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-
Summit Place (Thorold) Limited operating as
Summit Place (Thorold) Limited
Licensee
DECISION ON FINDINGS
Panel: Jacqueline Castel, Board Member Beryl Ford, Board Member
Decision Date: December 3, 2009
Hearing Location: Niagara Falls, 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 Summit Place (Thorold) Limited, Licensee ) Joseph Vargovic, Jr., On behalf of ) the Corporate Licensee
Allegation
- A hearing into Notice of Proposal (“NOP) number 17210 dated April 24, 2009 to suspend liquor licence number 91251 (the “Licence”), issued to Summit Place (Thorold) Limited (the “Licensee”), operating as SUMMIT PLACE (THOROLD) LIMITED (the “establishment” or the “premises”), 4-8 Front Street South, Thorold, Ontario, L2V 1W9, on the basis of alleged violations of subsection 30(4) of the Liquor Licence Act (the “LLA” or the “Act”) and subsections 41(1) and 45(1) of Ontario Regulation 719/90 (the “”O.Reg.”) prescribed under the LLA, was held on November 4, 2009 in the City of Niagara Falls.
Decision
- The Board FINDS the Licensee contravened subsection 30(4) of the LLA and subsections 41(1) and 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
Mr. Joseph Vargovic, Sr., the principal of the Licensee, waived the right to be represented by legal counsel on behalf of the corporate Licensee. Mr. Joseph Vargovic, Jr., the son of the principal and an employee of the Licensee, represented the Licensee at the hearing. He is not a licensed representative.
The Board ordered that witnesses be excluded with the consent of both parties.
Registrar’s Evidence
Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Brad Foster attended the establishment at 10:47 p.m. on December 5, 2008 with AGCO Inspector Passmore.
On entering the establishment through the front door, he observed several youthful looking males consuming beer at a table by the bar. There was also an older looking adult male (patron #1) and female (patron #2) seated at the same table.
Inspector Foster identified himself to the male bartender. While standing at the bar, Inspector Foster observed patron #1 chug down a beer and then spit some of it up on the floor. Patron #1, like the others at the table, was speaking loudly. Patron #1 then approached the bar. His coordination was also poor. He was unsteady on his feet, swayed and stumbled.
Inspector Foster approached the table with the youthful male patrons and asked to see their identification, since they were drinking beer. The first identification he checked appeared fine. The picture on the second piece of identification he checked did not resemble the individual (patron #3) who presented it. He handed the identification to Inspector Passmore. Mr. Kulis filed the driver’s licence of “AD”, date of birth, October 28, 1984, which the Board entered as Exhibit 1. Inspector Foster testified that this was the identification which patron #3 presented.
Inspector Passmore asked patron #3 to step away from the table for further questioning. Inspector Foster checked the identifications of the other males at the table. All of the other identifications appeared to belong to the individuals who presented them and showed dates of birth confirming their ages as 19 or over.
Inspector Foster heard some of the conversation between Inspector Passmore and patron #3. Patron #3 told Inspector Passmore he was 19 but the identification did not belong to him. He then told Inspector Passmore that he was born in 1990 which would have made him 18 years of age. Patron #3 told him that the bartender did not check his identification. He also told him that the bartender served him and his friends a pitcher of beer, which he consumed from.
Inspector Foster also observed that patron #3 was exhibiting signs of intoxication. He had red, glassy eyes and slurred speech. At one point patron #3 said, “I’m drunk.”
Patron #2 approached the bar and Inspector Foster observed her exhibiting signs of intoxication including, slurred speech, red, glassy eyes, and unsteady on her feet. Her breath also smelled strongly of alcohol.
When Inspector Foster realized that patron #3 was a minor and using identification belonging to someone else, he decided to re-examine the identification of the other youthful looking males seated at the table to ensure that he had not missed any other minors. He re-checked one of the male’s (patron #4) identification and determined that although he was not a minor, he was exhibiting signs of intoxication. Patron #4 was unsteady on his feet, had red, glassy eyes, and slurred speech. There was also a strong smell of alcohol on his breath.
Inspector Foster notified the Licensee, Mr. Vargovic, Sr., and the bartender, Mr. Vargovic, Jr., of the infractions. Mr. Vargovic Sr. indicated he did not agree with our observations and stated, “Charge me then.”
Inspector Foster departed the premises at 11:09 p.m.
On cross-examination, Inspector Foster denied entering the premises through the back doors or flashing his badge at patrons standing outside.
He indicated that a female student from Loyalist College was also with him and Inspector Passmore. Her role was one of observer.
Inspector Foster observed, from the bar area, patron #3 take a sip of beer while seated at the table.
He made observations from the bar area for a period of two to four minutes.
He identified himself as an AGCO inspector to the youthful looking males. It is his standard practice to do so before approaching patrons.
He did not charge patron #3 as it is not his practice to charge minors.
He engaged in conversation with patron #2. He did not observe her drinking.
The youthful males were drinking beer out of clear, pint glasses.
He did not scream at Mr. Vargovic, Sr.
On re-examination, he stated that patron #3 was seated at the table with other youthful looking males when he arrived.
Brad Lavallee (patron #3) attended the establishment on December 5, 2008. He had attended a hockey game with a friend and a few other guys, who his friend knew. After the game, his friend suggested they go to the establishment. He had never been there before, but has been there a couple of times since December 5, 2008.
His date of birth is January 30, 1990 and, therefore, on December 5, 2008 he was 18 years of age. Mr. Kulis showed Mr. Lavallee Exhibit #1, and Mr. Lavallee admitted that he used this licence as his fake identification until the inspectors took it away on the night in question.
The friends he was with on December 5, 2008 were all in their twenties.
He did not recall at what time they arrived at the establishment. Initially he estimated 9:00 or 10:00 p.m., but then he indicated that it was after the hockey game, so it may have been as late as 11:00 p.m.
When he arrived at the establishment, he sat down at a table. He did not go to the bar or order anything. His friend went to the bar, ordered a pitcher of beer and then brought it over to the table. One of the AGCO inspectors caught him (Mr. Lavallee) taking a sip of beer.
No one except the inspectors asked him for identification. He showed the inspectors his fake identification (Exhibit 1). The inspectors knew the identification did not belong to him. Initially he tried to avoid telling them the truth about his age, but eventually he admitted he was only 18.
Before arriving at the establishment he had consumed about 15 beers, starting at about 4:00 p.m. that day. He testified to being drunk when he arrived at the establishment, but indicated he “kind of knew what he was doing.” He was at the establishment for about five or 10 minutes before the inspectors approached him.
There were about eight or nine other customers in the establishment that night.
On cross-examination, he indicated that the inspectors did not threaten him if he refused to cooperate.
AGCO Inspector Joseph Passmore attended the establishment on December 5, 2008 at 10:47 p.m. with Inspector Foster.
He observed a number of youthful looking males at a table near the bar. He waited to speak to the bartender, Mr. Vargovic, Jr. While waiting, he observed an older looking male (patron #1) and female (patron #2) exhibiting signs of intoxication.
Patron #2 was about 40 years of age, had a slim build, was wearing a white sweater and drinking a Budweiser. She was unsteady on her feet and loud. Later he saw her play fighting over a beer with patron #1. He spoke to her later and noted that her speech was slurred. The bartender, Mr. Vargovic, Jr., agreed she was intoxicated.
Patron #1 was about 40 years of age and was wearing a baseball hat and black jacket. He was unsteady on his feet and off-balance. He could not stand up properly. Inspector Passmore observed patron #1 chugging a beer. The beer came out of the bottle because he put it down on the table so hard. Patron #1 was also very loud and his speech was slurred.
He told Mr. Vargovic, Jr. he was going to check the identifications of the youthful looking males at the table. The first identification he checked was fine. Inspector Foster handed him a piece of identification which grabbed his attention. The picture was cloudy at the top and appeared as though it might have been tampered with. The male in the picture did not resemble the male (patron #3) who produced it. The male in the picture was heavier. Mr. Kulis showed Inspector Passmore Exhibit 1, and Inspector Passmore confirmed that it was the same driver’s licence patron #3 produced on the date in question.
Inspector Passmore asked patron #3 his date of birth. Patron #3 answered: October 29, 1984. The date of birth on the identification was October 28, 1984. Patron #3 had a hard time answering his questions and at one point he admitted it was because he was drunk.
Inspector Passmore escorted patron #3 to the front door to speak with him further. Patron #3 said he was 19 years of age but admitted the identification did not belong to him. Inspector Passmore still did not believe he was being forthcoming and continued to question him about his age. Patron #3 finally admitted that he was 18 years of age. He did not produce any identification belonging to him but said his name was Brad Lavallee and provided an address in Thorold. His eyes were bloodshot and glassy, his speech was slurred and he was unsteady on his feet.
Inspector Passmore then asked Inspector Foster to re-check the identification of one of the other male patrons sitting at the table (patron #4) to confirm it was authentic. Inspector Passmore also spoke to patron #4. He had slurred speech, red, glassy eyes and said he had been drinking Jaggermeister shots and beer. When he asked patron #4 if he was intoxicated he responded, “Oh yeah”.
Inspector Passmore spoke to Mr. Vargovic, Sr. about the infractions. He said, “I checked their ID. Charge me.” He also said, “21 years and no problems. Now this.” Mr. Vargovic, Sr. said he would be calling a taxi for patrons #1 and 2 who he admitted were intoxicated.
He and Inspector Foster left the premises at 11:09 p.m. There was also a student shadowing them that evening.
The table where the youthful looking males were seated was 12 to 15 feet from the bar and perhaps even closer.
He did not observe patron #3 consume beverage alcohol.
