Registrar, Alcohol and Gaming Commission of Ontario v. 1609559 Ontario Ltd., 2010 CanLII 25951

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

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

1609559 Ontario Ltd. operating as Club Kaos Licensee

Panel: Joan Lougheed, Board Member Bruce S. Miller, Board Member

Decision Date: April 15, 2010

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 ) Joyce Taylor, Representative

1609559 Ontario Ltd., Licensee ) Bibi Zalina Deodat, On her own ) behalf and on behalf of the Corporate ) Licensee

Allegations

A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 193 dated December 22, 2009, issued to 1609559 Ontario Ltd. (the “Licensee”), operating as CLUB KAOS, 107 Kennedy Road South, Brampton, Ontario, L6W 3G3, (the “establishment” or the “premises”), liquor licence number 21019, pursuant to section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, in respect of alleged violation of subsection 45(1) of Ontario Regulation 719/90, made pursuant to the Liquor Licence Act, (the “LLA”), was held on March 22, 2010 in the City of Toronto.

Decision

After considering all the evidence and submissions, the Board DISMISSES the alleged violation contained in OMP number 193 and SETS ASIDE the monetary penalties sought by the Registrar. Reasons follow.

Preliminary Matters

The Chair of the panel reviewed the role of the Board in this matter, stating that the penalty can only be confirmed or set aside. The Chair noted that the monetary penalty amount cannot be modified by the panel.
Bibi Deodat is the shareholder, officer and director of the Licensee. She appeared on her own behalf and on behalf of the Corporation and waived the right to be represented by a licensed representative.
As a preliminary matter and on consent of all parties, the Board ORDERED the exclusion of witnesses

Registrar’s Evidence

Denise Lohnes, an employee with the Victorian Order of Nurses, is a 34 year old resident of Brampton. On July 25, 2009, she arrived at the establishment at 10:30 p.m. She stated it was her birthday and she had a few drinks before arriving. She felt, in her opinion, that she was not showing signs of intoxication.
She stated that when she arrived and went to the bathroom, she encountered a gentleman who tripped over her. They bumped and he stumbled. He had very little control of his movements.
Ms Lohnes said that after getting drinks for herself and friends from the bar, she went onto the patio and saw the same male. She stated he was very intoxicated, stumbling and banging into people. When she asked if he needed a taxi to go home, he stated that he did not know where he lived and did not know his name.
The witness approached the bartender, Ms B. and the owner, Faizal. She stated that to the best of her knowledge he is married to the other owner, Ms Deodat. She told the bartender and owner that the male needed to leave and they should call a cab. She stated that her “statement was pretty much dismissed”.
She stated that about an hour later she saw some flashing lights outside and when she inquired about what happened, she was told that the drunk man was hit by a car. Just before this she saw this man standing beside a table with two beers on it. He reached for a beer, but never put it in his hand. She said it “was like he was grabbing a shadow, reaching out and bypassing it completely. She presumed the beers were his.
Ms Lohnes stated she had 15 years experience as a bartender and waitress and holds a Smart Serve Certificate. She is a graduate from the George Brown School of Culinary Arts or Hotel / Restaurant Management course. On questioning about which course she took, she answered, “whatever”.
The witness stated that her family owned a bar from November 2002 to January 2008. This bar was in competition with Club Kaos. However, at the time of this incident the family business had been closed about one and a half years.
Ms Lohnes stated that at the end of the night there was a fight that started on the patio and ended in the parking lot. She indicated that the primary staff person, Ms B., usually focussed on her, did not like her and called 9-1-1 to have her arrested.
On the arrival of police, she was told she had to give a statement or be arrested. She gave a statement and three police officers came to her house three days later for further follow-up. This happened on July 28th or 29th, 2009.
On cross-examination, the witness stated she came in with seven or eight people. She admitted that she did not speak with Ms Deodat, the owner, to advise her of someone being over served.
In answer to questions, she stated that the fight involved her friends. She had been barred from Club Kaos before. A friend, Ms C., had asked the owner if she could come back starting on July 5th.
When asked, Ms Lohnes stated that she was never treated with disrespect by the owner and the owner did respond anytime she reported a problem.
In response to questions, the witness indicated that she did not know if her mother had called Club Kaos to tell the owner that they would be shut down. She said it was possible, there was a lot of anger and raw emotion. A friend had required 40 stitches and five staples after the fight. She stated, “I don’t doubt that the call took place but do not know for certain”.
She agreed that on July 25th she was asked not to come back because of problems between her and patrons. When asked by Ms Taylor if there was animosity towards the owners that influenced her description of events, she replied, “no”.
In response to questions from the Board, the witness stated she did not know how much she had to drink, but she did have a fair amount. She said she only knew about the accident on the street when another patron told her. She did not ask how they knew details. A friend, Mr. S., called her mother a name and they argued. She indicated that the fight began about 2:00 a.m.
In response to questions from the Board, Ms Lohnes stated that she did not recall who she spoke to specifically about the alleged drunk patron, saying that both Ms B. and Faizal were present at the patio door. Faizal walked away and she said that Ms B. looked “like I was wasting her time”.
When questioned about the fight, Ms Lohnes stated that Mr. S. had called her mother a name and they had argued for a couple of weeks, two other friends became involved when a racial comment was made to a female friend. The witness stated that by the time she left she was sure her blood alcohol level was over the legal limit. She stated her mental state improved when the physical altercation occurred. When asked if she was intoxicated, she said absolutely.

