ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: [Liquor Licence Act, R.S.O. 1990, c. L.19](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html), as amended
B E T W E E N:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
1751436 Ontario Inc. O/A Sullie Gorman’s Licensee
DECISION ON FINDINGS
Panel: Guy Maurice, Board Member Eleanor Meslin, Board Member
Decision Date: December 9, 2009
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission: Phillip Morris, Representative 1751436 Ontario Inc., Licensee: Jerry Herszkopf, Representative
Authorities
Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) Regina v. Little, [1961] N.S.J. No. 7 Rejeanne's Bar and Grill Ltd. (c.o.b. Rejeanne's Bar and Grill) v. Ontario (Alcohol and Gaming Commission, Registrar), [2009] O.J. No. 3176 The Law Society vs. Billy Wong
Allegation
1A hearing into Notice of Proposal (“NOP”) number 17104 dated March 6, 2009 to suspend liquor licence number 90462 (the “Licence”), issued to 1751436 Ontario Inc. (the “Licensee”), operating as SULLIE GORMAN’S, 1500 Royal York Road, Etobicoke, Ontario, M9P 3B6, (the “establishment” or the “premises”), on the basis of alleged violations of subsection 45(2) of the Liquor Licence Act (the “LLA”) and sections 29 and 52 and subsections 25(1) and 45(1) of Ontario Regulation 719/90 (“OR 719/90”), prescribed under the LLA, was held on July 13, August 31 and October 30, 2009 in the City of Toronto.
Decision
2After considering all the evidence and submissions, the Board FINDS violations of section 29 and subsection 25(1) of OR 719/90. The Board DECLINES to make findings under subsection 45(2) of the LLA and section 52 and subsection 45(1) of OR 719/90. Reasons to follow.
Preliminary Matters
3At the Registrar’s request, the Board ORDERED all witnesses to be excluded.
Registrar’s Evidence
4Arthur Balaga is a Detective Constable with Toronto Police Services, 23 Division. He was not involved on the night of the incidents, but only the following day regarding the telephone log.
5Mr. Herszkopf objected to this witness testifying because he had received no disclosure of the officer’s notes regarding the Computer Assisted Dispatch (“ICAD”) Address History Report.
6Mr. Morris indicated that the ICAD Report was disclosed in relation to another witness.
7The Board ruled that there should have been disclosure regarding this witness’ notes. In addition, if this witness is going to testify about phone calls from the ICAD list, then the Licensee’s Representative is entitled to the tapes of those calls.
8After the ruling, Mr. Morris withdrew this witness.
9Adam Hockaday is a Constable with Toronto Police Services, 23 Division. He attended the premises on Sunday, October 26, 2008 at 3:30 a.m., on uniform patrol as a result of a primary response radio call regarding a fight in the establishment. The dispatcher advised him that a male was unconscious, there was blood on the floor and the person responsible had left the premises. No description of the attacker was given.
10Constable Hockaday arrived at 3:38 a.m. and noticed three to four people leaving from the direction of the establishment. When he entered, he proceeded to the bar area where the victim was found. A male was attending him. The victim was white, 6’2” to 6’4”, thin, wearing a black suit and white shirt. There was blood on his clothing and on the floor. The constable identified Philip Belanger, part owner of the establishment, and who was seated at the Licensee’s table at the hearing, as the victim.
11The officer observed a white female, with blonde hair and wearing a red and black skirt, behind the bar. He identified her at the hearing as Shannon Sullivan, the Licensee. He asked her who had assaulted the victim; she said she did not know. She did not know how many people were in the bar at the time of the assault. She appeared uncooperative, giving vague answers to his questions.
12When Constable Hockaday questioned the victim, he said no one had assaulted him and he did not need medical attention.
