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-
1499532 Ontario Inc. operating as Nikki’s Sports Gallery
Licensee
DECISION ON FINDINGS
Panel: Kirsti Hunt, Vice-Chair, AGCO Alex McCauley, Board Member
Decision Date: January 17, 2011
Hearing Location: Timmins, 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 1499532 Ontario Inc., Licensee ) Michael Labelle, Representative
Authorities
1070879 Ontario Inc. (c.o.b. Zodiac Lounge) (Re) [2009] O.A.G.C.D. No. 176 1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553 1443614 Ontario Inc. (c.o.b Tila Tequila Bar) (Re) [2009] O.A.G.C.D. No. 233 1590677 Ontario Inc. (c.o.b. Island Jerk Restaurant) (Re) [2009] O.A.G.C.D. No. 207 2066819 Ontario Inc. (c.o.b. King Station Pub) (Re) [2009] O.A.G.C.D. No. 212 516532 Ontario Ltd. (c.o.b. Jameson's Restaurant) (Re) [2009] O.A.G.C.D. No. 64 6217788 Canada Inc. (c.o.b. Section 222/Lotus Lounge) (Re) [2010] O.A.G.C.D. No. 4 681311 Ontario Ltd (c.o.b. Shots Sports Tap and Grill) (Re) [2009] O.A.G.C.D. No. 230
Allegations
- A hearing into Notice of Proposal number 18185 dated July 5, 2010 to suspend liquor licence number 803511 (the “licence”) issued to 1499532 Ontario Inc. (the “Licensee”) operating as NIKKI’S SPORTS GALLERY, 14 Mountjoy Street South, Timmins, Ontario, P4N 1S4, (the “establishment” or the “premises”), on the basis of alleged violations of section 45.1 and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg.”) made pursuant to the Liquor Licence Act (the “LLA”), was held on December 8, 2010 in the City of Timmins.
Decision
- The Board FINDS that the Licensee contravened the allegations of violations of section 45.1 and subsection 45(1) of the O.Reg. Reasons follow.
Registrar’s Evidence
Matthew Beerman is a police officer with the City of Timmins and has served for 11 years in that capacity. Constable (“Cst.”). Beerman is familiar with Nikki’s Sports Gallery (“Nikki’s”) and attended there on January 30, 2010. He attended there as the result of a radio dispatch to attend that location to assist the paramedics who were already on scene.
Cst. Beerman arrived at the location which is attached to the Days Inn Hotel. He entered via the Days Inn lobby and accessed a rear entrance to Nikki’s. The area he entered is a hallway where the washrooms for Nikki’s are located. Upon entering he observed a male patron, who he knew as Trevor Payne, holding up an apparently intoxicated female. There were two paramedics standing by, as well as approximately five patrons and a bouncer. The bouncer was identified by his stripped shirt, which looked like a hockey referee’s jersey. Emergency personnel (EMS) were talking to Mr. Payne; he was mouthing the words “no”. He apparently didn’t want anyone assisting his girlfriend. Cst. Beerman was joined at this time by two other police officers, Ryan Farrell and Nick Osborne. An unknown female advised Cst. Beerman that the female being held by Mr. Payne had been unconscious in the washroom and that is why EMS were called.
Cst. Beerman could see the female patron was in distress, her head was flopped over, her knees were buckling and she couldn’t keep her arms up. Cst. Beerman stood back hoping EMS staff on scene could convince Mr. Payne to let them treat his girlfriend.
The female party fell to the floor and that is when Cst. Beerman stepped in. He told Mr. Payne to let her go and he began to pry Mr. Payne’s fingers off of the female patron’s arm. Mr. Payne physically resisted the intervention of Cst. Beerman and pushed Cst. Beerman in the chest hard enough to force him back. The officer was prepared to strike Mr. Payne with his fist when the bouncer and several of Mr. Payne’s friends intervened and dragged Mr. Payne back into the bar.
The female party in question was later identified as Laura Lee Boucher. EMS staff had removed her to the ambulance which was parked on the street in front of the Days Inn.
Cst. Beerman and the other officers left the area through the Days Inn lobby and went to where the ambulance was. EMS personnel were attempting to secure Ms Boucher to a stretcher in the ambulance. Ms Boucher was flailing about and a male friend, Ricky Vaillancourt, was talking to her. Mr. Vaillancourt is a person known to Timmins police. Cst. Beerman asked Mr. Vaillancourt to step away and he did.
Shortly thereafter he heard the bar door crash open and saw Trevor Payne rushing to the ambulance, he kept saying, “I wanna see my girlfriend”. Mr. Payne pulled at EMS staff and Csts. Beerman and Osborne pulled him away. Mr. Payne struck Cst. Beerman in the chest. Mr. Payne was advised he was under arrest. A struggle ensued between the police and Mr. Payne whom they were intending to arrest and all of them went to the ground.
Cst. Farrell was asked to assist but couldn’t because a menacing crowd from inside the bar was converging on the police and Mr. Payne. Cst. Farrell was attempting to keep this crowd at bay.
Mr. Payne was finally subdued and handcuffed. Other officers including a supervisor had attended on scene. When Cst. Beerman got up off the ground there were 15 to 20 persons who had encircled the police. They were verbally abusive to the police. They were ordered to back off and they complied.
Mr. Payne was escorted to the Timmins police station. There he was cooperative and apologetic. Ms Boucher had been escorted by ambulance to hospital.
The persons outside threatening police in the view of Cst. Beerman were from Nikki’s. He did not observe any security personnel from Nikki’s outside the bar.
Cst. Beerman advised that it has always been his experience at other bars that security staff assists the police. There is no need to ask. In this situation what would normally occur would be that security staff would circle the police as they attempted to affect an arrest, keeping them safe from the crowd.
In Cst. Beerman’s opinion Ms Boucher was clearly intoxicated and was most likely under the influence of a narcotic as well.
In Cst. Beerman’s opinion Mr. Payne was under the influence of alcohol but was not intoxicated.
On cross-examination, Cst. Beerman stated he had not encountered Mr. Payne or Ms Boucher previously.
When asked if Ms Boucher was in medical distress, Cst. Beerman stated that she was severely intoxicated. He felt her intoxication was due to more than just alcohol.
On his initial encounter with Mr. Payne and Ms Boucher at the back hallway of the bar Cst. Beerman confirmed that he had observed a bouncer there and that the bouncer had pulled Trevor Payne back into the bar.
In Cst. Beerman’s opinion the actions of Trevor Payne were not the normal reaction of someone concerned about their girlfriend.
Cst. Beerman stated that Ms Boucher appeared overdosed.
Cst. Beerman stated that it is expected that bouncers will assist the police.
Cst. Beerman stated that it is normal for people to congregate at a fight. What was abnormal about this scene was the hostility of the crowd to the police.
Cst. Beerman stated that prior to the confrontation outside some patrons may have been outside to smoke.
Cst. Beerman stated that at no time did he observe any bouncers at the front entrance.
Cst. Beerman stated that the confrontation with Mr. Payne took at least a minute and a half before they got Mr. Payne under control. In his view there was plenty of time for the bouncers to come to the assistance of the police.
On redirect, Cst. Beerman stated he did not get close enough to Ms Boucher to detect an odour of alcohol on her breath.
Ryan Farrell is a police officer with the Timmins City Police. He has been a police officer for four years. He is familiar with Nikki’s and attended there on January 30, 2010. On that date at approximately 1:50 a.m., he was dispatched to Nikki’s to assist EMS crews with a patient. Cst. Beerman and Cst. Osborne had arrived together. They all attended to the washroom area at the rear of the bar. He saw Ms Boucher, whom he recognized, being held up by her boyfriend Trevor Payne. Ms Boucher appeared very intoxicated; she was unable to stand and was holding a bloody Kleenex in her left hand.
Ms Boucher’s boyfriend was hollering “that she was not going to hospital”. Ms Boucher fell a second time and police intervened.
When Cst. Beerman and Mr. Payne started shoving he went to the Days Inn reception area to call for further backup. He observed one of the EMS members put Ms Boucher over his shoulder and carried her out to the waiting ambulance.
Cst. Farrell corroborated the evidence of Cst. Beerman with regards to the actions and subsequent arrest of Trevor Payne. In addition, he stated that he had to try and protect Csts. Beerman and Osborne, who were on the ground with Trevor Payne, from six persons who were yelling at the police and trying to get to the officers.
Later he was at the local hospital on another matter and observed Ms Boucher there. She appeared very intoxicated, she was very unsteady and couldn’t stand, her speech was mumbled and she couldn’t focus. He could detect an odour of alcohol on her breath and in his view it was obvious she had been drinking.
Cst. Farrell stated that outside Nikki’s some of the males threatening police were the same ones he had seen inside the rear hallway of Nikki’s.
Cst. Farrell confirmed that at no time were police assisted by security. This was unusual because in the past he has been assisted by security personnel from Nikki’s.
On cross-examination Cst. Farrell said the ingestion of drugs by Ms Boucher never occurred to him. He initially thought she may have fallen and bumped her head, hence the bloody tissue.
Cst. Farrell stated that Trevor Payne did not appear intoxicated to him.
Cst. Farrell stated he heard the bar door open loudly and saw Trevor Payne rush to the ambulance where he was intercepted by Cst. Beerman.
Cst. Farrell said the crowd around the police was not curious, they were threatening and trying to intimidate.
Tim Chalmers is a Timmins City police officer, having served for 10 years. He is familiar with Nikki’s and attended there January 30, 2010 in response to a call to assist other officers. He arrived at Nikki’s around 2:00 a.m. Upon arrival, he observed Csts. Beerman and Osborne on the ground with a male patron and Csts. Farrell and Kilby attempting to hold back seven to 10 people, a few of whom were trying to get to the officers on the ground.
During this time he got another call to attend the Timmins Hospital. He arrived at the hospital and observed a female on a stretcher sitting up. Staff advised him she was now manageable. The female in his opinion appeared to be intoxicated. The female was sitting up and crying. She had no idea where she had come from. She was swaying and had a blank stare.
Based on his experience as a breathalyser technician and a drug recognition expert, it was his opinion that the female party he was observing was under the influence of alcohol and drugs.
On cross-examination Cst. Chalmers stated he did not hear threats to the police by the crowd outside of Nikki’s. He further stated that he did not observe any bouncers outside Nikki’s.
Norm Pigeon is a liquor Inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”) and has 14 years experience. He is familiar with Nikki’s.
Inspector Pigeon’s investigation started as a result of a report from Cst. Farrell of the Timmins Police Service regarding the problem the police had at Nikki’s on January 30, 2010. He began his formal investigation March 3, 2010 after receiving the required documentation from Timmins Police.
On March 4, 2010 Inspector Pigeon attended at the Days Inn and spoke to the manager Carmen Swartz. He advised of the incident which was unrelated to the Days Inn, but he was curious if there was video available. He was advised that video is only held for five days and there is no video regarding the rear hall of Nikki’s or the outside of the licensed premises.
On March 12, 2010 at 4:12 p.m., he attended at Nikki’s and spoke to Shannon Welch the employee on duty. At that time he observed a video camera behind the bar. He was advised the camera was set up as closed circuit via internet and was password protected. She did not have access to the password.
The manager Mr. Jason Fasciano called prior to Inspector Pigeon leaving. Inspector Pigeon outlined to him in detail the matters of January 30, 2010. Mr. Fasciano stated he was not on duty but the incident should have been logged in the incident book. Inspector Pigeon requested the book and a list of employees on duty on the night in question. He returned to Nikki’s on March 12 and met with Ms Welch and received the requested items.
On March 23, 2010 he attended at Nikki’s and spoke to the principal of the Licensee Nicole Durham. He explained to Ms Durham in detail the events of January 30, 2010 as he had previously done with the manager. He advised Ms Durham of the possible series of offences the bar faced including permit drunkenness, permit disorderly conduct and fail to provide measures to deter disorderly conduct. He advised Ms Durham that he was submitting a report and explained the possible sanctions which might follow.
Inspector Pigeon stated that Ms Durham had been made aware of the incident of January 30, 2010 by the on duty bartender believed to be Shannon Welch. Ms Durham had been advised that Laura Boucher had apparently only consumed a couple of drinks and the information given to Ms Durham was that Ms Boucher had to be on drugs.
Inspector Pigeon did not enquire about the camera behind the bar.
Inspector Pigeon attempted several times to interview Trevor Payne and/or Laura Boucher, with negative results.
On cross-examination Inspector Pigeon admitted he did not interview bar staff regarding the events of January 30, 2010.
Inspector Pigeon stated he had a conversation with Ms Boucher on the phone on July 7, 2010. Regarding the events of January 30, 2010. Ms. Boucher stated that she was not drunk on that night. She stated she had consumed two drinks at home and two at Nikki’s.
The Board enquired as to why Inspector Pigeon did not interview bar staff as part of his investigation. His response was that he didn’t want to get involved or interfere with the Timmins Police investigation.
Licensee’s Evidence
Nicole Aline Durham is the owner and principal of the Licensee. She has owned the establishment for eight years. During that time, she has never been involved in a hearing before the AGCO.
There are 14 employees at the premises known as Nikki’s Sports Gallery. On Thursday, Friday and Saturday nights, Ms. Durham employs three bouncers. The establishment has a licensed capacity of 147 but her rule is that capacity should not exceed 120 patrons.
On the night in question, January 30, 2010, Ms Durham was not on duty. There were two bartenders on duty, Mathew Legault and Paul Durham. There were two waitresses on duty Emanuella Gauthier and Jennifer Richie. There were three bouncers on duty John Hoffren and two others whose name she could not recall.
Ms Durham stated that staff is trained by her in addition to their “Smart Serve” qualifications. She explained her policies and rules for the establishment. She runs a strict establishment, no over consumption, no arguing. She has a taxi service and the taxi service is available to any patron who needs it.
The house policy which is posted in the bar became exhibit # 1. The staff policy paper became exhibit # 2 and is posted in the kitchen. Ms Durham read out rule # 8 for the Board from Exhibit # 1, which dealt with the issue of consumption.
Exhibit # 3 was entered, a photo of the inside of Nikki’s bar indicating the hallway at the rear where the initial incident took place.
Exhibit # 4 was a photo of the entrance to Nikki’s Sports Gallery from outside.
Ms Durham stated that usually the bouncers are deployed one at the front door, one in the center of the premises to roam and one by the washroom area.
Ms Durham stated she found out about the January 30, 2010 incident when she went into work Monday morning of that week.
Ms Durham met with AGCO Inspector Pigeon regarding the incident in question on March 23, 2010. She stated that he advised her that she may be subject to a warning.
On cross-examination, Ms Durham stated that of the three bouncers on duty January 30, 2010, John Hoffren had been with her for one and a half years. The other two were only there for about two months and she couldn’t recall their names.
Ms Durham conceded that house rules five and seven seem to conflict with one another.
In redirect Ms Durham stated that there are regular staff meetings and the house policy is reviewed with staff every couple of months.
John Hoffren is a licensed security officer. He has been employed at Nikki’s Sports Gallery for over a year. He worked previously as a bouncer. He is self-trained and also has his “Smart Serve” qualifications. In addition to his work at Nikki’s, he is employed by Inter-Paving.
On January 30, 2010 he was on duty at Nikki’s with two other bouncers. Their positions rotate. One is posted at the main entrance to check patrons entering, one roves in the center and the other is posted around the washroom area.
Mr. Hoffren knows Mr. Payne and Ms Boucher; they are regulars. On January 30, 2010 he recalled the two coming into the bar around midnight. He spoke briefly to them and they appeared fine to him. He stated that he noticed them briefly through the night as he was scanning the crowd. He stated Mr. Payne had a couple of drinks in front of him and Ms Boucher had one drink when she came in and drank shots at the bar with another girl. He stated Ms Boucher had been seated at a high table at the end of the bar.
Mr. Hoffren was made aware of Ms Boucher’s problem by the waitress Jennifer Ritchie. This was before 2:00 a.m., and about 45 minutes after he had seen Ms Boucher consuming shots at the bar. He went with Ms Ritchie to the area of the ladies washroom and stood by in that area while Ms Boucher was being assisted in the washroom.
In Mr. Hoffren’s opinion someone had “slipped” something to Ms Boucher.
Mr. Hoffren was asked to call EMS by Jennifer Ritchie, which he did. Ms Boucher was carried from the washroom and placed on the floor to await EMS. Mr. Hoffren maintained crowd control.
The police and EMS showed up. Trevor Payne came on scene around the same time. Mr. Payne was holding on to Ms Boucher. He wanted to take her home. EMS staff was trying to get control of her in order to take her to the hospital. The police interceded and pulled Mr. Payne away from Ms Boucher. The police officer was warning Mr. Payne. The police officer had Mr. Payne by the throat and had his fist raised. Mr. Hoffren stepped between the police officer and Mr. Payne and with the assistance of one of Mr. Payne’s friends forced him into the bar.
At this point, Mr. Hoffren thought Mr. Payne and his friend Robbie were going to the hospital. At the same time he became distracted by another unwanted female in the bar. He and another bouncer ejected her from the bar via the front door. At that time the third bouncer was at the front door because they were at capacity.
Mr. Hoffren said when he went outside with their unwanted female, Mr. Payne was under arrest and was being placed in a police vehicle.
On cross-examination he stated that it was possible that Ms Boucher had more to drink than what he observed. He stated it was possible that Ms Boucher could have had six drinks in the intervening time from when he first observed her come in and when he was advised that she was in distress.
Mr. Hoffren stated it took about five minutes to get the unwanted female out of the bar.
In redirect, Mr. Hoffren stated the police did not ask for assistance and it is his understanding that if the police need assistance they will ask, if not they (staff) should back off.
Jennifer Ritchie is 23 years of age and works as a waitress at Nikki’s. She has been working for one and a half years at Nikki’s. Her training consists of “Smart Serve”.
She was working January 29-30, 2010 and came on duty at either 8 or 10 p.m. There were two waitresses on duty, her and Ms Gauthier. There were three bouncers Dave, Larry and John.
She knows Trevor Payne and Laura Lee Boucher from the bar. She stated she has never seen Ms Boucher intoxicated to that extent.
Mr. Payne and Ms Boucher arrived at the bar around midnight. She spoke with Ms Boucher at that time. Ms Boucher was not intoxicated and ordered a vodka/cranberry cocktail. She only served her once. She later observed Ms Boucher at the bar with another female consuming shots. She only saw her have one shot.
Approximately 20 minutes after she observed Ms Boucher having shots at the bar, she noticed that Ms Boucher was having problems. This was about one hour after her arrival. At this time, she was sitting with the woman she had been observed with at the bar. Ms Ritchie advised this woman to take Ms Boucher to the washroom which she did.
Ms Ritchie went to the washroom and Ms Boucher appeared more than intoxicated. She was sitting on the toilet in the stall holding her head. Ms Ritchie with the assistance of Ms Gauthier got her out of the stall and subsequently out to the hallway where they placed Ms Boucher on the floor in the “recovery” position.
Trevor Payne arrived on scene. When police and EMS arrived, Ms Ritchie could see a conflict was about to start between police, EMS and Mr. Payne. She observed the conflict. Ms Ritchie subsequently left the area to deal with the unwanted female who had been with Ms Boucher.
In her estimation Ms Boucher had two to three drinks at the most.
On cross-examination Ms Ritchie stated she was not monitoring Ms Boucher all night and she may have had three or four drinks.
In response to questions from the Panel, Ms Ritchie stated that the lady with Ms Boucher was not intoxicated. The reason she was removed from the bar is because of her interference with Ms Boucher.
Emanuella Gauthier is 29 years of age and a Timmins native. She has been employed at Nikki’s for approximately four years. She is a waitress at Nikki’s. She has her “Smart Serve” certificate, which was recently renewed at a meeting they attended.
On January 29, 2010, Ms Gauthier was working at Nikki’s. She had commenced her shift at 8:00 p.m. At approximately eleven or eleven thirty in the evening, she noticed Trevor Payne and Laura Boucher enter the premises. Ms Gauthier greeted them. She noticed that neither party appeared to be intoxicated.
Ms Gauthier didn’t serve Ms Boucher but noticed her drinking her “usual” a vodka/cranberry mixed drink.
Ms. Boucher was observed sitting at a high top table, third from the entrance. She later observed Ms. Boucher consume two or three shooters at the bar, which is approximately 20 feet from the table she had been sitting at. This occurred at approximately 1:30 a.m.
Later she was advised by her co-worker Ms Ritchie that she needed help in the ladies washroom as Ms Boucher was having problems there.
In the ladies washroom, Ms Boucher was in a toilet stall with another female and the door was locked. The female with Ms Boucher was ordered to open the door, which she did. Ms Boucher was fully clothed in the stall leaning against the wall. Ms Boucher was incoherent and slipping in and out of consciousness. She was very lethargic and appeared to be having seizures. Ms Gauthier advised the bouncer to get Trevor Payne and to call for medical help.
Trevor Payne arrived on scene around the same time as the police and paramedics. Ms Gauthier returned to work. She heard a loud argument between Trevor Payne and a police officer and she observed a police officer restraining Mr. Payne.
She observed Mr. Payne later rush out the door.
Ms Gauthier didn’t believe Mr. Payne was intoxicated. Ms Gauthier did not believe Ms Boucher was intoxicated by alcohol. Her behaviour was not consistent with being intoxicated by alcohol.
On cross-examination Ms Gauthier stated she was one of two waitresses on duty that night and that the bar was at capacity 120 to 145 patrons.
Ms Gauthier admitted in cross-examination that she was unable to observe Ms Boucher all night. Ms Gauthier stated she observed Ms Boucher consume at least two shots at the bar but did not think she consumed three or four. She stated Ms. Boucher was at the bar consuming shots for approximately 20 minutes.
Ms Gauthier stated that in her opinion to consume three shots in 20 minutes is not responsible. Ms Gauthier stated she felt Ms Boucher may have taken drugs although she never saw her take the drugs.
In response to a question from the panel, Ms Gauthier stated she never observed Ms Boucher go to the washroom.
Ms Gauthier stated that there was a subsequent problem with another female in the bar. The female was the person who had been with Ms Boucher in the washroom. She was belligerent and had obstructed staff as they tried to assist Ms Boucher. The bouncers ejected her from the bar. Ms Gauthier did not feel this female was intoxicated; she hadn’t observed her drinking.
Robin Beaulieu is a resident of Timmins and a friend of Trevor Payne and Laura Boucher. Mr. Beaulieu was in Nikki’s on the night in question. He had arrived at the bar shortly after Trevor and Laura, and spoke to them upon his arrival. In his opinion Trevor Payne was not intoxicated.
Mr. Beaulieu became aware of Ms Boucher’s problem around 1:30 a.m. He went to the area where EMS, the police and Ms Boucher were. He saw the police officer grab Mr. Payne by the throat. Mr. Payne appeared shocked when the police grabbed him. Mr. Beaulieu offered Mr. Payne a ride to the hospital which he accepted.
Outside Ms Boucher was being placed in the ambulance. Mr. Payne went to her but was wrestled to the ground by police. According to Mr. Beaulieu, Mr. Payne had not interfered with the police. Further, Mr. Beaulieu never saw anyone swarm police. Mr. Beaulieu went to the hospital with a friend and there saw Ms Boucher. She was in a far different state than what he had observed earlier in the evening. Earlier at the bar he had observed Ms Boucher consume two shooters and half a mixed drink.
On cross-examination he stated he could not say how much Mr. Payne or Ms Boucher had to drink on the evening in question.
Registrar’s Submissions
The Registrar’s Representative is asking for a finding of permit drunkenness under subsection 45(1) of the O.Reg.
Cst. Beerman testified that when he arrived at Nikki’s on January 30, 2010, he observed a female in distress, Laura Lee Boucher. This female could not stand on her own, her head was flopping about and she couldn’t hold her arms up. She was being held up by her boyfriend Trevor Payne. Cst. Beerman said Ms Boucher collapsed to the floor. She appeared to be intoxicated and also under the influence of drugs.
Officer Farrell knows Ms Boucher personally. He saw her that night and she appeared intoxicated. She also did not recognize him. He went on to state that at the hospital Ms Boucher had to be restrained.
Cst. Chalmers saw Ms Boucher later at the hospital. He stated she had calmed down but had a blank stare and she appeared to have been crying. Cst. Chalmers in addition to his other duties has been trained as a drug recognition expert. In his opinion, Ms Boucher was under the influence of alcohol and drugs.
AGCO Inspector Pigeon testified that he spoke to Ms Boucher on July 7, 2010 in regards to this incident on the telephone. Ms Boucher told him that on the night in question she had one or two drinks before arriving at Nikki’s and two drinks at Nikki’s, but she could not clearly recall. She further told Inspector Pigeon that doctors at the hospital that night advised Ms Boucher that her blood showed trace amounts of the drug oxycontin.
Ms Durham was not on the premises that night.
John Hoffern, the security person, stated he saw Ms Boucher arrive around midnight and it was 45 minutes later that she fell ill. He admitted to not watching her all night. The establishment was busy and she may have had more to drink than he observed.
Ms Ritchie, one of the waitresses, stated that Ms Boucher became ill about an hour after arriving at the bar. She stated that she served her a drink and saw her doing shots at the bar but it was busy and she cannot accurately state how much Ms Boucher consumed in her time on the premises.
Ms Gauthier, a waitress on duty, stated she saw Ms Boucher drinking a vodka/cranberry mixed drink. She further observed Ms Boucher consume another two to three shots at the bar in a 20 minute period. Ms Gauthier admitted that Ms Boucher may have had more than three shots at the bar. Ms Gauthier further admitted that consuming three shots in a twenty minute period is not responsible.
In order to establish that the Licensee permitted intoxication in the licensed premises, both elements in the test as established by “Sin City” must take place.
Drunkenness occurred.
The Licensee knew and permitted intoxication.
From the evidence, it is clear that Ms Boucher was intoxicated. Three cases relied on are 516532 Ontario Ltd. (c.o.b. Jameson's Restaurant) (Re), 2066819 Ontario Inc. (c.o.b. King Station Pub) (Re), 1070879 Ontario Inc. (c.o.b. Zodiac Lounge) (Re). All cases are consistent in saying that the cause of the intoxication is irrelevant. If intoxication results from a combination of ingesting drugs and/or alcohol, and the intoxicated person is in the licensed premises, the licensee is responsible.
The evidence presented at the hearing was that in addition to consuming alcohol Ms Boucher appeared to be also under the influence of drugs.
Case law demonstrated that how intoxication occurs is immaterial. It is still intoxication.
The second part of the test in “Sin City” is did the Licensee permit Ms Boucher to become intoxicated.
Evidence supplied by the Licensee’s witnesses was that Ms Boucher arrived around midnight and fell ill about one hour later.
All three employees of the establishment state they saw Ms Boucher doing shots at the bar. Ms Gauthier stated she saw Ms Boucher do two to three shots at the bar in a 20 minute period. Ms Gauthier stated this is not responsible drinking yet she took no action to stop it.
Some member of staff should have been alerted to the signs of intoxication coming on to Ms Boucher. All three staff members stated they had been observing Ms Boucher at various intervals of the evening yet no one saw her becoming intoxicated.
Based on the level of alcohol consumption in a short period of time, the Licensee knew or ought to have known that drunkenness would occur.
With regard to section 45.1 of the O.Reg., the Licensee failed to ensure that there were reasonable measures in place, and that reasonable efforts were made to deter disorderly conduct.
Cst. Beerman stated that outside the establishment the EMS crew was loading Ms Boucher into the ambulance. Cst. Beerman testified that he heard the door of the licensed premises crash open and heard yelling. He turned to see Mr. Payne and some of his friends rushing down to the ambulance. Mr. Payne pushed Cst. Beerman and Cst. Osborne. A struggle ensued with the officers on the ground with Mr. Payne. At this point, 15 to 20 persons surrounded the officers in a menacing fashion. The crowd was verbally abusive and the police officers were genuinely concerned for their safety. Cst. Beerman testified that at no time did he observe any security staff from the licensed premises outside. The police officers testified that this is not normal practice. This is the first time they have not received assistance from security at a licensed establishment.
John Hoffren admitted he was not outside to help police, when he arrived five minutes after Trevor Payne had left, Trevor Payne was in police custody and being placed in the police vehicle.
The Registrar is seeking a finding under section 45.1 of the O.Reg.
Licensee’s Submissions
The Licensee’s Representative submitted that Inspector Pigeon’s investigation was incomplete. He did not interview staff from the licensed premises prior to submitting his report to the Registrar.
Cst. Beerman testified that Ms Boucher’s actions were not consistent with alcohol consumption; in his opinion, she was on drugs.
Cst. Beerman testified that the bouncer John Hoffren assisted him on his initial contact with Trevor Payne in the hallway outside of the washroom.
Cst. Chalmers arrived on scene outside the licensed premises and upon his arrival matters had settled down and he was not required. Later he sees Ms Boucher at the hospital and it is his opinion that she is under the influence of drugs.
Testimony from staff at the bar are consistent. Ms Boucher and Mr. Payne arrived at the bar around midnight and neither was intoxicated. Ms Boucher had one mixed drink and perhaps two or three shots at the bar. A short while later she could not stand on her own and was taken to the washroom by Ms Ritchie.
All evidence suggests Ms Boucher’s behaviour is not the result of alcohol. In addition, once Ms Boucher presented as being intoxicated she was not given any more alcohol.
The Licensee’s Representative disagrees with the cases cited by the Registrar’s Representative. In those cases alcohol was served to persons who were demonstrating intoxicating behaviour. A licensed premises cannot be held accountable when a patron ingests drugs at the end of the night and becomes intoxicated. In this case, the licensed establishment is not permitting. Ms Boucher ingested drugs at the end of the night.
The Licensee’s Representative refers to the following authority: 1590677 Ontario Inc. (c.o.b. Island Jerk Restaurant) (Re) in order to illustrate section 45.1 of the O.Reg. Counsel questions whether events that occur outside are disorderly conduct within the meaning of section 45.1 of the O.Reg. Counsel suggests that crowds gather during a disturbance is not necessarily the responsibility of the licensee.
The Registrar suggests that the Licensee’s bouncer should have intervened to assist police, yet when Cst. Chalmers arrived his assistance was not required.
At the time of events taking place outside, two of the three bouncers were busy with the unwanted female patron.
The third bouncer could have perhaps checked outside, but hindsight is 20/20.
The actions outside between police and Mr. Payne could not be deemed disorderly conduct within the meaning of section 45.1 of the O.Reg.
The following authority was submitted by the Licensee’s Representative regarding subsection 45(1) of the O.Reg.: 1443614 Ontario Inc. (c.o.b Tila Tequila Bar) (Re), page 12, paragraph 111, dealing with the two part test. The Licensee’s Representative suggests that Ms Boucher was not showing any signs of intoxication even while consuming shots at the bar. Only when she was taken to the washroom did she show signs of intoxication. The bar cannot be held accountable if at the end of the night a patron ingests drugs. Also, once Ms Boucher presented signs of intoxication she was not served any more alcohol.
The Licensee’s Representative submitted the following authority regarding subsection 45(1); 681311 Ontario Ltd (c.o.b. Shots Sports Tap and Grill) (Re), paragraph11. In our case, there was no evidence that the Licensee permitted drunkenness. When Ms Boucher got into distress, staff took appropriate steps to deal with the matter.
The Licensee’s Representative cites paragraphs 33 to 44 of that decision to bolster his argument that Mr. Hoffren did not intervene on behalf of the police because he did not feel he was required to. He did not believe there was a threat to police outside.
The evidence falls short of showing, on a balance of probabilities, that the Licensee permitted Ms Boucher to become intoxicated in the licensed premises.
Authorities produced by the Registrar are not on point. In those cases, they refer to situations where persons had ingested drugs prior to attending the establishment. This case differs because drugs were ingested at the end of the evening.
The common thread was that Ms Boucher arrived at the establishment and was not intoxicated and did not present signs of intoxication until the end of the evening.
The events that occurred outside do not constitute disorderly conduct as stipulated in section 45.1 of the O.Reg. The event drew a crowd, persons were against the arrest, and this is not disorderly conduct. This event transpired quickly and by the time Cst. Chalmers arrived it was over.
Both allegations should be dismissed.
Registrar’s Reply Submissions
The events outside the establishment were indeed disorderly conduct. Cst. Farrel testified that when the two officers were on the ground he had to remain standing to protect the officers from the crowd that was gathering in on them. He went so far as to use his emergency call button to summon assistance and this was the first time ever that he had done that. He testified that there were at least six males yelling and trying to get to the officers.
With regard to subsection 45(1) of the O.Reg., testimony revealed that Ms Boucher had consumed three to four drinks in an hour. When in the washroom she was showing extreme signs of intoxication. There is no evidence that staff intervened at any point when she was consuming alcohol. She was moving about from the high table to the bar and back. Staff was in a position where they should have seen something.
Reasons and Decision
The Registrar’s Representative is asking the Board for findings based on the Licensee’s breaches of subsection 45(1) of the O.Reg. by permitting drunkenness, and section. 45.1 of the O.Reg. by failing to ensure that reasonable measures were in place to deter disorderly conduct on the property or property adjacent to and in the vicinity of the premises.
The Licensee’s Representative concedes that there was an intoxicated female in the premises on the night in question being January 30, 2010, but that the female was under the influence of drugs ingested at the end of the evening. Further, the Licensee’s Representative suggests that the disturbance outside, in which a patron from the establishment interfered with and became assaultive with police, was not disorderly conduct within the meaning of section 45.1 of the O.Reg. He further asserts that assistance to the police from bar staff bouncers was not necessary because police did not request assistance and very quickly had matters under control.
The Board heard evidence that on the early morning of January 30, 2010 police and EMS personnel were called to Nikki’s to deal with a female patron who was in distress. Police and EMS personnel arrived at Nikki’s bar which forms part of the complex which houses the Days Inn. Police entered Nikki’s through a rear door off the lobby of the Days Inn. They entered a hallway at the rear of Nikki’s adjacent to the washroom area. EMS personnel were on scene. There were several people about and there was an apparently intoxicated female being held up by a male patron. EMS personnel were attempting to take control of the female patron, who was later identified as Laura Lee Boucher. Their efforts were being resisted by Ms Boucher’s boyfriend, Trevor Payne. Cst. Beerman of the Timmins Police Service described Ms Boucher as obviously intoxicated, her head was flopping about and she was unable to stand on her own. When Ms Boucher fell to the floor Cst. Beerman stepped in and separated Trevor Payne from Ms Boucher. At that point, Mr. Payne pushed back on Cst. Beerman strongly enough to force him back. Cst. Beerman was prepared to strike Mr. Payne to control him when some of Mr. Payne’s friends and the bouncer, John Hoffren, interceded and forced Mr. Payne back into the bar.
There were two other police officers on scene with Cst. Beerman, they were Csts. Farrell and Osborne. Cst Farrell corroborated the evidence of Cst. Beerman as to the events in the premises.
EMS personnel carried Ms Boucher out of Nikki’s to a waiting ambulance; the police officers were with them. As EMS personnel were putting Ms Boucher onto a stretcher and into the ambulance, Cst. Beerman heard the front door of Nikki’s crash open. He heard persons yelling and turned to see Trevor Payne and some of his friends running to the ambulance. Mr. Payne attempted to push past Csts. Beerman and Osborne. Mr. Payne was placed under arrest and a struggle ensued with the officers and Mr. Payne going to the ground. At this point, Cst. Farrell testified he could not assist because a crowd of male patrons, approximately six in all, were trying to get to the officers on the ground. These persons were yelling at the police and Cst. Farrell was of the mind that they were intent on getting to the officers and causing them injury. Cst. Farrell was so concerned that he activated his emergency button on his radio to summon assistance, something he had never done before. He further called for backup. He had his pepper spray at the ready. Mr. Payne was taken into custody as police back-up arrived.
Cst. Farrell further testified that he later saw Ms Boucher at the local hospital. He stated she appeared intoxicated, couldn’t stand, had an odour of alcohol on her breath and could not focus. He went on to state that he and Ms Boucher know each other but that she did not recognize him. Cst. Beerman stated that Ms. Boucher appeared to be on drugs, as well as alcohol. Cst. Chalmers who observed Ms. Boucher in the hospital felt that she was under the influence of drugs and alcohol. Cst. Chalmers in addition to his other duties is a drug recognition expert.
The police officers who testified regarding the condition of Trevor Payne stated he was under the influence of alcohol but did not appear intoxicated.
The waitress staff and security person John Hoffren all gave evidence that Mr. Payne and Ms Boucher entered Nikki’s around midnight and that both appeared to be fine. The waitress on duty, Ms Ritchie, stated that Ms Boucher had one mixed drink, a vodka/cranberry, and later she saw her at the bar drinking “shots” with another female. Ms Ritchie stated that in her opinion Ms Boucher may have had two or three drinks, but admitted in cross-examination that Ms Boucher may have had three or four drinks because she was not watching her all night. Ms Ritchie noticed that Ms Boucher who was now back at her table did not appear well. Ms Ritchie advised the female friend with Ms Boucher to take her to the washroom and she did. This was about 20 minutes after she had seen Ms Boucher at the bar and about one hour since her arrival at the bar.
Ms Gauthier was the other waitress on duty. She stated the bar was busy - virtually at capacity. She stated she never served Ms Boucher but observed her at a high top table drinking a vodka/cranberry. She later saw Ms Boucher at the bar. At the bar she saw Ms Boucher consume two shots in a 20 minute period. In cross-examination she stated that Ms Boucher may well have consumed three or four shots in that time period because she did not have time to monitor her continually. Ms Gauthier stated that in her opinion to consume three shots in 20 minutes is not responsible drinking. Ms Gauthier never saw Ms Boucher ingest drugs nor did she see Ms Boucher go to the washroom.
Ms Gauthier stated that the female party who was with Ms Boucher at the bar and subsequently in the washroom was later ejected from the premises as an unwanted person. Ms Gauthier stated this female was not intoxicated but had been belligerent and obstructionist when staff were trying to deal with Ms Boucher.
John Hoffren, the bouncer on duty, stated he saw Mr. Payne and Ms Boucher come into the licensed premises; both seemed fine. He went on to state that he saw Ms Boucher consuming a drink at her table and later shots at the bar. In cross-examination, he admitted that he wasn’t aware how much Ms Boucher had to drink; she may have had up to six drinks.
Mr. Hoffren stated that after Ms Boucher and Mr. Payne had left the premises he had become involved with an unwanted female in the bar. It had taken five minutes to eject this female and after this, when he looked outside, Mr. Payne was being placed in the police vehicle.
When Mr. Payne left the bar to go to Ms Boucher, Mr. Hoffren thought they were going to the hospital.
Mr. Hoffren stated it is his understanding that if the police need assistance they will ask for it. If they do not, security staff should back off.
Mr. Pigeon, an AGCO inspector testified he had spoken to Ms Boucher on the telephone on July 7, 2010 in regard to the incident that occurred on January 30, 2010. He stated that Ms Boucher told him she had a couple of drinks before coming to Nikki’s on the night in question. She further stated that doctors at the hospital in Timmins had told her that her blood showed trace amounts of oxycotin.
The Board is satisfied that based on the evidence, Ms Boucher was intoxicated in the licensed premises. It would appear from the evidence that the severe state of intoxication was from a combination of alcohol and drugs. The Board now has to decide if the Licensee permitted this intoxication in this case, by failing to take steps to prevent it.
The Licensee’s Representative would have us believe that Ms Boucher ingested drugs at the end of the evening, and that upon ingesting these drugs, she became immediately incapacitated. He suggests that the Jameson decision, as illustrated by the Registrar’s Representative, does not apply. The Licensee’s Representative states that in this case, once Ms Boucher presented as intoxicated, she was not served drinks.
In the view of the Board there is no evidence to suggest Ms Boucher ingested drugs at the end of the evening as opposed to just before entering the bar. In fact, the evidence would suggest that she ingested the drugs prior to entering the bar. In support of this contention, it is noted that no bar staff saw her ingest drugs, yet all staff called to give evidence seemed to know what Ms Boucher drank and where she drank it. Additionally, according to Ms Boucher’s doctors at the hospital, they stated that she had trace amounts of oxycotin in her blood indicating that her body had eliminated a lot of the drug.
Evidence suggests that Ms Boucher had a lot to drink in a short period of time. Ms Boucher stated she had a couple of drinks prior to attending Nikki’s. At this point one can only speculate as to what “ a couple of drinks” means. Suffice it to say, she had been drinking prior to arriving at Nikki’s. While at Nikki’s, we know she consumed at least one mixed drink, perhaps more. We also know she consumed several “shots” in a 20 minute period, an event described by Ms Gauthier as not responsible drinking. This in and of itself was the flag that should have led to staff intervening to prevent a patron from becoming intoxicated. This was not done. The Board heard no evidence from the bartender on duty that night as to how many shots he served Ms Boucher at the bar, or what her state of sobriety was at that time.
The Board is of the view that had Ms Gauthier or some other staff member intervened with Ms Boucher at the bar when she was consuming “shots”, they would have ascertained that Ms Boucher was intoxicated or becoming intoxicated. Staff never noticed Ms Boucher’s state of intoxication until later when she had returned from the bar to her table, where presumably she still had a mixed drink.
It is the Board’s opinion that Ms Boucher was under the influence of alcohol and drugs when she arrived at Nikki’s. While at Nikki’s she consumed a substantial quantity of alcohol. Staff did not monitor Ms Boucher even though in the mind of one staff member her drinking was irresponsible. By failing to properly monitor Ms Boucher while in the licensed premises, the Licensee permitted intoxication by failing to prevent it.
The Board FINDS that the Licensee has breached subsection 45(1) of the O.Reg.
Regarding the alleged breach of section 45.1 of the O.Reg. that there were reasonable efforts on the part of the Licensee to deter disorderly conduct, the Board finds the following.
Firstly, the altercation between the police and Mr. Payne, a patron of the licensed premises, and some of his friends was indeed disorderly conduct within the meaning of section 45.1 of the O.Reg. The circumstances in the case before the Board and those cited by the Licensee’s Representative are far different. In Island Jerk, it was a situation involving partiers that subsequently broke up. They were noisy but little else. In Shots Sports, the allegations were first and foremost that bouncers were obstructionist to the police and were alleged to not have followed the directions of the police to back off. In that case, the Board found that the Bouncers did as directed. In Section 222 Lotus Lounge, the circumstances again are different. In that case, it was established that the police did not require assistance, nor were they overwhelmed.
In the case before the Board, the police at one point were overwhelmed. In their evidence the police officers stated that it is common practice in Timmins for bouncers from the establishment to assist police in confrontations similar to the events of the night in question, and that it is not necessary for police to specifically request such assistance. In fact, officers in the past have received help from Bouncers at Nikki’s.
The Board does not accept the evidence of Mr. Hoffren that he simply believed Trevor Payne and his friend were going to the hospital. It is clear from the evidence of Cst. Beerman that Mr. Payne and his friends crashed out of the bar. It should have appeared to Mr. Hoffren, based on what had happened moments before in the bar between the police and Mr. Payne, that Mr. Payne and his friends were up to mischief, yet he did not even take time to look and see. He stated he was tied up with the unwanted female and that when he took her out after five minutes, he noticed police putting Trevor Payne in the police car. In the view of the Board, the unwanted female is an attempt to excuse the fact that Mr. Hoffren chose not to go out with Mr. Payne and the police. It was clear on a scale of priorities that events taking place outside far outweighed the need to immediately deal with the unwanted female.
The Licensee’s Representative points to the fact that when Cst. Chalmers arrived on scene, he wasn’t required. What the scene was like when Cst. Chalmers arrived has little relevance to what happened before he arrived. Clearly the police on scene were fearful for their safety. Based on the evidence of the police, the first minutes of the altercation between Mr. Payne and the police were indeed harrowing. The intervention of Mr. Payne’s friends further exacerbated a bad situation. In those few minutes had the police lost control of the situation it could have led to disastrous results.
It is the Board’s opinion that Mr. Hoffren knew or ought to have known when he saw Mr. Payne and his friends crash out of the bar that there was going to be trouble outside. He didn’t even look to see. Had he or other members of the bar’s security staff gone outside to assist, the danger to police would have been minimized and the situation resolved much quicker. The Licensee in the view of the Board failed in its duty to ensure that reasonable efforts were made to deter disorderly conduct.
The Board FINDS that the Licensee breached section. 45.1 of the O.Reg. by failing to ensure reasonable efforts were made to deter disorderly conduct.
Conclusion
For the above reasons, the Board FINDS that the Licensee contravened section 45.1 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 17th DAY OF January , 2011
KIRST HUNT, VICE-CHAIR, AGCO ALEX MCCAULEY, BOARD MEMBER