ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario (Registrar)
-and-
1647874 Ontario Inc. operating as Corner Pocket (Licensee)
DECISION ON FINDINGS
Panel: David C. Gavsie, Chair, AGCO Bruce S. Miller, Board Member
Decision Date: April 12, 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 1647874 Ontario Inc, Licensee: Joseph Saraco, On his own behalf and on behalf of the Corporate Licensee
Authorities
1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553
Allegations
1A hearing into Notice of Proposal number 17515 dated September 4, 2009 to suspend liquor licence number 0806683 issued to 1647874 Ontario Inc. (the “Licensee”), operating as CORNER POCKET, 45 Prince Street, Oshawa, Ontario, L1G 4C9 (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (the “LLA”), was held on March 16, 2010 in the City of Toronto.
Decision
2After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg.
Preliminary Matters
3Mr. Saraco stated he understood that he had the right to be represented by counsel. He waived that right and stated he was ready to proceed.
4Ms Taylor requested an order excluding witnesses. Mr. Saraco agreed and on consent the Board ORDERED that all witnesses be excluded.
Registrar’s Evidence
5Luke Zebrak has been a police constable (“PC”) with the Durham Regional Police Service for seven years. On February 27, 2009 at 4:10 PM he was in uniform in a marked police vehicle with PC Gillam. They were parked just north of the Corner Pocket on the west side of the road facing south. They were observing the area of the Corner Pocket.
6A white male exited the Corner Pocket and walked down the two steps onto the sidewalk. He was swaying from side to side. The male appeared to be attempting to light a cigarette but couldn’t do so as he was swaying. The male fell off the sidewalk and landed head-first on the pavement.
7The police cruiser was driven up to the front of the premises.
8PC Zebrak helped the male to his feet as he couldn’t get up. He had to hold onto the male. The male was bleeding from his face and nose. The male had a strong odour of alcohol and his eyes were bloodshot and glossy. His speech was slurred. He was wearing flat soled shoes and the sidewalk where he fell was flat.
9PC Zebrak arrested the male for public intoxication as he was concerned for the male’s safety. The male identified himself as K.M.
10The male was unable to stand without assistance. The male stated he had five Canadian beers to drink and pointed at the Corner Pocket when he was asked where he had been drinking.
11The male was taken to police cells. PC Zebrak did not know the outcome of the intoxication charge that he laid against the male but he was never notified for court so he does not believe that it was contested.
12On cross-examination, PC Zebrak stated he was parked just north of the Corner Pocket on the opposite side of the street. He believes that the male was with a female who he did not deal with. He did not get first aid for the male. The male understood his questions. He did not know that the male had a club foot.
13PC Zebrak thinks there were two steps leading to the front door of the premises.
14PC Zebrak did not give the male a breath test as it is not required for cases involving public intoxication.
15PC Zebrak was parked in the area to monitor the Corner Pocket.
16On reply, he stated he did not request first aid for the male as the male did not require it. He didn’t observe any problem with the male’s feet.
17James Gillam has been a PC with the Durham Regional Police Service since 1991. He was with PC Zebrak in the area of the Corner Pocket in a marked police cruiser on February 27, 2009 at 4:00 PM. They were parked on Prince Street south of Richmond Street observing the premises.
18A male and female exited the bar onto the sidewalk. The male was unsteady on his feet and was trying to light a cigarette. The male slipped off the curb and fell face first. He was unable to stand. The female and another patron tried to help him up.
19They drove their police cruiser to the front of the bar. PC Zebrak dealt with the male while PC Gillam spoke to the female. The male was intoxicated and staggered when he came out of the restaurant. The female identified herself as M.A. She pointed at the Corner Pocket when he asked her where she had been drinking. She said she had been at the Corner Pocket since 2:00 PM and that K.M. was there prior to her arrival.
20M.A. stated K.M. had five beers to drink at home, four beers to drink at the Atria, which is another local bar, and then four beers at the Corner Pocket. She had three beers to drink at the Corner Pocket. K.M. was not intoxicated but had been drinking.
21PC Gillam went into the premises to speak with the Licensee, Joseph Saraco. Ms Henry was behind the bar and appeared to be the only server. Mr. Saraco told him that K.M. had been there for three to four hours and had been drinking with friends.
22Mr. Saraco told him he had an eight camera system in the bar and one camera for the outside.
23The bar was fairly busy. Mr. Saraco seemed unconcerned about K.M. and never stated K.M. wasn’t intoxicated. Mr. Saraco never mentioned that K.M. had any medical problems.
24On cross-examination, PC Gillam stated they were parked 35 to 40 feet away from the bar.
25PC Gillam didn’t bring K.M. to the hospital as K.M. did not want any medical treatment. He did not notice that K.M. had any medical disability.
26PC Gillam did not notice a limp as K.M. could barely stand up and had to be supported by PC Zebrak.
27Ms Taylor did not ask any questions on reply.
28In response to questions from the Board, PC Gillam stated he did not notice that K.M. had any disability. He did not speak with K.M. He stated M.A. did not indicate how she knew that K.M. had five beers at home and four beers at the Atria.
Licensee’s Evidence
29Joseph Saraco advised K.M. was going to testify but that he had been unable to locate K.M. when he went to his residence to pick him up to drive him to the hearing.
30K.M. and M.A. came in to his business on the day in question between 12:00 PM and 12:20 PM. K.M. had two beers to drink. He went to the washroom and then had two more. K.M. called a taxi cab and went outside and stumbled on the step.
31K.M. was a burn victim as the result of a fire. He has a club foot and he limps and that is why he stumbled. He did not actually see K.M. fall but saw him stumble on the steps. K.M. did not appear to be intoxicated. K.M. was able to walk to the washroom without difficulty.
32They monitor their customers very closely.
33On cross-examination, Mr. Saraco stated that PC Gillam spoke to him about K.M. and PC Gillam stated he thought K.M. was over-served.
34Angela Henry served K.M. She told him how much K.M. had to drink. Ms Henry was behind the bar when K.M. left. She was the only server. They had about 20 patrons in the bar and it was fairly busy.
35Mr. Saraco saw K.M. stumble but did not actually see him fall. Mr. Saraco was in front of the bar about 18 feet from the front door when K.M. left with A.M.
36On reply, Mr. Saraco stated it wasn’t overly busy and there were 15 to 20 patrons. He ensures his bartenders know how many drinks everyone consumes.
37In response to a question from the Board, he stated K.M. and A.M. were in the bar for three and a half hours and they never left. He did not talk to K.M other than to just say hello as he does to all customers.
38Angela Henry was working as the bartender when K.M. and A.M. came in. He had four beers to drink and she had three beers. They were sitting at the bar. K.M. went to the washroom at one point. He was limping but showed no signs of intoxication.
39K.M. asked her to call him a taxi cab. The police were parked across the street. Ms Henry was busy and did not see him fall. She thought he tripped off the steps. She didn’t go outside to help K.M. as she was very busy and saw the police car pull up to where he was.
40On cross-examination, Ms Henry stated K.M. came in with A.M. around noon. He sat at the bar like any other normal happy customer. He wasn’t disruptive and didn’t cause any problems.
41It was busy all day but especially between 1:00 PM and 3:00 PM. She was still busy when K.M. and A.M. left. She saw K.M. stumble and fall down.
42Ms Henry has to look over customers to see out the front windows onto Prince Street.
43Ms Henry believes that Mr. Saraco was in the back of the premises when K.M. fell. Mr. Saraco was there when the police came into the bar. He helped to look after the bar while she talked to the police officer.
44Ms Henry wrote her statement on the incident in March 2009. Her memory of the incident was fresher then than it is now. Ms Taylor submitted the statement of Angela Henry and it was entered as Exhibit #1. Ms Henry agreed the statement made no mention of K.M. limping.
45On reply, she stated K.M. and A.M. were sitting in the middle of the bar and she talked to them at different times. The front of the bar is not busy at 4:00 PM.
46In response to questions from the Board, she stated K.M. has a limp but it is not pronounced. It is a 10 foot walk to the washroom.
47K.M. never mentioned that he had been drinking elsewhere. She didn’t smell any alcohol on his breath when he came in and he was only four feet away.
48Ms Henry is Smart Serve trained.
49Ms Henry has worked at the Corner Pocket for two and a half years. She did not work in the industry prior to that.
50In response to a question from Ms Taylor, Ms Henry stated she did not ask K.M. or A.M. if they had been drinking prior to their arrival at the Corner Pocket.
51Mr. Saraco then advised the Board that he wished to enter statements from K.M. and A.M. The Board RULED he could not enter them as neither was present and could not be cross-examined on them and that they should have been called as witnesses.
Registrar’s Submissions
52The Registrar’s position is that the allegation in the Notice of Proposal has been proven based on the balance of probabilities.
53One police officer dealt with K.M. while the other investigated how K.M. came to be in such an intoxicated state.
54PC Zebrak testified to K.M. showing very gross signs of intoxication. K.M was swaying from side to side, he couldn’t light a cigarette, he fell onto the road face first, he had a strong odour of alcohol and his eyes were bloodshot and glossy.
55There was no apparent problem with K.M.’s feet. K.M. declined an offer of medical assistance.
56PC Zebrak arrested K.M. because he was intoxicated and was unable to care for himself. K.M. needed assistance to stand. His speech was slurred. He was clearly intoxicated.
57PC Zebrak does not believe that K.M. contested the ticket for being intoxicated in a public place.
58K.M. was in the Corner Pocket for three and a half to four hours. The Licensee knew or ought to have known that K.M. was intoxicated well before he got to the state where he was unable to care for himself.
59The Licensee alleges K.M. had a foot problem but that explanation was not provided at the time of the incident. The disability was not apparent to PC Zebrak.
60This is not a credible explanation and certainly does not explain the other signs of intoxication.
61Ms Henry testified she was very busy. She did not have the opportunity to observe or talk to K.M. because of this.
62Mr. Saraco relies on Ms Henry for much of his information about K.M.
63The Board should make a finding that the Licensee permitted drunkenness.
Licensee’s Submissions
64They keep track of how many drinks their customers have consumed. There is a “stigma” about the establishment that they are trying to change. They have banned over 80 customers. He has owned the Corner Pocket for four and a half years.
65He did not know that K.M. had a club foot at the time of this incident. K.M could have done “other things” when he went to the washroom.
66The police officer talked to him first and then talked to Ms Henry.
67They try not to over-serve anyone and always do their due diligence. Ms Henry has worked for him for several years and seems to be an honest person.
68The Board should not make a finding in this matter.
Registrar’s Reply
69Due diligence is not a defense at a hearing. It may be relevant on penalty but is not relevant with regards to the decision.
70There is no evidence that K.M. consumed anything but liquor. There was no evidence when K.M. went to the washroom.
71If the Licensee didn’t know at the time of the incident that K.M. had a club foot then the Licensee should have known that K.M. was intoxicated.
72The Board should make a finding that the Licensee permitted drunkenness.
Analysis/Reasons/Findings
73The Board has carefully considered all the evidence and the submissions presented. This matter concerns an alleged violation of subsection 45(1) of the O.Reg which reads as follows:
“The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”
74There are two key issues for the Board in this case. The first is whether K.M. was in fact intoxicated in the premises and the second is whether the Licensee permitted drunkenness.
75Both police officers testified they saw K.M. leave the Corner Pocket. K.M. was unsteady on his feet and was trying unsuccessfully to light a cigarette. He fell off the sidewalk face-first onto the roadway. He was unable to stand without assistance.
76PC Zebrak dealt with K.M. He stated K.M. had a strong odour of alcohol and that his eyes were bloodshot and glossy. K.M.’s speech was slurred. K.M. told him he had five beers to drink and indicated he was drinking at the Corner Pocket.
77PC Zebrak testified the male was intoxicated and that he arrested K.M. as he was concerned for his safety.
78Mr. Saraco implied that K.M could have done “other things” when K.M. went to the washroom. There was no evidence on this point and the Board puts no weight in this suggestion.
79The issue of K.M. having a club foot was raised by the Licensee. Mr. Saraco suggested K.M. stumbled as the result of a limp. Ms Henry stated on cross-examination that the limp was not pronounced. Neither police officer was aware that K.M. had any disability. PC Gillam testified that he couldn’t tell if K.M. had a limp as K.M. was unable to stand without assistance. The suggestion that K.M. had a limp and that is why he may have fallen certainly does not explain why K.M. was unable to stand on his own nor does it explain any of the other numerous signs of intoxication.
80Mr. Saraco admitted he had limited interaction with K.M. other than to say hello. He stated K.M. was served by Ms Henry.
81Ms Henry stated that K.M. was not intoxicated and had four beers to drink during the three and a half to four hours he was there. She was very busy during the majority of time that K.M. was in the premises. She was so busy that she did not even go outside to check on K.M.’s welfare when he fell.
82Both police officers testified in a clear and consistent manner. They were in the vicinity for the express purpose of observing what was occurring outside the area of the Corner Pocket. They both testified K.M. was intoxicated. PC Zebrak gave evidence of numerous signs of intoxication on the part of K.M. and in fact arrested K.M. for his own safety.
83The Board prefers the evidence of the police officers to that of the Licensee’s witnesses as it was more clear, consistent and detailed, based on direct observations and interactions with K.M., and therefore more reliable. It seems clear that K.M. was intoxicated.
84The next question for the Board is whether the Licensee “permitted” drunkenness.
85The Board must consider whether the Licensee knew or ought to have known that a patron was drunk as per the Ontario Court of Appeal’s decision in Sin City which requires the Board to make that determination in “all the circumstances and, in particular, in the context of the various obligations and duties placed on the licensee by the relevant legislation and regulations”.
86Mr. Saraco testified that K.M. came into the premises between 12:00 PM and 12:20 PM and it is undisputed that K.M. remained there until approximately 4:00 PM. Ms Henry for her part testified that she was the server on duty and interacted with K.M. over that period of time and that she served K.M. four beers. She even testified that she saw K.M. walk to the washroom at one point.
87The police officers observed K.M. showing severe signs of intoxication. K.M. spent three and a half to four hours in the Corner Pocket sitting at the bar drinking beer. He did not, on a balance of probabilities, become severely intoxicated only upon leaving the premises. Although there were 15 to 20 patrons, it was a relatively small establishment. Considering all the circumstances, it is clear the Licensee knew or ought to have known that the male was intoxicated.
Conclusion
88Therefore, for the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg.
89The 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’s representative shall have seven (7) days to serve and file his 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 12th DAY OF April, 2010
DAVID C. GAVSIE, CHAIR, AGCO BRUCE S. MILLER, BOARD MEMBER