Licensee’s Evidence

Bibi Zalina Deodat has owned the business since December 2007. On July 25th, Ms Lohnes came in with a few friends to celebrate her birthday. At the time, only Ms B. and the owner were working and she was not aware of anyone else who was there drinking or intoxicated.
Ms Deodat stated that she and the bartender, Ms B., took turns going onto the patio. At 2:00 a.m., she noticed Ms Lohnes on the patio, arguing with three males. Three friends were in the parking lot, not too far from the patio. Ms Lohnes was asked to leave and not to start any trouble. At this time another friend jumped over the patio railing and the fight started. She stated that Ms Lohnes had other cousins and friends who all got involved in the fight.
The witness stated that Ms B. called 9-1-1 on her cell phone. The police came and got control of the situation.
She indicated that there are three bars in close vicinity. She does not know who was in the accident that occurred at 10:30 p.m. or if the person had been in her establishment.
Club Kaos is small, with a capacity of 56 inside and 50 outside. Patrons usually know each other. With all the bars, Ms Deodat stated that she is vigilant about people drinking. At night there are three extra people to serve. Her husband, Faizal, did not arrive until midnight on the night of the incident. She stated that they let Ms Lohnes have a good time for her birthday and it ended with the fight with her and her friends.
Ms Deodat stated that the bar is presently for sale and Ms Lohnes has put in an offer to buy it.
On cross-examination, she stated that she is on good terms with Ms Lohnes. On July 25th, there was one person at the door. Her husband usually arrives at 10:30 p.m., but due to a family commitment, he did not arrive until midnight.

Registrar’s Submissions

That the Licensee has allowed an intoxicated patron on the premises has been proven on a balance of probabilities. The witness was clear, credible and forthright, and candid in the admission relating to her conduct.
Ms Deodat was not involved in the incident relating to the intoxicated patron and Ms Lohnes admitted to being intoxicated. Ms Lohnes described herself as being an extremely intoxicated patron and was clear about the staff she spoke to. Ms Deodat had no knowledge because she was not there.
The two part test has been met: the patron showed signs of intoxication and staff knew or ought to have known. Ms Deodat could not provide the exact time her husband arrived, stating she thinks it was after midnight and her husband did not give any evidence. Therefore, the Registrar’s position is that there was at least one intoxicated patron and the monetary penalty of $1,500 should be imposed.

Licensee’s Submissions

Ms Deodat stated that her husband was not a witness, since he was not there before midnight. Normally people come to her or Ms B. if there is problem. She stated that she spoke with her husband and Ms B., but no one remembers the incident as presented by Ms Lohnes. Ms Lohnes worked in a bar and would know how to report to police.
Ms Deodat pointed out that Ms Lohnes was barred from the premises on July 25th and was angry when she gave her statement on July 27th. The mother of Ms Lohnes had called and threatened to shut down the establishment.
She noted that the bar was for sale and Ms Lohnes and her mother want to buy another bar. Their actions seem malicious.

Registrar’s Reply Submissions

Ms Taylor stated that even if Ms Lohnes was angry when she spoke to police, she was clearly not angry today. She was candid about her friend getting hurt and being upset and emotional. What happened has no impact on the evidence today.
Ms Taylor noted that it is hearsay that Ms Lohnes wants to purchase the bar. Although Ms Deodat says the witness statement was malicious, she spoke pleasantly to Ms Lohnes today.

Analysis/Reasons/Findings

The Board has carefully reviewed and considered the evidence and verbal submissions of both parties in this matter.
The Board, in this matter, can only confirm or set aside the monetary penalty. The penalty cannot be modified by the Board.
The Board did not find the Ms Lohnes’ evidence to be credible. By her own admission, she had been drinking both before arriving and while at the establishment. The Board finds that her recollection of the events to be sketchy in detail, and contradictory to that of other witnesses. The Board notes the feeling of hostility that she and her family have towards the Licensee and believes that that has coloured her judgement and her recall of the events.
As well, there was no corroborative evidence to support the assertion that Ms Lohnes saw or reported a male drunk patron on the premises. She stated that staff did not respond when she reported the over service, but later indicated that the Licensee had always responded anytime she reported a problem.
While there is no legal requirement to have corroborating evidence, given that the Board finds Ms Lohnes’ evidence to be not credible, it is not proper to accept any of her evidence, particularly where it is contradicted by the evidence of other witnesses.
The Licensee indicated that her husband, who had been identified by Ms Lohnes as present when she reported the drunk, was not on the premises at the time and Ms Lohnes did not speak to her about over service to a patron
The Board concedes that Ms Lohnes and other patrons may have been under the influence of alcohol, but stops short of finding that there was sufficient evidence to make a determination that they were intoxicated, given the lack of additional supportive evidence. Because a person says they are intoxicated does not mean that they are.
Although police had been called to the premises and the witness stated there was an accident involving a drunk patron, the Board did not receive any police or ambulance personnel evidence to corroborate the evidence of Ms Lohnes.
The Board considers the evidence that the drunk male may have been involved in a car accident as hearsay evidence and not validated in relation to the allegations.
Although Ms Lohnes candidly admitted to drinking and to her conduct, the Board does not accept her evidence to be reliable, given her admission that she had been drinking and the disorderly behaviour that erupted amongst her party resulting in personal injury. She also stated that later, another family member could have called to make the alleged threat to the Licensee.
The Board accepts the evidence of the Licensee as credible, confirming that her husband had arrived around midnight, notwithstanding that Ms Lohnes indicated he was on the premises earlier in the evening when she reported a drunk patron to him and to the bartender.

Conclusion

For the reasons given, the Board DISMISSES the alleged violations contained in OMP number 193 dated December 22, 2009, issued to 1609559 Ontario Ltd., operating as CLUB KAOS, 107 Kennedy Road South, Brampton, Ontario, L6W 3G3, liquor licence number 21019, and SETS ASIDE the monetary penalties sought by the Registrar in the amount of $1,800.

DATED AT TORONTO THIS 15th DAY OF April , 2010

BRUCE S. MILLER, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER