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-
Rockwood Nightclub Inc., operating as Rockwood/Grass Licensee
DECISION ON FINDINGS
Panel: Jacqueline Castel, Board Member Allan Higdon, Board Member
Decision Date: October 29, 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 ) Rena Khan, Representative Rockwood Nightclub Inc., Licensee ) Nicholas Macos, Representative
Authorities
1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553
Horseshoe Valley Resort Ltd. v. (Alcohol and Gaming Commission) 2005 CanLII 81108 (ON SCDC), [2005] O.J. No. 5895
Allegations
1A hearing into Notice of Proposal (“NOP”) number 18113 dated June 4, 2010 to suspend liquor licence number 805164 (the “licence”) issued to Rockwood Nightclub Inc., (the “Licensee”) operating as ROCKWOOD/GRASS, 31 Mercer Street, Toronto, Ontario, M5V 1H2 (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”), prescribed under the Liquor Licence Act (“LLA”), was held in the City of Toronto on September 21, 2010.
Decision
2The Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
3The Board ORDERED the exclusion of witnesses on consent of the parties.
Registrar’s Evidence
4Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Trevor Joseph attended the establishment with AGCO Inspector McFadden and two police officers with the Toronto Police Services’ 52 Division on February 13, 2010 at 1:34 a.m.
5He observed a female on the elevated area on the second floor of the establishment exhibiting signs of intoxication. Specifically, she was unsteady on her feet, tired, her words were slurred, she had glossy, bloodshot eyes and her face was a flushed colour.
6Inspector Joseph approached the female as she was heading downstairs and asked to speak to her. He asked to see her identification and identified her as “CM” with a date of birth in 1986. CM told him that she had consumed three or four Vodka Sevens at the establishment. When speaking with her, he noticed that her motor skills were poor and she required some assistance holding herself up on the stairs. She dropped a bottle of water and subsequently a BlackBerry.
7He did not observe any of the Licensee’s staff approach CM.
8CM was left in the care of her female companion, “RR”. RR was with CM for the entire time she was under observation and investigation by Inspector Joseph.
9Inspector Joseph spoke to the Licensee, Mr. Pavlis, about CM. Mr. Pavlis had an opportunity to observe her condition.
10Inspector Joseph did not make a note of the number of people on the elevated area, but it was a busy night for the property.
11He observed CM at 1:39 a.m., and he was with her until 2:19 a.m. She was on the elevated area for two or three minutes, before she approached the stairs.
12He had most of his conversations with CM in an office at the bottom of the stairs.
13On cross-examination, he indicated that he had attended the establishment one or two times before the incident.
14He did not recall the layout of the establishment or whether there was a coat check on the first floor.
15He did not observe CM with a beverage in her hands.
16He does not know the capacity of the establishment.
17In response to a question from the Board, Inspector Joseph indicated that he did not recall observing any of the Licensee’s staff on the elevated area or on the second floor except for a security officer by the stairs. He does not know whether the security officer observed CM. The security officer did not approach CM.
18He could not recall all of the particulars of his conversation with CM.
19AGCO Inspector Josee McFadden attended the establishment at 1:34 a.m. on February 13, 2010 with Inspector Joseph and two members of the Toronto Police Services’ 52 Division.
20The first floor of the establishment was closed. She conducted a walk-through on the second floor and observed patrons with sailor hats having a party on an elevated area. Her attention was directed to a female, with blond hair and wearing a blue dress and black shoes, who was headed towards the stairs. She followed the female and observed her stumble down the stairs and required the assistance of her friend to stand up and maintain her balance.
21She and Inspector Joseph approached the female and identified themselves. The female’s speech was slurred; she had red eyes, flushed cheeks and was unable to stand up without swaying back and forth. She used her friend to support her during the conversation.
22The female provided her passport and identified herself as CM with a date of birth in 1986. CM said she had consumed three or four Vodka Sevens. She also said she was an Israeli soldier who had killed people.
23The Licensee, Mr. Pavlis, approached the inspectors while they were speaking to CM. He was angry that CM was under investigation and said he observed her earlier and “kicked her out”. Mr. Pavlis also said he tries to keep everything “in line” and then “he gets nailed for this” when he had already asked her to leave.
24The female with CM identified herself as RR.
25CM kept changing her story. During the course of the conversation, she said she was Israeli, Russian, a soldier, and an Olympic gymnast.
26At some point during the conversation, they moved into an office by the coat check area. CM sat down on a sofa and was unable to keep her balance even while seated.
27Inspector McFadden advised Mr. Pavlis of her findings and that a report would be submitted to a supervisor for disposition.
28Inspector McFadden indicated that she followed CM and her companion down the stairs and then began speaking to her at the bottom of the stairs. They subsequently moved into a room on the first floor by the coat check.
29On cross-examination, Inspector McFadden indicated she does not recall being in the establishment prior to this incident.
30She used one stairway to go upstairs and a different stairway when she followed CM and her companion downstairs.
31She did not notice CM on the elevated area. Inspector Joseph pointed her out.
32CM was with her friend, RR, the entire time she was under observation and investigation by Inspector McFadden.
33They went into an office because the area by the coat check was too busy.
34She was with Inspector Joseph the entire time. They were not with the police officers the whole time.
35In response to a question from the Panel, she indicated that she did not observe any staff before she entered the room on the first floor.
36Peter Harmsen is a police officer with the Toronto Police Services’ 52 Division. He attended the establishment at 1:31 a.m. on February 13, 2010, for the purpose of conducting a LLA inspection, with Officer Higo, two AGCO inspectors and members of the Toronto Fire Department.
37He and Officer Higo split up from the rest of the group when they arrived. The first floor of the establishment was closed, so they walked up to the second floor. There was a good size crowd. He noticed a large crowd wearing sailor hats in the bottle service area. He was concerned about the way and volume they were drinking, as the transition from “partying to intoxication” happens quickly. He told a security officer about his concern and asked him to do something about it.
38A short time later, he was asked by one of the Licensee’s security officers to assist with an AGCO investigation of a female downstairs. The female looked to be about twenty years of age and had blond hair. She was wearing one of the sailor hats he had observed on patrons in the bottle service area earlier. The female was verbally aggressive. Her speech was loud and slurred, her eyes were bloodshot and glassy, and her balance and coordination were poor. She was definitely intoxicated according to Officer Harmsen.
39The female identified herself as CM with a passport.
40He did not notice her on the dance floor or elsewhere upstairs, although she was wearing the same sailor hat as other people in the group he observed.
41He made sure she left with her friend, RR, who was not intoxicated and who was assisting throughout the investigation by trying to keep her calm.
42Mr. Pavlis was in the room downstairs where they were investigating the female. He also observed Mr. Pavlis upstairs earlier but did not speak to him.
43In response to a question from the Board, Officer Harmsen indicated that he observed a security officer at the front entrance, at the top of the stairs, as well as other security officers spread out around the second floor.
44Todd Higo is a police officer with the Vice Section of the Toronto Police Services’ 52 Division. He attended the establishment for a routine LLA inspection at 1:30 a.m. on February 13, 2010 with his colleague, Officer Harmsen, two AGCO inspectors, and members of the Fire Department.
45The first floor of the establishment was closed so he proceeded to the second floor which was moderately busy. He remained on the second floor for about five minutes before being called to assist with an AGCO investigation of an intoxicated female. He did not observe any infractions while he was on the second floor.
46He was approached by a member of the Licensee’s staff who told him that the AGCO inspectors required his assistance. The staff member led him and Officer Harmsen to the office by the coat check area on the first floor, where the investigation was taking place.
47The female under investigation, CM, was unsteady on her feet, her eyes were slow to open when blinking, and her speech was slurred. She was also having difficulty maintaining her balance when seated. She was mumbling to herself and her friend. RR kept telling her to be quiet. Inspector McFadden passed him the female’s passport and health card. He called into 52 Division and had a criminal record check conducted on CM. There were no derogatory findings arising out of this check.
48CM’s friend, RR, was sober and trying to take care of CM. Officer Higo understood that RR was going to take CM home in a taxi.
49Mr. Pavlis was present during the investigation of CM.
50In response to a question from the Panel, Officer Higo stated that he observed about three or four security officers on the second floor of the establishment.
Licensee’s Evidence
51Iyad Iwainat has been employed at the establishment as a security officer for two years, and he has eight years of experience in security.
52On February 13, 2010, at the time of the incident, he was posted on the second floor, on a small platform by the stairs leading to the coat check. He was responsible for monitoring patrons as they went downstairs to the coat check and ensuring that they did not have any alcohol, since the first floor was closed.
53He dealt with two females, one of whom was intoxicated, that night. He first observed them approaching the stairs. The intoxicated female’s friend was the girlfriend of one of the establishment’s promoters. He told the friend that they would have to leave and she responded that they were going. He escorted them downstairs to get their coats. At the coat check, they were approached by two liquor inspectors. At this point, he went back up to his post.
54On cross-examination, Mr. Iwainat said that he walked behind the intoxicated female and her friend down the stairs.
55In response to a question from the Panel, he admitted that he did not tell the AGCO inspectors that he had identified the female as intoxicated and was in the process of ensuring that she left the premises.
56He knew she was intoxicated because she could not walk straight, her breath smelled of alcohol and her eyes were red and blurry.
57Athanassios Pavlis is the owner of the establishment and the Licensee.
58One of the promoters of the establishment, Amir, introduced him to the female under investigation on the second floor. She was celebrating her birthday on the night of the incident. She was having a good time and wearing six inch stilettos.
59He asked Amir to escort her out of the establishment. Amir agreed to do so. It is often easier to have a friend handle these types of situations.
60He then spoke to a patron at the bar. About ten minutes later, he went downstairs to his office. When he went downstairs, he saw the AGCO inspectors speaking to the female near the coat check area. The area was very crowded so he suggested they move into his office, which they did.
61He was upset because he’d asked Amir to escort this lady out of the establishment a few minutes earlier.
62On the night in question, he had a security officer posted at each of the two doors, one security officer was also collecting tickets at the entrance, and on the second floor he had one roaming security officer and another security officer posted by the back door. There was also a security officer on the third floor patio/smoking area. There were about 150 patrons in the establishment that night.
63On cross-examination, he stated that he did not walk the female out of the establishment, nor did he ask Security to do so.
64He did not call the female a taxi.
65Amir tried to explain the situation to the inspectors but they would not let him into the office.
66In response to a question from the Panel, he stated that he observed Amir approach the female, after he asked Amir to escort her out. He watched them walk towards the stairs, but he lost sight of them from where he was situated at the bar. After speaking with someone at the bar, he went downstairs himself.
67The female’s gestures and motions led him to believe she had too much to drink. He admitted that she was intoxicated, but not incapacitated. He stated that there are different levels of intoxication.
68Amir Bani-Jamali is a promoter of the establishment. He gets paid a commission for booking and hosting them at the establishment.
69On February 13, 2010 he attended the establishment with his girlfriend and her friend.
70While speaking to Mr. Pavlis, after being at the establishment for about 30 minutes, he noticed that his girlfriend’s friend was a bit intoxicated. Mr. Pavlis suggested to him that he should take her home. He agreed.
71He spoke to his girlfriend about taking her friend home. She took her downstairs, while he got her a bottle of water. He was a few feet behind them.
72When he got downstairs, there were officers talking to her. They took her into another room and didn’t allow him to come in.
73His girlfriend took her friend home.
74At this time, Ms Khan filed Mr. Bani-Jamali’s witness statement, which the Board entered as Exhibit 1. Mr. Bani-Jamali clarified that when he said in paragraph six of the witness statement that we took CM home, he considered the fact that his girlfriend took her home to mean “we”. He actually left the premises before his girlfriend and CM.
75He doesn’t remember whether Security was with them when they were walking downstairs.
76He and his girlfriend arrived at the establishment separately.
Registrar’s Submissions
77Inspectors Joseph and McFadden and Officers Harmsen and Higo gave credible, consistent and corroborative evidence. They all testified that CM exhibited numerous signs of intoxication, including poor balance, poor coordination, slurred speech, bloodshot, glossy eyes, flushed cheeks, verbal aggression, etc.
78The evidence of the Licensee was not as credible and in some cases it was contradictory. Mr. Iwainat testified that one of the two females was intoxicated and that he escorted them downstairs after telling them they had to leave. Yet he said nothing to the AGCO inspectors about having done so on the night of the incident.
79Initially, Mr. Pavlis contradicted Mr. Iwainat’s evidence by saying the female was “not over the fence”, but in response to questioning he admitted that she was intoxicated and that there were different levels of intoxication.
80Ms Khan referred the Board to the Ontario Court of Appeal’s decision in Sin City for the interpretation of subsection 45(1) of the O.Reg. She also referred the Board to paragraph 14 of the Divisional Court’s decision in Horseshoe Valley Resort, where the court said, “In order to properly find that the appellant permitted drunkenness …., the Board had to be persuaded that the appellant, through its employees, knew or should have known that Julie Strachan was drunk and that it failed, within a reasonable period of time, to take reasonable steps to effect her safe departure from the bar.”
81The Licensee or its employees did not escort CM out of the establishment. Instead, he allegedly asked another patron to escort CM out. The promoter and his girlfriend were not staff, nor do they have responsibilities for removing drunken patrons from the establishment. Staff should have escorted CM out of the establishment. The Licensee permitted drunkenness by failing to ensure that CM exited the establishment safely.
82Therefore, the Registrar submits that both levels of the test under Sin City have been satisfied and requests that the Board make a finding under subsection 45(1).
Licensee’s Submissions
83Inspector McFadden did not notice CM until Inspector Joseph pointed her out, after she’d left the elevated platform. The two police officers did not observe CM until she was under investigation downstairs. Many of the signs of intoxication observed by Inspector Joseph were observed once she was on the stairs or downstairs.
84There was a credibility issue with Inspector Joseph. He was evasive and his evidence was vague. He could not recall the layout of the establishment or the location of the coat check. He did not have an independent recollection of what happened except for what was in his notes.
85The Licensee determined that CM was intoxicated and made appropriate arrangements to have her removed from the establishment. She was at the establishment with a friend and by all accounts the friend was taking care of her and competent to do so. Mr. Iwainat noticed CM’s condition as she approached him. He made contact with her and determined she was already on her way out. There was no other reason for her to be going downstairs since the first floor of the establishment was closed.
86The Licensee did not permit intoxication. It identified CM as intoxicated and she was asked to leave. The Licensee is not at fault for asking someone other than a security officer to escort her out. A sober, capable person was helping CM.
87There was no evidence about her behavior before she was spotted by Inspector Joseph. There was no evidence that she was intoxicated or that the Licensee ought to have known that she was intoxicated earlier in the evening.
88There was no suggestion that the premises was understaffed. Officer Higo, an experienced police officer, didn’t observe any infractions or other problems in the establishment.
89Mr. Macos referred the Board to the Divisional Court’s decision in Sin City, which the Court of Appeal did not overturn, in particular, paragraph 14 of this decision, where the court held, “Taking into account the considerable number of staff, all of whom had been trained to watch for signs of intoxication, it does not necessarily follow that a patron who was observed by the Inspectors for 5 to 8 minutes would have come to the attention of the staff or should have come to the attention of staff.”
Reply Submissions
90Inspector Joseph observed CM exhibiting signs of intoxication on the elevated platform on the second floor.
Reasons and Analysis
91For 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. To permit, the Licensee must have known or ought to have known about the drunkenness. (Sin City, Ont. C.A.)
92In this case, the inspectors and police officers gave clear and consistent evidence that CM exhibited numerous signs of intoxication, including: poor balance; unable to stand without the assistance of her friend and even swaying while seated; poor motor skills (dropped a BlackBerry and a water bottle); loud, slurred speech, and verbal aggression; glossy, blood shot eyes and flushed cheeks; etc. In fact, the Licensee did not contest that CM was intoxicated. The Licensee’s case was that it acted appropriately in identifying CM as intoxicated and in having her removed from the premises. As such, the first part of the test under subsection 45(1) was clearly met, and the case turns on whether the Licensee permitted drunkenness on the part of CM, for the purpose of the second part of the test under subsection 45(1).
93Turning to the second part of the test under subsection 45(1), CM was exhibiting pronounced signs of intoxication. On a balance of probabilities, the Board can conclude that she did not suddenly begin exhibiting these signs of intoxication when Inspector Joseph spotted her on the elevated portion of the second floor. She must have been exhibiting such signs for some time given her level or degree of intoxication.
94The fact that Inspector Joseph was the only one to notice CM on the dance floor (he then pointed her out to Inspector McFadden, the police officers being elsewhere in the establishment at the time) does not take away from or reduce the Licensee’s responsibility, under the legislation, to monitor patrons for signs of intoxication, promptly detect patrons exhibiting signs of intoxication and ensure that they are removed from the premises. Nor does it excuse the Licensee for failing to detect CM in a more timely fashion.
95Officer Harmsen testified that his attention was drawn to the girls with hats and that he was concerned about the way and volume they were drinking, noting that the transition from “partying to intoxication” happens quickly. Particularly given the behavior of this group, the Licensee and its staff should have been monitoring them closely. If the Licensee had been acting responsibly, and according to its responsibilities under the LLA, it ought to have detected CM more promptly and before she began exhibiting such pronounced signs of intoxication.
96Furthermore, the Board is not satisfied that the Licensee took reasonable steps, once it detected CM as intoxicated, to effect her safe departure from the bar. The Board agrees with Ms Khan that it was neither appropriate nor responsible for the Licensee to hand over responsibility, for escorting CM out of the premises, to a promoter (on contract with the Licensee to book and host parties) and a patron. At very minimum, if the Licensee was going to enlist the assistance of these individuals, he should have remained with them or instructed Security to remain with them until they were out of the premises. Mr. Pavlis admitted that after he asked the promoter to escort CM out, he went over to the bar area, observed them approach the stairs, and then began speaking to another patron and lost sight of them. This does not constitute reasonable or responsible behavior, on the part of the Licensee.
97Inspectors Joseph and McFadden did not make a note of a Security Officer speaking to CM and her friend before they walked downstairs or on the Security Officer being directly behind CM and her friend when they walked downstairs. Inspector Joseph stated that the Security Officer he observed by the stairs did not approach CM, and Inspector McFadden said she did not observe any staff before she entered the office by the coat check. If Mr. Iwainat did identify CM as intoxicated and tell them that CM had to leave and if he was, in fact, escorting them downstairs and outside the premises, it does not make sense that he would not have told the inspectors what he was doing. For these reasons, the Board did not find Mr. Iwainat’s evidence to be credible regarding his interaction with CM and her friend. Regardless, however, as noted above, given the pronounced signs of intoxication CM was exhibiting, she should have been detected and escorted out of the premises earlier in the evening and certainly before her signs of intoxication became so extreme.
98Therefore, the Board FINDS that the Licensee ought to have recognized that CM was drunk in a more timely fashion, and before her signs of intoxication became so pronounced, and in failing to take reasonable and timely steps to escort her out of the premises, the Licensee permitted drunkenness on the part of CM.
Conclusion
99Accordingly, for the above reasons, the Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg.
100The 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 29 DAY OF October, 2010
JACQUELINE CASTEL, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER