Registrar, Alcohol and Gaming Commission of Ontario v. Pomerix Inc., 2010 CanLII 36779

ALCOHOL AND GAMING COMMISSION OF ONTARIO

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

B E T W E E N:

Registrar, Alcohol and Gaming Commission of Ontario (Registrar)

-and-

Pomerix Inc. operating as Rock and Roll Heaven Bar and Restaurant Toronto East (Licensee)

DECISION

Panel: Allan Higdon, Board Member S. Grace Kerr, Board Member

Decision Date: June 3, 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: Phillip Morris, Representative Pomerix Inc., Licensee: Steven Stanley, on behalf of the Licensee

Authorities 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

1A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 189 dated January 4, 2010, issued to Pomerix Inc. (the “Licensee”), operating as ROCK AND ROLL HEAVEN BAR AND RESTAURANT TORONTO EAST, 1660 O’Connor Drive, Toronto, Ontario, M4A 1W4, (the “establishment” or the “premises”), liquor licence number 25950 (the “Licence”), pursuant to section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, in respect of an alleged violation of section 29 of the Liquor Licence Act (the “LLA”) and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”), made pursuant to the LLA, was held on March 18, 2010 in the City of Toronto.

Decision

2After considering all the evidence and submissions, the Board UPHOLDS the alleged violation as contained in paragraph 4(b) of OMP number 189 and CONFIRMS the monetary penalty in the amount of Six Hundred ($600.00) Dollars sought by the Registrar. The Board DISMISSES the alleged violation as contained in paragraph 4(a) of OMP number 189 and SETS ASIDE the monetary penalty sought by the Registrar in that regard. Reasons follow.

Preliminary Matters

3The 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.

4Prateman Mistry is the shareholder, officer and director of the Licensee. Mr. Mistry did not appear at the hearing, but Steven Stanley, a manager of the Licensee, appeared on his behalf and on behalf of the Corporation with Mr. Mistry’s consent. Mr. Stanley waived the right of the Licensee to be represented by a licensed representative. The Registrar’s Representative consented to Mr. Stanley acting on behalf of the Licensee.

5An order excluding witnesses was made on consent.

Registrar’s Evidence

6Inspector Jade Leadbetter, who has been an inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”) since June 2004, was the Registrar’s first witness. She arrived at the establishment on May 2, 2009 at 3:00 a.m., accompanied by AGCO Inspectors Fernando and Sookdeo, to conduct a complaint investigation with respect to alleged after-hours service by the establishment. The complaint being investigated had been logged into the AGCO computer on April 29, 2009.

7This was the first time Inspector Leadbetter had been to this establishment as she normally inspects establishments located in the Toronto downtown core with Toronto police. She had been asked by another AGCO inspector, who was not working on the night in question, to look into the complaint.

8Inspector Leadbetter observed several people leaving as the inspectors entered the front door. Some of them started yelling, “Steve. Steve.” She believed they were alerting whoever was inside of the inspectors’ arrival.

9Upon entering the establishment, Inspector Leadbetter saw a long table towards the rear of the establishment with three small tumblers on top. Steve Stanley was the person in charge that night. She asked him what was in the glasses and he said, “Rye and Coke.” The glasses were all fairly full to the top, contained ice, and were ice cold to the Inspector’s touch. Mr. Stanley confirmed that he was consuming one of the drinks.

10Inspector Leadbetter also saw someone in the DJ area consuming from a Coors Light beer bottle.

11As well, Inspector Leadbetter noticed two women seated at the table with Mr. Stanley. One of them became argumentative with her, asking why the Inspector was touching all of the rock glasses on the table, saying that her father was ‘a cop’, and that the inspection was ‘bulls—t’. This female was later identified as SR.

12Inspector Leadbetter noticed that SR was showing signs of intoxication: droopy eyes, belligerence, she needed assistance to stand up, was unsteady on her feet once standing, and staggered on her way and required assistance by her friend to get to the washroom.

13SR’s friend and Inspector Fernando had to help her return from the washroom to the table. SR exhibited poor and slow motor skills when attempting to find and provide Inspector Leadbetter with identification.

14SR told Inspector Leadbetter that she had consumed “three shots of alcohol” before attending the establishment and “two shots” while there. Her speech was slurred when she gave the Inspector this information.

15SR then placed her head on the table and began to vomit profusely onto the floor in front of her.

16Upon entering Inspector Leadbetter advised Mr. Stanley of the purpose of the inspection; before leaving, she told him about the infractions.

17Inspector Leadbetter did not recall Mr. Stanley telling her that he had cut off SR; if he had, the Inspector said that more than likely she would have put that information in her notes. Mr. Stanley spoke to her about a lot of things, including complaining about the enforcement.

18She left the establishment at 3:18 a.m.

19In cross-examination, Inspector Leadbetter said that she does not know whether it was patrons or staff who were exiting as the inspectors entered. She denied pushing by these people; rather she was simply able to gain entry to the establishment without problem.

20Inspector Leadbetter acknowledged that the person in Exhibit 2 (2) looks like SR.

21Inspector Nelline Fernando was the Registrar’s next witness. She has been an Inspector with the AGCO since January 2007. She attended the establishment on May 2, 2009 to investigate an after-hours service complaint.

22Inspector Fernando entered through the front door of the establishment at 3:00 a.m. at the same time as some patrons were leaving. No one said anything while the Inspectors entered although once inside she heard a patron yell something.

23Once inside the establishment, she saw a male in the DJ booth consuming from a bottle of beer. She observed him bend down and essentially hide it. Upon getting to the booth, she found a Coors Light beer bottle located behind a chair. It was ice cold to her touch. The male in the booth immediately left; he did not identify himself to her.

24Inspector Fernando returned to the table, located in the main area of the establishment, where Inspectors Leadbetter and Sookdeo were located. She saw a female sitting there (SR), who appeared to be intoxicated. SR got up and proceeded to the washroom. When SR did not return after a few minutes, Inspector Fernando went to check on her. She entered the washroom and saw SR vomiting into the sink. The female who was with SR there told the Inspector that it was SR’s birthday.

25Inspector Fernando waited outside the washroom, and about five minutes later, the two females exited the washroom. SR was having a great deal of difficulty walking; she kept losing her balance and, at one point, Inspector Fernando grabbed SR to keep her from falling over.

26Inspector Fernando identified herself to the female both verbally and by showing her badge. The Inspector asked SR for identification. SR became unco-operative. Her speech was very slurred and unintelligible. She was swearing, did not want to provide her identification and tried to pull away from the Inspector. Ultimately, the Inspector was unable to get SR’s identification.

27Upon returning to the table, SR sat almost slumped over. She was swearing at and unco-operative with the Inspectors. SR then put her head on the table and began to vomit profusely onto the floor. SR said she had consumed alcohol prior to arriving at the establishment and also had alcoholic beverages once there.

28Mr. Stanley became irritated with the Inspectors, claiming police harassment and saying that he ran the establishment “by the rules”. Inspector Leadbetter advised Mr. Stanley of the infractions and that a report would be submitted. She did not recall Mr. Stanley saying anything about off-duty police being in the establishment earlier that evening. She denied receiving a police call that evening to go to the establishment.

29She left the establishment at 3:18 a.m.

30In cross-examination, Inspector Fernando said that the inspectors were outside of the establishment for about five minutes before entering it.

31The inspectors did not show their badges to the people who were leaving the establishment as they entered it.

32Inspector Fernando said that there was a chair in the DJ booth on the night in question.

33She denied that the Inspectors were in the establishment for longer than 18 minutes in total.

34The next witness for the Registrar was Inspector Devin Sookdeo. He has been an Inspector with the AGCO since 2006, although he has been employed by the AGCO since 1998. He re-iterated the same purpose for the investigation and time of arrival on the night in question as Inspectors Leadbetter and Fernando.

35Inspector Sookdeo entered through the front doors of the establishment, with Inspectors Leadbetter and Fernando, as some individuals were leaving. Once inside, he walked to the rear bar area and observed a male and two females at a table located across from the bar. There were three mixed drinks in rock tumbler glasses on the table. There were ice cubes in the drinks, which were cold to his touch, and there was a strong smell of alcohol coming from the glasses. Mr. Stanley confirmed that all three glasses contained “Rye and Coke”.

36While speaking with Mr. Stanley, Inspector Sookdeo noted that one of the two females (SR) was showing signs of intoxication: she kept interrupting the conversation between the Inspectors and Mr. Stanley and her speech was slurred. She got up and staggered towards the washroom area, accompanied by the other female.

37When SR exited the washroom and was returning to the table, she was using Inspector Fernando for support. Once at the table, SR had her head on the table and proceeded to vomit profusely onto the floor.

38Mr. Stanley was advised of the infractions of “after-hours service” and “failure to clear”, to which he responded, “I f—ed up tonight”. Inspector Leadbetter advised Mr. Stanley of all of the infractions found on the night in question and said that a report would be submitted. He vaguely recalled Mr. Stanley saying something about the police to Inspector Leadbetter, but he was not paying attention to that conversation.

39Inspector Sookdeo left the establishment at 3:18 a.m.

40In cross-examination, Inspector Sookdeo testified that he smelled one of the drinks that was on the table. He acknowledged that pictures two to four (Exhibit 2) “could be” SR.

Licensee’s Evidence

41Mr. Rodney Clarke was the Licensee’s first witness. He was working at the establishment, doing “sound and lights”, on the night in question. When the Inspectors arrived, he was going through his shut-down and clean-up procedures.

42Mr. Clarke testified that he had a beer earlier in the evening, but was not drinking when the Inspectors came into the establishment. There are two shelves in the DJ booth where he works, and sometimes he puts his beer there so that his elbows do not hit it while he is working.

43Mr. Clarke denied hiding a bottle of beer behind a chair when the Inspectors arrived. There is no chair in the DJ booth; one would not fit in there.

44He did not “say much, if anything” to the Inspectors. He continued shutting things off and may have put the bottle into the case, which is located around the corner from the DJ booth.

45Mr. Clarke said he briefly overheard a conversation at the table that some off-duty police officers had tried to pick up the two girls that were at the table when the Inspectors were there.

46In cross-examination, Mr. Clarke agreed that his witness statement (Exhibit 3) was prepared within the “last couple of months”, at Mr. Stanley’s request, and that he had not made any notes immediately after the night in question. He is still employed by the establishment.

47Mr. Clarke had not noticed anything untoward in the establishment before the Inspectors arrived on the night in question. He started work at 7:00 p.m. and music played until 2:00 a.m. that night. Mr. Clarke stands the whole time, and “hardly ever sits down”, as he constantly has to be alert; when the band takes its breaks, Mr. Clarke goes to the band area and “fixes things” for them. The DJ booth is a sound booth.

48Mr. Clarke does not usually have a beer when shutting down the sound and lighting; he denied that Mr. Stanley gave him a beer after the band finished on the night in question. He said that he did not recollect consuming a beer when the inspectors arrived, that he did not think so, but that it was possible he may have been seen drinking beer and putting it down afterward.

49Mr. Clarke saw the Inspectors speaking with Mr. Stanley and the two female patrons.

50Mr. Jeff Powell testified next on behalf of the Licensee. He is a doorman for the establishment. On the night in question, he started work at 9:00 p.m. and left at about 2:45 a.m. (May 2nd).

51Things were going well that night until around “last call” when Mr. Stanley asked him to escort some men out who were giving a group of (three) females a hard time. One of the male patrons said, “You’ll regret this”; another fellow said that he was a police officer, although he did not show Mr. Powell a badge.

52One female patron (SR) had been cut off service, but the male patrons kept giving her alcohol. One of the females had already left the establishment, by cab. The two others were waiting for the one female’s boyfriend to pick them up.

53Mr. Powell left before the Inspectors arrived. He had the bus boy lock the door behind him. The two females were the only patrons remaining in the establishment.

54In cross-examination, Mr. Powell agreed that the male patron may have said something in bravado to try and intimidate him. He has “no idea” if that patron was a police officer as he did not see a badge.

55Mr. Powell knew that the female patron had been cut off service because “all staff is made known”. “Jenn” was the server on the night in question; she is still employed by the establishment. He did not recall who was bartending that night and indicated that maybe four bartenders were working. Mr. Stanley does not serve alcohol. Mr. Powell works the front door and was not involved in cutting anyone off of service on the night in question.

56Mr. Powell said that he recalled that one of the two females remaining in the establishment when he left work that night was the person who had been cut off service. She had not been pointed out to him, so he “didn’t really know” who that patron was.

57He believed that the two remaining girls were with Mr. Stanley when he left.

58Mr. Powell acknowledged that the words, “You’ll regret this”, were not exactly what was said to him, but a paraphrase. He did not recall exactly what was said.

59Next, Mr. Steve Stanley testified on behalf of the Licensee. His witness statement (Exhibit 5) was made in October 2009. He said that he always makes notes in the back office of the establishment if anything happens there; he did not have his original notes with him.

60Mr. Morris, on behalf of the Registrar, agreed that Mr. Stanley could use his notes to refresh his memory, but objected to the relevance and materiality of the attachments which were not made part of Exhibit 5.

61A group of females arrived at the establishment at about 11:30 p.m. It was the birthday of one of the girls (SR). He thought she was possibly becoming intoxicated so he wanted to “slow her down” and told her friend that he was going to cut SR off service. He gave SR “a pop” to drink and ordered some poutine for her as he wanted to get some food into her stomach.

62Mr. Stanley went outside to smoke a cigarette and upon re-entering the establishment, he saw SR drinking a shot of tequila. He reminded her that she was “cut off” and told her that if she was caught drinking again she would have to leave.

63He saw SR drinking a shot a second time; a group of men had bought it for her. He told them that SR was “cut off” and that if they did it again, they would have to leave. When the men bought her a third shot, he made them leave. They were verbally abusive to him. One of the men pulled out a badge, which to Mr. Stanley showed that he was an off-duty police officer, and made two of the women delete the pictures they had taken off of their cell phone cameras.

64Mr. Stanley believes that what caused SR to throw up was having “all that poutine and then throwing two shots of tequila on top of it”.

65Mr. Stanley has worked in many establishments and has never been cited for infractions or had issues relating to his responsibilities as a manager.

66Mr. Stanley admitted that there was liquor on the table when the Inspectors arrived and that the establishment had failed to clear service on the night in question. He said that the drinks had been poured at 2:00 a.m. (last call) and that he had added ice to them just before the Inspectors arrived.

67The remaining two female patrons did not want to leave until their ride showed up. They were worried about leaving based on what had happened with the off-duty police officers earlier that evening, which was the only reason they were allowed to stay in the building.

68Mr. Stanley denied that his staff served SR her last two drinks.

69On the night in question, a waitress, a bartender and the doorman were working at the time of closing; it was not a busy night and there were “maybe” 60 to 70 people there at the peak. Mr. Stanley had cut back staff over the course of the evening: Jenn, a server, had left earlier; Lydia was the bartender and the server who was working at closing is not longer employed by the establishment, having been fired for reasons unrelated to the issues involving the night in question.

70Mr. Stanley does not know what SR may have eaten that day, what medication she might be on, or if she has any allergies. Mr. Stanley did not think that SR was drunk when she was cut off; rather, she was “getting tipsy” and that, from his Smart Serve training, he was taught in such circumstances to slow down the patron.

71Mr. Stanley intended to keep SR in the building until a responsible, sober adult driver arrived to pick her up.

72In cross-examination, Mr. Stanley said that there is no chair in the DJ booth. If Mr. Clarke drinks while working, it is usually about 11 o’clock, although Mr. Stanley acknowledged that he did not (and could not) watch Mr. Clarke the whole time. Mr. Clarke always puts away the equipment as soon as the band is finished because it is expensive.

73Mr. Stanley acknowledged that the staff members who were leaving at the time the Inspectors arrived did shout out his name because the Inspectors barged in as they were leaving.

74He does not deny that two patrons were still in the establishment when the Inspectors arrived.

75Mr. Stanley has known one of the females who were being harassed by the male patrons for years. She did not “want to get involved” and so he did not subpoena either her or the other staff to testify at the hearing because he did not want to pressure them.

76Mr. Stanley agreed that SR staggered to the bathroom, that she needed help from her friend to stand up, and that she slurred her words when speaking. He agreed that SR was a “little inebriated”. He questioned how much she was intoxicated, and stated that it was the two shots of tequila, given to her by the male patrons, that put her over the limit.

77Mr. Stanley said that he “cut off” SR at about 1:15 a.m. because, from his experience, he knew that if he did not do so then she would become intoxicated. At the time, she was becoming “a little louder” and more boisterous, and when she talked she blinked more.

78The group of male patrons who were buying her drinks told him not to be angry with her and that they gave her the drinks because it was her birthday: they thought the situation was humorous.

79Mr. Stanley did not put SR into a taxi because she did not have the money to pay for it. Also, he said he would not “put a drunk woman out to be raped”.

80Only two of the drinks the Inspectors saw had “Rye and Coke” in them; SR’s drink was just Coke.

Registrar’s Submissions

Section 29 of O. Reg 719/90

81The Licensee has admitted to the ‘failure to clear’ allegation. At least two of the glasses on the table contained “Rye and Coke”, although Inspector Leadbetter testified that all three contained “Rye and Coke”. It is irrelevant when the ice was added to the drinks. Mr. Clarke acknowledged that he “might have been” drinking beer when the Inspectors arrived. Inspector Fernando said that the bottle was cold to her touch.

Subsection 45(1) of O. Reg 719/90

82The Inspectors’ evidence is that SR was extremely drunk: she could not stand, she vomited twice, and all of the other signs they identified were signs of intoxication. Mr. Stanley downplays how drunk SR was, and suggests that where his evidence and that of the Inspectors differs, theirs should be preferred.

83The only evidence that SR was “cut off” comes from Mr. Stanley. He also testified that it was the other patrons who served her to the point of intoxication. SR was left in an establishment for half of an hour where she was at risk of other patrons serving her drunks, which is conduct the LLA aims to prevent. Mr. Stanley argues that he kept SR at the establishment for her own safety. He was not doing SR a favour by keeping her there; she should have been made to leave the establishment when she was “cut off” and could have been sent home in a cab with her friends. In fact, SR was still there when the Inspectors arrived at 3:00 a.m. or, about 1.5 hours after being “cut off”.

84The only evidence that the male patrons were off-duty police officers comes from Mr. Stanley.

85The issue for the Board to decide is whether the incident(s) happened. Aggravating circumstances that might go to the penalty are irrelevant to the Board’s determinations.

Licensee’s Submissions

86The Inspectors’ statements look like they were written by one of them and then copied by the others. Many times they “did not recall” when asked questions; none of them gave the same story.

87Mr. Stanley argued that it would be impossible to accomplish what the Inspectors said they did in the 18 minutes they claim to have been in the establishment. His staff members were leaving at 2:45 a.m. when they were entering it.

88Mr. Stanley says that the establishment is not denying the “failure to clear” allegations.

89The establishment is denying that it “permitted drunkenness”. It does not feel it is responsible for getting SR drunk; Mr. Stanley cut SR off when she got “tipsy” and then he tried to follow the Smart Serve guidelines by serving her food and this was helping to sober her up. When the male patrons did not comply with his requirement that they not buy SR drinks, he threw them out. SR was not served any further alcohol after the men gave her the two shots. He does not know what else SR may have eaten that day, what medications she was on, and so on. He wondered if the interrogation by the Inspectors, who are persons in authority, had made her nervous.

90Mr. Stanley did not think it was ethical to throw SR out when she was over-the-top.

Registrar’s Reply Submissions

91In the pictures of the male patrons (Exhibit 2), they do not look unhappy.

92Mr. Stanley’s story is uncorroborated. He could have brought witnesses to corroborate his evidence, but did not do so.

93The only evidence the Board has is that when the Inspectors entered the establishment there were drinks with alcohol in front of a drunk patron; this supports a finding that the establishment “permitted” drunkenness.

Analysis/Reasons/Findings

94The Board has carefully considered all the evidence and the submissions presented.

95The Licensee admitted that two drinks of “Rye and Coke” had not been cleared and were sitting on a table in the establishment when the Inspectors arrived there on the night in question. As a result, the Board finds that the Licensee has breached section 29 of the LLA and it UPHOLDS the alleged violation contained in paragraph 4(b) of OMP number 189.

96This matter also 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.”

97In deciding whether this provision of the legislation has been breached, there are a several issues for the Board to address. The first issue is whether the patron, SR, was intoxicated on the night in question. If drunkenness is proved, the next issue for the Board to consider is whether the Licensee permitted the drunkenness, taking into consideration all of the circumstances of the alleged incident as well as the Licensee’s responsibilities under the law.

98The onus lies upon the Registrar to prove the alleged breach on the balance of probabilities.

99SR, the allegedly drunken patron, was not called as a witness by either party. The evidence in this regard comes from both Mr. Stanley, on behalf of the Licensee, and the AGCO Inspectors Leadbetter, Fernando and Sookdeo. However, before getting into their respective evidence, the Board must first address the issue of “when” the matter of drunkenness must be assessed.

100On the unique and peculiar facts of this case, the Board must assess this situation at several points in time. First, it must first determine if SR was drunk, or intoxicated, at the time she was cut off from service. To this end, the Board has the evidence of Mr. Stanley alone to consider. The AGCO Inspectors were not present at approximately 1:15 a.m. on the night in question, which is when Mr. Stanley says that he made this decision.

101Mr. Stanley testified that he cut SR off service at this time because she was becoming “tipsy”. He explained this to mean that SR was becoming louder and more boisterous and was blinking more. In turn, he conveyed this information to the service staff working that night and arranged for SR to be given a tray of poutine to eat, which she did.

102Based on his training and experience, when Mr. Stanley cut off SR’s service he assessed her to be in the “yellow” zone, meaning that her consumption of alcohol needed to be slowed down to prevent her from becoming intoxicated. He provided her with food for the same reason.

103Mr. Stanley also deposed that on two separate occasions after he cut SR off service some male patrons ordered and then supplied SR with a couple more drinks, contrary to his orders. These men received a warning the first time he found out about what they had done that they would be ejected from the establishment; the second time, when they disobeyed his instructions, these patrons were in fact made to leave. This testimony is corroborated by Mr. Powell, the doorman on duty on the night in question.

104The two additional drinks SR consumed dramatically changed circumstances: SR was no longer tipsy, she now was clearly drunk. Mr. Stanley admits that she was drunk.

105Thus, the Board concludes that at 1:15 a.m. SR was not intoxicated, but by approximately 1:45 a.m. on the night in question, she was drunk and the Licensee knew that there was an intoxicated patron in the premises.

106Indeed, the various AGCO Inspectors observed SR’s continuing significant state of intoxication when they arrived, just over an hour later. At or just after 3:00 a.m., all three inspectors noted that SR, who was still present in the establishment at that time, vomited profusely at the table where she was seated upon returning to it from the washroom.

107Inspector Leadbetter also noted SR’s slurred speech, her belligerence and use of profanities, droopy eyes, and her unsteadiness on her feet and staggering (both while going to and returning from the washroom). Inspector Fernando observed SR vomit into the sink in the washroom and have difficulties walking. She also noted that SR was uncooperative when asked for identification, that her speech was slurred and unintelligible, and that she swore at the Inspectors. Finally, Inspector Sookdeo testified that SR kept interrupting the conversation between the Inspectors and Mr. Stanley, that her speech was slurred, and that when she got up, she staggered towards the washroom area, needing accompaniment by her friend.

108Although hearsay evidence, the Board can also accept that SR told Inspector Leadbetter that she had consumed three drinks of alcohol before, and two more drinks after arriving at the establishment. According to Inspector Fernando, SR indicated that she had consumed alcohol prior to arriving at the establishment and also had alcoholic beverages once there.

109None of the Inspectors’ evidence relating to the signs of intoxication they observed was seriously challenged by Mr. Stanley on behalf of the Licensee.

110Thus, at or just after 3:00 a.m. on the night in question, SR exhibited all of the classic signs of intoxication. Accordingly, the Board finds that SR was intoxicated at that time; indeed, the evidence indicates that in fact she was very intoxicated.

111In view of this evidence the question is, did the Licensee permitted drunkenness? To deal with this issue, the Board is guided by the Ontario Court of Appeal in the Sin City Bar and Eatery decision.

112The question of “permitting” drunkenness requires the Board to consider whether the Licensee “knew or ought to have known” that a patron was drunk. The Board is also required 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”. This test requires the Board to consider the degree of awareness of the Licensee relating to the pending or actual drunkenness of its patrons as well as, contextually, the reasonableness of the Licensee’s response to that knowledge. The issue is always determined on a case-by-case basis.

113The facts of this case raise the interesting question of “when” the matter of ‘permitting drunkenness’ should be assessed. The Board concludes that it is when Mr. Stanley took steps to prevent SR from moving from being tipsy to becoming intoxicated. The Board concludes that the relevant time for determining whether or not the Licensee permitted drunkenness on the unusual facts of this case is at the time Mr. Stanley determined that SR was becoming “tipsy” and took reasonable and necessary steps to cut off SR from service.

114Thus, as the person/manager in charge on the night in question, he did not permit SR to become intoxicated. He acted in accordance with Smart Serve best practices and in fulfillment of his responsibilities as a Licensee by cutting SR off, conveying this information to all of the service staff, and trying to slow SR down by giving her food and getting her to eat it.

115The Board found Mr. Stanley to be a credible witness. He testified in a straightforward and consistent manner; his evidence was not shaken upon cross-examination. He admitted matters that were potentially against his interest (e.g. that SR was drunk after the men served her the two additional drinks).

116This is not to say that the Registrar’s witnesses were not equally credible in testifying to the matters they observed. However, this case does not require the Board to choose between the Registrar’s and the Licensee’s witnesses. Instead, the relevant determination of the legal issues in this case relate to the Licensee’s actions at a time when the Inspectors were not present.

117As noted above, at approximately 1:15 a.m. on the night in question, Mr. Stanley became aware (and became concerned) that SR was heading towards intoxication. As a result, he took reasonable steps: he cut her off service, gave her food to eat, and told all of his service staff that she was cut off. In his view, he took steps to address the situation that he understood were in keeping with best practices, based on his Smart Serve training. Also, the Board accepts Mr. Stanley’s evidence that all service staff were told that SR’s service had been cut off and that none of them had served SR any more alcohol afterward.

118The Board also concludes that, after taking these responsible steps, some other patrons provided SR with two more drinks which was beyond Mr. Stanley’s control. Put differently, Mr. Stanley did not permit it by not monitoring the situation more closely. The Board believes that the other patrons’ actions were beyond Mr. Stanley’s control: there was no way that he could have foreseen that they would buy SR drinks and give them to her, or that she would take and drink them.

119Furthermore, the Board accepts Mr. Stanley’s evidence that he was both generally watchful over the establishment, but also specifically watchful of SR. The additional alcohol SR consumed was given to her during the time Mr. Stanley was out of the establishment briefly to smoke a cigarette. It is not appropriate for the Board to second guess if he ought to have called upon another staff person to specifically watch over SR (and, as it turned out, the other (male) patrons). The Board concludes that Mr. Stanley was acting responsibly in the circumstances and between the times he cut SR off of service and he kicked the male patrons out of the establishment.

120Thus, despite Mr. Stanley’s reasonable and proactive efforts, SR consumed two more drinks (shots of tequila) after she had been cut off, a fact which Mr. Stanley acknowledges and which, he says, “put (SR) over the top”. In this regard, the Board also accepts Mr. Stanley’s evidence that unbeknownst to him a group of male patrons bought the drinks and gave them to her, that that after learning about the first drink the men bought her, he warned them that if they bought SR another drink they would be ejected from the premises, and that when they disobeyed his warning these patrons were made to leave.

121The Registrar argues that the simple fact that there was alcohol in front of a drunk patron allows the Board to conclude that the establishment “permitted” drunkenness. Mr. Stanley denies that there were three drinks of “Rye and Coke” on the table when the Inspectors arrived: he says that SR’s drink was “Coke” only. However, as the Board has already concluded, this is the incorrect time to assess whether the Licensee permitted drunkenness. Rather, these facts raise another, important question that requires address: given that SR became drunk at about 1:45 a.m., was it reasonable for her to still be on the premises when the AGCO Inspectors arrived at just after 3:00 a.m. that night?

122Generally, once a Licensee knew that a patron is drunk on the premises, there is an on-going duty to ensure that the patron not remain on the premises. In other words, the Board must next determine whether, in this case, the Licensee took reasonable steps within a reasonable period of time to effect SR’s safe departure from the establishment. Again, each case turns on its own particular facts.

123The Licensee testified that he kept SR on site for two main reasons: first, he did not feel it was safe to put a single, drunk young woman in a taxi (mainly because, in the past, a friend of his had been raped); and, secondly, he was waiting for SR’s boyfriend to pick up SR and her friend. Again, he stated that he thought that his decision was in keeping with good Smart Serve practices and with other legal obligations upon Licensees.

124In deciding this issue, the Board cannot be too draconian in its approach while trying to balance practicality, context and legalities to its reasoning. Thus, did Mr. Stanley make the right choice to keep SR in the establishment, for the reasons he gave, given the law as it is and given the circumstances and context of this case?

125In this case, the Board concludes that Mr. Stanley was trying to do the right thing by keeping SR in the establishment for what turned out to be over an hour and a quarter, that is, after she clearly had become intoxicated. He is an experienced manager, well aware of his responsibilities under the LLA and with a clean record. Again, the Board accepts Mr. Stanley’s testimony that he has a lengthy history of working in management capacities in the liquor service industry and that he has never been cited for infractions of related, governing legislation. The Registrar did not provide any evidence to the contrary.

126The Board also accepts Mr. Stanley’s evidence that, while he and SR’s friend had an alcoholic beverage in front of them when the Inspectors arrived, SR’s drink was non-alcoholic: it simply does not make sense that he would have cut her off earlier in the evening, evict other patrons for giving her more alcohol contrary to his specific instructions, and to then allow her to consume more alcohol after-hours.

127The Board also heard that when the Inspectors arrived there were no other patrons in the establishment, except for SR and her friend. Also, all of the Licensee’s staff, except for Mr. Stanley, had also left work for the night.

128Furthermore, the Board did not hear any evidence to indicate that other options were available to the Licensee in the circumstances. For example, were efforts made to contact SR’s family or other friends to pick her up? Could they have sent her earlier? Was Mr. Stanley waiting to use a taxi company he knew? And so on. None of these questions were asked by the Registrar, who has the onus, on the balance of probabilities, of proving the allegations against the Licensee. The Board therefore is entitled to accept Mr. Stanley’s evidence, which it has already determined to be credible, that he was attempting to act reasonably to ensure SR’s safety and well-being in keeping her in the establishment for the length of time he did, despite her state of severe intoxication.

129The Board acknowledges that, in most other cases, it is probably too long to hold a drunken patron in one’s establishment for over an hour. However, the Board, having had the benefit of hearing Mr. Stanley’s viva voce testimony, concludes that his actions were reasonable on the peculiar facts of this case.

130Considering all the circumstances, the Board cannot find, on the balance of probabilities, that the Licensee “permitted” SR’s drunkenness within the meaning of the legislation. Therefore, it DISMISSES the allegation that the Licensee breached subsection 45(1) of the O.Reg.

Conclusion

131For the reasons given, the Board UPHOLDS the alleged violation contained in paragraph 4(b) of OMP number 189 dated January 4, 2010, issued to Pomerix Inc., operating as ROCK AND ROLL HEAVEN BAR AND RESTAURANT TORONTO EAST, 1660 O’Connor Drive, Toronto, Ontario, M4A 1W4, liquor licence number 25950, and CONFIRMS the monetary penalty sought by the Registrar in the amount of $600, and DISMISSES the alleged violation contained in paragraph 4(a) of the OMP issued to the Licensee, and SETS ASIDE the monetary penalty sought by the Registrar in the amount of $1,500.