Editor’s Note: Corrigendum released January 13, 2011. Original judgment has been corrected, with text of corrigendum appended.

ALCOHOL AND GAMING COMMISSION OF ONTARIO

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

B E T W E E N:

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

803858 BC Ltd. operating as London Tap House (The) Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair, AGCO Joan Lougheed, Board Member

Decision Date: January 10, 2011

Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario, M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Rena Khan, Representative 803858 BC LTD., Licensee ) Joseph Gibbons, On behalf of the ) Licensee

Authorities

1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission) [2009] O.J. No. 1553

Allegations

1A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 234 dated May 26, 2010, issued to Licensee 803858 BC Ltd. operating as LONDON TAP HOUSE (THE), 250 Adelaide Street West, Toronto, Ontario, M5H 1X6 (the “establishment” or the “premises”), liquor licence number 801878 (the “Licence”), pursuant to section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, in respect of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on October 26, 2010 in the City of Toronto.

Decision

2After considering all the evidence and submissions, the Board CONFIRMS the Registrar’s decision that the Licensee has contravened subsection 45(1) of the O.Reg as alleged in the OMP and CONFIRMS the monetary penalty sought by the Registrar. Reasons follow.

Preliminary Matters

3Joseph Gibbons, one of the principals of the corporate Licensee, attended the hearing, and on behalf of the corporate Licensee waived its right to legal counsel and indicated he was prepared to proceed without a legal representative.

Registrar’s Evidence

4Peter Harmsen, a Detective with the Toronto Police Service since June 1975, attended the London Tap House on January 1, 2010.

5It was the New Year’s and he and his team entered the premises at 12:08 a.m., after identifying themselves to the door staff. They conducted a walk through, taking note of the bartenders at work and observing the patrons on the dance floor.

6Walking past the bar to the area of the pool table, he noted security staff at the Adelaide Street door and at the stairs to the second floor. He observed bar-back staff cleaning up bottles and glasses.

7On the south-east side, in a booth in the VIP area, he saw a young woman lying on her back on a bench in the booth. He observed her for about one minute, before stepping in to assess if there was a medical problem or whether she was intoxicated.

8He approached the female patron and noted that the floor was wet and there was broken glass on the floor.

9The female had a strong smell of alcohol on her breath. He tried to wake her up and get her to sit up with the assistance of his partner. She vomited when she sat up and could not tell him where her identification was. She required the help of a friend to get the identification. He noted that she was with a large group.

10At this point, the General Manager, Seamus O’Brien came to the booth

11Detective Harmsen stated that two friends helped the female sit up. He noted that her speech was slow and slurred and that she did not have any footwear. He did not want her walking out with the broken glass on the floor and the footwear was found.

12He confirmed that she was 19 years of age at the time and decided not to arrest her, since her companions were capable of taking care of her.

13Detective Harmsen went to speak with the Mr. O’Brien, stating his concern about the safety of vulnerable females.

14He noted that staff had picked up the bottles in the VIP area and felt that they should have seen the female at the time.

15He noted that the establishment was “fairly full” when the team arrived and felt there was sufficient staffing for security. Two security were seen in the immediate area of the VIP seating, one was near the door leading to Adelaide Street and the second was positioned near the pool table in the area of the VIP seating. He noted that there is a small dance floor in the middle of the booth area with seating around the perimeter.

16He stated that one security could definitely see the VIP area, being positioned about 4 to 4 ½ metres from the booth and the other could both monitor the dance floor and see around a post to the booth.

17The witness stated he did not recall the exact conversation with Mr. O’Brien that night but recalled talking about the young lady and telling him that the staff should have seen her state of intoxication.

18He stated that the female patron left with friends, accompanied outside by door staff.

19On cross-examination, Detective Harmsen stated that security were located in the pool table area, in the vicinity of a pillar. He observed security people on the landing at the entranceway and outside. He noted that there is always security at these locations.

20In response to questions from the panel, Detective Harmsen stated that there were two teams of three or four officers working in the Entertainment District that night.

21They did not have an AGCO Inspector with them. They were not in uniform, but did wear a badge. He stated he was familiar with the premises and did know Mr. O’Brien.

Licensee’s Evidence

22Christopher Badyk started working for the company in 2002 in Vancouver, and moved into management within two years. He has worked at a number of sites but started working in Toronto on April 6, 2010.

23He stated that he understands the liquor laws and the importance of never permitting drunkenness.

24He indicated that over the years he has had hundreds of contacts with enforcement officers and there have never been any charges. He communicates well with officers and tries to work closely with them.

25Mr. Badyk stated in his business it is important to be alert to intoxicated people, who may be pre-drinking, using drugs or fatigued. He noted that in the Entertainment District, a younger crowd prevails and that they tend to pre-drink.

26He is in communication with management and staff every day. They recite a daily pledge not to over serve. All staff must have their Smart Serve and all bar staff must have their security licence as well. They huddle every Saturday night to address getting any patron, who has been drinking, home safely.

27Mr. Badyk stated he was not working at this site when the event occurred.

28He stated that police have said that they are one of the better bars in the district. He stated that they continue to make progress and in fact, some officers offered to give a positive review, if needed for cases.

29On cross-examination he stated that he was aware that they are not permitted to allow an intoxicated person into the establishment and not allowed to serve them.

30In answer to questions from the panel, Mr. Badyk stated that a person who was pre-drinking, may get past security, because there would be a window of time when the they would appear “normal” at the door. He stated that security always check identification so they can observe for signs of intoxication, such as glazed eyes and slurred speech.

31Seamus O’Brien has worked for London Tap House group for 3 years, starting in 2007 in the London location. He accepted the role of Assistant Manager in 2009 and in April 2010 he became the General Manager.

32He stated that the company is very strict about rules. There are staff meetings three times a day that occur for the area and nationally. They start with a pledge.

33Referring to Exhibit #1, a staff manual, he stated that every employee gets this handbook designed for the position and they must sign it and review it annually. If the rules are broken, the person is let go.

34Referring to Exhibit #2, the London Tap House Employee form he stated that employees sign a non-negotiable contract, and are Smart Serve certified.

35Employees are required to ID everyone, and to make sure anyone showing signs of intoxication, gets home safely.

36On January 1st, 2010, it was just past New Year’s Eve, when he was notified at 12:02 or 12:03, by his assistant, that police were entering the building. He greeted them at the second floor landing where one officer pointed out that the floor was messy with glassware and confetti. The staff were notified and immediately started to clean up.

37He was then notified by staff that the police were in the VIP area. He went to this area and saw a female patron with police. The female looked like she had just vomited. He got her a drink and got her cleaned up.

38Mr. O’Brien stated that the premises were a mess when police arrived. He said that they decided to plan for a big celebration for New Year’s and had just fired confetti cannons off from the second level. This made the floors a mess for a short period of time. Staff were cleaning up to make sure the floor was clean and not slippery for patrons.

39He was not aware of the female patron in the VIP area. He stated this was probably because they were focussed on cleaning.

40After the incident, he checked the camera system and noted that she was seen dancing with friends. She had been sitting on the couch for about two minutes when the police entered the area. He did not see a glass near her.

41When asked if the fact that police observed the female first, was a fluke, he said yes and that a situation like this had never happened before.

42He stated that they do not have shooter girls in any location and do not promote bottle service. Bottle service is done, but it is expensive.

43He indicated that a person would not see the booth clearly from the area of the pool table.

44On cross-examination the witness stated that a reservation is not required for any of the three booths. He did not recall if there was bottle service to the booth on the night of the incident.

45Mr. O’Brien indicated that he was not with police during the inspection, and was letting them do their job.

46He reviewed the one camera that is on the booth, after the visit by the police and did not see a glass within arm’s reach of the female patron.

47He did not keep the tape since he did not know there would be possible charges until a few weeks later.

48In reply the witness stated that this is the first time he has been through this process and at the time did not think to save the tape.

49In response to questions from the panel, Mr. O’Brien described the booth in detail, indicating it seats twenty persons and has standing room along an outside wall.

50He was at the booth between 11:00 and 11:30 p.m. that evening and had observed the female for about two minutes. Later he was stationed near the audio booth to oversee the New Year’s celebration.

51He did not recall the whole conversation with Detective Harmsen and a female police officer. He recalled being asked how long they were staying open and indicated to police that they did not use extended hours.

52He stated security at the Adelaide entrance might see the booth, depending on where they are standing. Normally someone is assigned in the area that would see the booth area.

53He stated that they were fully staffed that night and it is likely the female was not seen as they were busy cleaning up after the celebrations.

54Joseph Gibbons stated that some of the information that he received relating to this allegation referred to the history of a previous owner.

55He stated that was important because he was told that permitting drunkenness had occurred before and therefore the officers were compelled to lay charges.

56He stated that his father started the company thirty years ago and that they have sites in Ontario, Quebec and British Columbia. In thirty years they have never been fined.

57He understands that the Entertainment District has a reputation and understands that police have a tough job in the area.

58He stated that there is zero tolerance for breaking rules in the company. They do not push capacities and they do double ID checks because of the number of young people. Patrons may be required to show two pieces of identification.

59Mr. Gibbons stated that they have spent a couple million dollars to improve the inside and want to earn and keep the respect of the police.

60When police pointed out the mess on the floor, all staff were radioed that night to get busy and get the place clean.

61On cross-examination Mr. Gibbons stated that he has frequent contact with the staff across the country at all their locations, including London, Hamilton, and Toronto.

62He has cameras in all the business locations, so he can monitor the sites from British Columbia. He did not recall reviewing the tapes for The London Tap House from January 1, 2010.

63He stated that the server for the booth and the two security close by the booth were not interviewed following the incident.

64In reply, he stated that in retrospect he was naive and should have saved the camera footage.

Registrar’s Submissions

65Ms Khan stated that the officer arrived at 12:08 a.m. and shortly thereafter observed a female lying in a booth. The officer had to shake her to wake her up. She smelled of alcohol, had slurred, slow speech and needed the support of friends to sit up. The female had no shoes on.

66She stated that Mr. O’Brien had confirmed that they had full staff on duty that night and that a security person was in the area of the booth.

67This person was not present when police first observed the female and only came after. No one working in the area was questioned or interviewed by Mr. O’Brien about what happened.

68Mr. O’Brien did review the cameras, and in the two minutes of tape that he watched, he did not see her consuming alcohol or see alcohol beside her.

69Mr. Badyk was not employed on the date of the incident and the camera recordings were not presented as evidence.

70Mr. Gibbons says he runs the business with a hands-on approach even though he does not live in Ontario.

71He indicated that he diligently reviews the tapes, but did not review the tapes for this night.

72He indicated his staff work under strict policies, but he said none of the staff was interviewed.

73The evidence presented by the Licensee only related to the way they want to run the premises.

74Referring to the Sin City ruling, Ms Khan stated that under subsection 45(1) of the O.Reg, it must be shown that the patron was drunk on premises, and that the Licensee permitted it, that is, they knew or ought to have known about the drunkenness.

75The evidence is clear that the female patron was intoxicated. When Detective Harmsen woke her up, she vomited, had a hard time sitting up and had alcohol on her breath.

76On the issue of “permit,” that there were several staff in area of female patron; a bar-back came into the area to clean up while she was passed out on the bench and there were two security in close proximity. No staff went to her. They should have seen her, just as the officers saw her immediately.

77Drunkenness has been proven on a balance of probabilities and the Registrar is asking that the monetary penalty be upheld.

Licensee’s Submissions

78Mr. Gibbons stated that on the issue of drunkenness, no one saw anything that was abnormal and therefore would not have taken any action.

79Police did not ask the female patron how much she had to drink and they shook her, possibly causing the vomiting.

80Mr. Gibbons presented a definition of ‘permit’ that states it is ‘to consent to or permit it, expressly or formally.’ He stated that drunkenness would not be permitted on the premises.

81He stated that Mr. O’Brien said the officers came in moments after the midnight celebration with the confetti canons. At this time the team radioed staff to do clean up and it was also the same time that the female would have laid down on the bench only to be found there by the officers.

82He stated that the security person located near the pool table was actually around the corner, on the other side of the pillar. The second security person, within that two minutes could have been busy elsewhere.

83He knows that staff would not have permitted that person to stay; the female patron would have been asked to leave.

84The Toronto business has never permitted drunkenness to occur nor would it permit this. He stated this was a fluke set of circumstances – the woman laid down for a few minutes, just at the time police entered. The Licensee would not have let this happen and would have ensured she was escorted out and safely sent home.

Registrar’s Reply

85Ms Khan noted that the inspection was being done minutes after the arrival of the New Year and that the establishment had set off confetti canons as part of the celebration, but the issue for the Board is not one of cleanliness of the premises.

86The Registrar submits that the settled law for the two part test has been established by the Registrar’s evidence.

Analysis/Reasons/Findings

87The Board has carefully reviewed and considered the evidence, exhibits and verbal submissions of both parties in this matter. The witnesses gave their evidence in an open and credible manner.

88The Board notes that in the matter of monetary penalties, the hearing gives the Board the opportunity to consider evidence and either dismiss the allegation or uphold the penalty.

89While the Board may have reservations about the amount of the penalty imposed, the Board does not have the authority to amend the dollar amount of the penalty.

90It was clear from the evidence presented by the Licensee that the company strives for a high degree of responsible action in the sale and service of alcohol. The Licensee indicated that they have had thirty years of operation at various sites across the country and have never had to respond to allegations for violations of the liquor laws

91They are to be commended for this exceptional record and for their proactive approach.

92Testimony was presented in a forthright and open manner to demonstrate their diligence to ensure staffs are well-trained, and are Smart Serve certified, security licensed and responsive to the company goals. The regular staff meetings and ongoing support has been a proactive approach that no doubt is a strong factor in their positive record to date.

93The Board recognises that as Mr. O’Brien stated, he has not been through this process before and may not have had experience to know the importance of saving the tapes and interviewing his staff about the incident. This may have been further complicated by the fact that the Licensee was not informed about the possible allegations until a few weeks later.

94In reaching a decision, the Board considered two key issues. The first is whether a patron was in fact intoxicated on the premises and the second is whether the Licensee permitted drunkenness.

95Detective Harmsen gave clear and undisputed evidence of intoxication. The female was lying on her back, and needed support to sit up. The female patron had the odour of alcohol on her breath, slurred speech and vomited when she sat up. The patron needed the assistance of a friend to locate her identification.

96The female was escorted out by security and supported by her friends.

97The Licensee did not present any evidence to the contrary. The recordings of the evening were not saved or presented in evidence and the only witness who was present that night was the General Manager, Mr. O’Brien, who did not dispute the condition of the female in his evidence. He came to the VIP booth later and was not one of the staff assigned to work in this area.

98The Board accepts the clear evidence that the patron was intoxicated.

99In considering the question of whether the Licensee “permitted” drunkenness, the Board considered whether the Licensee knew or ought to have known that a patron was drunk, as is an obligation of the Licensee under the relevant legislation and regulations.

100The Licensee gave evidence that the premises were fully staffed for the New Year’s celebrations. From the evidence of all the witnesses it is clear that staff for the VIP area included at least a server and a bar-back for clearing tables. There were two security who were stationed, one by the Adelaide entrance and one near a pillar by the pool table and within the area of the VIP booth. Given the fact that Detective Harmsen and his team noticed the female patron lying on the bench of the booth shortly after entering the premises, it is reasonable to assume that all of the staff in the area would have or should have had the same opportunity to observe the patron.

101The Board acknowledges that the staff may have been temporarily distracted with the immediate clean-up from the celebrations, but it is the view of this Board that monitoring the alcohol consumption and watching for signs of intoxication of patrons is a responsibility that is required throughout the night and is never pre-empted by activities such as clean-up.

102The Board gave consideration to the definition of ‘permit’ as presented by Mr. Gibbons, but notes that the dictionary definition does not fully reflect ‘permit’ as defined in law and articulated in the Sin City decision.

103In considering all the circumstances and evidence, on a balance of probabilities, the Licensee knew or ought to have known that the female patron was intoxicated.

Conclusion

104For the reasons given, the Board CONFIRMS the Registrar’s decision that the Licensee has contravened subsection 45(1) of the O.Reg as alleged in OMP number 234, issued to 803858 BC LTD., operating as LONDON TAP HOUSE (THE), 250 Adelaide Street West, Toronto, Ontario, M5H 1X6, liquor licence number 801878 and CONFIRMS the monetary penalties sought by the Registrar in the amount of $2,000.

DATED AT TORONTO THIS 10TH DAY OF JANUARY , 2011

PATRICIA McQUAID, VICE-CHAIR, AGCO JOAN LOUGHEED, BOARD MEMBER

January 13, 2011

Joseph Gibbons c/o London Tap House (The) 250 Adelaide Street West Toronto, Ontario M5H 1E6

Dear Mr. Gibbons:

Re: LONDON TAP HOUSE (THE) Licence Number 801878 Decision dated January 10, 2010

Please note that due to a typographical error, the date in the Board’s Decision dated January 10, 2010 was entered incorrectly on the cover of the decision and the concluding page. The date should read January 10, 2011.

Pursuant to Rule 2.6 of the AGCO Revised Rules of Practice, the Decision has been corrected to read as follows:

“DATED AT TORONTO THIS 10TH DAY OF JANUARY, 2011”

No action is required on your part. Should you have any questions, please contact me at 416-326-0361.

Sincerely,

Corry Allard Decision Preparation Co-ordinator Hearings Department

cc. Rena Khan, Registrar’s Representative, fax: 416-326-5574