He observed patron #2 drinking from a bottle of beer. He also observed her and patron #1 play-fighting over a beer.
On cross-examination, Inspector Passmore said he entered through the front doors and showed his identification to Mr. Vargovic, Jr.
Patrons #1 and #2 were in the establishment from the time he arrived until he left, so he observed them for about 22 minutes.
He observed patron #3 when he first entered the establishment.
When asked why the minor was not charged, he indicated that as a rule inspectors do not charge minors or patrons. Inspectors are there to ensure that the Licensee is complying with the requirements of the LLA.
Inspector Passmore indicated that he was speaking in a loud tone to Mr. Vargovic, Sr. because he was aggressive and would not take ownership of the contraventions.
He does not recall the type of glasses the youthful looking males were drinking from.
Licensee’s Evidence
William Patrick Atkinson was standing outside the establishment having a cigarette on December 5, 2008 when the inspectors put a badge in front of his face and entered the premises via the back door.
He witnessed the inspectors harassing customers. They were screaming at a kid at the front of the bar. All three inspectors were yelling at him.
He did not see anyone who was intoxicated that night. He also did not see anyone spit beer on the floor. If they did, he would have had to clean it up.
He did not see the minor, who the inspectors were yelling at, drinking beer.
On cross-examination, he explained that he has been employed by the establishment for four or five years and has been a patron for 16 years. He is still an employee of the establishment.
He saw Mr. Davidson, a patron and also an employee of the establishment, and the bartender checking the identifications of a whole group of kids who entered at the same time. He has known Mr. Davidson for 10 years.
He was not drinking that evening because he was still hung over from celebrating his birthday the night before.
The inspectors were harassing the young boy. They had him up against the wall for half an hour and kept asking him the same questions over and over again. He couldn’t hear what they were saying because of the music. He was standing about 15 to 20 feet from the inspectors and the boy they were questioning.
He told the owners that there were inspectors in the establishment. The owners told him to step back.
The youths arrived about 10 minutes before the inspectors.
There were 25 to 30 people in the establishment.
On re-examination, he indicated that the 25 to 30 people would have included the staff and inspectors.
He clarified that being hung over did not impair his judgment that evening.
In response to a question from the Board, he indicated that he saw Mr. Vargovic Jr. and Mr. Davidson check the identification of four males when they went to the bar to order a pitcher of beer. He did not see them check the identification of the minor the inspectors were questioning.
Mr. Svein Apold, a patron, attended the establishment on December 5, 2008. He went out for a smoke and when he went back inside there were two guys who were loud and being rude, while talking to the kids at one of the tables. He remembers one of them asking if the identification belonged to the boy’s brother.
He did not witness the minor being served or drinking any alcoholic beverages. He was sitting about six feet away from the minor.
On cross-examination, he said he lives in one of the apartments in the Summit and has resided there for about 30 years. He is a regular customer of the establishment.
He heard the inspector tell the young guy that he must have lost some weight because the photo on his licence didn’t resemble him. He didn’t hear anything else and doesn’t usually listen to other people’s conversations.
He had one beer at the establishment, and did not consume any alcoholic beverages before arriving, on the night in question.
Ms Dorothy Boutilier, a patron, witnessed the inspectors giving some young kids a hard time on the date in question. They told one guy he was a liar and that the photo on his ID didn’t look anything like him. They asked him if he had a brother and told him he must have lost a lot of weight if the ID really belonged to him. When he didn’t give the same birth date, as was on the ID, they called him a liar.
She did not have anything to drink before coming to the establishment.
She did not witness anyone who was intoxicated that evening.
She did not see the minor drink or get served at the establishment.
On cross-examination, Ms Boutilier said she lives at the Summit and attends the establishment from time to time to play darts.
She was about three feet away from the inspectors and the minor when they were standing by the door.
Mr. Joseph Davidson usually attends the establishment when Mr. Vargovic, Sr. is there. He was at the establishment on December 5, 2008. He observed Mr. Vargovic, Sr. ask four youths for identification before they ordered a pitcher of beer at the bar. He then observed the four youths go to their table. Three more youths came in afterwards but they did not order any alcoholic beverages.
The female (patron #2) entered after the three youths. She was drunk when she arrived and was not served at the establishment. Her boyfriend (patron #1) had been at the establishment for some time. Patron #1 asked Mr. Vargovic, Sr. to call a taxi for them, which he did.
He saw the minor who the inspectors later questioned (patron #3) go to take a drink out of a glass of beer. However, patron #3 saw him looking at him and put down the glass without taking a drink. The inspectors would not have been able to see, from where they were standing, whether patron #3 actually consumed anything.
The inspectors were aggressive with Mr. Vargovic, Sr. He wanted to intervene but Mr. Vargovic, Sr. told him to mind his own business. He did not see the inspectors’ identification. Mr. Vargovic, Jr. told him what was going on.
He observed the inspectors take patron #3 to the hallway. The inspectors were very unprofessional. Mr. Davidson thought the identification belonged to patron #3. The identification had faded from the sun.
Patron #1 had one and a half to two beers before leaving. No one except patron #2 was intoxicated.
On cross-examination, he stated that the inspectors intervened almost immediately after patron #3 tried to take a drink.
He did not check patron #3’s identification. He checked the identification of four other people at the bar after Mr. Vargovic, Sr. checked their identification. Patron #3 was sitting with two other people separate from the four people who he identified. The patrons with patron #3 ordered food.
He does not have his Smart Serve certification. He is a patron of the establishment but helps out when something needs to be done. He has been a patron of the establishment for 40 years.
Patron #3 was drunk when he came in, so they were not going to serve him any alcohol.
Mr. Joseph Vargovic, Sr. worked until 10:00 p.m. on December 5, 2008. He witnessed four kids come into the establishment at about 9:55 p.m. He checked their identifications and asked Mr. Davidson to double-check them. They ordered a pitcher of beer and four glasses.
His son, Joseph Vargovic, Jr., showed up shortly after 10:00 p.m. and took over the bar. Mr. Vargovic, Sr. sat down and had a beer with Mr. Atkinson and his girlfriend.
All of a sudden, Mr. Vargovic, Sr. heard screaming. He started to say, “Guys, I’m coming to throw you out,” thinking they were customers. His son then told him that they were inspectors. When he realized they were inspectors he was polite to them. He felt that the inspectors treated him like a criminal.
The minor was sitting at another table, but later took a drink at the table with the four people Mr. Vargovic, Sr. and Mr. Davidson had identified. His establishment is a restaurant. Minors are, therefore, allowed in the establishment. The inspectors were aggressively questioning the minor.
Jaggermeister is made out of herbs and is not a strong shot.
He has been in the business for 20 years and this is what he told the inspectors.
At this point, Mr. Kulis filed a document entitled, Disposition of Owner/Operator, signed by Joseph Vargovic, Sr. and dated April 5, 2009, which the Board entered as Exhibit 2. On cross-examination, Mr. Vargovic, Sr. admitted that he did not mention anything about the allegedly inappropriate behavior of the inspectors in this statement.
Mr. Vargovic, Sr. stated he saw patron #3 enter the establishment at around 10:00 p.m.
Mr. Vargovic, Sr. admitted that in his statement he said he served the four young adults two pitchers of beer and one round of Jaggermeister, but that they did not finish the second pitcher.
He could not hear what the inspectors were saying to patron # 3 except for “that’s not your brother”. Patron #3 had fifteen beers before arriving at the establishment, so he would not have remembered anything. He did not check patron #3 to determine his level of intoxication. Rather, he assumed his son would do so.
On re-examination, he indicated that the pitcher of beer was to be shared between four people. He does not remember whether it was light beer.
They set the clocks at the establishment ahead five or 10 minutes, so there would be a five or 10 minute difference between the times specified on his disposition and the time on the clocks at the establishment.
In response to a question from the Board, he said he did not observe patron #3 consume any beverage alcohol.
Mr. Joseph Vargovic, Jr. came to work at the establishment about 15 or 20 minutes late. When he arrived, he relieved his father. He stood around the bar and cleaned up.
He checked the identification of the four young looking males, but not the identification of the other three males, one of whom was patron #3. He did not check the identification of the other three males because they were ordering food and drinking iced tea and pop.
Mr. Atkinson told him one of the inspectors flashed a badge at him outside. He thought there were three inspectors, two males and a female, from the way they were all acting and speaking to customers.
The inspectors started questioning four youths. At the same time, four adults walked outside for a cigarette. Three younger individuals walked out too. A few minutes later two or three adults and one or two youths came back in.
Mr. Davidson could see the table with young adults. One of the youths (patron #3) came over to this table. He tried to take a sip from a glass of beer, but when he saw Mr. Davidson looking at him he put the glass down.
The presence of the inspectors changed the whole atmosphere at the bar. The inspectors did not show anyone but him their identification.
The kids had just been to a hockey game and were jovial, but they were not drunk. All of the youths were drinking from small glasses. They didn’t finish all the booze they were served and left early.
The clocks at the establishment are ahead 15 minutes so they never have a problem at last call.
Patron #2 walked in from outside. It was very cold outside. He gave her a nod when she entered. She knew, from this nod, that she would not be served any alcohol. She told her boyfriend (patron #1) that they had to leave.
Patron #1 did not spit on the floor. Patron #1 and 2 may have struggled over a drink. Patron #2 definitely was not drinking a Budweiser as she never orders this type of beer and is a creature of habit. She is also afraid of catching germs so she would not have drunk from anyone else’s glass.
Mr. Vargovic, Jr. doesn’t turn people away immediately, especially when it is cold out. It was minus 12 to 15 degrees outside. Patron #2 was only at the establishment for about 10 minutes.
On cross-examination, Mr. Vargovic, Jr. stated he had a feeling patron #2 was drunk when she walked in because he saw her stumble once. This is why he gave her a nod and called her a taxi. He knew for sure she was drunk when he saw the “battle for the beer”.
He admitted that he only checked patron #3’s identification after one of the inspectors handed it to him. He disagreed with the inspector about the identification being tampered with.
Registrar’s Submissions
The Licensee is clearly agitated about the conduct of the inspectors, or their perceptions on same. This has clouded their views of what actually happened on the date in question. Brad Lavallee (patron #3) did not find anything inappropriate or demeaning about the inspectors’ conduct, and he was the one being questioned. Mr. Kulis submitted that the issue of the inspectors’ conduct is a red herring.
Much of the Licensee’s evidence is complete fabrication. Patron #3 was drunk when he walked into the bar. The Licensee saw him and should have taken further action regarding his intoxication. They also did not ask him for identification.
Patron #3 entered the establishment at about 10:00 p.m. The inspectors attended the establishment about 45 minutes later. The Licensee ought to have known, before the inspectors arrived, that he was drunk.
Patron #4 was also drunk. He was unsteady on his feet and his breath smelled strongly of alcohol. The Licensee did not give any evidence concerning patron #4. The inspectors’ evidence was credible, and the Licensee ought to have known that patron #4 was drunk, given the length of time he was in the establishment.
Patrons #1 and #2 were loud, had slurred speech and were play fighting. Mr. Vargovic Jr. testified that he felt patron #2 was drunk. The inspectors told Mr. Vargovic Jr. to call patrons #1 and #2 a cab. He did not do it without being told.
There was some confusion, in the Licensee’s evidence, about the group of people with patron #3. Patron #3 was clearly with a group of young looking males who were very loud and drinking liquor. Mr. Vargovic Sr. and Mr. Davidson said they checked the identification of a group of four young looking males, and that patron #3 was in a different group, which had ordered food, and was drinking non alcoholic beverages. The members of patron #3’s group did not order food, nor were they drinking non alcoholic beverages. It is possible there was another group of young males who ordered food, but patron #3 was not seated with this group.
The service of liquor to patron #3’s table included service to patron #3 who was a minor.
The Licensee was not vigilant in watching who was seated at patron #3’s table and in assessing them for signs of intoxication.
Licensee’s Submissions
The establishment is also a restaurant. Therefore, minors are allowed in the establishment. He did not know they were not going to eat food.
Patron #3’s identification was not checked because he was never served any alcohol.
His father has been in business for 20 years and has an untarnished record.
The older gentleman (patron #1) accused of being intoxicated was never questioned. As soon as he determined the female (patron #2) was intoxicated, he called her a cab. He did not make her leave right away because of the harsh weather.
Patron #3 drank 15 beers on the date in question (before arriving at the establishment), had false identification on his person and lied to the inspectors. The Board should not rely on his evidence.
It was cold and windy out. The glassy eyes that the inspectors noticed could have been caused by the wind.
Inspector Passmore’s notes do not say that he told the Licensee to call a taxi for patrons #1 and #2.
Reply Submissions
- The Board should rely on the evidence of the inspectors, which was the most credible, and of Mr. Lavallee who has no self-interest in the outcome of the hearing.
Reasons and Analysis
- At the outset, the Board did not give credence to the Licensee’s allegations that the inspectors behaved unprofessionally. Mr. Lavallee (patron #3), the person against whom the inspectors directed most of the alleged inappropriate conduct, was emphatic that the inspectors never threatened him. He also did not suggest that their behavior was inappropriate and, in fact, admitted to being drunk, using fake identification and initially lying to the inspectors. Moreover, the fact that there was no reference to unprofessional or inappropriate behavior on the part of the inspectors, in the Licensee’s signed Disposition (Exhibit 2), leads the Board to believe that this is something the Licensee fabricated or exaggerated at the hearing.
Subsection 30(4), LLA
For a finding under subsection 30(4), there is a three part test or inquiry. First, it must be established that the person in question appeared to be under 19 years of age. Second, it must be established that this person had or consumed liquor in the premises. And third, it must be established that the licensee or an employee or agent of the licensee permitted same.
For the purpose of the first part of the inquiry, the inspectors both believed that patron #3 appeared under the age of 19. In fact, the Licensee and its witnesses did not deny that patron #3 appeared under nineteen. Rather, the Licensee submitted that it did not matter that he appeared under 19, since he was not being served or drinking beverage alcohol and the establishment is also a restaurant. Patron #3 attended the hearing and testified that he was 18 years of age on the date in question, as he ultimately admitted to the inspectors that night.
Based on the evidence of the inspectors regarding patron #3’s appearance on the night in question, evidence which the Licensee did not deny or refute, the Board is satisfied that the first part of the test under subsection 30(4) is met.
Inspector Foster, while standing at the bar, observed patron #3 take a sip of beer from a glass on the table. Patron #3 also testified that he did, in fact, take a sip of beer from his friend’s glass, and he could tell that one of the inspectors saw him do so.
Mr. Davidson testified that he saw patron #3 start to lift up a glass of beer but then put it down without taking a sip. Mr. Davidson is a regular customer who helps out at the establishment (according to Mr. Atkinson he is an employee), and much of his evidence was not reliable. For instance, he indicated that he thought that the driver’s licence patron #3 showed to the inspectors resembled patron #3; the Board examined the driver’s licence (Exhibit #1), compared the photo to patron #3, and found that the photo on the licence looked nothing like patron #3. There were also internal inconsistencies in Mr. Davidson’s evidence. He initially testified that no one except patron #2 was drunk, but then admitted on cross-examination that patron #3 was drunk when he came into the establishment. For these reasons, the Board believed the evidence of Inspector Foster and patron #3, regarding whether patron #3 consumed beverage alcohol, over the evidence of Mr. Davidson.
Therefore, the Board is satisfied that patron #3 consumed beer at the establishment on the night in question, for the purpose of the second part of the inquiry under subsection 30(4).
For the purpose of the third part of the inquiry under subsection 30(4), it must be established that the licensee or its agents, knew or ought to have known that the individual who appeared under 19 had or consumed liquor, and thereby permitted same. There was no evidence that the Licensee knew patron #3 consumed liquor. Patron #3 testified that he did not order any alcoholic beverages himself, evidence the Board found to be credible. The Licensee initially testified that patron #3 took a drink at the table with the four youthful looking males, but then clarified in response to a question from the Board that he did not see patron #3 have or consume beverage alcohol. The inspectors did not testify to witnessing the Licensee or its agents see patron #3 consume liquor.
The Licensee admitted to serving two pitchers of beer and Jaggermeister shots to four youthful looking males, but indicated he checked their identification. Patron #3 testified that his friend went to the bar and ordered a pitcher of beer. Patron #3 told the inspectors on the night in question, and also testified at the hearing, that no one checked his identification (except the inspectors). The Board found the Licensee’s evidence, that patron #3 was part of another group of individuals who were not consuming beverage alcohol, to be self-serving, unsupported by the evidence and lacking credibility. The inspectors spotted patron #3 seated at a table with the youthful looking males who were consuming beer. There was no evidence that patron #3 or any member of his group had ordered any food or were consuming non-alcoholic beverages. Nor was there any evidence that patron #3 changed tables/groups prior to the arrival of the inspectors.
If the Licensee had been acting diligently and responsibly, given its obligations under the LLA, before providing one of the males with a pitcher of beer (and multiple glasses) to take back to his table, it should have taken steps to ascertain who would be sharing the pitcher of beer and to confirm, among other things, that they were all 19 or over. Patron #3 was seated with the male patron who had ordered the pitcher of beer, and patron #3 was not drinking a non-alcoholic beverage nor had he ordered one. As such, the Licensee ought to have known that he would share the beer in the pitcher. In failing to take steps to confirm patron #3 was 19 or over in the circumstances, the Board finds that the Licensee permitted patron #3, who appeared under 19, to have or consume liquor.
For the above reasons, the Board FINDS that the Licensee contravened subsection 30(4) of the LLA.
Subsection 41(1), O.Reg.
For a finding under subsection 41(1), there is also a three part test or inquiry. First, it must be established that the person in question was apparently under the age of 19. Second, it must be established that the licensee failed to inspect such a person’s identification. And third, it must be established that liquor was sold or served to such a person.
For the reasons outlined in paragraph 133 and 134 above, the Board is satisfied that patron #3 was apparently under 19, for the purpose of the first part of the inquiry under subsection 41(1).
Patron #3 testified that no one but the inspectors asked him for identification on the night in question. Furthermore, the Licensee did not deny or refute failing to ask patron #3 for identification. Rather, the Licensee’s position was that it did not ask patron #3 for identification because he did not order any beverage alcohol. Therefore, for these reasons, the Board is also satisfied that the Licensee failed to inspect patron #3’s identification.
As noted above, the Board believed patron #3’s evidence that he did not order any beverage alcohol himself and his friend went to the bar and ordered a pitcher of beer (and according to the Licensee’s evidence, it was two pitchers of beer and some Jaggermeister shots). A pitcher of beer, as opposed to a bottle of beer, is a drink which is meant to be shared, as also connoted by the multiple glasses provided with the pitcher.
Therefore, as explained above, if the Licensee had been acting diligently and responsibly given its obligations under the Act, it would have confirmed who would be consuming the beer, to ensure they were of age (among other things), before providing the pitcher to patron #3’s friend. The Licensee did not do so. In providing a pitcher of beer to patron #3’s friend, the Licensee was also serving the beer to the other individuals in the friend’s group, unless one or more members of the group had ordered or were consuming something different, indicating that they would not be sharing the beer in the pitcher. Patron #3 was in this group, and given that patron #3 had not ordered, nor was he consuming a non-alcoholic beverage, the Board is satisfied that the Licensee served the pitcher of beer to him, as well as to the individual who actually ordered it.
Accordingly, for the above reasons, the Board FINDS that the Licensee contravened subsection 41(1) of the O.Reg.
Subsection 45(1), O.Reg.
For a finding under subsection 45(1), there is a two part test. First, it must be established that drunkenness or one of the other enumerated forms of prohibited conduct occurred. Second, it must be established that the Licensee permitted the drunkenness or one of the other enumerated forms of conduct. To permit the conduct in question, the Licensee must have known or ought to have known that it occurred.
The Registrar is alleging that the Licensee permitted drunkenness on the part of four patrons. Each patron will be considered separately.
Patron #1
According to Inspector Foster, patron #1 was unsteady on his feet, swayed and stumbled, and had poor coordination. He was also loud, and Inspector Foster observed him chug down a beer and spit up some of it. Inspector Passmore corroborated that patron #1 was very loud, unsteady on his feet, and had poor balance. Inspector Passmore also noted that his speech was slurred and observed him chug down a beer and then put the bottle down on the table so hard that some of it spilled. Also, according to Inspector Passmore, on the night in question, Mr. Vargovic, Sr. admitted that patron #1 was intoxicated.
Based on the evidence of the inspectors, which was cogent and consistent, the Board is satisfied that the first part of the test under subsection 45(1) is met with respect to patron #1.
Patron #1 was ensconced at a table when the inspectors arrived. The inspectors’ attention was immediately drawn to the patrons at his table, in part, because some of them appeared young, and in part because they were very loud. The inspectors were at the premises for over 20 minutes. Patron #1 was still in the premises when the inspectors left.
Mr. Vargovic, Jr. testified that he called a cab for patron #1 and 2. However, according to Mr. Davidson, a witness for the Licensee, Mr. Vargovic, Sr. called patron #1 a taxi at the request of the patron; therefore, it was not something Mr. Vargovic, Jr. initiated after assessing patron #1 or his girlfriend as intoxicated. There was no credible evidence that a cab was in fact called by the Licensee (regardless of who initiated it); nor was there any evidence regarding the time at which patron #1 finally left the establishment. The only thing the Board knows for sure is that at 11:07 p.m. when the inspectors departed, patron #1 had not yet left.
Given the signs of intoxication patron #1 exhibited, including his loud demeanour which should have focused the Licensee’s attention on him, and given that the establishment also was well under capacity, the Board is satisfied that the Licensee knew or ought to have known that patron #1 was drunk. In failing to have him promptly removed from the premises, the Licensee permitted drunkenness on the part of patron #1.
Patron #2
According to Inspector Foster, patron #2 had red, glassy eyes, slurred speech, was unsteady on her feet and her breath smelled of alcohol. Inspector Passmore gave independent corroborating evidence that patron #2 was loud, unsteady on her feet and had slurred speech. He also testified that he saw her play fighting with patron #1 over a beer.
According to Inspector Passmore, on the night in question, Mr. Vargovic, Sr. admitted that patron #2 was drunk.
Mr. Davidson testified that he thought patron #2 was intoxicated. Mr. Vargovic, Jr. testified that he had a feeling patron #2 was drunk when she walked in because he saw her stumble. He testified that he knew for sure she was drunk when he witnessed the “battle for the beer” with patron #1.
Based on the evidence of the inspectors, as well as the admission of the Licensee, the Board is satisfied that patron #2 was also drunk for the purpose of the first part of the test under subsection 45(1).
For the purpose of the second part of the test under subsection 45(1), the Licensee admitted to knowing that patron #2 was drunk. However, Mr. Vargovic, Jr. testified that patron #2 was only at the establishment for about 10 minutes. He indicated he could not send patron #1 and 2, who were together, out in the cold but called them a taxi after witnessing the “battle for the beer”, which had convinced him that patron #1 was drunk. As noted above, this conflicted with Mr. Davidson’s testimony that patron #1 asked Mr. Vargovic, Sr. to call him and his girlfriend a taxi and that Mr. Vargovic, Sr. did so. Indeed, these inconsistencies in the Licensee’s evidence affected its overall credibility.
Mr. Vargovic, Jr.’s testimony regarding the length of time patron #2 spent at the premises was not accurate. She was seated at the same table as patron #1 and the youthful looking males when the inspectors arrived, the inspectors were at the premises for over 20 minutes, and patron #2 was still there when they left. Even if they were waiting for a taxi, the Licensee did not take any steps to ensure that patron #1 and 2 did not have access to beverage alcohol. Inspector Passmore observed her drinking from a bottle of beer. Further, the Licensee did not intervene when they were play fighting over a beer, by taking the beer away from them.
If the Licensee had been acting responsibly and diligently, given its obligations under the Act, it would have taken prompt action to have patron #2 safely removed from the premises and also ensured that she had no opportunity to access beverage alcohol, if a short wait was required before transportation arrived. In failing to do so, the Licensee permitted the drunkenness on the part of patron #2, for the purpose of the second part of the test under subsection 45(1).
Patron #3
Patron #3, who testified at the hearing, admitted to being drunk when he arrived at the premises. He testified that he had consumed about 15 beers before arriving, beginning at around 4:00 p.m. According to Inspector Foster, patron #3 had red, glassy eyes and slurred speech. In addition, he heard patron #3 tell Inspector Passmore that he was drunk. Inspector Passmore gave independent evidence that patron #3 had bloodshot, glassy eyes, slurred speech, was unsteady on his feet, had a hard time answering questions and admitted to being drunk. Mr. Davidson, a witness for the Licensee, also admitted that patron #3 was drunk when he arrived.
Based on the evidence of the inspectors and patron #3, the Board is satisfied that patron #3 was drunk for the purpose of the first part of the test under subsection 45(1).
The Licensee testified to seeing patron #3. In fact, according to Mr. Vargovic, Sr.’s evidence, he saw patron #3 arrive at about 10:00 p.m. The Board found Mr. Vargovic Sr.’s testimony on when patron #3 arrived to be more reliable than the evidence of patron #3, since patron #3 initially stated he did not recall at what time he arrived and then gave vague estimates ranging from 9 p.m. to 11 p.m. Therefore, based on the evidence from the Licensee, patron #3 was in the establishment for 45 to 47 minutes before the inspectors arrived. As such, the Licensee would have had ample opportunity to observe patron #3 for signs of intoxication, prior to the arrival of the inspectors, including when two pitchers of beer and Jaggermeister shots were provided to the group with whom patron #3 was seated. Mr. Vargovic, Sr. testified that he did not assess him for sobriety because he “assumed” his son would do so, an approach which is not reflective of the type of diligence that the legislation expects of licensees.
Indeed, given patron #3’s pronounced signs of intoxication, the fact that he was drunk ought to have been apparent to the Licensee, as it was to the inspectors and even to Mr. Davidson. The Board, therefore, finds that the Licensee knew or ought to have known that patron #3 was drunk, and in allowing him to remain in the premises, the Licensee permitted drunkenness on the part of patron #3, for the purpose of the second part of the test under subsection 45(1).
Patron #4
Inspector Foster testified that patron #4 was unsteady on his feet, had red, glassy eyes, slurred speech and his breath smelled of alcohol. Inspector Passmore gave independent evidence that patron #4 had red, glassy eyes and slurred speech. Inspector Passmore also testified that patron #4 told him he had been drinking beer and Jaggermeister shots at the establishment and also admitted he was drunk. The Licensee did not give any evidence on patron #4.
Based on the inspectors’ evidence, which the Board found to be clear, consistent and credible, the Board is satisfied that patron #4 was drunk for the purpose of the first part of the test under subsection 45(1).
Patron #4 was seated at the same table as patron #3 and was part of his group. Patron #3 testified that the individuals in his group had arrived at the establishment together. As such, based on the Licensee’s testimony regarding when patron #3 arrived (paragraph 164 above), patron #4 would have also been at the premises for about 45 to 47 minutes before the inspectors attended. Therefore, the Licensee had plenty of time to assess patron #4 for signs of intoxication, including when the Licensee served him and the individuals in his group two pitchers of beer and Jaggermeister shots. While there was no evidence on what he had consumed prior to arriving at the establishment or on when he started exhibiting signs of intoxication, on a balance of probabilities, the Board believes he did not suddenly begin exhibiting such signs when the inspectors spotted him.
When the inspectors arrived, their attention was immediately turned to the table where patron #4 was seated, because the patrons were loud and some of them looked youthful. The establishment also was not busy and well under capacity. If the Licensee had been acting diligently and responsibly, given its obligations under the Act, it should have turned its attention to the individuals at this table, including patron #4, for the same reasons which prompted the inspectors to focus on them, and taken appropriate action.
Accordingly, the Licensee knew or ought to have known that patron #4 was drunk. In failing to have him removed from the premises, the Licensee permitted drunkenness on the part of patron #4, and the second part of the test under subsection 45(1) is met with respect to patron #4.
Therefore, the Board FINDS that the Licensee contravened subsection 45(1) on the part of four patrons.
Conclusion
For the reasons outlined in paragraphs 132 to 171, the Board FINDS the Licensee contravened subsection 30(4) of the LLA and subsections 41(1) and 45(1) of the O.Reg.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a written response. 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 3^rd^ DAY OF December , 2009
JACQUELINE CASTEL, BOARD MEMBER BERYL FORD, BOARD MEMBER