to Coco’s after work and was served “probably six beers” while he was there. He denied going in there just for a cigarette. Mr. Jay’s recollection of details was poor on a number of details but not on this point. He had been to Coco’s Place before, lived in the area and remembered being there as that is where he was arrested. There was no evidence of any reason why he would purposely try to mislead the Board.

127. Mr. Jay also told PC MacDonald at the police station on the evening he was arrested that he had six beers in Coco’s Place that evening, which is consistent with his testimony at the hearing.

128. PC MacDonald was looking for a suspect when he went into Coco’s Place and does not remember seeing Mr. Jay in the premises.

129. PC Robertson saw Mr. Jay in the premises near the bar area. He noticed Mr. Jay as he felt Mr. Jay was very intent on what police were doing. He also noted Mr. Jay was unsteady on his feet. He stopped Mr. Jay at the doorway as he was following the police officers outside. Mr. Jay told PC Robertson he was going outside to make sure police were not “hassling” the male they took outside to talk to.

130. Neither officer saw Mr. Jay enter the bar which only had 20 customers inside it. It seems clear that Mr. Jay was very intoxicated and that one of the officers would have noticed Mr. Jay if he walked in the premises as the officers were leaving as Mr. Reardon testified.

131. Mr. Jay was clear that he was consuming alcohol at Coco’s. Mr. Reardon denies this. Mr. Reardon does have a self-interest in the matter as he is employed at Coco’s Place. Mr. Reardon also admitted he was concentrating on his pool tournament, wasn’t working, and was talking to friends.

132. F. N., the on-duty staff member, did not appear to testify at the hearing due to illness.

133. The Board finds it implausible that Mr. Reardon would not have immediately taken steps to eject Mr. Jay if in fact Mr. Jay just walked in off the street, highly intoxicated with several police officers in the premises, instead of allowing him to ask patrons for a cigarette.

134. The Board is satisfied, based on the balance of probabilities, that Mr. Jay had been a patron in the establishment and did not just walk in off the street that evening.

135. The question of permitting drunkenness also requires the Board to consider whether the Licensee “knew or ought to have known” that a patron was drunk according to the Ontario Court of Appeal’s reasoning in Sin City. This question requires the Board to make that determination in “all the circumstances and, in particular, in the context of the various obligations and duties placed on the licensee by the relevant legislation and regulations”.

136. Mr. Jay testified that he was at Coco’s Place and consumed “probably” six beers. The Board infers from this that he was there for a prolonged period of time.

137. PC Robertson first noticed Mr. Jay in the area of the bar. Mr. Jay came to his attention because he was staring intently at the police officers. Mr. Jay tried to follow the officers outside. PC Robertson noticed Mr. Jay was unsteady on his feet and stopped him and asked him if he was alright. He noticed that Mr. Jay’s speech was slurred and that there was an odour of alcohol on Mr. Jay’s breath. PC Robertson observed all of this while he was inside the premises and before any altercation started.

138. Once outside the premises Mr. Jay became belligerent with the police officers. He became very aggressive and was arrested.

139. Ms De Vuono argued that this aggressiveness was caused by his interaction with the police. This may in fact be true. However, even if the Board discounts the aggressive behaviour, Mr. Jay still showed classic signs of intoxication which included having bloodshot eyes, being very unsteady on his feet, having the smell of alcohol on his breath, having slurred speech, being difficult to understand, and being confused.

140. The Board cannot help but come to the inescapable conclusion that these same signs of intoxication, minus the aggressive behaviour, either would or should have been apparent to staff in a premises with only 20 customers.

141. Considering all the circumstances, the Board finds that the Licensee “permitted” Mr. Jay’s drunkenness within the meaning of the legislation and thereby the Licensee breached subsection 45(1) of the O.Reg.

142. For the reasons given, the Board UPHOLDS the alleged violations contained in OMP number 120 issued to Coco’s Place Restaurant & Bar Ltd., operating as COCO’S PLACE, 2480 Eglinton Avenue East, Toronto, Ontario, M1K 2R4, liquor licence number 21168, and CONFIRMS the Order of Monetary Penalty sought by the Registrar in the amount of $750.

DATED AT TORONTO THIS 10th DAY OF December , 2009

S.GRACE KERR, BOARDMEMEBER BRUCE S. MILLER, BOARD MEMBER