Registrar, Alcohol and Gaming Commission of Ontario v. Shooters Sports Bar Inc., 2010 CanLII 25994

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-

Shooters Sports Bar Inc. operating as Shooters Sports Bar

Licensee

DECISION ON FINDINGS

Panel: Beryl Ford, Board Member Allan Higdon, Board Member

Decision Date: April 22, 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 ) Richard Kulis, Representative Shooters Sports Bar Inc., Licensee ) Clive Preddie, On his own behalf ) and on behalf of the Corporate ) Licensee

Authorities

Barcode Café (Re), [2007] O.A.G.C.D. No. 103 R. v. Karunakaran, [2008] O.J. No. 3468

Allegations

1. A hearing into Notice of Proposal number 17175 dated April 15, 2009 to suspend liquor licence number 804183 (the “licence”), issued to Shooters Sports Bar Inc. (the “Licensee”), operating as SHOOTERS SPORTS BAR, 980 Central Park Drive, Unit 10, Brampton, Ontario, L6S 3L7 (the premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg.”), made pursuant to the Liquor Licence Act (the “LLA”), was held on December 11, 2009 in the City of Toronto.

Decision

2. The Board FINDS that the Licensee was in violation of subsection 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3. The Licensee, Clive Preddie, was unrepresented by either counsel or an authorized representative. The panel informed Mr. Preddie that he had the right to be represented by counsel. He stated he wished to represent himself and waived his right to counsel.

4. Mr. Preddie requested a change in the order of witnesses as one of his key witnesses was leaving the province shortly and the hearing was expected to require at least two days of deliberation. Registrar's Counsel agreed to the request.

Licensee’s Evidence

5. Samantha Lamothe began work at Shooters in September 2008. She is Smart Serve certified.

6. Ms Lamothe was working in the premises on the night of January 16/17, 2009 as a bartender.

7. She stated Alcohol and Gaming Commission of Ontario (“AGCO”) inspectors arrived at the premises close to midnight. She was working alone behind the bar. There were approximately 10 patrons present.

8. The witness stated she looks for signs of intoxication in patrons by observing their behaviour, counting how many drinks they have been served, and taking into account weight and height considerations.

9. If a patron is intoxicated they are asked to leave and she will call a taxi. If there is resistance she will call the police.

10. The witness first observed the allegedly intoxicated patron when she began her shift at 7:00 pm.

11. The patron was playing pool only two to three feet from the bar. He was acting normally, his hand/eye coordination was good, and he even won a few games.

12. The witness sold the man four bottles of Molson Export beer, with a couple of hours between orders. She served the last beer to the man at around 11:30 p.m. He seemed fine – his eyes were clear and his walk normal.

13. The witness stated the patron interacted with the AGCO inspectors for 25 minutes to an hour.

14. The inspectors did not ask the witness questions about the patron, such as how many drinks she had served to him.

15. The witness advised the inspectors the patron had a medical condition. He had complained about pain in his back.

16. The patron exited the premises walking normally. The inspectors had asked Ms Lamothe to call a cab for the patron.

17. The witness stated she saw the man walking straight with no staggering.

18. She did not see the man consume any alcohol.

19. The witness said she would expect a large man of the size of the patron to need at least three beers an hour to become intoxicated. She did not see any of the normal signs of intoxication in the patron.

20. On cross-examination, the witness confirmed that Mel was the bartender on duty from 11:00 am until 7:00 pm when her shift started.

21. Mel told her he had served the man two to three beers from the time the patron arrived at 6:00 p.m. until the end of his shift at 7:00 p.m.

22. Ms Lamont he said she served the man four more beer. He paid cash, and did not run a tab.

23. The witness said the man went out about ten times for a smoke taking five to 20 minutes each time.

24. The witness noted the patron has a very large stomach, a “beer gut”.

Registrar’s Evidence

25. Trevor Joseph has been an AGCO inspector since July 1993. He was present at the premises in question on the night of January 17, 2009 accompanied by Inspector Stephen Durham.

26. The witness entered the premises and spoke to Samantha Lamothe, who identified herself as the person in charge.

27. The witness observed a man sitting at the bar with his head in his hands, eyes shut. The Inspector asked for identification and the man was identified. The patron said he had entered the bar at 8:00 p.m. He then corrected himself and said he had entered at 6:00 p.m.

28. The patron spoke with slurred speech and had bloodshot eyes. He had a strong odour of alcohol on his breath.

29. The Inspector invited the patron to go to another area of the bar where they could ask further questions. The man complied.

30. The patron stated he had consumed six Molson Export beer. He stated he did not have a medical condition.

31. The patron said he had been served by two employees, Mel and Samantha.

32. The Inspector noted the patron left the premises at 12:41 a.m. He was unsteady and staggering as he exited the bar.

33. The witness advised Ms Lamothe that he intended to report an infraction and advised her to notify the owner.

34. The witness exited the premises at 12:58 a.m.

35. Inspector Joseph could not recall how the patron went home.

36. The witness stated he submitted his report of the alleged infraction. A charge was prepared. It proceeded to Provincial Court where the Licensee was found guilty and given an $800 fine and a suspended sentence.

37. On cross-examination, the witness stated the patron was not incoherent or belligerent.

38. The witness stated he entered the premises at 12:25 a.m. Immediately upon entry, he observed the patron sitting at the bar, head in hands.

39. The witness could see the man’s eyes were shut although his head was in his hands.

40. The witness assessed the patron as intoxicated based on a number of signs. They included:

• slurred speech
• bloodshot eyes
• head held in hands
• strong odour of alcohol
• an unsteady, staggering walk

41. Inspector Joseph stated he had no reason to question the patron’s statement that he had consumed six beers. He did not check this statement with any staff.

42. The witness stated he did not see the manager sell any beer to the patron.

43. The witness testified he did not see the patron drink beer.

44. The Inspector acknowledged that he did not ask the patron if he had consumed beer prior to entering the premises.

45. The witness stated he tries to visit the premises once a month for an inspection.

46. The witness said the patron in question walked approximately 15 feet to the door as he staggered and left.

47. The witness did not request a breath sample from the patron or ask him to walk a straight line.

48. On reply, the witness stated he had seen the patron in the waiting area outside the hearing room before the start of the hearing. He was walking normally as he sat down, got up and walked around. He smelled only of cigarettes.

49. Stephen Durham has been an AGCO inspector since February 2008.

50. The Inspector was present at Shooter’s Sports Bar on the night of January 17, 2009 along with his colleague, Inspector Joseph. He entered the bar at 12:25 a.m.

51. Upon entry, the Inspector identified himself to the person in charge, Samantha Lamothe, and began a walk through the premises.

52. The Inspector observed a male sitting at the bar showing signs of intoxication. The witness and his colleague asked the patron to move to a table where they could talk. He did so.

53. The patron said he had consumed six drinks and had been in the premises since 8:00 p.m. He said he did not have a medical condition.

54. The patron stated he had been served by two servers. He presented his identification showing his year of birth as 1955. He described himself as a frequent customer.

55. The patron changed his time of entry from 8:00 pm to 6:00 pm. He said he had been drinking Molson Export beer.

56. A taxi was called for the patron and the witness saw him walk unsteadily to the door. He considered this a sign of intoxication.

57. The witness stated he observed other signs of intoxication in the patron:

• slurred speech
• red, glossy eyes,
• strong odour of alcohol on his breath

58. The witness stated that when he was sitting at the table with the patron they were approximately one to two feet away from each other.

59. The witness spoke to Ms Lamothe about the state of the patron and advised her of an infraction. She stated that she and Mel had served him.

60. The manager told the witness that the patron had a mental condition. She did not specify what it was.

61. On cross-examination, the witness stated he observed the patron with his head in his hands and deemed it to be a sign of intoxication.

62. The witness saw the patron drinking Molson Export beer.

63. The witness estimated it was about 15 feet from the table where they questioned the patron to the door through which he exited.

64. The patron walked to the table in a normal fashion. They spoke at the table for about 20 minutes.

65. The patron stated he had consumed six beer. The witness had no reason to disbelieve him.

66. The witness stated the patron was not belligerent. No sobriety test was administered.

67. The witness said it was possible he and his colleague spent only seven minutes seated at the table with the patron, not 20 minutes.

Licensee’s Evidence

68. Clive Preddie is the Licensee of Shooter’s Sports Bar.

69. The patron in question is a long-time customer of the premises. He comes about twice a week.

70. The patron is a big man – height about 6’ 4,” weighing 280 lbs. He has missing front teeth and sometimes wears a plate in his mouth. His speech is still undergoing an adjustment period as some of his teeth were recently removed.

71. The patron lumbers when he moves due to his gait.

72. The patron was drinking Molson Export. This is an ale with a particularly strong odour.

73. The inspectors stated the patron was co-operative.

74. Mr. Preddie stated he was not in the premises on the day in question.

75. The inspectors were advised that the patron had mental issues.

76. On cross-examination, the witness confirmed that he was not present at the premises on the day in question.

Registrar’s Submissions

77. The evidence given by the person in charge of the premises at the time of the incident was consistent with the evidence presented by the two inspectors.

78. Samantha Lamothe stated the patron was in the bar before she began her shift at 7:00 p.m. She took over from Mel who had worked from 11:00 a.m. until 7:00 p.m.

79. Ms Lamothe testified Mel told her he had served the patron two to three bottles of beer since the patron’s arrival at 6:00 p.m.

80. The witness stated she had no receipts for these purchases as the patron paid in cash.

81. No incident journal was presented as evidence by the Licensee.

82. Ms Lamothe stated the patron mentioned a medical condition – back pain.

83. The patron told the inspectors he arrived on the premises at 6:00 p.m and had consumed six bottles of beer.

84. The evidence presented by the two inspectors was consistent and credible.

85. The inspectors spoke to the patron for an estimated seven to 20 minutes.

86. Inspector Joseph testified he observed the following in the patron:

• slurred speech
• glossy, bloodshot eyes
• a strong odour of alcohol
• an unsteady, staggering walk

87. Inspector Durham observed that the patron:

• held his head in his hands
• was confused about his arrival time
• staggered to leave to take a taxi
• had slurred speech
• had glossy, bloodshot eyes
• gave off a strong odour of alcohol

88. Ms Lamothe stated the patron had mental issues but none were ever specified. The only condition suggested was back pain.

89. The patron told the inspectors he was not on medication.

90. Inspector Joseph testified he saw the patron immediately before the start of the hearing. His walk was normal. It did not resemble the way in which the patron staggered on the night in question.

91. The evidence is clear that the patron was drunk in the premises. The staff knew or ought to have known that this frequent customer was incapacitated as he exhibited clear signs of intoxication.

92. The Registrar therefore seeks a finding of a violation of subsection 45(1) of the O.Reg.

Licensee’s Submissions

93. The evidence presented is confused.

94. Inspector Joseph stated he never saw the patron drinking or how he went home from the premises. It was none of his business.

95. Inspector Durham stated he saw the patron drinking Molson Export beer and the patron left in a taxi.

96. This is a clear conflict in testimony and the Board should draw a negative inference from this.

97. Both inspectors agree the patron had his head in his hands. Nobody asked him why.

98. Ms Lamothe stated the patron had medical issues.

99. The patron spent 6.5 hours in the bar. He had four beers served to him after 7:00 pm. This is appropriate for a man of 6’ 2”, weighing approximately 240-250 lbs.

100. Inspector Durham stated the patron was “swaggering”, not “staggering”.

101. The patron was at all times co-operative and not belligerent. This is not the behaviour of an intoxicated person.

102. The patron was not drunk and the premises did not contravene subsection 45(1) of the O.Reg.

103. The Licensee presented two authorities in support of his position.

104. Barcode Cafe found that a brief encounter with an allegedly intoxicated person is not enough time to properly assess his condition.

105. Karunakaran ruled that a person’s physical appearance and smell on breath are not enough to find for intoxication.

Registrar’s Reply Submission

106. The Barcode Cafe decision is irrelevant as the argument was based on insufficient time to assess intoxication.

107. In this case, two inspectors sat with the patron from 12:27 p.m. until 12:41 a.m., when he exited the premises. That’s a total of 14 minutes, much more than sufficient time to assess intoxication.

108. If the Licensee sought to make the point that the normal behaviour of the patron could be misconstrued as intoxication he should have called him as a witness. The man was present in the waiting area of the hearing office.

109. The Karunakran decision referred to insufficient notes taken by a police officer.

110. In this case, the inspectors took adequate notes that described in detail the condition of the patron. These notes were in agreement with regard to the essential facts.

111. The inspectors gave the evidence that was within their notes. When they did not know certain details they said so.

Reasons and Analysis

112. The evidence of the inspectors was credible and consistent regarding all matters of significance.

113. They testified that they entered the premises and observed a man sitting at the bar with his head in his hands. His demeanour suggested intoxication.

114. The inspectors invited the patron to a table where they asked for his identification and questioned him further.

115. The evidence indicated the inspectors had more than enough time to assess the man’s condition. They were able to focus their attention on this individual as there were only ten patrons in the bar.

116. Both inspectors noted slurred speech, bloodshot eyes, unsteady walk for the most part and a strong odour of alcohol.

117. Given the signs exhibited, the inspectors concluded the patron was intoxicated.

118. The person in charge confirmed that she sold the man four bottles of beer during her shift. The employee on the previous shift told her the man consumed two to three beers between the patron’s arrival at 6:00 p.m and the end of his shift at 7:00 p.m.

119. The evidence of staff and the patron himself indicates the man was served at least six beers in the course of the evening.

120. The person in charge stated she did not see any signs of intoxication in the patron. However, the Board gives greater weight to the testimony of the inspectors, which was clear and consistent. They are not interested parties and took detailed notes. In contrast, the Licensee did not provide any incident log. Mr. Preddie was also not present in the premises on the night in question.

121. The Board notes as well that the patron was available in the hearing office on the day of the hearing yet was not called to give evidence.

122. The Board draws a negative inference from this as the testimony of the patron could have cleared up any doubts about his gait due to his size or speech impediment due to dental plates, as asserted by the Licensee.

123. The patron was in the establishment for more than six hours, was served by two different staff, and it was not a busy night, and was openly and easily identified by the inspectors as being intoxicated. The Board therefore finds that the patron was intoxicated and the Licensee knew or ought to have known of this, and thereby permitted drunkenness to occur on the premises.

Conclusion

124. The Board therefore FINDS, that the Licensee was in violation of subsection 45(1) of the O.Reg.

125. 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 22nd DAY OF APRIL, 2010

BERYL FORD, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER