Registrar, Alcohol and Gaming Commission of Ontario v. Trasheteria (Peterborough) Inc., 2009 CanLII 78700

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-

Trasheteria (Peterborough) Inc. O/A Trasheteria Licensee

DECISION ON FINDINGS

Panel: Kirsti Hunt, Vice-Chair Bruce Miller, Board Member

Decision Date: December 9, 2009

Hearing Location: Peterborough, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative Trasheteria (Peterborough) Inc., Licensee ) Ted Whelpdale, Representative

Authorities

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

1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553

1313963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2008] O.J. No. 1849

1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553

974120 Ontario Ltd. (c.o.b. Tap on York) v. Ontario (Alcohol and Gaming Commission), [1999] O.J. No. 1603

Allegations

1. The Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) held a hearing on September 9, 2009 pursuant to a Notice of Proposal number 17215 dated April 28, 2009 to suspend licence number 40087 issued to Trasheteria (Peterborough) Inc. operating as TRASHETERIA, 123 Simcoe Street, Peterborough, Ontario, K9H 2H3 (the “establishment” or the “premises”) on the basis of an allegation under section 29 of Ontario Regulation 719/90 (“O.Reg.”) under the Liquor Licence Act (“LLA”).

Decision

2. After considering all the evidence and submissions the Board FINDS the Licensee violated section 29 of the LLA. Reasons follow.

Evidence for the Registrar

3. On October 5, 2008, Inspector Stacy Guymer of the AGCO arrived at Trasheteria at 2:56 a.m. with Detective Constable (“Det. Cst.”) Scott Williams of the Ontario Provincial Police (“OPP”) who is working with the AGCO. She attended to do an inspection as part of the “Head of Trent” weekend and because she had received a complaint that there was service of alcohol after hours in the premises and that employees were consuming alcohol on the upstairs level after they finished work.

4. On entering she observed a male standing at the service bar drinking from a bottle of Labatt’s 50 beer. He was cocking the bottle to his mouth and drinking from it. There were other people standing around about two to three feet from him but she had a clear view of the male. Later she learned that they were employees. A female server, identified as “M.M.”, said the male was her boyfriend. She did not get the name of the other male. A security officer was sitting on a bench seat in the bar area and he looked like he was sleeping.

5. M.M. was a couple of feet from the male who was drinking but she did nothing about his drinking nor did the other employees although they had a clear view of him.

6. Inspector Guymer identified herself to the male, who identified himself as “L.S.” She pointed out the time on the clock behind the bar which said 3:00 a.m. Her watch had a slightly earlier time, moments after the 2:56 a.m. when she entered. She told L.S. that all signs of service needed to be cleared by 2:45 a.m. and that he should not be drinking in the establishment after that time. He put the bottle, which was half full, on the bar counter. She felt the bottle and it was warm to the touch.

7. Staff showed no evidence of being upset with L.S. They did not indicate that they had done a sweep of the premises earlier or that they didn’t know how L.S. got the drink.

8. Det. Cst. Williams, who had gone upstairs upon entering, and the Manager, Ted Whelpdale, came downstairs. She told them of her observations. Mr. Whelpdale said nothing about just having conducted a sweep of the premises. He showed no evidence of being angry with L.S. about hiding a beer.

9. The Inspector was in the premises for 21 minutes and the security person did not wake up during that time. She left at 3:17 a.m.

10. On cross-examination, the Inspector agreed that she had been in the premises earlier that evening and found nothing wrong.

11. She was able to recall that L.S. was a white male, six feet tall weighing about 190 lbs. He was medium to heavy set. He stood with his back against the bar and she saw his right hand cock the bottle to his mouth. She could not remember whether she saw him swallow but it looked like he was drinking. She could not recall if she got close enough to him to smell alcohol on his breath. The employees were a in a group close to L.S. but their backs were not towards him.

12. Det. Cst. Scott Williams confirmed that they arrived at 2:56 a.m. As he entered, he observed a male, whom he later learned was an employee, run up the stairs to his left. He followed because the upstairs area is also licensed.

13. Upstairs, he observed Ted, the Manager, exiting a second floor office. The male who had run upstairs was in the office. The Manager passed him and went downstairs. The Officer checked the licensed area upstairs and no one was there. He then went downstairs. He observed Inspector Guymer speaking to a male and he observed a beer bottle on the bar counter in front of the male. The Inspector advised him that she had found the male drinking a beer. He stood by while she conducted the investigation.

14. No one advised him that the male who had been drinking beer had been surreptitiously hiding it. They left at 3:17 a.m.

15. On cross-examination, Det. Cst. Williams could not recall the brand of beer or how much liquid was in it. The bottle was not confiscated nor tested. He did not feel the bottle.

Evidence for the Licensee

16. Ted Whelpdale has been an employee at Trasheteria for six years and the General Manager for three years. He was working on October 5, 2008. It was a busy night because it was the Head of Trent weekend so they would have had at least 30 staff working.

17. Inspector Guymer and Det. Cst. Williams were in earlier in the evening and to his knowledge found no problems.

18. They stopped serving at 2:00 a.m. and allowed patrons to remain in the bar and keep drinking until 2:15 a.m. when the music was turned off and lights came on. Their aim is to get patrons out by 2:30 a.m. Some staff is assigned to get the patrons out and others to clear bottles and drinks. He does a final sweep to make sure that all patrons are gone and that everything is cleared. At 2:45 a.m. all signs of service should be cleared, and there should be no patrons in the premises with a few exceptions. They should be ready to shut the doors.

19. During the Head of Trent weekend, there is an increased police and AGCO presence and the Licensee’s staff make sure that everything is done right. They turn on lights and start the closing procedures earlier than normal.

20. He started his sweep at 2:20 a.m. He and the doorman, “P.S.”, checked the main area, went to the patio, back to the main area and then upstairs. He checked and locked the patron washrooms. During the sweep, there were a few patrons in the main area mainly because they were waiting for rides home. Some were waiting for staff to leave because they were friends of staff or were staying with a staff member.

21. He knows L.S. who was a former employee and a friend of some of the employees. He was given a ride home by “R.G.” the security person. Mr. Whelpdale saw L.S. at 2:20 a.m. in front of the service bar in the main area and again at 2:30 a.m. when he returned to the main room. He completed the sweep at 2:35 a.m. He did not see L.S. with a beer. If he had seen L.S. with a beer, he would have encouraged him to drink it or would have taken it away from him.

22. He saw L.S. again after 3:00 a.m. An employee told him that the Inspector was in the premises so he came downstairs. He observed the Inspector speaking with L.S. He saw a beer bottle on the bar counter and he yelled to staff, “Get rid of it” but could not recall what happened to it. He did not talk to L.S.

23. As part of staff training, they have a staff meeting once a month to review policies and procedures and the liquor laws.

24. On cross-examination, Mr. Whelpdale indicated that he has no direct evidence of what the Inspector saw L.S. do.

25. M.M. is still working at the premises. She was not present at the hearing. He does not know who else was in the premises after 2:45 a.m. He agreed that R.G., the security person, and P.S., the doorman, were still working at the premises. P.S. was not present at the hearing.

26. The beer bottle was removed at his instructions.

27. He agreed that they only serve Labatt’s 50 beer in Labatt’s 50 beer bottles.

Submissions for the Registrar

28. Registrar’s representative asked for a finding of a breach of section 29 of the O.Reg. under the LLA.

29. The Inspector observed a male standing at the bar holding a Labatt’s 50 beer bottle at about 2:50 a.m. It can be inferred that he was consuming because he cocked the bottle and moved it to his mouth. Regardless, he is holding a beer bottle and that is failing to clear.

30. The male was standing with his back to the bar counter and some employees were standing to his right. The Inspector had a clear view of the male with the beer bottle and he was openly consuming from it. Nobody said anything about the bottle being surreptitiously hidden by the male.

31. Mr. Whelpdale gave no evidence contrary to that of the Inspector. He was not there when she made her observations. He was upstairs. The Licensee had the names of the staff present but none of them were called as witnesses.

32. The beer bottle was half full and warm to the touch. There is no allegation of sale or service after hours, just failing to clear. Because the bottle was warm, it would have been served before the time that Mr. Whelpdale saw L.S. He did not see the beer bottle so his evidence should be questioned.

33. There is clear evidence for a finding of “fail to clear” and no evidence to the contrary.

Submissions for the Licensee

34. Section 29 of the O.Reg. states:

“The licence holder shall ensure that evidence of liquor that has been served and consumed on the premises is removed within forty-five minutes after the end of the period during which liquor may be sold and served under the licence.”

35. The section requires evidence that liquor served and consumed is removed before 2:45 a.m.

36. There are four elements to be determined. The Licensee concedes the first. The Inspector arrived after 2:45 a.m. so anything that she saw happened after 2:45 a.m.

37. The other three elements have not been made out. Incumbent on a finding there has to be evidence that leads to the conclusion, on a balance of probabilities that:

a) there was consumption;

b) it was liquor that was consumed; and

c) it was served on the premises.

38. The only evidence of consumption is the evidence of the Inspector that she saw an individual, with a beer bottle in his right hand, cock his arm and put it to his lips. She did not know if he put anything into his mouth or if he swallowed. Her evidence does not lead to the conclusion that there was consumption. The Registrar asked the Board to make the inference that, because the male cocked his arm with the bottle, he drank from it, but there is no evidence to lead to that inference.

39. Similarly, there is no evidence for a conclusion, on a balance of probabilities, that the liquid in the bottle was beer. The Inspector did not smell it. She did not smell alcohol on the breath of L.S. Neither she nor Det. Cst. Williams took the bottle and tested it. They made an assumption but there is no evidence that the liquid in the bottle was beer.

40. Registrar’s representative held that because the beer was warm, it must have been ordered at least 20 minutes earlier but the fellow could have brought it in under his coat. Neither the staff nor the Manager was asked if they served the beer to L.S. There is no evidence to conclude, on a balance of probabilities, that this bottle was served to L.S. on the premises.

41. Therefore, the Licensee’s representative asked that no finding be made.

42. The Ontario Divisional Court analyzed a similar section, section 45(1) of the O.Reg., regarding permitting drunkenness on premises in the Sin City decision. It broke down the offence into its constituent elements. Similarly, in this case the Board has to look at the elements of the offence and decide whether the elements have been made out. That has not been done.

43. The Board heard about monthly staff meetings during which staff receive training about what the law is regarding this type of offence.

44. Mr. Whelpdale conducted a sweep for this sort of offence and saw L.S. three times but at no time did he see L.S. with a beer in his hand.

45. There is no evidence that staff saw L.S. drinking a beer.

46. The evidence leads to a conclusion that the Licensee did everything possible to ensure that all evidence of liquor had been removed.

Reply submissions

47. In the Sin City Court of Appeal decision, the Court looked at all the circumstances regarding “permit” and looked at what is expected of Licensees and what their statutory duties are. The statutory duty of a Licensee under section 29 of the O.Reg. is that the licence holder must ensure that evidence of liquor served and consumed on the premises is cleared by 2:45 a.m. In this case, the licence holder failed to ensure that. Staff ought to have known about the beer bottle. The fellow was drinking openly in front of three staff members.

48. In the case of Rejeanne’s Bar and Grill, the Divisional Court upheld that due diligence is not a defence.

49. There is no requirement to prove that there was alcohol in the bottle. The requirement is evidence of liquor not liquor itself. Even an empty beer bottle is proof of the breach and this was a half full bottle.

50. The Inspector should have been cross-examined, and was not, as to why she did not smell the bottle.

51. The Inspector did not take the bottle because the Manager said that it should be removed and did so because there was alcohol in that bottle.

52. Regarding consumption, an inference can be made that L.S. was consuming.

53. Regarding service, the Manager said that they only serve Labatt’s 50 beer in a Labatt’s 50 bottle.

54. Licensee’s representative is reading this section too narrowly. Under subsection 25(1) of the O.Reg., the Licensees have to sell and serve alcohol before 2:00 a.m. Once they do that, they have 45 minutes for patrons to drink up and for staff to clear beer bottles, cups or the paraphernalia of liquor. There is no requirement to prove service. Section 29 of the O.Reg. deals with clearing up.

55. It is illegal for a Licensee to give out free liquor. It is illegal to let people into the premises with liquor that has not been served by them. The only way a patron can legally get beer on licensed premises is if staff serves it. Section 29 deals with the cleaning up of that liquor.

56. If the defence is that the beer was brought onto the premises, it is incumbent on the defence to provide some evidence of what happened. In the Tap on York decision, the Divisional Court said that once the Registrar establishes that the liquor is different from standard, a licensee has to explain the difference in the context that due diligence is not available as a defence. In this case, no one said anything that night about L.S. bringing in the beer off-licence.

Analysis, Reasons and Findings

57. The Board reviewed the evidence and the submissions.

58. The issue to be decided is an allegation under section 29 of the O.Reg. that states:

“The licence holder shall ensure that evidence of liquor that has been served and consumed on the premises is removed within forty-five minutes after the end of the period during which liquor may be sold and served under the licence.”

59. Under subsection 25(1) of the O.Reg. a licence holder can sell and serve alcohol until 2:00 a.m. Therefore, under section 29 of the O.Reg. the licence holder has until 2:45 a.m. to ensure that evidence of liquor that has been served and consumed is removed.

60. It is admitted that any observations made by the Inspector took place after 2:45 a.m.

61. The evidence of Inspector Guymer is that she saw L.S. drinking from a bottle of Labatt’s 50 beer shortly after 2:56 a.m. A short time later, Det. Cst. Williams saw a beer bottle on the service bar. The Manager saw the bottle and yelled to staff, “Get rid of it.” His reaction indicates that he believed that it was a bottle that should have been cleared away. Therefore, the evidence is clear that a beer bottle was not cleared by 2:45 a.m. In fact, no issue was made of the presence of the beer bottle.

62. The Licensee referred to the Ontario Divisional Court’s Sin City decision and submitted that in its analysis of subsection 45(1) of the O.Reg. the Court broke down the offence into its constituent elements. Similarly, the Board should look at the elements of the section in question to decide whether the elements have been made out. The Licensee argued that the Registrar has not made out his case because each element of section 29 of the O.Reg., besides the time factor, has not been made out on a balance of probabilities. There is no evidence that there was consumption, that it was liquor that was consumed or that it was served on the premises.

63. The Board agrees that in making a determination about whether an offence has occurred, it must look at whether all required elements of the section have been made out. In this case, it rejects the Licensee’s argument about what elements need to be proven. It accepts the Registrar’s submission that the Registrar has to establish that the licence holder failed to ensure that evidence of the service and consumption of liquor on the premises was cleared.

64. It is not liquor that has to be cleared as the Licensee submitted but the evidence of liquor served and consumed on the premises.

65. Evidence of liquor served or consumed on the premises includes opened beer bottles, glasses, jugs and other paraphernalia used to serve or consume liquor. This case deals with a beer bottle.

66. The evidence of liquor served and consumed is liquor that is sold and served on the premises until 2:00 a.m. and consumed before 2:45 a.m.

67. The Licensee argued that there is no evidence that this beer was served on the premises. The fellow could have brought it in under his coat.

68. The Board notes that there is no evidence that the patron brought in the beer under his coat. Had there been such evidence, the Licensee would have been in breach of having on premises alcohol that was not bought under licence from a government store.

69. The Licensee argued further that there is no evidence that the liquid in the bottle was liquor because the Inspector did not smell it, smell liquor on L.S.’ breath or did not have the liquid tested.

70. Such actions are not necessary for the purpose of this section. An opened bottle of beer on the licensed premises is a prima facie sign of liquor served. The Manager also admitted that they only serve Labatt’s 50 beer in Labatt’s beer bottles.

71. The Licensee argued that the Registrar has not shown that there was consumption. The only evidence is that the Inspector saw an individual, with a beer bottle in his right hand, cock his arm and put it to his lips. She did not know if he put anything into his mouth or if he swallowed.

72. It is not necessary to show that consumption was actively taking place. Evidence of consumption can be an empty or a partially empty bottle of beer. That being said, in this case the Board accepts that the evidence of L.S. cocking his arm to raise a bottle of beer to his mouth is sufficient to conclude, on a balance of probabilities, that he was doing so to drink from the bottle. The fact that the Inspector didn’t notice if he swallowed or not is not sufficient to persuade the Board that the individual was not consuming the beer.

73. The Board does not accept as a defence the evidence of the Manager that he did a sweep of the premises and did not find any evidence of service and consumption and that during his sweep he saw L.S. three times and that at no time did he see L.S. with a beer in his hand. Due diligence is not a defence with regard to findings under subsection 29 of the O.Reg (Rejeanne’s Bar and Grill). However submissions about due diligence can be made with regard to any proposed sanction.

74. Furthermore, the Manager was not present between 2:35 a.m. when he completed his sweep and shortly after 2:56 a.m. when the Inspector made her observations. He was in his office upstairs. Therefore, he could give no first hand evidence about what happened downstairs in that time interval. It would have been helpful to the Board to hear evidence from the staff members who were present during that time. However, they were not called as witnesses although the Manager knew who they were because he saw them when he came downstairs to speak to the Inspector and they continue to work at the licensed premises.

75. Staff members were present about two to three feet from L.S. and had a clear view of him holding a beer bottle and drinking from it. They knew or ought to have known what he was doing but they did nothing about it (Appeal decision in Sin City).

Conclusion

76. Therefore, the Board FINDS that the Licensee failed to ensure that the beer bottle, which was evidence of liquor that had been served and consumed in the premises, was removed by 2:45 a.m. in contravention of section 29 of the O.Reg.

77. Having made the finding above, the Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his written submissions within seven (7) days of the date of this decision. The Licensee shall have seven (7) days to serve and file her written response. Registrar’s Representative may serve and file any reply within three (3) days of 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

KIRSTI HUNT, VICE-CHAIR, AGCO BRUCE S. MILLER, BOARD MEMBER