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-
2142575 Ontario Limited, operating as XS
Licensee
DECISION
Panel: Beryl Ford, Board Member S. Grace Kerr, Board Member
Decision Date: May 10, 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 ) Philip Morris, Representative
2142575 Ontario Limited, Licensee ) Randall Barrs, Representative
Authorities
516532 Ontario Ltd. (c.o.b. Jameson's Restaurant) (Re), [2009] O.A.G.C.D. No. 64
1577107 Ontario Inc. (c.o.b. Place Bar & Grill) (Re), [2008] O.A.G.C.D. No. 405
1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553 (Ont. C.A.)
Allegations
- A hearing into Notice of Proposal number (“NOP”) 17656 dated October 29, 2009 to suspend liquor licence number 810853 (the “licence”) issued to 2142575 Ontario Limited (the “Licensee”) operating as XS, 261 Richmond Street West, Toronto, Ontario, M5V 3M6 (the “establishment” or 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 March 5, 2010 in the City of Toronto.
Decision
- After carefully considering the evidence and submissions, the Board DECLINES to make a finding that the Licensee contravened subsection 45(1) of the O.Reg. by permitting drunkenness on the part of one customer. Reasons follow.
Preliminary Matters
- There were no preliminary matters.
Registrar’s Evidence
Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Trevor Joseph attended the establishment with Detective Constable (“Det. Cst.”) Clay Martin (who is with the Ontario Provincial Police (“OPP”), Inspector Lynn Sandiland (who is with the AGCO), and Detective (“Det.”) Peter Harmsen (who is with the Toronto Police Service) on July 11, 2009 at 1:50 a.m.
When he entered and from a distance of about 10 feet away, Inspector Joseph noticed a male patron, who was about 25 years old, who had an olive complexion and who was consuming from a Budweiser beer, standing up and weaving from side-to-side.
When Inspector Joseph moved closer and approached the patron, he noticed that the man had glossy, bloodshot eyes, appeared tired, had poor motor skills (like he was missing his mouth when he tried to drink from the beer bottle), and was leaning against the wall for support. The patron was wearing jeans and a blue and white t-shirt.
Inspector Joseph advised Mr. Geringas, the manager on duty at the establishment that night, about the man’s state of sobriety and that the establishment would be cited for permitting drunkenness. He does not know whether he or Mr. Geringas sought out each other.
Inspector Joseph left the establishment at 2:30 a.m., having spent more than 20 minutes dealing with the patron.
Inspector Joseph concluded that the patron was intoxicated.
On cross-examination, Inspector Joseph acknowledged that he and his colleagues arrived about 10 minutes before service was to end on the night in question.
Music was playing loudly at the time he arrived, but Inspector Joseph did not think that the patron was moving to it.
Inspector Joseph did not know how many beers the patron may have had, nor if he had ingested drugs, nor how long the patron had been up before Inspector Joseph arrived. Inspector Joseph testified that the patron’s actions as a whole were what underscored his opinion of the patron.
Inspector Joseph did not make any note of the patron asking for his money back. He had never seen the patron before the night in question. Neither had he met Mr. Geringas, the establishment’s manager, before.
Inspector Joseph remembered having a conversation with Mr. Geringas about the patron’s state of sobriety and that Mr. Geringas did not object or argue with Inspector Joseph about it.
Inspector Joseph did not know whether English was the patron’s first language. He did not know what language the patron spoke, or what country he was from.
Det. Peter Harmsen works with Toronto Police Service’s 52 Division, and specifically in “major crime and vice” since April 2009. He has been a police officer since 1975, working as a breathalyzer technician between 1984 and 1987. Over the course of his career, he estimates that he has arrested approximated 150 impaired drivers. Also, related to his work in the ‘entertainment district’ since 1996, he has arrested about 200 intoxicated patrons.
Det. Harmsen’s evidence corroborated that of Inspector Joseph with respect to arrival and departure times.
Det. Harmsen explained that the establishment is located in the “heart” of the entertainment district. Upon entering the establishment, patrons first go through security, past a coat check, and then into the main dance floor area. Just past the coast check and from a distance of about three to four metres away, Det. Harmsen observed a male patron leaning against a “rise”, which he described as being “like a half-wall, a stage”. The male was drinking from a brown glass bottle.
Det. Harmsen observed the male for about three to four minutes; he appeared to be unsteady on his feet, so Det. Harmsen approached him and noticed a strong smell of alcohol on the man’s breath. Also, the man’s eyes appeared “heavy”.
When Det. Harmsen took the bottle, which was a Budweiser beer, from the man, he told the officer that he had paid for it and wanted to continue drinking it.
Det. Harmsen thought that the man was leaning back into the wall for support.
The officer asked the patron for identification, which he said he did not have. The man gave a name which the officer could not substantiate. In addition, the name on the man’s cell phone was different than the name he gave the officer.
Det. Harmsen determined that the man could not care for himself and that he was at risk if left on his own. The patron was then taken to the station and lodged in the police cells for the night.
The patron’s English was “broken”; Det. Harmsen could have a conversation with him, but wasn’t sure the man understood what he was being asked. He was never certain if the man had a Spanish accent.
Det. Harmsen said that it was intoxication, not language issues, that made the man impaired. While the patron was not aggressive, there was no one else to identify either the man or where he lived; therefore he was arrested for his own protection. The officer thought that the man was intoxicated enough that he could have been assaulted by someone else and possibly robbed.
Later, it was determined that the man’s name was JA M-Z, that he was born in 1984, and that he was from Argentina. He was in Canada legally, though he was due to return to Argentina in August 2009.
On cross-examination, Det. Harmsen agreed that the wall the patron was leaning against was, in actuality, the stage, which is less than four feet high. The man’s legs would have been supported, but not his shoulders.
Det. Harmsen agreed that it was possible the man was extremely fatigued.
Despite the man’s broken English, Det. Harmsen said that it was clear the man was not happy about having his bottle of beer taken from him, and that he was saying, “I paid for my beer. I want my beer”.
Two of the names the man gave the officer turned out to be part of his true identity.
In response to questions from the Board, Det. Harmsen said that the establishment was “fairly busy”, although it was not at capacity. No security personnel were posted where the man was located; he was immediately visible upon entering the establishment. The man was about eight to 10 metres from the service bar.
During inspections, staff members normally walk around the establishment with Det. Harmsen; exchanges could be about anything related to security issues, intoxicated patrons, safety issues, bottle service, immoderate consumption, and so on. He did not make any notes that any staff people were with him on the night in question.
Next, Det. Cst. Clay Martin of the OPP testified. He has been with the OPP since 1995. His evidence as to time of arrival and departure corroborated that of the foregoing witnesses.
Det. Cst. Martin was in plainclothes on the night in question. Upon entering the establishment, his attention was immediately drawn to the individual in question, who was standing on his own and was swaying back and forth.
From a distance of about 20 to 30 feet, the officer noted that the man was about 5’6” in height, weighed about 150 lbs, had black hair, brown eyes, and looked Hispanic. He was drinking from what appeared to be a beer bottle.
When Det. Harmsen and Det. Cst. Martin approached the man, Det. Cst. Martin noticed that the man appeared to be unsteady on his feet and that he had a strong odour of alcohol on his breath. Once removed from the establishment, Det. Cst. Martin also noticed that the man’s eyes were bloodshot.
Det. Cst. Martin said that his dealings with the patron were minimal; there was an issue with respect to the patron’s identification and Det. Harmsen was conducting that investigation.
Det. Cst. Martin did not recall dealing with any staff persons inside the establishment; outside, there were security personnel.
On cross-examination, Det. Cst. Martin said that the man appeared “friendless” and that his sway was “gentle”. He agreed that music was playing at the time and that the man could have been swaying to it.
Det. Cst. Martin concluded that the man was intoxicated by the previous consumption of alcohol.
The officer did not actually engage in conversation with the patron; he just overheard things that were being said.
Licensee’s Evidence
Mr. John Tsoraklidis testified on behalf of the Licensee. He is the security manager/head doorman and was in charge of security at the establishment on the night in question. He has worked in the security industry for about 15 years.
The establishment’s licensed capacity is 1,100 persons for both rooms on the main level and for 100 more persons on the second floor.
All of the establishment’s security personnel are employees: they are personally trained on security issues; all are SmartServe trained; and, finally, all are licensed under the security legislation. Some of the security personnel are also trained in First Aid.
Mr. Tsoraklidis is familiar with the signs of intoxication, and told the Board about the “green, yellow, and red light” system of managing alcohol consumption.
He was working the front door on the night in question, checking identifications and for compliance with the establishment’s dress code requirements, and looking for intoxicated patrons in the line.
About 450 patrons were in the establishment when the inspectors arrived. In addition, 12 security people were on duty, together with two searchers.
Mr. Tsoraklidis advised that the AGCO inspectors usually attend with the police detectives. It is the establishment’s policy to walk the officers and inspectors through the front door security, which happened on the night in question.
Within a minute of their arrival, Mr. Tsoraklidis was overseeing the whole occurrence, that is, the officers looking at one gentleman who was up against a riser (i.e. the stage).
Mr. Tsoraklidis does not remember the man to be leaning; he did not see the man to have glazed eyes. Rather, to Mr. Tsoraklidis he looked like a normal gentleman having a beer.
Mr. Tsoraklidis thought that the man looked scared. There were about four to five people surrounding him. Mr. Tsoraklidis told the man to relax. He remembered the man from checking his identification and that he spoke very broken English. Mr. Tsoraklidis advised that many foreigners from South America were in the club on the night in question.
The man was escorted to the front of the club, not outside as the officers testified. They were trying to identify the man as well as to determine if he was intoxicated. Mr. Tsoraklidis recalls telling Det. Harmsen that he did not think the man was intoxicated.
Mr. Tsoraklidis said that it is the establishment’s policy not to quarrel with the inspectors/officers. If they say that a patron is to be removed, they help to escort the patron out of the establishment.
Thus, within a few minutes, the patron was outside. Whether or not the man was intoxicated was an issue. In Mr. Tsoraklidis’ opinion, he believed that the bigger issue was that the man did not produce identification when asked by the officers and that he appeared to give the officers the wrong name.
To Mr. Tsoraklidis, there was a big language issue; he does not think the man knew what was going on. He kept saying that he wanted his money back (i.e. the $10 cover charge).
On cross-examination, Mr. Tsoraklidis agreed that it was unusual for a person to argue with the police if they were not drunk and that arguing with police can be an indication of intoxication.
Mr. Tsoraklidis did not make notes of what happened on the night in question. His joint witness statement (Exhibit 1), made with Mr. Geringas, is unsigned and undated. He agreed that the only thing mentioned is the man’s speech; there is nothing in it about the man’s eye-hand co-ordination, spatial movement, and so on.
Mr. Tsoraklidis said that the man would not have walked into the establishment in an intoxicated state as this would have been caught at the door.
While the establishment was only at about 1/3 its capacity, the full complement of security personnel were on duty that night.
Mr. Tsoraklidis agreed that it was possible the man was leaning and swaying prior to him seeing the man. He also agreed that the man could have been confused because he was intoxicated. As well, he agreed that it was possible he and Det. Harmsen did not have a conversation about whether this patron was intoxicated.
Mr. Tsoraklidis agreed that reduced motor skills, glassy eyes, sleepy behavior, and swaying/leaning on things are possible signs of intoxication. He also agreed that the onus is on staff not to let a person get to that state.
There was nothing on the night in question to prevent the staff members on duty from making observations of the patron at issue; those staff members that were working inside the establishment would have had the best opportunity to observe this patron, yet none of them were going to testify at the hearing.
Arthur Geringas is the General Manager of the establishment. He is employed on a full-time basis and was working on the night in question. In 1996, he started doing marketing for promoters. He moved on to become a promotion manager, next an operations manager, and finally, a general manager of night club/bars such as XS.
Mr. Geringas testified to the intensive front door security at the establishment, which includes a trioscope (identification) swipe and airport security bars. There were no special events booked for the night in question.
His duties include walking around the establishment, generally overseeing it as well as noting the flow of business and seeing how the patrons are doing. No issues were determined that evening before the officers arrived. He was outside at the time and Mr. Tsoraklidis went in with them as per the establishment’s policy.
Mr. Geringas observed the patron in question once he was taken outside by the officers. Inspector Sandiland told him there seemed to be a problem with this individual.
The officers were standing around the man and, according to Mr. Geringas, he seemed scared.
Mr. Geringas said the man did not have trouble walking; he did not stumble. The man did have a problem with his identification. He could tell that the man was of Latino descent.
One officer told him that, in their opinion, the man was intoxicated. Mr. Geringas did not observe the man to exhibit extreme signs of intoxication but he “tends to reserve his comments” to the officers in that regard. He is SmartServe trained and was taught to classify intoxication via the green/yellow/red process. He explained that ‘yellow” means that the patron should be slowed down; “red” means that service should be stopped and the patron must be got home safely.
Mr. Geringas did not think this patron posed a threat to anyone or himself; he disagrees strongly with Det. Harmsen in this regard.
On cross-examination, Mr. Geringas stated that he believes the man was arrested for not having proper identification.
He did not see the man consuming alcohol. He thought the man had a “couple of drinks”. The man’s eyes were “slightly glassy”.
In the establishment, security personnel are tasked with observing for drunkenness in patrons.
Mr. Geringas had made some personal notes following the incident, but he did not bring them with him to the hearing.
Generally, only one person accompanies the officers during an inspection. In this case, Mr. Tsoraklidis took the lead.
Mr. Geringas stood back when the patron was brought outside.
The stage is made of poured concrete. It has a 4-inch protruding drink rail which is made of wood and covered in stainless steel. The rail is considered safe and anyone can stand there having a drink or lean against it.
Registrar’s Submissions
There is ample evidence that the patron was drunk in the establishment. Det. Harmsen saw him immediately upon entry, consuming from a brown glass bottle. It was a wide-open area. There were 12 security guards and about 450 patrons in the establishment, yet Det. Harmsen picked the man out immediately.
Det. Harmsen does not immediately jump to conclusions. He watches the man for a couple of minutes. He then moves up to the man, smells alcohol and sees that the man’s eyes are heavy, and decides that the man appears to be intoxicated. He takes the beer from the man, who is unsteady on his feet and falls back against the stage/bar rail for support. The man is so unsteady on his feet that Det. Harmsen takes him by the arm as he escorts the man out of the establishment.
Det. Harmsen forms the conclusion that the fellow is so drunk he could not care for himself. Arresting the man is just one further step in view of the officer’s concern that the man could be robbed or injured given his state.
Det. Harmsen’s evidence is supported by the two other witnesses on behalf of the Registrar. For example, Inspector Joseph noticed that the man was weaving from side-to-side, his eyes were glossy, he seemed tired, he had poor motor skills, and he was leaning against the wall for support. Det. Cst. Martin observed the man swaying back and forth, to be unsteady on his feet, to have bloodshot and glassy eyes, and to have an odour of alcohol.
It was the man’s actions as a whole, and not just individual symptoms in isolation, that lead these officers to conclude that the man was drunk. They were not relying on the fact that he spoke with an accent.
That there was a drunk patron consuming alcohol in an open area, with 12 staff on duty to monitor for drunkenness and no one taking any action, are all legal indicators for a finding that the establishment permitted drunkenness. The patron did not enter the establishment already drunk.
None of the actual security staff from the night in question testified at the hearing: Mr. Tsoraklidis was working outside, and it is not Mr. Geringas’ job to look for impaired patrons.
It is highly unusual for a joint statement to be submitted; this means that Mr. Tsoraklidis and Mr. Geringas had to talk to each other about the incident before the hearing.
Mr. Tsoraklidis’ evidence should be disregarded because he backed off most of his strong statements under cross-examination. He also agreed that the staff people working inside were in the best position to observe for drunkenness.
Mr. Geringas’ evidence was largely qualified by the word “generally”; the Board must make its decision based on what specifically happened on the night in question. He is also essentially accusing Det. Harmsen of lying under oath by suggesting that he arrested the patron under false pretences.
Therefore, it is the Registrar’s position that the Licensee permitted drunkenness in the establishment respecting this patron.
Licensee’s Submissions
Inspector Joseph, Det. Harmsen and Det. Cst. Martin work together, even though they work in different departments. Therefore, if there is an issue of collusion in the testimony given by Mr. Tsoraklidis and Mr. Geringas, it could exist in relation to the Registrar’s witnesses as well. Nothing turns on these possibilities.
The Registrar’s witnesses came upon a sole male patron, who was not bothering anyone. This man is the most important witness, and yet, nothing is known about him, such as how many beers he had. That he was swaying to the music is the only conclusion that can be drawn.
If the man had bloodshot eyes, there are other possible explanations than intoxication. For example, he could have been a smoker and/or been tired.
The officers’ conclusions, which were only ‘opinions’ that the man was intoxicated, could be wrong. In fact, Det. Harmsen, who is an experienced witness, stated only that the man “appeared to be intoxicated”.
Similarly, Mr. Tsoraklidis’ and Mr. Geringas’ opinions were that the patron was not intoxicated.
This is not a case where the side with the most favourable opinions wins. The Registrar does not have to produce the allegedly intoxicated person; however, there is a risk that goes with not producing that person to give evidence in support of the allegation.
This is not a case where the person at issue was obviously drunk. In fact, we know little about this man.
It is possible that the patron was intoxicated, but it is also possible that he was not. Drunkenness has not been proven to any degree by the Registrar.
The Registrar must prove both that the patron was intoxicated and that the establishment permitted it; it is a two-part test.
Det. Harmsen tried to indicate that the patron had slurred speech but it is difficult to distinguish it from the patron’s broken English, fear and cultural factors; the officer acknowledged that he is not sure what the patron understood. Neither Inspector Joseph nor Det. Cst. Martin said that the man’s speech was slurred.
The patron did not think that he should be taken out of the establishment; he had paid for his beer and also an entrance fee. He wanted a refund. That is a normal response.
The arrest did seem to revolve around the patron’s lack of identification and the fact that he gave a different name than appeared on his cell phone and what his age was. It is not for the Board to determine if the arrest was proper but to decide if the suggestion that the man could not take care of himself was accurate.
The Licensee does not deny that the officers may have detected an odour of alcohol as the Licensee agrees that the patron had at least one drink.
The patron did not come along with the police in any way that he needed to be supported. He was detained by the police when they put a hand on him.
Mr. Tsoraklidis gave his evidence in a forthright manner: he agreed where it was reasonable to concede that a statement put to him was “possible”. His evidence is that culture and language, as well as fear were at issue. He did not observe any swaying. He did not hear slurred speech. He testified that the man walked out of the establishment on his own. In Mr. Tsoraklidis’ opinion, the man did not know what was going on: he was overwhelmed.
Mr. Tsoraklidis and Mr. Geringas were not trying to write down everything in their statement (Exhibit 1). In any event, their statement aligns with their oral testimony at the hearing.
It is possible the patron moved from “green” to “yellow” at the instant the officers walked in. This only means that the patron’s alcoholic consumption must be “slowed down”. It is also possible that a security person missed this change as patrons can move quickly from one place to another within the establishment. However, there is no evidence as to what the patron was served or how much. Only one person can provide that evidence, and that is the patron himself.
Reply Submissions
The possibility that the inspectors and police officers were colluding in their evidence was not put to them in cross-examination. Therefore, that suggestion should be given no weight.
The officers were looking for the same things the Licensee’s staff members should have been doing. However, we do not know what they were doing because they were not produced as witnesses.
It is irrelevant that the patron’s speech was not noted to be slurred. In fact, none of the witnesses mentioned slurred speech. [The Licensee’s representative then corrected himself and agreed that none of the Registrar’s witnesses said that the patron’s speech was slurred.]
If it is a battle of opinions, as the Licensee alleges, then the Board can never make findings in cases such as this one. The Board assesses observations and makes findings of fact. Here, the evidence is detailed, consistent and clear enough for the Board to make findings.
Reasons and Analysis
Credibility
This is not a case where there were a number of significant inconsistencies in the evidence of either the Registrar’s witnesses or those of the Licensee. Although sparse in detail and unusual in form (i.e. as a joint statement), Mr. Tsoraklidis’ and Mr. Geringas’ (joint) Will Say was consistent in substance with their viva voce evidence. Furthermore, they each presented their evidence in a straight-forward and unembellished manner, reasonably admitting to suggested possibilities that went against their interest. The Board therefore accepts their evidence as credible.
Similarly, the Registrar’s witnesses seemed honest and candid in presenting their evidence. Thus, where the Board did not make a finding, the decision did not turn on the Inspector’s or the officer’s credibility.
Rather, the issue for the Board became one of determining whether or not the evidence, taken at face value, is sufficient to satisfy the Registrar’s onus to prove its case on the balance of probabilities.
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 forms of prohibited conduct occurred. Second, it must be established that the Licensee permitted this conduct.
Was the Patron “Drunk”?
It is not necessary for AGCO inspectors or police officers to have met a patron on prior occasions or to have knowledge of their medical conditions or other personal circumstances to be able to assess whether they are exhibiting signs of intoxication. The decisions of the Board in Jamieson’s Restaurant and The Place Bar and Grill that the fact that a medical condition or something else may exacerbate a customer’s signs of intoxication does not negate a finding of drunkenness. Nevertheless, whether a Board can find that a patron was drunk will turn on the particular facts of each case. The Board will now analyse the evidence as it relates to the patron in question.
Inspector Joseph testified that the patron had glossy, bloodshot eyes, appeared tired, had poor motor skills (like he was missing his mouth when he tried to drink from the beer bottle), and was leaning against a wall for support.
Det. Harmsen observed the same male patron leaning against a “rise”, drinking from a brown glass bottle, appearing to be unsteady on his feet, reeking of a strong smell of alcohol on his breath. Also, the man’s eyes appeared “heavy”.
Finally, Det. Cst. Martin testified that the individual in question was standing on his own, was swaying back and forth, and was drinking from what appeared to be a beer bottle. The patron also appeared to be unsteady on his feet and had a strong odour of alcohol on his breath. Once removed from the establishment, Det. Cst. Martin also noticed that the man’s eyes were bloodshot.
Det. Cst. Martin acknowledged that his dealings with the patron were minimal.
Both Mr. Tsoraklidis and Mr. Geringas deny that the patron was unsteady on his feet or required assistance from Det. Harmsen to exit the premises.
They both acknowledge that the patron had at least one drink (of beer), and suggest that this would account for why there was an odour of alcohol on the patron’s breath.
Neither Mr. Tsoraklidis nor Mr. Geringas observed the man to be swaying; however, they suggest that if he was, it might have been that he was moving to the music which was playing at the time the Inspectors and police officers arrived.
Mr. Geringas claims that he does not typically object but keeps his opinions to himself when told, as in this case, that a patron is intoxicated and even when, as in this case, he did not observe the patron to exhibit extreme signs of intoxication. He did not see the patron consuming alcohol. He acknowledged that the patron’s eyes were “slightly glassy”.
Both Mr. Tsoraklidis and Mr. Geringas are SmartServe trained.
Mr. Geringas did not think the patron posed a threat to anyone or himself; he disagreed strongly with Det. Harmsen in that regard. Mr. Geringas stated that he believes the man was arrested for not having proper identification.
All of the witnesses testified that there were difficulties in communicating with the patron due to language issues.
Mr. Tsoraklidis and Mr. Geringas testified additionally that cultural differences lead to their perception that the man was afraid of the police officers. They also suggest that the man was not being belligerent with the officers; rather, he was upset at having his drink taken from him and to being removed from the premises, which is why he was asking for his money back. Det. Harmsen’s evidence corroborated the fact that the patron asked to be reimbursed for his beer.
Having considered the foregoing evidence, the Board cannot conclude, on the balance of probabilities, that the patron in question on the night in question was drunk. The evidence is insufficient to that end, for several reasons.
First, the indicia of intoxication identified by the Inspector and the police officers are somewhat limited and are not unique to intoxication. For example, the patron could have been swaying to the music. His apparent tiredness could have been because of the late hour. Additionally, it is reasonable to conclude that the patron was upset about or wondering why his drink was taken from him as opposed to him being belligerent with the officers.
Furthermore, the evidence is contradictory as to whether the patron required and was in fact assisted by the police to leave the premises. As noted above, the Board has concluded that from a credibility standpoint it cannot prefer one side over the other’s evidence.
As well, both Det. Cst. Martin and Inspector Joseph had minimal dealings with the patron.
In addition, Det. Harmsen’s investigation seemed focused on determining the patron’s identification. [It was later determined that the name the patron had given the police officer was accurate and that it was, in fact, two parts of his full four-part name.]
What’s more, it is quite possible that, as Mr. Tsoraklidis and Mr. Geringas suggest, the patron’s behavior was due to fear of the two AGCO Inspectors and the two police officers and not due to intoxication. The patron did not speak English well, and suddenly and unexpectedly, he found himself effectively surrounded by these people, together with Mr. Tsoraklidis.
Also, these were persons in authority, requesting identification that the patron could not immediately produce and asking questions of him, which, all of the witnesses agreed, he did not appear to comprehend. These factors could lead to the reasonable conclusion that the patron was afraid and not drunk. This conclusion can be reached notwithstanding that the patron was consuming a drink when the inspectors and police officers arrived and notwithstanding that the Licensee’s witnesses admit that the patron had consumed at least one drink while on the premises.
For all of these reasons, the Board DECLINES to find that the patron in question was drunk for the purpose of the first part of the test under subsection 45(1).
Did the Licensee “permit” drunkenness?
In the case of Sin City Bar and Eatery, the Ontario Court of Appeal set out the test for whether an establishment “permitted” the male patron’s intoxicated state. Specifically, it must determine whether the Licensee “knew or ought to have known” that drunkenness was occurring in the premises. Even if the Board is incorrect and the patron in question was in fact drunk, the Board cannot make that finding, on the balance of probabilities, for the following reasons.
First, the fact that neither Mr. Tsoraklidis nor Mr. Geringas denied the Inspectors’ and the police officers’ statement that the patron was drunk does not support a conclusion that the establishment either knew or ought to have known that the patron was intoxicated. Rather, the Board acknowledges that it is this establishment’s policy to be co-operative during an inspection and not to quarrel with the authorities as it is not in their professional best interests to do so.
What’s more, on the particular facts of this case it was unfortunately impossible for the Registrar to produce the patron in question to testify as to the amount of alcohol he was served (and the circumstances surrounding that service) in the establishment on the night in question. To the best of anyone’s knowledge, the patron has returned to Argentina. While the Board is not saying that evidence of this nature is always required, in the circumstances of this case it would have helped to elucidate the matter of whether the Licensee knew or ought to have known that drunkenness was occurring in the premises.
Finally, Mr. Tsoraklidis and Mr. Geringas testified that generally speaking, and as a matter of course, this establishment has well-trained staff persons working to monitor for drunkenness in addition to imposing tight security which screens patrons for drunkenness even before they are even allowed into the premises. The Board accepts and relies upon this evidence and concludes that these systems and procedures were in place and operational on the night in question.
Accordingly, the Board DECLINES to find that the Licensee permitted drunkenness on the part of patron at issue for the purpose of the second part of the test under subsection 45(1).
Conclusion
- For all of these reasons, the Board DECLINES to make a finding that the Licensee contravened subsection 45(1) of the O.Reg. by permitting drunkenness on the part of the patron in question and DISMISSES the allegation that the Licensee permitted drunkenness in the establishment on the night of July 11, 2009.
DATED AT TORONTO THIS 10^th^ DAY OF May , 2010
__________________________________ __________________________________
BERYL FORD, BOARD MEMBER S. GRACE KERR, BOARD MEMBER