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-
Athina (Tina) Skiadopoulos operating as Landmark Restaurant Licensee
DECISION ON FINDINGS
Panel: Jacqueline Castel, Board Member Alex McCauley, Board Member
Decision Date: November 1, 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 Athina (Tina) Skiadopoulos, Licensee ) Neil Boyko, 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
Rejeanne's Bar and Grill Ltd. (c.o.b. Rejeanne's Bar and Grill) v. Ontario (Alcohol and Gaming Commission, Registrar), [2009] O.J. No. 3176
Regina v. Central House (Sault Ste. Marie) Ltd., [1972] O.J. No. 2107
6161251 Canada Inc. (c.o.b. Shot House Pub) (Re) [2007] O.A.G.C.D. No. 496
Commercial Tavern (Re) [2006] O.A.G.C.D. No. 580
Allegations
- A hearing into Notice of Proposal (“NOP”) number 17916, dated March 3, 2010, to suspend liquor licence number 23615 (the “licence”) issued to Athina Skiadopoulos (the “Licensee”), operating as LANDMARK RESTAURANT, 1839 Eglinton Avenue West, Toronto, Ontario, M6E 2J3 (the “establishment”), based on allegations under section 29 of the Liquor Licence Act (the “LLA”) and under subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg.”) prescribed under the LLA, was held on October 12, 2010 in the City of Toronto.
Decision
- The Board FINDS that the Licensee contravened section 29 of the LLA and subsection 45(1) of the O.Reg.
Preliminary Matters
- The Board ordered that witnesses be excluded on consent.
Registrar’s Evidence
Donato Persichetti is a police officer with the Toronto Police Services (13 Division).
On October 28, 2009 he was working in uniform with Sergeant Turza. From their police vehicle, at approximately 1:05 a.m., he noticed two males and a female exit a taxi. The three individuals appeared to be intoxicated. They were holding onto each other for support and staggering. One of the males bumped into a mailbox. They were speaking in Spanish and yelling. One of the males then left the group, while the other male and female entered the establishment.
The male who entered the establishment was wearing a white jacket, a baseball cap, white jeans, and running shoes. The female was wearing a black jacket with a gold design on the back and black pants. She had curly black/brown hair.
He heard on his radio that there was a “domestic” incident at the establishment.
He called two other officers, P.C. Knott and P.C. Willan, to meet them on Eglinton close to the establishment.
The four officers entered the establishment. He observed the owner, Nick, and a waitress behind the bar. He also observed three or four customers sitting on bar stools. He then walked to the back of the bar, where he observed the same intoxicated male and female now on the dance floor. They were staggering while dancing.
He also observed a vacant table on the west side of the bar which had two bottles of beer on it. The bottles were about three quarters full.
He observed the male and female leave the dance floor and stagger over to the empty table with the two bottles of beer on it. They both took a sip of beer from the Budweiser bottles. Next, they staggered back to the dance floor.
He approached the male and female with P.C. Willan, and he spoke to the male while P.C. Willan spoke to the female. They both spoke “Columbian” with broken English. The male had slurred speech. P.C. Persichetti requested the male’s identification. He fumbled through his wallet to retrieve it, even though his wallet was thin. The male became upset and was swaying back and forth. The male and female were argumentative when they were questioned.
He escorted them out of the premises.
He found P.C. Knott who advised the owner of the pending charges under the LLA.
He entered the establishment two to five minutes after he observed the three individuals exit the taxi.
They called for two other officers to attend for officer safety and because there was also a call regarding a domestic at the establishment.
The taxi parked twenty to thirty yards away from the establishment.
The establishment was not busy. Music was playing and televisions were on inside the establishment.
October 28, 2009 was a Wednesday morning.
He did not observe any security at the doors of the establishment when he entered.
The bar of the establishment is four or five metres away from the dance floor. The vacant table with two bottles of beer on it was about the same distance from the bar.
P.C. Persichetti has experience dealing with intoxicated patrons and he is certain that he was not confusing their accents or broken English for slurred speech.
He was inside the establishment for twenty to thirty minutes.
The male and female got into another cab when they left. He does not know where they were going.
On cross-examination, he indicated that he knows Nick noticed him when they entered the establishment because he made eye contact with him. Nick and the server appeared to be just standing behind the bar when he entered. He did not observe them doing anything.
He did not have any conversation with Nick or the server.
Simon Knott is a police officer with the Toronto Police Services (13 Division). On October 28, 2009 he was working in uniform. He received a call from Sergeant Turza and P.C. Persichetti to attend the establishment. He attended with P.C. Willan.
While on the way to the establishment, they received a radio call regarding a possible domestic at the premises.
When they arrived outside the establishment, Sergeant Turza and P.C. Persichetti briefed them on the intoxicated male and female. When they entered the establishment, P.C. Persichetti drew his attention to the intoxicated male and female on the dance floor. He observed that they appeared to be holding each other up. He also observed them stagger to a table close to the dance floor. There were two beers on this table, and he observed them each have a drink of beer. After they both had a sip of beer, they went back onto the dance floor.
P.C. Knott then dealt with the domestic matter, which was not related to the two intoxicated individuals.
Next, P.C. Knott told Nick of the impending charges under the LLA for permitting intoxication and service to intoxicated persons. He also showed Nick the two individuals in question.
The intoxicated male and female were escorted from the premises.
He does not recall whether anyone was behind the bar when he entered.
When P.C. Knott spoke to Nick, he was at the end of the dance floor. He cannot recall what Nick said when he drew his attention to the intoxicated male and female.
There were about twenty or thirty customers in the establishment. It was not very busy.
On cross-examination, he indicated that he did not immediately see the intoxicated male and female when he first entered the establishment.
There were people sitting at the bar. The dance floor is near the end of the bar.
He did not speak to the server.
In response to a question from the Panel, he confirmed that the domestic was a separate matter.
Janice Turza is a sergeant with the Toronto Police Service. On Wednesday, October 28, 2009, she was working in uniform in a marked police vehicle. At 1:05 a.m., she was in the police vehicle parked on Short Street, facing south bound on Eglinton Avenue West.
She observed two males and a female exit a Beck taxi and walk eastbound on Eglinton. The first male was black and wearing a white jacket, baseball cap and jeans. The second male was Spanish, wearing a three quarter length black and white jacket and jeans. He also had black hair. The female was also Spanish, about 5”2, chubby, and she had black/brown curly hair. She was wearing a black jacket with a gold design on the back and black pants. The three individuals had all been drinking. They were staggering and hanging onto each other for support.
She observed the Spanish male enter an apartment on the north side of Eglinton. The other male and female continued walking east on Eglinton. At one point, the male fell into a mail box, and the female had to help him get up. The male and female continued to stagger, while walking. The female entered the establishment first, followed by the male.
She requested P.C. Knott and P.C. Willan attend the location. While waiting for them, she received a radio message regarding a domestic at the establishment. When P.C. Knott and P.C. Willan arrived a few minutes later, they all entered the establishment.
She observed the male and female in question on the dance floor. They were the only ones dancing. She also observed an empty table by the dance floor with two bottles of Budweiser on it. Next she observed the male and female walk towards this table, while staggering and hanging on to each other. She observed the male take a sip of beer and then they both returned to the dance floor.
P.C. Persichetti and P.C. Willan attended the dance floor and spoke to the male and female. She attended the bar and spoke to the other male and female involved in the domestic.
The intoxicated male and female were escorted out of the premises. P.C. Knott advised the owner that charges would be laid under the LLA.
They left the establishment at 1:45 a.m.
When she observed the intoxicated male and female inside the establishment, she was standing directly in front of the bar area. She had a clear view of the dance floor.
She does not recall who was behind the bar when she entered.
There were about four patrons seated at the bar, and about twenty other patrons seated at tables.
The intoxicated male and female were speaking loud in Spanish and hanging onto each other on the dance floor. It did not look like they were simply dancing. It looked like they were hanging on to each other for support. At times they were yelling at each other.
On cross-examination, she admitted that the male and female in question were louder when they were outside.
She does not recall the location of the two employees while she was in the establishment.
Licensee’s Evidence
Athina Skiadopoulos is the owner of the establishment. Her father is Nick. She was not at the establishment on October 28, 2009.
She described the layout of the establishment. The bar is on the left side of the entrance, as is the kitchen. There are tables on the right side. It is an open kitchen, but there is a wall covering part of it. The kitchen area is 5 to 7 feet long. There are bar stools in front of the bar. The dance floor is at the end of the bar.
She has owned the establishment since 2004. Claudette worked for her for about four years prior to this incident. She had her Smart Serve certification. She did not have any other incidents with Claudette serving intoxicated patrons.
On cross-examination, she indicated that her father told her about the police being present at the establishment on October 28, 2009, but he did not tell her about the charges or NOP.
Claudette Adams was working at the establishment on October 28, 2009.
Between approximately 1:05 a.m. and 1:15 a.m. on October 28, 2009, she was stacking the fridge under the bar.
She did not observe the Spanish speaking male and female enter the establishment.
They ordered two beers from her at the bar, and she served them. She did not observe them in the premises before she served them. She did not hear any conversation between them. She did not pay any further attention to them after serving them. She was too busy stocking the fridge and doing dishes.
The police came into the establishment about five minutes after she served the Spanish speaking male and female. She did not speak to the police.
There were about five or six people sitting at the bar. It is hard for her to see the dance floor when people are sitting at the bar.
On cross-examination, she admitted that there were no employees posted at the door that night.
She has her Smart Serve certification. She understands that her role, as a server, is to monitor patrons for signs of intoxication. She agreed that speaking with someone is a good way of determining whether the person is exhibiting signs of intoxication.
She just had a very short conversation with the male and female in question, and it was limited to the male ordering a beer. She did not speak to the female at all.
The premises was not very busy when the male and female in question were there.
Nick Skiadopoulos is the father of Athina Skiadopoulos, the owner of the establishment. He helps his daughter out at the establishment about three times a week. He has been doing this for a long time.
Between approximately 1:10 a.m. and 1:20 a.m. on October 28, 2009, he was cleaning the kitchen and Claudette was stocking the fridge. He started cleaning because no patrons had come to the establishment for about two hours.
He did not see the male and female in question enter the establishment. Later, he saw them sit down at a table. He did not observe them walking.
There is not a bell on the door which sounds when people enter the establishment.
There were about five or six customers in the establishment at the time of the incident in question.
The police did not speak to him about their observations.
On cross-examination, he stated that he did not observe the male and female in question.
He admitted that the waitress served the male and female two beers, but indicated that they would not have had time to drink it.
Registrar’s Submissions
The police officers gave credible evidence. The owner was not present on the night in question. The Licensee’s other witnesses saw next to nothing.
The police officers observed the male and female exhibiting signs of intoxication, including staggering and loud, slurred speech. They were also argumentative when questioned by the police.
The Licensee did not call the patrons as witnesses to refute the police officers’ observations.
Ms Adams testified that she did not observe the patrons in question before serving them beer, nor did she engage them in conversation.
Ms Khan referred to the two part test for interpreting subsection 45(1) of the O.Reg., from the Court of Appeal’s decision in Sin City. The evidence is clear that the two patrons were drunk on the premises. The Licensee’s staff did not observe the patrons in question enter or on the dance floor. Nor did the Licensee’s staff engage the male and female in conversation before serving them beer. The Licensee has an obligation to determine whether patrons are drunk when they enter and before it serves them alcohol. The Licensee failed to meet the aforementioned obligation.
Licensee’s Submissions
The male and female were there for two to five minutes before the police arrived.
Nick Skiadopoulos testified that no one had come through the doors of the establishment for two hours. In these circumstances, it is reasonable for the Licensee to let its guard down a little.
Mr. Boyko referred the Board to several passages in various decisions of the courts and this Board. In the Horseshoe Valley Resort Ltd. v. Alcohol and Gaming Commission (Ontario Divisional Court):
“In order to properly find that the appellant permitted drunkenness with respect to Julie Strachan as alleged, the Board had to be persuaded that the appellant, through its employees, knew or should have known that Julie Strachan was drunk and failed, within a reasonable period of time, to take reasonable steps to effect her safe departure from the bar. … A finding of a violation of section 45(1) cannot be based on a draconian and unrealistic interpretation of its language that would create a violation the very moment a drunken patron entered the bar. Rather, it must be interpreted reasonably in accordance with its plain language and the practicalities of the context in which it is applied.”
- In Rejeanne’s Bar and Grill Ltd. v. Alcohol and Gaming Commission, Registrar:
“In our view, permitting drunkenness on the premises requires proof that the licensee knew, or ought to have known of the drunkenness on the premises. That determination, of course, must be made 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.”
- In Regina v. Central House (Sault Ste. Marie) Ltd.:
“…I find that the prosecution has failed to prove that the appellant, through its servants, permitted or suffered such drunkenness because a decision was made by them soon after the presence and condition of two of them came to their attention to put them out of the premises shortly before the police arrived and the third person walked in during the course of the confusion that ensued when the police arrested and were escorting the first two out of the premises. In respect of this third person the short interval that elapsed following his entry and the confusion that prevailed did not permit a decision to be made or action to be taken to put him out before the police arrested him.”
- In 6161251 Canada Inc. (c.o.b. Shot House Pub)(Re):
“Although past decisions of the Board may be instructive, they are not binding and each panel makes its decision based on the individual circumstances of each case. Given the language of Sand Bar and the absence of a due diligence defense, panels of the Board must consider the point at which a licensee may be found to have “permitted” activity prohibited by the O.Reg. In our view, determining this issue requires the Board to be mindful of the fact that not all establishments in this Province can have a person available at the door at all times to assess the level of sobriety of patrons entering the premises. Therefore, there will be times when a drunken patron does enter a licensed premises. When this happens, the licensee or staff member in the premises should, at the first reasonable opportunity, assess the person and, where the person appears intoxicated, take prompt action to remove that person.
In understanding what is meant by reasonable opportunity mentioned above, we note that there are unusual circumstances where the licensee is legitimately prevented from making an assessment and prompt removal. An obvious example is where the Licensee or staff are facilitating an investigation by police or liquor inspectors or dealing with a situation in which the safety of patrons is at risk.”
- In Commercial Tavern (Re):
“In this case, the intoxicated patron came into the Premises and at first blush appeared fine. When it was apparent that this was not the case, shortly after her appearance in the establishment, steps were taken to deal with the matter in a responsible fashion. We find that this is a regrettable situation but was dealt with promptly by the Licensee.
It is the view of the Board that it is virtually impossible to scrutinize patrons to the point that someone will not slip through. When this happens, it becomes incumbent upon licensees to ensure that they are prudent in their oversight in the premises, and when a problem is discovered it is handled promptly and appropriately. The Licensee had a system of oversight, Judy Cheverie was observed coming into the establishment and she appeared fine. When it was realized she was not, action was taken within minutes of her arrival. In the Board’s view, this does not constitute permitting drunkenness.”
- The two to five minutes the male and female in question were in the premises, before the police entered, was not a reasonable period of time for the Licensee to see them and take appropriate action. There were people at the bar obstructing the server’s view of the patrons on the dance floor. The establishment was dead and the server and Mr. Skiadopoulos were cleaning up. They did not have enough time to observe the patrons in question properly. In these circumstances, the allegations in the NOP should be dismissed.
Reply Submissions
- In the Horseshoe case, no one served the patron alcohol. She was flagged by bartenders as someone to whom liquor should not be served.
Reasons and Analysis
Subsection 45(1), O.Reg.
For a finding under subsection 45(1), there is a two part test. First, it must be established that the patrons were drunk. And second, it must be established that the Licensee permitted the drunkenness (Sin City – Ontario Court of Appeal).
There were a few inconsistencies in the police officers’ evidence regarding the sequence of events (e.g., Officer Persichetti testified that one of the males bumped into the mail box, then the other male left the group, whereas Sergeant Turza testified that the black male had already left the group when the Spanish male bumped into the mail box). In addition, only Officer Persichetti took note of the location of staff when he entered the premises, and whereas Officers Persichetti and Knott observed the male and female consuming beer, Sergeant Turza only observed the male consuming beer).
Nevertheless, the three police witnesses provided consistent evidence on the behavior of the male and female inside the premises and the signs of intoxication they exhibited: staggering, while walking; unsteady on the dance floor, holding onto each other to maintain their balance; loud, slurred speech; and argumentative when questioned by the police. In addition, the Licensee did not contest that the male and female were drunk, for the purpose of the first part of the test under subsection 45(1). Rather, the Licensee rested on its case on the second part of the test under subsection 45(1). As such, given the consistent evidence of the police officers regarding the behavior of the male and female and their signs of intoxication, evidence which the Licensee did not contest, the Board finds that the first part of the test under subsection 45(1) is met.
For the purpose of the second part of the test under subsection 45(1), the Licensee must have known, or ought reasonably to have known, about the drunkenness. The Licensee submitted that the male and female were in the premises for too short a time period for the staff to have assessed them. Further, as the premises was not busy and no one had come in for two hours, according to Mr. Skiadopoulos’ evidence, they were busy cleaning up and it was reasonable for them to lower their guard a bit. Mr. Boyko referred to a number of cases where the court or Board found it was reasonable not to have immediately detected a drunken patron and taken action, and attempted to align the facts of and principles from those cases with the present case.
The Board has reviewed all of the case law introduced by Mr. Boyko in submissions and finds that the facts are distinguishable from those in the present case. In addition, the principles Mr. Boyko highlighted from the cases do not advance the Licensee’s position, in the circumstances of this case.
In the Horseshoe Valley Resort case, the patron had been “red lighted” upon entering into the bar, so that no one would serve her alcohol, and the bartenders in fact only served her a ginger ale. In the present case, the staff did not flag or red light the patrons for closer assessment, even though they were loud, their speech was slurred, and they were the only ones on the dance floor, where they were unsteady and holding onto each other to maintain their balance. Indeed, Ms Adams, the server, admitted to having served them beverage alcohol without having properly assessed them for signs of intoxication. She indicated she did not observe them before or after she served them the beer, nor did she engage them in conversation to determine their sobriety when the male ordered the beers.
In Rejeanne’s the Divisional Court held that the Board erred in finding that the licensee permitted drunkenness, merely by virtue of the fact that he was drunk and in the premises. The court also indicated that whether the licensee knew or ought to have known of the drunkenness must be considered in the context of the various duties placed on the licensee under the legislation. Licensees have a duty to monitor its patrons for signs of intoxication and to assess patrons for signs of intoxication before serving them beverage alcohol. The Licensee admitted that it had let down its guard a little because the premises was not busy.
Further, Ms Adams admitted that she did not observe the patrons before or after she served the beverage alcohol, and that her conversation with them was limited to taking the male patron’s beer order. Failure to properly assess the patrons before serving them beverage alcohol clearly flies in the face of the Licensee’s duties under the legislation. Applying the principle from Rejeanne’s, in the context of the Licensee’s obligations under the legislation – in particular the obligation to monitor for signs of drunkenness and properly assess patrons before serving them beverage alcohol – the Licensee ought to have known that the patrons were drunk.
In the Shot House Pub case the Board held that there may be unusual circumstances, such as where the Licensee or staff are facilitating an investigation by police or liquor inspectors or dealing with a situation in which the safety of patrons is at risk, where the licensee is legitimately prevented from making an assessment and prompt removal. In the present case, there were no such unusual circumstances. The Licensee or its staff were not facilitating an investigation or attending to a situation in which customer safety was at risk.
In the Commercial Tavern case, the Licensee had a system of oversight for detecting intoxicated patrons in place. The patron in that case was observed entering the premises and was initially believed to be fine. Within minutes, however, the Licensee recognized that she was not fine and took appropriate action. Again, the facts in the present case are clearly distinguishable. The Licensee gave no evidence of a system of oversight. The male and female were not detected and flagged when they entered or at any time thereafter. At no time, in the present case, did the Licensee or its staff take any appropriate action in relation to the two intoxicated patrons.
This is not a case where the intoxicated patrons slipped through the cracks for a few minutes in a crowded establishment. The establishment was not busy. The two intoxicated patrons were loud, their speech was slurred, and they were the only ones on the dance floor, where they were holding each other up. This should have turned the Licensee’s attention to them, for further assessment, if it was acting diligently, responsibly and according to its responsibilities under the legislation. The intoxicated patrons also came into direct contact with the server and were served two beers without being assessed for signs of intoxication.
For the above reasons, the Board FINDS that the Licensee knew or ought to have known that the male and female in question were drunk. As such, the second part of the test under subsection 45(1) is also met and the Licensee thereby permitted drunkenness on the part of the two patrons.
Section 29, LLA: Section 29 provides that no person shall sell or supply liquor or permit liquor to be sold or supplied to a person who is or appears to be intoxicated. Therefore, for a finding under section 29, there is a two part inquiry. First, it must be established that liquor was sold or supplied, and second, it must be established that the person(s) to whom it was sold or supplied was or appeared to be intoxicated.
In this case, Ms Adams admitted to selling two beers to the male and female in question. Consumption is not a requirement, for a finding under section 29, although P.C. Persichetti and P.C. Knott subsequently observed the male and female each consume some of the beer, and Sergeant Turza observed the male patron consuming the beer. For the purpose of section 29, it is enough that the beer be sold or supplied, and Ms Adams admitted to doing same.
For the reasons outlined in paragraph 92 above, the male and female, to whom Ms Adams sold two beers, were and appeared to be intoxicated.
Therefore, the Board finds that the Licensee contravened section 29 of the LLA.
Conclusion
Accordingly, the Board FINDS that the Licensee contravened section 29 of the LLA and subsection 45(1) of the O.Reg.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission, at the address on the front page of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 1st DAY OF November , 2010
JACQUELINE CASTEL, BOARD MEMBER ALEX McCAULEY, BOARD MEMBER