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-
882215 Ontario Inc. operating as Reggie’s Place Tavern
Licensee
DECISION ON findings
Panel: David C. Gavsie, Chair, AGCO
Kirsti Hunt, Vice-Chair, AGCO
Decision Date: July 16, 2010
Hearing Location: Sault Ste. Marie, Ontario
Alcohol and Gaming Commission of Ontario
90 Sheppard Avenue East, Suite 300
Toronto, Ontario M2N 0A4
Phone: (416) 326-0366 Fax: (416) 326-5566
Toll Free In Ontario: 1-800-522-2876
Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative
882215 Ontario Inc., Licensee ) Donald Orazietti, Representative
Authorities
1213963 Ontario Ltd. (Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission, [2009] ONCA 323
Allegations
- A hearing into Notice of Proposal 17531 dated September 16, 2009 (the “NOP”) to suspend liquor licence 91223 (the “Licence”), issued to 882215 Ontario Inc. operating as REGGIE’S PLACE TAVERN (the “Licensee”), 458 Queen Street East, Sault Ste. Marie, Ontario, P6A 1Z7, (the “Premises”), on the basis of alleged violations 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 Liquor Licence Act, was held on April 13, 2010, in the City of Sault Ste. Marie.
Decision
- On the basis of the evidence and the submissions of the representatives of the parties, the Board FINDS that the Licensee violated subsection 45(1) of the O.Reg on December 13, 2008 and accepted the withdrawal of an allegation of a violation of section 29 of the LLA. Reasons follow.
Preliminary Matters
The Board made an Order that witnesses were to be excluded from the hearing room, except for Mr. Daigle, the principal of the corporate licensee, who was instructing Licensee’s counsel.
Mr. Orazietti placed into evidence:
a. four photographs of the interior of the Premises (Exhibit 1A, 1B, 1C and 1D); and
b. a plan of the Premises (Exhibit 2).
Registrar’s Evidence
Michael Collins was called to give evidence. He has been an Alcohol and Gaming Commission of Ontario (“AGCO”) inspector since December 2005. Inspector Collins is familiar with the establishment. He was there on December 13, 2008. He had made notes which, on consent, he was permitted to use to refresh his memory.
Inspector Collins stated he entered the Premises through the licensed rear patio area at 12:57 a.m. on December 13, 2008. He observed a male exit from the main bar area onto the patio showing signs of intoxication. Inspector Collins spoke to the male who has slurred speech. The male had heavy glossy eyes and was swaying back to front.
Inspector Collins described the male as being in his mid to late 40s, about 5’8” tall, having shoulder length blond hair, wearing a navy ball cap with the words “Robinson Construction” on the front, and also wearing a black jacket with the word “Steve” on the right sleeve. The words “Reggie’s Place” were on the back of the jacket. The male was wearing a black sweater with two horizontal white stripes across the front, and black pants.
Inspector Collins said he spoke with the male around 1:05 a.m. The male then re-entered the bar through the rear door. Inspector Collins followed him. The male walked, in a staggering manner, to a table on the east side of the Premises in front of a window, and sat down at the table with a female.
The male picked up a Molson Canadian beer bottle and drank from it. Inspector Collins watched the male. He observed the female showing signs of intoxication. She had heavy, half-closed eyes. She showed decreased alertness and her movements were slow and deliberate.
The female had two bottles of wildberry vodka coolers in front of her. One was full and the other half full. She was drinking from the latter. Inspector Collins said she was in her mid-40s, about 5’6” tall, heavy build, shoulder length brown hair, wearing a read sweatshirt with “EXP” on the front, blue jeans and white running shoes.
At that point, Inspector Collins walked to the west section of the Premises to speak to fellow AGCO Inspector McKee to tell him about his observations. Inspector McKee had entered the Premises through the front door. Inspector Collins saw two other patrons showing signs of intoxication.
Inspector Collins returned to the east side of the Premises and stood along the window in front of where he had observed the male and female of whom Inspector McKee spoke.
The female was swaying in her seat. Her speech was slurred. The male left the table, and the female appeared to be speaking to herself. The female proceeded to the dance floor area, staggering side to side.
Inspector Collins returned to the west side where Inspector McKee was located.
Inspector Collins described the other two patrons he had seen. The second male was sitting at a table showing signs of intoxication. He was slumped over in his seat. His eyes were closing, and appeared to be falling asleep. The male has a small draught beer glass with amber fluid in it in front of him on the table.
Inspector Collins said this second male was in his early to mid-50’s, had a medium build, long dark hair and a mustache. He was wearing black. He wore a cowboy hat with yellow, red and green bands with two feathers on the left side of the hat. He wore a black trench coat, black gloves, black shirt and blue jeans, and black cowboy boots.
Around 1:15 a.m., this second male stood up to walk to the front door on the west side. He walked right by the two inspectors. The male turned back to the table, picked up a white plastic shopping bag and then exited through the front door.
Inspector McKee told the witness that a server called Marcia had removed the beer glass from the table where the second male had been sitting before he exited the Premises.
Inspector Collins said he then observed the second female. She was approximately 40 years old, about 5’5” tall, medium build and had short dark hair. She was wearing a denim jacket, blue jeans, and a red, purple and black floral skirt. She also had gold earrings and white running shoes.
Female number two was drinking from a Budweiser beer bottle. She had heavy, half-closed eyes. She staggered while she walked. She was swaying while she stood, and was bumping into other patrons. This patron spoke to several people at the service bar. She had slurred speech and decreased alertness.
Inspector Collins went back to the east side of the Premises. He saw male number one (Steve) and female number one still seated at the same table. The female had consumed one bottle, and was consuming from the second. They moved to another table.
Inspector Collins returned to the west side and saw female number two proceeding to the rear patio door where she exited the Premises. Inspector McKee told Inspector Collins that the Budweiser bottle had been removed by the sever Marcia who had told female number two she had to leave.
At 1:35 a.m., Inspector Collins, spoke to the server Marcia. He pointed out male number one and female number one. Marcia said both had been waiting for a cab for some time, and both were regulars. She also discussed male number two whose birthday it was. She said she had not served him. Marcia also told Inspector Collins she did not know female number two obtained a drink. Marcia said she had cut her off.
At 1:40 a.m., Inspector Collins observed the first male and female leave their table and proceed to the east front exit. The female was wearing a black jacket with the words “Reggie’s Place” on the back. Marcia had told the witness her name was Patty.
Inspector Collins said he and Inspector McKee went out the west exit door, and observed Steve and Patty enter a taxi and depart. At 1:48 a.m., the two inspectors departed.
Inspector Collins described the Premises and locations using Exhibit 2 as to where the patrons he observed were sitting, and how they left the Premises.
Inspector Collins said he did not observe the second male patron for a long time, nor the second female patron. However he watched her long enough to see how she was dressed and to observe her behaviour.
In answer to questions on cross-examination Inspector Collins said he heard during his inspection that people were waiting for taxis.
The clientele on this night consisted of a larger number of older patrons. It was a routine liquor inspection. It was nowhere near capacity in the Premises.
Inspector Collins stated he had a relationship with Mr. Daigle. He was married to his step-daughter. That ended in 2001. There had been issues around child custody but they had been resolved. Management of the AGCO was aware of the former relationship. When asked if this might have the appearance of bias, Inspector Collins said yes, but not to a person looking at it from the outside.
Inspector Collins said he had never met any of the four patrons he described seeing in the Premises. He does not know how they function.
Inspector Collins stated he first saw patron Steve on the patio. He agreed that their conversation was not incoherent. After observing him, Inspector Collins said Steve was intoxicated. He watched and observed Steve. He watches and observes patrons to see if they show indicia of intoxication. Heavy glossy eyes is one indicator.
Inspector Collins said the indicia are looked at cumulatively. Each one looked at individually could be capable of explanation.
Steve went inside to a table shown on Exhibit 1A in front of the ATM. Patty was sitting at the table. She showed signs of intoxication and decreased alertness. Inspector Collins did not know Patty.
Inspector Collins described where he stood in front of windows. Patty had her back to him. There was a band playing, but Inspector Collins said he could hear Patty’s speech which was slurred. She was talking to herself with her back to him.
Inspector Collins was asked about the second male who wore a hat with a feather. He could not comment on his manner of walking. In looking at Exhibit 1D, Inspector Collins said this male was in an area of three chairs to the very left of the photo in the first chair from the dance floor. The male was on the west side. In the photo, the parquet floor is the dance floor. In Exhibit 1C, Inspector Collins said the third set of tables on the left side was the same place where the male was seated.
Asked about the second female, Inspector Collins referred to Exhibit 1B showing a man standing in front of the service bar. On Exhibit 2 showing the service bar, Inspector Collins pointed out he was at the north-west corner and saw the female there. Several other people were there chatting. They were drinking out of bottles of Budweiser.
This female was swaying, staggering, bumping, her eyes were half closed and she had slurred speech. Inspector Collins said he saw her speaking to other patrons. The female was facing him. Inspector Collins watched her for several minutes. He observed her standing. It was not a congested area. Servers were picking up drinks on the main long part of the bar.
In answer to questions on re-direct, Inspector Collins stated that his divorce was finalized in 2003, that he became an AGCO inspector in December 2005, and that he disclosed his marital issues to his commander two weeks after he started working with the AGCO as there could be a perceived conflict with Mr. Daigle.
Inspector Collins indicated he had been to the Premises around a dozen times. He had spoken with Mr. Daigle regarding LLA Matters
Regarding the second male patron, Marcia told Inspector Collins it was his birthday, nothing else. Marcia did not tell him any of the four patrons had issues.
Daniel McKee was called to give evidence. He has been an inspector with the AGCO since March 2008. He is familiar with the establishment, was there on December 13, 2008, and had made notes which, on consent, he was allowed to use to refresh his memory.
Inspector McKee said that on December 13, 2008, he and Inspector Collins were performing routine inspections. They entered the Premises at 12:58 a.m.
Inspector McKee entered through the front east door, walked through the establishment, went down the east side, and stood at the west entrance. He estimated there were 85 patrons in the Premises. Inspector Collins was at the rear.
At 1:05 a.m., Inspector McKee observed an intoxicated male sitting at a table on the west side of the establishment next to the dance floor. The male was native, about 5’6” tall, medium build and age 50 to 55. He had long dark hair, a black mustache. He had a black cowboy hat with a yellow, red and green band around it. There were two feathers on the left side. He had on a black trench coat, black leather gloves, a black shirt, blue jeans and a black cowboy boots.
The male showed several signs of intoxication. He was sleeping while seated. He had heavy half-closed eyes. He staggered heavily while walking.
The male was consuming from a small clear glass with amber fluid in it. He was staring at the dance floor with a fixed gaze. His head dropped down and he appeared to be sleeping. He jolted up if there was contact with another patron. This was repeated several times.
The patron fell asleep for about a minute uninterrupted with his head down and eyes closed.
At 1:13 a.m., the patron was approached by server Marcia who removed the beverage glass from him. The glass was half full. Marcia told the patron he had to leave.
The patron stood up and walked to the west entrance using chairs to keep his balance. He staggered while walking. He exited through the west door, but immediately came back in, and retrieved a white bag. He then exited again. The time was 1:15 a.m.
Inspector McKee observed an intoxicated female in the west corner of the Premises. She was native, 5’5” tall, medium build, in her mid-40s. She had short dark hair.
The patron was wearing a denim coat, a floral print skirt, gold hoop earrings, blue jeans and white running shoes.
The female was swaying while standing. She had slurred speech. She had difficulty drinking from a Budweiser bottle as the mouth of the bottle was under the female’s chin.
Inspector McKee said the female’s eyes were half closed. Her speech was incoherent. She was confused about her surroundings and could not see people coming, so they would bump into her. She bumped into other patrons. She was standing with three other females. If they were not interacting, the female would close her eyes and her head would droop.
Around 1:20 a.m., Inspector Collins joined Inspector McKee at the west corner of the service bar. Inspector Collins pointed out a male he was observing. Inspector Collins saw the male on the dance floor. He was white, 5’8” tall, slim build, 45 to 50 years of age and had shoulder length blond hair.
The male had a blue ball cap on with “Robinson Construction” on the front. He had on a black jacket with “Steve” on the right sleeve, and “Reggie’s Place” across the back. Underneath the male was wearing a dark sweater with gray stripes down the sleeves. He had on black pants.
The male showed signs of intoxication. He staggered from side to side while walking. He had heavy glossy eyes. He swayed while standing and while seated. He had slurred speech.
Inspector McKee stood directly behind this male and heard him say something about getting a cab.
The male was on the dance floor with a female who also showed signs of intoxication. She was white, 5’6” tall, heavy build, about 45. The female had shoulder length dark hair, gold hoop earrings, and was wearing a red sweater with “EXP” on the front, blue jeans and white running shoes.
The female had heavy half-closed eyes. She showed decreased alertness. She staggered while walking to the dance floor, and was swaying while standing and while seated. She had slow deliberated movements when reaching for a chair to sit on. She was talking without anyone being there. Inspector McKee said he was four or five feet away from the female.
Steve was going to look outside for a cab. He and the female left the dance floor. They sat at a table on the east side. Steve had a bottle of Molson Canadian. The female had a wildberry vodka cooler. She consumed one bottle and started another. All their drinks were on a table when they returned from the dance floor.
Around 1:30 a.m., Inspector McKee returned to the west end of the service bar to observe the first female patron he saw. She was consuming a Budweiser beer. Her eyes were closed at the time and she was swaying from side to side. She was seated at the service bar.
Server Marcia was standing next to Inspector McKee and saw him observing the female patron. Marcia approached the female and removed her beer, telling the female patron she had to leave. She told her “you are drunk”. The female did not want to leave, but her three friends convinced her to go. The female went out through the patio entrance with her three friends.
At 1:35 a.m. Inspector McKee went to the east side of the service bar where Inspector Collins was standing. Inspector Collins was talking to server Marcia about the male and female on the dance floor. Marcia said they were waiting for a cab.
Inspector McKee observed the female while she was seated at the table and still drinking her wildberry vodka cooler. The female put on Steve’s jacket. While Steve was outside looking for a cab, the female sat at the table swaying and talking to herself. The female was referred to as “Patty”.
At 1:40 a.m., both Steve and Patty left through the front east door and got into a cab. At 1:48 a.m., Inspector McKee left with Inspector Collins. They got into their car and completed their notes.
In answer to questions on cross-examination, Inspector McKee confirmed that Steve and Patty were trying to get a cab. Patty was at a table. Steve was up two or three times. They were 15 to 20 feet from the entrance door.
Inspector McKee said he observed Steve walking from the dance floor to his table using the backs of chairs to keep his balance as he staggered. Inspector McKee said he noticed nothing unusual while Steve was going out and back in looking for a cab. Most of his observations Inspector McKee said were about Patty. While sitting at the table, Inspector McKee said Steve was swaying.
Inspector McKee said the other male observed did not come close to falling down. That male was wearing the black hat with ribbon around it.
Inspector McKee stated he had never seen or met any of the patrons he observed that night. He did not know anything about their usual manner of speech.
Licensee’s Evidence
Reginald Daigle gave evidence. He is the principal of the corporate Licensee. He has owned the business for about 20 years and has been in this line of work for 30 years. He works at the Premises in a hands on manner. He spends 40 hours a week behind the bar. He returns between 9:30 p.m. to midnight Friday and Saturday night.
Mr. Daigle said he has staff. Marcia has worked for him off and on for 15 years. She is on a lot of Friday and Saturday nights. She is very good at what she does serving on the floor. Mr. Daigle said she does not overserve.
The bartender’s name is Max Stringer. He has been there for 20 years, is an excellent man and does not overserve. If a person comes in drunk, Max would tell the person to get out. Mr Daigle said the police are not called often to come to the Premises.
Mr. Daigle said he has a list of 1,306 people that cannot come into the bar. This is not typical for Sault Ste. Marie. If someone has acted up, Mr. Daigle does not want that person back. His daughter, he said, has been cut off for life.
Mr. Daigle stated that Inspector Collins was married to his step-daughter. They were divorced and had one child. Inspector Collins should not inspect his Premises. He does a good job. However if there is friction between Inspector Collins and his daughter, that could reflect negatively on Mr. Daigle.
On the night of December 12, 2008, Mr. Daigle said he came to work at 9:30 p.m. and left at 11:45 p.m. He said he did not see anyone who had too much to drink.
Mr. Daigle stated he knows Steve and Patty. They are regulars. Steve hurt his back at a construction site. They have come into the bar in the past and Mr. Daigle has sent them home. That night Steve and Patty were sober when the came in and they were not intoxicated. Mr. Daigle said he has never seen Patty wear earrings and he has served her three times a week. Steve had an accident last fall when he hurt his back. As a result he walks with a limp. He has been hurt for a long time and been like that for five or six years.
Mr. Daigle said he knows the native with a hat. He does native bead work at the table and is bent over while doing that. He also is a regular. When told to go home, he leaves. He is a “sipper” and takes two to three hours to finish two draft beer.
Mr. Daigle stated that the fourth person referred to by the inspector was not there at 11:45 p.m. when he departed the Premises. Five minutes after he left, the inspectors came in. Mr. Daigle said what they said happened, never did.
It was a cold night. Mr. Daigle said afterwards he spoke to Inspector Collins who told him to put intoxicated patrons in the hallway. Mr. Daigle told him he would get charged if he did that because it is part of the licenses premises. Inspector Collins told Mr. Daigle he did not know that.
Mr. Daigle said the establishment is downtown beside the courthouse, with the post office across the street. People come in for lunch.
Mr. Daigle indicated he had won northern Ontario business awards in 2003 and 2004. He said he treats everyone equally. Before he owned the establishment, Mr. Daigle said people used to cross the street to avoid it. The business is his livelihood.
Mr. Daigle said he has had warnings before.
In answer to questions on cross-examination, Mr. Daigle said he left the Premises at 11:45 p.m. that Friday night. There was entertainment which he has seven days a week. The inspectors came in just before 1:00 a.m. That evening there were about 80 people in the Premises. It was not busy.
Mr. Daigle stated that Steve and Patty had been coming into the bar for 12 to 14 years, usually three times a week. In fact, he saw them the day before the hearing.
He has known the native for eight years. People call him “Fonzi”. He comes in twice a week and was in the establishment the Friday before the hearing.
Regarding the fourth person, Mr. Daigle asked his staff about her, but neither he nor his staff knew her.
Mr. Daigle said Inspector Collins has been an inspector since 2005. They have spoken several times. He would not file a letter of complaint about Inspector Collins because he would be afraid of the friction that may arise in his arguments with his (step) daughter.
Marcia Larente was called to give evidence. Ms Larente lives in Sault Ste. Marie and works as a waitress at the establishment, and has done so off and on for 11 years. She serves alcohol, has 34 years of experience doing so, and has taken the Servers Intervention Program.
Ms Larente said she has never been charged with an offence and has not worked in any licensed establishment that has.
Ms Larente recalled the December 12/13, 2008 was a cold night.
Ms Larente is familiar with Steve and Patty. She said they are semi-regulars at the establishment. Steve has back and leg problems from an accident. He walks with a limp. He appears to be “gate swinging” with one leg. He throws the leg forward when he walks. Patty also has a back problem. She tries to walk straight, but when her back is out, she is bent over a bit.
Ms Larente said she saw both that night, but she was not serving them. Patty came over to call a taxi. Steve came over to see where the taxi was. Ms Larente said they did not appear intoxicated to her.
The telephone is on the west side, in an exit. Ms Larente was working the west side. She saw them and made her observations.
Ms Larente said she is familiar with “Fonzi”. He is a “sipper” in that he drinks very slowly. That night was his birthday, and he was given two 10 ounce glasses of draft beer. She saw him that night. He was sitting at a table around the middle of the bar, halfway down on the west side.
Fonzi came in with his usual swagger and asked for two draft beers. He sipped on them. He went up to the bar, showed his identification that indicated it was his birthday, and received two more draft beer. Ms Larente said he was not intoxicated.
Ms Larente stated that both inspectors were on the west side of the Premises, staring at Fonzi. He had his head down, hands in his lap and his hat was down. He had beads he was working with and he was not sitting looking at them. Ms Larente tapped Fonzi’s arm and said maybe it’s time to go. He stood up straight and walked out right past the inspectors. He walks with a swagger. He returned, walked over to the table and grabbed a bag off the arm of the chair, and walked right out.
Ms Larente said she asked the fourth person to leave because a co-worker told her the female should be cut-off. Ms Larente asked the female for her beer and told her it was time to go. The lady left. The lady asked why she had to leave. Ms Larente said she never uses the words “because you are drunk” in responding to her question.
In answer to questions on cross-examination, Ms Larente said she started to work that night at 8:45 p.m. Max was on the bar. Amanda and Eliza were other servers on the floor. Mr. Daigle was also working.
Ms Larente said she was waitressing on the floor on the west side. Amanda was doing the same in the front half of the east side with Eliza working the back half of the east side. Mr. Daigle and Max were behind the bar.
Mr. Daigle left between midnight and 12:30 a.m. The crowd was moderate. There were about 40 people in Ms Larente’s area. It was a little quieter than usual.
Ms Larente said she has seen both inspectors before. Inspector Collins called her over. They were both standing at the bar on the west side looking at the crowd.
Ms Larente said she did not serve Steve or Patty as they were in Amanda’s area. She first noticed them when Patty placed a call for a taxi. Ms Larente said she was 10 feet away waiting at the bar to pick up an order. Ms Larente looked over and saw Patty making the call and then walk to her table. Ms Larente walked behind the bar.
A band was playing. Steve was loud. Between calls, Ms Larente paid no attention to them.
Ms Larente said she saw Fonzi come in. He told her it was his birthday. He sat in her section. Ms Larente served him two glasses, and later he went to the bar and got two more. Fonzi was alone the whole time. He was playing with beads in his hands.
Ms Larente said she asked Fonzi to leave before closing time and before last call. She asked him to leave because the two inspectors were watching him. It did not look good because he had his head down.
Ms Larente said the fourth patron, a female, was not one of her customers. Eliza told Ms Larente the female had enough to drink, but without telling her the reason. Ms Larente had not seen her before. Ms Larente took the beer from the woman. She noticed nothing about her. She just did what she was told. Ms Larente said she has seen the female twice since in the Premises, the last time being two or three weeks before the hearing.
At the conclusion of the hearing, the parties were asked to make written submissions.
Registrar’s Submissions
Mr. Kulis for the Registrar noted that the Registrar was withdrawing the alleged violation of section 29 of the LLA in the NOP, no evidence regarding that matter having been presented at the hearing.
There was much credible evidence from the two AGCO inspectors regarding violations of subsection 45(1) of the O.Reg. On the other hand, Mr. Daigle was not present during the violation and the Licensee’s other witness, Ms Larente was on site but saw next to nothing.
The alleged four drunken patrons were identified as Steve and Patty, male two called “Fonzi” and female number two.
Inspector Collins testified that Steve exhibited signs of drunkenness – slurred speech, heavy glossy eyes, and swaying back to front as he walked to a table to join Patty. Inspector Collins noted that Steve staggered from side to side.
Inspector McKee observed Steve and positioned himself directly behind him, noting the following signs of drunkenness – staggering side to side while walking, heavy glossy eyes, swaying while both seated and standing, and slurred speech.
Steve was observed by both inspectors drinking from a bottle of Molson Canadian.
Patty was at the table when Steve joined her. In front of her were a half full bottle of wildberry vodka cooler and another full bottle of that cooler.
Inspector Collins saw the following signs of drunkenness in Patty – heavy half-closed eyes, decreased alertness, slow deliberate movements, swaying in her seat, slurred speech, speaking to herself, and she staggered when she walked to the dance floor.
Inspector McKee observed the following signs of drunkenness in Patty – heavy half-closed eyes, decreased alertness, staggered while walking, swaying while seated, showed slow deliberate movements to get into her chair, and she was talking to herself.
Steve and Patty during their observation by the inspectors consumed liquor until they left. No staff intervened.
Male number two or Fonzi showed the following signs of drunkenness as observed by Inspector McKee – asleep off and on in his chair, heavy half-closed eyes when awake, staggering heavily when walking, having a fixed gaze when staring at the dance floor, bobbing head while drifting off to sleep, and using chairs and the door frame to balance himself while walking.
Inspector Collins also saw signs of drunkenness in male number two – slumped over in his seat, and eyes closing or closed while falling asleep.
Female number two was observed by Inspector McKee to exhibit the following signs of drunkenness – swaying while standing, slurred speech, difficulty drinking from her bottle of Budweiser beer (had the bottle opening under her chin), eyes half closed, incoherent speech, bumping into patrons, apparently unaware of her surroundings and her head would drop and her eyes would close.
Inspector Collins observed these signs of drunkenness in female number two – heavy half-closed eyes, staggered while walking, swaying while standing, bumping into other patrons, slurred speech, and decreased awareness.
All of the patrons showing signs of drunkenness were observed drinking alcohol until they left.
None of the four patrons described above were called as witnesses even though some had been in the Premises recently.
Mr. Daigle gave no evidence about the alleged violations. His concern was that Inspector Collins had a bias towards him and his establishment. That belief is unfounded and without merit.
Ms Larente was a credible witness but saw and described nothing regarding the sobriety of drunkenness of the four patrons.
Licensee’s Submissions
Mr. Orazietti for the Licensee confirmed that the Registrar has withdrawn the section 29 LLA allegation.
Everyone who drinks suffers some degree of impaired facilities. Some level of impairment is permissible. There needs to be some further obvious conduct attributable to alcohol to constitute intoxication.
Subsection 45(1) of the O.Reg contemplates in addition to drunkenness, violations for riotous conduct, quarrelsome behaviour, violent or disorderly conduct, none of which occurred in this case. Drunkenness is alone the least offensive. Mr. Orazietti continued: “what was seen here in regard to all parties was less than a “loss of control over bodily and mental faculties”. In the case of “Steve”, he was quite coherent and in control of his mental faculties. The mental faculties control the physical faculties, so it would seem logical that there was not a degree of alcohol influence to reach intoxication.”
The uncontradicted evidence showed that Steve suffers from a construction injury which causes him to walk in an odd manner. No interview was done at the time to determine personal information.
There is an appearance of a conflict of interest. The principal of the Licensee believes he is a target for Inspector Collins who was married to his daughter and they have a child. These are residual issues which can affect a person like Inspector Collins “who then might not deal as fairly with the licensee as he might otherwise. There is no evidence that is the case here.”
To an objective observer looking at the situation, one would believe it was not appropriate for him (Inspector Collins) to be an inspector on these premises of his former father-in-law.
Regarding the four alleged intoxicated patrons, there may be valid reasons, including medical to explain why they were not called. The first correspondence from the AGCO regarding the alleged infractions was dated March 27, 2009 more than three months after the event. The NOP dated September 16, 2009, nine months after the event, effectively depriving the Licensee of the ability to canvas with patrons to any degree of reliability what had occurred months earlier.
Ms Larente could not be expected to offer explanations when she had no idea what opinions or conclusions the inspectors had formed. Her view was different than the inspectors. How could she anticipate she needed to tell them anything?
Mr. Oriazetti referred to the evidence of Inspector Collins about his initial meeting with Steve on the patio that evening, and made the point that the inspector’s attitude betrays a pre-disposition. From other evidence, Steve appeared to be coherent and responsive, and any slurring was minimal.
Mr Orazietti also says that Inspector Collins, a seven year veteran, could not define the word “intoxication”. Several of Inspector Collins observations are, in the view of the Licensee’s counsel, unresponsive, and the evidence is far from persuasive.
Inspector Mckee’s evidence of Steve is inconsistent. On the one hand, Steve staggered extremely as he left the dance floor. However, when Steve was walking out of and back into the Premises trying to get a cab, the inspector gave no evidence regarding any sign of intoxication. Inspector McKee recalled things not in his notes, a person who was reading from his notes earlier because he had a problem with independent recall.
Inspector McKee’s evidence about Fonzi differs from that of Inspector Collins. Inspector McKee said when Fonzi came back to get his bag, he was still staggering and bumping into chairs. Inspector Collins did not state any such observations.
The inspectors talked about Patty wearing earrings. Mr. Daigle testified he has known her for many years and has never seen her wearing earrings.
Mr. Daigle saw Steve and Patty roughly an hour before the inspectors arrived and indicated they were both fine. Mr. Daigle said he runs a “tight ship”. He has run Reggie’s Tavern for 20 years. He does not permit drunkenness.
Counsel for the Registrar in his submissions said that Marcia Larente was credible as a witness. Inspector McKee said that Ms Larente told a patron in response to an enquiry as to why she had to leave, “because you are drunk”. No one else heard that, and the comment was directly denied by Ms Larente in her evidence. Therefore there is little reliability that can be placed on the evidence of Inspector McKee.
Mr. Orazietti concludes that if one regards the evidence more closely in substantive terms, the quality of the evidence does not support findings of any violation that any of the four patrons were intoxicated.
Mr. Kulis made no reply submissions.
Reasons for Decision
The Board notes that Mr. Kulis indicated that the Registrar withdrew the alleged violation of section 29 of the LLA in the NOP, so nothing further need be done by the Board regarding that allegation.
For the Board to make a finding that there was a violation under subsection 45(1) of the O.Reg it is settled law based on the Ontario Court of Appeal Decision in the case of 1213963 Ontario Ltd. (Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission, [2009] ONCA 323, that the Registrar must show, on a balance of probabilities, two things:
a. That a patron or patrons were drunk in or on the premises or other areas described in the subsection; and
b. That the Licensee permitted such drunkenness to occur, “permit” meaning the Licensee know or ought to have known about the drunkenness.
Inspectors Collins and McKee arrived at the Premises around 12:57 a.m. on the morning of December 13, 2008. They departed the Premises at 1:48 a.m. While there, they noted four patrons they thought were intoxicated, namely a male identified by the evidence as Steve, a female identified as Patty, a second male identified as Fonzi and a second female who was not identified by name (“female number two”).
Inspector Collins first saw Steve as he exited the inside of the Premises and came on the patio. The two spoke. Inspector Collins said Steve hade slurred speech, had heavy glossy eyes and was swaying back to front. Steve went back inside followed by Inspector Collins who saw Steve walking in a staggering manner. Steve sat at a table and picked up a Molson Canadian beer bottle and drank from it.
Patty was sitting at the table with Steve. Inspector Collins observed Patty who had, according to him, heavy half-closed eyes, showed decreased alertness, and had slow and deliberate movements. Patty was swaying in her seat, her speech was slurred, and when Steve left the table, she appeared to be speaking to herself. She went to the dance floor and was seen by Inspector Collins to be staggering from side to side as she walked.
Inspector Collins pointed out Steve to Inspector McKee. Steve was on the dance floor. Inspector McKee observed Steve. He noted Steve staggered from side to side while walking, had heavy glossy eyes, swayed while standing and while seated, and had slurred speech. Inspector McKee stood right behind Steve and heard him talk about getting a cab.
Inspector McKee also observed Patty on the dance floor. He described her as having heavy half-closed eyes, showing decreased alertness, she staggered while walking to the dance floor, and was swaying while standing and while seated. Her movements were slow and deliberate when reaching for a chair to sit on. She was talking without anyone being there. Patty consumed from a half-filled bottle of wildberry vodka cooler, and another full bottle of the cooler was on the table in front of her.
Mr. Daigle was not present in the Premises while the inspectors were there so he could offer no direct observations. But he did state that he knew Steve and Patty, and they were sober when they came in, not intoxicated. He also said they were regulars and he saw both of them the day before the hearing.
Ms Larente in her evidence said she saw Steve and Patty that night but was not serving them. They did not appear intoxicated to her.
Ms Larente, as did Mr. Daigle, gave evidence about past injuries and/or physical conditions of Steve and Patty. However, this was hearsay. Steve and Patty could have been called by the Licensee but were not. Therefore the Board gives no weight to this evidence.
Although Mr. Orazietti pointed out in his submissions some minor discrepancies in the evidence of the inspectors, the Board accepts their evidence by and large to be credible. They made direct observations and for the most part, were consistent.
Therefore the Board FINDS that the two patrons, Steve and Patty, were intoxicated or drunk in the Premises.
When the inspectors arrived at 12:58 a.m., Steve and Patty were on the patio and in the Premises, respectively. They left the Premises at 1:40 a.m. according to the unrefuted testimony of Inspector McKee. Both were seen drinking alcohol by the inspectors – Steve drank Molson Canadian, and Patty drank a wildberry vodka cooler. The length of time was more than enough for employees of the Licensee to see the factors of intoxication displayed by these two patrons, and as a result, the Board FINDS that the Licensee permitted these two patrons to be intoxicated in the Premises, contrary to subsection 45(1) of the O.Reg.
The evidence regarding the intoxication of female number two is similar to that about Steve and Patty.
Inspector Collins observed female number two drinking from a Budweiser bottle. She had heavy, half-closed eyes, she staggered when she walked, swayed while standing and was bumping into other patrons. She also had slurred speech and decreased alertness. Inspector McKee testified female number two had trouble drinking from the beer bottle as the mouth of the bottle was under her chin.
Ms Larente asked female number two to leave the Premises because a co-worker, another server, had told her female number two should be cut-off. Female number two left the bar.
Based on the evidence of the inspectors, the Board FINDS that female number two was intoxicated or drunk.
However, although female number two was drinking in the Premises, there was no evidence presented as to how long the inspectors observed her, or whether she had more than the beer stuck under her chin. Further, she was cut off by Ms. Larente and asked to leave the Premsies. Consequently, the Board FINDS the Licensee did not permit female number two to be drunk on the Premises which must occur for there to be a finding to be made under subsection 45(1) of the O.Reg with respect to female number two.
Regarding the male called “Fonzi”, Inspector Collins did not give much evidence regarding his state. Inspector McKee said Fonzi was sleeping while seated, had heavy half-closed eyes and staggered heavily while walking. He stared at the dance floor, his head dropped down. Monica Larente ultimately removed his glass of beer and told him he had to leave. Later, in answer to question on cross-examination, Inspector McKee said Fonzi did not come close to falling down while walking. Inspector Collins had no observation to make about his ability to walk.
Ms Larente served Fonzi that night. She testified that he was not intoxicated. She further stated that Fonzi had his head down, hand in his lap and his hat was down. This was because, as usual, he has beads which he works with and he was sitting looking at them in his lap. Ms Larente told him maybe it was time to go. He got up walked out, came back to retrieve a bag, and then left the Premises.
Ms Larente testified she asked Fonzi to leave because the inspectors were looking at him, and he had his head down.
Ms Larente’s evidence, which the Board finds to be credible, was that Fonzi was not intoxicated.
Therefore, the Board FINDS that the Registrar has not shown on a balance of probabilities that Fonzi was drunk in the Premises.
The Board has concluded that of the four patrons alleged in the NOP to have been the cause of breaches of subsection 45(1) of the O.Reg by the Licensee, the Licensee permitted two of them to be drunk on the Premises. Further, the Board accepts the withdrawal of an allegation of a violation of section 29 of the LLA.
Submissions as to Sanction
- 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 16th DAY OF July , 2010
DAVID C. GAVSIE, CHAIR, AGCO KIRSTI HUNT, VICE-CHAIR, AGCO