13When asked for her identification, the female said she would get it after she went to the washroom. She then left by a door near the service bar. He and another officer followed her through the door, which led downstairs to the basement. They proceeded down a hallway where there was a staff washroom, storage area and kitchen off the hallway. There was also a door leading to a bar area with a dance floor and tables. The lights were off in the bar, but Officer Hockaday observed three bottles of partly consumed beer, cold to the touch, on the bar. They were Coors Light and Budweiser. He also saw a glass with clear liquid and ice cubes which was half full. From its color and odour it appeared to be whiskey and coke. He also observed food in pans, some half-eaten cake on a table and a black leather jacket on the back of a chair. Ms Sullivan was not in the bar area at the time. When Constable Hockaday walked back upstairs by the front steps, he did not pass her, but when he got to the bar area she was already there. He believed she had been avoiding the officers.
14At that time, paramedics had arrived and were attempting to take Mr. Belanger to hospital, but he was uncooperative, refusing to go. He appeared intoxicated, was very unsteady on his feet, with slurred speech. He indicated that he was the bar owner and that Ms Sullivan was his wife.
15Constable Hockaday testified further that there was blood on the door to the basement and on the wall, where it appeared that Mr. Belanger had fallen after being hit on the head. He was still bleeding when the officer arrived and for about 20 minutes after.
16Ms Sullivan produced identification in the name of Shannon Sullivan, but would not give a signed statement or any information about the assailant. She said she had no information and did not say where she was at the time of the assault or how she found Mr. Belanger after his injury. Mr. Belanger’s responses were similar and he claimed he was not hit. He also refused to give a signed statement.
17Ms Sullivan indicated that there had been a birthday party in the basement, but gave no details.
18Ms Sullivan was asked for the liquor licence since it was not posted in a conspicuous place. She retrieved it from behind the bar in the back of some liquor bottles and the telephone. It was not visible from the bar.
19Constable Hockaday stated that Ms Sullivan was very hostile calling him “saucy”. He was being stern because of the seriousness of the offence and the lack of cooperation. He advised Ms Sullivan of possible charges against her and he could not recall her offering any reasons for the allegations. When he left before 4:00 a.m. there were one or two people still in the bar.
20In response to Mr. Herszkopf’s questions, Constable Hockaday reiterated that Ms Sullivan was being uncooperative regarding the assault and the inspection. When asked when it had become an inspection, the officer replied that it was after he did not get cooperation, between 3:50 a.m. and 4:00 a.m., before he tried to locate Ms. Sullivan downstairs.
21The officer also stated that the door downstairs was not locked and he did not ask the Licensee for permission to attend downstairs.
22He also responded that Mr. Belanger refused to give a witness statement, even though the officer was willing to attend at the hospital to get it. He did not know if Mr. Belanger was in shock and if he was unsteady because of the assault, but still felt he was intoxicated.
23Regarding Ms Sullivan, the officer admitted he had no exact questions in his notes, other than that she was vague and evasive in her answers. He did not believe that Ms Sullivan did not see the assault or the perpetrator. He did not charge her with obstruction, although he told her she could be charged.
24He had no dealings with any patrons and did not know if other officers did. He was not aware of any security cameras and did not ask if there were any.
25Constable Hockaday also responded that he asked Ms Sullivan more that once to give a statement and her refusal seemed odd to him. He felt she was being evasive and did not recall her saying that she had closed the bar at 2:00 a.m. or that she had instructed her staff to do so. He did not know if Ms Sullivan had locked the basement door because it was open when he used it. His opinion was that Ms Sullivan went downstairs to clean up the bar ahead of him. When he went downstairs at 3:50 a.m. he observed the beer and whiskey. He wrote his notes after leaving the bar. He did not know if that was more than an hour later, but he usually did his notes before going off duty at 7:00 a.m.
26The Officer said he did not attend at the hospital because he felt Mr. Belanger would not cooperate.
27When he arrived at the bar, there were people outside, but he did not recall if he saw any re-entering the bar.
28The Officer did not recall if the liquor licence was wet when handed to him by Ms Sullivan.
29Responding to Mr. Morris’ redirect questions, Constable Hockaday indicated that, from his experiences, the beer and ice cubes could not still have been cold after one hour and 50 minutes.
30He said that when there is an inspection he does not need permission to go downstairs and inspect washrooms, kitchen or storage areas. He also replied that he was not offered copies of any security camera videos.
Licensee’s Evidence
31Shannon Sullivan is a 50% owner. She identified a floor plan of the main floor (Exhibit #1) and basement (Exhibit #2) On Exhibit #1, she pointed out the top corner stairs that led to the basement and another set of stairs, at the bottom left of the plan, that are used by employees. These stairs have an “Employee Only” sign posted. The top left stairs on Exhibit #2 are the main stairs to the basement. The “Entrance Exit” marking on Exhibit #2 is a fire door with a key lock, which is bolted on the inside. The entrance from the “Staff Service area” is into the “bar” and through it to the “Basement Standing Bar”.
32The light switches are in the “Electrical Room” with three panels on the wall. There are three unmarked switches and one panel to control the basement lights. Ms Sullivan stated that she was responsible for turning the lights on and off in the Basement.
33On October 26, 2008 a surprise party was being held in the basement with about 100 people.
34Ms Sullivan and Ms Amey Liddell, the bartender, started closing up at about 1:30 a.m. with last call. Everyone was out of the Basement between 2:00 and 2:15 a.m. Ms Liddell locked the public entrance door, started clearing and turned off all the lights in the Basement. All the liquor was removed from the tables after last call. Ms Sullivan indicated that she did not know how there could still be ice in the glass when the police said they found it. Beer bottles would have stayed cold longer.
35Mr. Belanger did not work in the bar that night. He arrived after finishing at his other job and was socializing. Amy had left early and A.V. was upstairs bartending when people moved upstairs, where some left in taxis.
36Ms Sullivan and Mr. Belanger had been in the kitchen talking when Mr. Belanger went out to the “Seating Lounge”. She could not see it from the kitchen. Around 3:00 a.m. she heard someone call her and went into the lounge bar area where Mr. Belanger was lying in the doorway, between the kitchen and the bar. A.V. was screaming that he did not know what happened and a customer was standing over Mr. Belanger, who was bleeding and badly hurt. She got someone to call 9-1-1, while she stayed with Mr. Belanger. She was very upset and went to the bathroom on the main floor.
37When she returned she spoke with two officers while paramedics were helping Mr. Belanger. One Officer kept asking her what happened and she kept telling him she did not know. The Officer screamed at her that she was uncooperative and she replied, “what do you want me to do. I didn’t see anything”. The officer then told her he would charge her with obstruction and asked for her driver’s license and Smart Service card. She felt she was being treated as if she’d done something wrong. She was very nervous and tried to tell him that they were good people but he replied “I don’t give a shit”. She did not like the way he was talking and went into the kitchen. When she returned the Officer was gone. The Officer did not tell her about any charges regarding the cold beer or ice or that it was an inspection. On previous inspections, the officers had identified themselves and asked to be taken around and for receipts.
38Ms Sullivan stated that the liquor license was leaning against the bar, upright. The telephone was under the counter in the corner of the bar. Liquor bottles were against the wall at the back of the bar and there were no bottles on the bar.
39She explained that the walls behind the bar were “bubble walls” which are filled with water regularly. When she last filled the wall it overflowed onto the liquor licence, so she took it apart to dry it and propped it on the bar. When the Officer saw it he asked her to hand it to him and she said “OK, but it’s wet”.
40Ms Sullivan said she has been in the service industry for 10 years and has never had any charges laid against her. She indicated that Mr. Belanger has a job as the General Manager for a funeral home, and she manages the bar.
41She pointed out that the police did not take any statements from the staff. Regarding her non-cooperation, she said she repeatedly told the officer she had seen nothing and had no information. Regarding the cold beer and ice, she questioned how the officer could have seen them, since the lights were off. She denied going back downstairs, she had gone into the kitchen to wash off the blood on her.
42Ms Sullivan stated that she drove to the hospital with A.V., who then returned to the bar to help with the clean-up.
43In response to Mr. Herszkopf’s question, Ms Sullivan stated that A.V. had made the 9-1-1 call and she didn’t know if he witnessed the assault. She thought the male standing over Mr. Belanger was someone called “Wayne”, but he had left by the time that the police arrived. She did not tell the police about Wayne. He has been to the bar since the incident but she has not asked him for a statement about it.
44Regarding the cold beer, Ms Sullivan admitted that if they had been cold, they would have been served after 2:00 a.m., but all the liquor had been cleared prior to lock-up.
45As to the lights, she did not recall if they were on or off in the staff service area. If they were on they could have cast some light into the bar entrance. The lights cannot be turned on from the entrance to the bar area.
46Ms Sullivan testified that the party had been for a friend (Derrick) and the attendees were his guests. Most of them left and only a handful stayed after 1:30 a.m. No one knows who the assailant was who hit Mr. Belanger.
47Mr. Morris introduced Ms Sullivan’s witness statement (Exhibit #3). There is no mention in it that Mr. Belanger was hit or of anyone called Wayne. Ms Sullivan stated that Wayne told her that Mr. Belanger had been hit but she did not tell this to the police.
48She recalled that Mr. Belanger arrived at about 12:30 a.m. She did not know if he had been drinking. He came into the kitchen at around 3:00 a.m. He was not drunk.
49Last call, upstairs, was at 1:45 a.m. and they closed at 2:00 a.m. Some patrons were still there at 2:30 a.m. waiting for cabs. She did not give police any names of regular patrons.
50There were security cameras outside but they belonged to the Plaza. She may have told this to the police, but it was not in her witness statement.
51The liquor licence was standing on a rubber bar mat that had indentations in it to hold the paper upright. There was nothing in front of it and the telephone was under the other end of the bar.
52Gerald P. Belanger is the owner, with his wife, Shannon Sullivan. They purchased it a year ago. He does not work there regularly since he has a full-time job at a funeral home. He has his Smart Serve certificate. Shannon manages the bar and trains the staff.
53On October 26, 2008 he arrived at 1:00 a.m. He ordered a beer and a tequila and went downstairs to the banquet room, where a friend was having a birthday party. He stayed there until last call at 1:30 a.m. and went upstairs to socialize until last call at 2:00 a.m. when people began leaving.
54He went into the kitchen to talk to Ms Sullivan and then returned to the bar where he was examining some empty beer cases, when someone behind him asked for a beer. Without turning he said last call was at 2:00 a.m. and there was no service. He was then hit, fell and hit his head on the wall. His head was bleeding and the next thing he recalled was seeing the paramedics.
55Regarding the cold beer bottles and ice cubes found downstairs, he did not know how that was possible, since the lights were out and the banquet hall was locked.
56He testified that the liquor licence was not behind the phone, because the phone was under the bar at the other end. He stated that the licence was at the side wall near the liquor bottles.
57The banquet room was cleared of people within one-half hour of last call and the lights were turned out. They intended to return the next day to clean the room. He understood that any liquor left out could be accessible to patrons but he did not know that it meant they could not clean up later.
58He said he was not intoxicated. He only had a beer and a tequila when he arrived and another beer after last call. After being hit he was very confused and suffered from positional vertigo for four months after the incident.
59Regarding the officer’s statement, his description was not accurate. He referred to “high top” tables and there are none. He said he walked downstairs from a doorway near the bar, but there is 30 feet and a kitchen before getting to the doorway. He also said that the basement had a straight hallway then the banquet room, but there is a large furnace, an electrical room and a walk-in cooler before the banquet room. Since the lights were out, the basement was pitch-black and the only light switches are in the electrical room, so he could not have turned them on.
60The Officer was upset when no one could identify who hit him, but no one was there at the time but himself.
61Responding to questions from Mr. Morris, Mr. Belanger stated that the officer described where the banquet room was, but incorrectly described the lay-out of the establishment.
62To his statement of that night (Exhibit #4) it did not say he was not drunk or that he had anything to drink that night. It said, “We’re closed, we’re not serving”, but Mr. Morris pointed out that his testimony at the hearing did not mention the word “closed”
63Mr. Morris also indicated that the statement said that Mr. Belanger had told police that he wasn’t hit. Mr. Belanger responded that he does not believe he would have said that, but he was very confused at the time. He did not want to cover up what had happened. He agreed that he did not give the police a statement either after the incident or later.
64When asked about his drinking that evening, Mr. Belanger responded that Ms Liddell had served him the beer and tequila and another beer later. He paid in cash as always and never took a receipt.
65He has never had any problems with the police in the establishment and was often there during inspections and always cooperated.
66He and his wife have separate vehicles because of his other job and he had driven to the bar that night and would have driven his own car home.
67The party was for his friend, Derrick, who is still a patron, but was not asked to be a witness. Wayne was also a patron, but did not see who hit him.
68Amey Liddell worked downstairs as the bartender that night and is Smart Serve trained. She has worked elsewhere as a bartender for two years and can recognize drunkenness. She looks for staggering, slurring words and she checks the patrons’ motor skills when they approach the bar.
69She had served Mr. Belanger a beer and tequila shot and later another beer.
70She was working at the bar downstairs during Derrick’s party and made last call at 1:30 a.m. as they always do for downstairs events. The people had left by 1:45 a.m. and she had cleaned-up by 2:00 a.m., locked the room and gone to the electrical room to turn out the lights. She then left the premises. Regarding the officer’s evidence of the cold beer and ice cubes, she said she had cleared them and Shannon would clean the floors the next day.
71When she arrived home after a five minute drive, she picked up her phone calls and one was from Ms Sullivan saying Mr. Belanger had been hurt. She went right back and saw Mr. Belanger being put into an ambulance. An Officer approached her and said “you’re the one she called, she’s being an uncooperative bitch and you need to go in and talk to your friend.” Then he would not let her enter until she had identified a patron whom the police were being very rude to.
72When she entered the bar, Ms Sullivan was very upset and there was blood on the floor. She said that Mr. Belanger’s head had been split open.
73Responding to Mr. Morris, Ms. Liddell said the police officer was upset and rude and called Ms Sullivan a bitch. She agreed that this was not in her statement (Exhibit #5) nor was the fact that she had served Mr. Belanger or whether he was intoxicated. Ms Liddell responded that he always ordered the same thing and did not think that was important. She stated that Mr. Belanger never served himself, that is one of the rules. She said to Mr. Morris that she had cleared everything and there was no beer or ice cubes on the bar when she left. The party could not have continued because she had locked the door and turned out the lights.
Registrar’s Submissions
74The Registrar is seeking findings under subsection 45(1) of OR 719/90 for permit drunkenness and under subsection 25 (1) for liquor sold or served outside prescribed hours.
75In the alternative, under subsection 29, failed to clear, section 52, failed to post, and subsection 45(2) of the LLA regarding failure to facilitate an inspection, by Mr. Belanger and Ms Sullivan’s not cooperating with the police,
76When Constable Hockaday arrived he saw Mr. Belanger bleeding profusely and Ms Sullivan attending him. When asked, she said she did not know who assaulted him or who was in the bar at the time. He felt she was being vague and uncooperative.
77When asked, Mr.Belanger said no one had hit him. But in testimony, Mr. Belanger had a clear recollection of being hit. He did not seem to want to identify the assailant to the police.
78Ms Sullivan offered to get her identification after using the washroom downstairs. Officer Hockaday, using the same door, goes downstairs and has a clear recollection of passing the kitchen and a storage area. When he enters the banquet room at about 4:00 a.m., the lights are off but he sees three bottles of beer, half full and cold and a clear glass with liquid and ice cubes, almost two hours after closing.
79The police also found food and cake, although Ms Liddell stated that she had cleared up everything. Ms Sullivan testified that things would be cleaned up the next day. She also admitted that if there had been beer on the bar, it would have been served after 2:00 a.m.
80The police testified that Mr. Belanger was uncooperative, appeared intoxicated and was unsteady on his feet with slurred speech. There was blood on the wall and floor. If Mr. Ballenger was not intoxicated, why did he refuse to go to the hospital?
81Ms Sullivan did not mention Wayne to the police and neither he nor any independent witnesses were called to verify their stories.
82Mr. Belanger did not tell the police about refusing to serve or about being hit.
83Regarding the liquor licence, it was not posted. The officer did not recall it being wet.
84Ms Sullivan testified that Ms Liddell came back to help clean up, but that was not what Ms Liddell said in her testimony.
85Ms Sullivan said she did not know if Mr. Belanger was drinking, but as the manager she should have known.
86Mr. Belanger, in testifying, had a clear memory of what he had to drink but did not put it in his witness statement. His testimony, that he was confused and not drunk, is meant to confuse the Board. The Officer’s evidence is clear that he saw the signs of intoxication and that Mr. Belanger was uncooperative. It is not reasonable to believe that Mr. Belanger was there from 1:00 a.m. to 3:00 a.m. and only had three drinks. The Board should make findings of drunkenness, since the owner, Ms Sullivan permitted it. If the argument is not intoxication but injury, then the Licensee should have called medical evidence to prove it.
87Regarding either subsection 25(1) or section 29, it does not matter, under section 29, if liquor was sold after 2:00 a.m., as long as there was liquor or beer found on the bar, it would be failed to clear.
88In section 25(1), if liquor is served after closing, it would be a breach. If the liquor or beer was cold at 3:30 a.m. and the Licensee admits it could have been cold, the inference could be made that it was served after 2:00 a.m. and would be a breach.
89Ms Liddell was adamant that she cleaned up, but she was wrong about the food and liquor. Either she is lying and the party continued after 2:00 am or once the party ended, she left and another group came downstairs. This would still be a breach of either subsection 25(1) or section 29.
90Regarding subsection 45(1), although Mr. Belanger was badly hurt, when police arrived he did not try to cooperate then or later. He did not say he had been hit or mention Wayne, which is failing to facilitate.
91In Rejeanne’s Bar, where testimony given at the hearing was not told to police, the decision found that the Board could draw a negative inference from this fact.
Licensee’s Submissions
92There is no doubt that Mr. Belanger was injured and police were called to investigate the assault. Officer Hockaday was over-zealous in dealing with the victim’s spouse and staff. When not getting the evidence of the assailant’s identity from Ms Sullivan, who said she didn’t know it, he pre-judged the situation, deciding she was just being uncooperative and threatened her with obstruction. If he believed this, he should have charged her. He made no effort to get any other witness statements.
93There was no evidence that anything was going on downstairs. The lights were out and no one was there. The only evidence was that the area might not have been cleared. Ms Sullivan admitted that she would be cleaning up the next day.
94Regarding Mr. Belanger’s head wound, when the officer arrived, he was bleeding profusely. No medical evidence is needed other than the witnesses’ testimony and that of Officer Hockaday. The police had a duty to help, they could have driven him to a medical facility and if they believed he was intoxicated, they could have arrested him. This officer acted in bad faith.
95On the question of the lighting in the banquet room, the Registrar’s Counsel could have recalled Officer Hockaday.
96Mr. Herszkopf cited a number of cases relating to cross-examination questioning:
- Brown And Dunn;
- Regina And Little; and
- The Law Society vs. Billy Wong.
97Mr. Herszkopf alleged that the evidence of Officer Hockaday was improper and he questioned the Officer’s credibility.
Registrar’s Reply
98It is not necessary to raise everything in cross-examination. You must give the officer the opportunity to respond or it goes to the weight of the evidence.
99The witnesses were trying to tar the officer by saying he used the words “bitch” and “shit.” The officer should have been given the opportunity to respond.
100The defence here is based on factual errors. The defendants gave the officer no information at all. The officer did not go downstairs as part of a liquor licence issue. He went because Ms Sullivan did, saying she had to go to the washroom, which he thought was odd in the circumstances. However, when he found the cold liquor, it became a liquor licence issue.
101The strong words regarding the officer ignoring Mr. Belanger bleeding are not factual. The paramedics were already there when the officer approached.
102There is also an inconsistency between Ms Sullivan and Ms Liddell regarding clearing up which should go to their credibility.
Analysis and Reasons
103The Board has carefully reviewed all the evidence and submissions. It will deal separately with each of the allegations.
Subsection 45(1) of OR 719/90 – Permit Drunkenness
104According to Constable Hockaday’s testimony, when he arrived, he saw Mr. Belanger on the floor, bleeding profusely and attempted to question him. The fact that he appeared unsteady and was slurring his words does not necessarily mean he was intoxicated. This may have been a reaction to his head trauma.
105The Board accepts the evidence of Ms Liddell that she only served Mr. Belanger one beer and tequila when he arrived and another beer later, and that this was his usual practice.
106The Board believes it is more likely than not that Mr. Belanger was not intoxicated and his symptoms were from his head injury.
107Therefore the Board FINDS there is not sufficient evidence for a finding under subsection 45(1), permit drunkenness.
Section 52 of OR 719/90 – Failed to Post
108Officer Hockaday’s evidence is that when Ms Sullivan was asked for the liquor licence, she retrieved it from behind the bar in the back of some liquor bottles and the telephone. He made no mention of whether it was wet when Ms Sullivan handed it over to him.
109Ms Sullivan testified that the reason it was not posted in its regular place was that it had been wet when the bubble wall overflowed on it and she had then propped it up on the bar to dry. It was not behind the liquor bottles and the telephone as Office Hockaday described, since the telephone was under the bar and there were no liquor bottles on the bar. The Board finds her version of where the licence was and the state it was in to be more accurate, reasonable and plausible.
110As Ms. Sullivan made reasonable efforts to display the wet licence, the Board accepts Ms. Sullivan’s testimony and DECLINES to make a finding under section 52, failure to post the licence.
[Subsection 45(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html#sec45subsec2_smooth) of [Liquor Licence Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html) - Failure to Facilitate an Inspection
111Officer Hockaday was called to the establishment, not to do a liquor licence inspection, but for an alleged assault. He did not treat it as an inspection until he went downstairs and said he observed the cold beer and ice. In addition, he was not stopped from going downstairs.
112When he returned to the main floor and asked Ms. Sullivan about the liquor licence she fully cooperated with him. The fact that he believed that both Mr. Belanger and Ms Sullivan were uncooperative when he questioned them about the alleged assault is unrelated to his later liquor licence inspection.
113Therefore, the Board DECLINES to make a finding under subsection 45(2) of the LLA of failure to facilitate an inspection.
Subsection 25(1) and section 29 of OR 719/90 – Liquor Sold or Served Outside Prescribed Hours and Failed to Clear
114Officer Hockaday testified that when he went downstairs, into the banquet room, sometime after 4:00 a.m., he observed three bottles of partly consumed beer, cold to the touch and a glass with clear liquid and ice cubes on the bar. He indicated that although there were no lights on he could still see the items on the bar.
115Ms Liddell testified that she had cleaned up the downstairs by 2:00 a.m., including the cold beer and ice cube glass, and had turned off the lights before leaving.
116However, in cross-examination, Ms Sullivan admitted that if the beer bottles were cold and the ice still in the other glass, they would have been sold after 2:00 am. She also indicated that even if the lights were out in the banquet hall, if they were on in the adjacent staff service area, they would have cast enough light to see into the banquet room.
117The Board does not accept Ms. Liddell’s testimony that she had cleared the bar when she also testified that Ms Sullivan would be cleaning up the next day. It does accept Officer Hockaday’s testimony that there were bottles on the bar and also leftover food. She could not have cleaned up as she stated.
118The Board also accepts Office Hockaday’s testimony that he could see the bar in the darkened room and saw signs of service after 2:00 am of cold beer and a glass with ice cubes. The Board draws an inference from this evidence that liquor was served after 2:00 am in the banquet room. The admissions by Ms Sullivan supports this inference.
119Therefore, for the reasons given above, the Board FINDS violations of both subsection 25(1) and section 29 of OR 719/90 for selling or serving liquor outside the prescribed hours of operation and for failing to clear the signs of service with 45 minutes after closing the end of the period that sale and service is permitted.
120Therefore, the Board FINDS violations of section 29 and subsection 25(1) of OR 719/90. The Board DECLINES to make findings under subsection 45(2) of the LLA and section 52 and subsection 45(1) of OR 719/90.
121The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission, at the address on the front page of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 9th DAY OF December, 2009
GUY MAURICE, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER