Registrar, Alcohol and Gaming Commission of Ontario v. 1751056 Ontario Inc., 2011 CanLII 19716

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-

1751056 Ontario Inc., operating as Fleur De Lis (Licensee)

DECISION

Panel: Allan Higdon, Board Member Jacqueline Castel, Board Member

Decision Date: March 29, 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: Tamara Brooks, Representative 1751056 Ontario Inc., Licensee: Leonard Smart, Representative

Authorities 1213963 Ontario Ltd. (Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] ONCA 323 Commercial Tavern case [1994] O.L.L.B.D. No. 522

Allegations

1A hearing into Order of Monetary Penalty (“OMP”) number 292, dated December 15, 2010, issued to 1751056 Ontario Inc. (the “Licensee”), operating as FLEUR DE LIS (the “establishment” or the “premises”), 355 Coxwell Avenue, Toronto, Ontario, M4I 3B8, liquor licence number 809941, imposing a monetary penalty in the amount of $1,750, on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg.”), prescribed under the Liquor Licence Act (the “LLA”), was held on March 9, 2011 in the City of Toronto.

Decision

2After considering all the evidence and submissions, the Board UPHOLDS the alleged violations contained in OMP and CONFIRMS the monetary penalties sought by the Registrar. Reasons follow.

Preliminary Matters

3The Board ordered that witnesses be excluded on consent.

Registrar’s Evidence

4Jade Leadbetter has been an AGCO Inspector since June of 2004. On Friday, September 10, 2010 Inspector Leadbetter conducted an inspection with Detective Sergeant Thompson at the establishment.

5They arrived at the establishment at 11:37 p.m. The establishment was quite busy. The owner of the establishment, Ms Wu, and her husband, were present.

6While standing by the bar area, Inspector Leadbetter noticed a man seated by the windows facing east exhibiting signs of intoxication. He was slumped over in his chair in an awkward position with his head almost touching the table. His motor skills were also slow. He had difficulty holding his mug of beer to his face and mouth. He was wearing a grey t-shirt with brown shorts.

7There was another man at the table who did not exhibit signs of intoxication.

8There was an empty pitcher of beer on their table. The intoxicated male had a mug of beer in front of him.

9Ms Wu told Inspector Leadbetter that the male she was observing is blind.

10Inspector Leadbetter approached the table where the two males were sitting and identified herself as an AGCO Inspector. She explained that she and her colleague were conducting a liquor inspection. The male who was not intoxicated told her that his friend is blind and referred to him as Phil. He was argumentative and suggested that she was picking on his friend because he is visually impaired. At one point he said, “Even if he is drunk, I’m looking after him.” He provided an Ontario driver’s licence, revealing his name as Antonio Raffaele Stanghi.

11Inspector Leadbetter touched Phil’s arm to let him know she was speaking to him. He was mumbling. She could not understand what he was saying. He could not provide coherent or intelligible answers to her questions. His speech was so slurred; he could not even say his name in a manner which she could understand. He also smelled strongly of alcohol. The only thing she could understand that he mumbled was, “Leave me alone.”

12Inspector Leadbetter asked Ms Wu how much beverage alcohol the male consumed. She told her that she served the two males one jug of beer. She also said they only arrived 15 minutes ago. Inspector Leadbetter did not believe that the males had only been there for 15 minutes, since she had been at the bar for at least 15 minutes and, the pitcher of beer on their table was already empty.

13When Inspector Leadbetter told Ms Wu about the infraction, Ms Wu said that business had been very bad and Friday nights was the only nights they were able to make any money.

14Inspector Leadbetter departed at 12:04 a.m.

15Inspector Leadbetter has taken Smart Serve training, as well as annual training on detecting signs of intoxication, among other things.

16On cross-examination, Inspector Leadbetter said she could not recall how much beer was in Phil or Mr. Stanghi’s glasses.

17Phil was slumped over until she approached the table. He sat upright to attempt to take a sip of his beer.

18She has encountered visually impaired individuals in her personal life and she is certain that she was not confusing signs of intoxication for visual impairment.

19She does not know whether Ms Wu asked Phil to leave after she spoke to her.

20Detective Sergeant Heather Thompson has been a member of the Ontario Provincial Police for 17 years, and she has worked for the AGCO’s Inspection and Investigation Branch for the last three years.

21She attended the establishment with Inspector Leadbetter at 11:37 p.m. on September 10, 2010. The establishment was fairly busy.

22Her attention was almost immediately drawn to a male seated at a table by the window. He was slouched over and making slow movements back and forth and side to side. His forehead was almost touching the table. He exhibited difficulty putting the glass of beer to his mouth. He was seated with another male, and each male had a glass in front of them. There was an empty pitcher of beer on the table.

23The Licensee approached Inspector Leadbetter and herself and told them that the male they were observing is blind. Detective Sergeant Thompson also noticed a white cane under the table.

24Inspector Leadbetter attempted to engage this male in conversation. He was completely unresponsive and mumbling, also laughing for no apparent reason. He was not able to provide his name, but his friend identified him as Phil and said he lived down the street.

25When Inspector Leadbetter asked Phil’s friend for identification, he was quite defensive. He stood up and leaned into Inspector Leadbetter. He provided an Ontario driver’s licence which identified him as Raffaele Stanghi. Mr. Stanghi said he would look after Phil and make sure he got home safely.

26Detective Sergeant Thompson witnessed Inspector Leadbetter inform the Licensee of the infraction. They departed at 12:04 a.m.

27She did not observe Mr. Stanghi and Phil depart.

28On cross-examination, Detective Sergeant Thompson sated that when she first observed Phil, he was slumped over in his chair and his head was almost on the table.

29She has had the opportunity to observe a lot of intoxicated people through her work and she has no doubt that Phil was intoxicated. She is certain she was not confusing signs of intoxication for visual impairment or tiredness.

30She made her notes while in the establishment at the time of her observations.

31She was not close enough to determine whether Phil smelled of alcohol.

Licensee’s Evidence

32Kaiqian Wu has owned the premises for three years. She and her husband John were working on the night in question.

33The establishment is very small. On Friday, September 10, 2010 the establishment was busier than usual.

34She told Inspector Leadbetter that the male in question is blind. She did not want to argue with Inspector Leadbetter because she respects her authority. However, she did not believe he was drunk. Even before he drinks he shakes his head.

35After Inspector Leadbetter spoke to her, she told Mr. Stanghi to leave with Phil. Mr. Stanghi argued with her and said they did nothing wrong, but she told him she would get in trouble with the liquor inspectors if they did not leave.

36She did not speak to Phil because he has a speech problem.

37She observed Phil leave the premises. He walked normally and was not staggering. She did not see him using a cane.

38On cross-examination, Ms Wu stated that she saw the inspectors when they entered, and she went over to talk to them almost immediately, as she was concerned they would think the blind male was drunk. If people did not know he was blind, they might mistake him for being drunk.

39Three years ago when Phil first started coming to the establishment she would not serve him liquor. Later, a woman who was with him told her that she should not hold the fact that he is blind against him, and he should be allowed to drink. So, she started to let him drink if he was with someone.

40Phil attends the establishment once or twice a month. He is almost always with someone.

41She wouldn’t serve him alcohol if he was alone. When pressed to explain why not, she said she was worried he wouldn’t be able to get home safely if he was drinking and alone.

42Phil has a speech problem. He is very hard to understand.

43Her employee, Annie Tamyunhal, was not at the establishment when the inspectors were present. Annie finished her shift at 10 p.m. She doesn’t recall when Annie left.

44She admitted that she spoke to the other witnesses about the testimony of the inspectors, specifically about how the inspectors described Phil.

45Annie Tamyunhal has been employed at the establishment as a server for two years.

46She has observed Phil at the establishment on previous occasions. Normally, she will only serve him one or two drinks.

47She was working on September 10, 2010. She remembers seeing Phil with a tall, male friend on this occasion.

48It is difficult to understand Phil because he mumbles.

49On cross-examination, she stated that she has never served Phil more than one pitcher of beer on any occasion. Phil is normally with a friend, and his friend would pour the beer.

50On September 10, 2010, she believes Phil and his friend arrived at around 11 p.m. She was getting ready to leave.

51The first time she observed Phil, he was seated at a table. She did not see him walk into the establishment.

52Raffaele Stanghi was asked to be a witness at this hearing the night before the hearing. He remembers the incident because he and his friend Phil were harassed by two liquor inspectors and nothing like this has ever happened to him before.

53He and Phil are friends. They see each other about once a month. He went to Phil’s house on September 10, 2010 at about 6 p.m. Phil said he was going to a bar and he decided to go with him. Phil was upset because his girlfriend left him.

54When pressed to specify the time, he admitted that he isn’t really sure about the time they left his house and arrived and the establishment. He said he is not the type of person who keeps track of or close watch of the time.

55At the establishment, he ordered a pitcher of beer for himself and Phil.

56As he was going to the bar, two women approached his friend. He only realized who they were later. They didn’t identify themselves.

57He stood up to protect his friend. He started getting agitated. The two women said they worked for the gaming commission.

58Phil is blind. He stutters when he talks and shakes his head like Stevie Wonder.

59Phil was perfectly fine when he left his house. He was not drunk.

60Phil consumed about one beer before this problem arose.

61On cross-examination, he stated that he and Phil were seated at the table in the establishment for about 15 minutes before the inspectors approached.

62The pitcher of beer was not empty when the inspectors approached.

63He did not know that Detective Sergeant Thompson was seated in the waiting area outside the hearing room with him.

64He denied that Mr. Selent, a potential witness who also prepared and signed the Licensee’s response to the Letter of Incident, told him what to say at the hearing while in the waiting area. Mr. Stanghi stated emphatically that no one tells him what to say anyway.

65Mr. Smart did not ask him for Phil’s phone number.

Registrar’s Reply

66Detective Sergeant Thompson was recalled to give reply evidence. She stated that while seated outside the hearing room, waiting to give evidence, she overheard a conversation between Mr. Stanghi and another witness.

67Initially, they introduced themselves to each other. It was clear that they had never met before. Mr. Selent then went downstairs and came back with coffee and pastries for himself and Mr. Stanghi.

68Detective Sergeant Thompson then heard Mr. Stanghi say, “I don’t understand why they care whether my friend was drunk because he wasn’t going to be driving.” Mr. Selent explained that the Licensee cannot permit anyone to be drunk in the establishment. Detective Sergeant Thompson then heard Mr. Selent say, “So you can’t say he was drunk. Say he was tired.”

69After the Board recessed for lunch, Mr. Smart asked for an adjournment so that he could attempt to reach Phil and ask him to testify before the Board. He indicated that he only reached Mr. Stanghi the night before the hearing and he did not think to ask him whether he had Phil’s phone number. If Phil could testify before the Board, then the Board could see for itself whether his physical characteristics could be confused for signs of intoxication.

70Ms Brooks objected to the adjournment. She submitted that the time to have requested an adjournment was before the hearing commenced. She further submitted that there are serious credibility issues in this case and to allow the adjournment would give the Licensee an opportunity to further taint the evidence.

71The Board denied the adjournment on the ground that it should have been requested prior to the commencement of the hearing.

Registrar’s Submissions

72Inspector Leadbetter and Detective Sergeant Thompson’s evidence was consistent and very credible. They have both been trained to recognize signs of intoxication. They were aware that the male in question was visually impaired when they assessed him as intoxicated.

73The male’s motor skills were impaired, he was slumping in his chair, his speech was slurred to the point of being incomprehensible, and he smelled of alcohol.

74Inspector Leadbetter testified that Mr. Stanghi told her on the night in question, “Even if he is drunk, I’m looking after him.”

75Mr. Stanghi’s evidence should be approached with caution. He was confrontational at the hearing when challenged about his evidence. Further, he was counseled by a potential witness about how to testify. This conversation tainted his evidence.

76Ms Wu also admitted to speaking to witnesses about the testimony of Inspector Leadbetter and Detective Sergeant Thompson, notwithstanding the order excluding witnesses. As such, little weight should be given to Ms Wu’s evidence as well.

77Presumably Ms Wu only let the male drink when he had a friend with him because she was worried he would get drunk and about his safety when drunk.

Licensee’s Submissions

78There were inconsistencies between the evidence of Inspector Leadbetter and Detective Sergeant Thompson. Inspector Leadbetter testified that Phil’s head was on the table, but Detective Sergeant Thompson only testified that he was slouched over.

79Since Phil and Mr. Stanghi both consumed the same amount of beer, they should have been equally intoxicated. Nobody alleged that Mr. Stanghi was intoxicated.

80Ms Wu stated that she only lets Phil drink if he has someone with him because she’s worried he will knock over glasses in a crowded bar. It is wrong to assume that she only lets him drink when someone is with him because she is worried he will get drunk.

81Mr. Stanghi was not admitting that Phil was drunk when he said, “Even if he is drunk, I’m looking after him.”

82Mr. Smart said he was shocked and embarrassed when he learned that Mr. Selent counseled Mr. Stanghi on how to testify. For this reason, he did not call him as a witness. Nevertheless, he submits that Mr. Stanghi’s evidence is not tainted.

83If Inspector Leadbetter and Detective Sergeant Thompson believed Phil was intoxicated they should have made sure he got home safely and Detective Sergeant Thompson should have arrested him for being intoxicated in a public place. There was insufficient evidence to conclude that Phil was drunk.

84Mr. Smart also provided the Board with copies of the Commercial Tavern case and argued that the inspectors made similar observations in this case and the Board concluded there was insufficient evidence of intoxication.

Reply Submissions

85Detective Sergeant Thompson testified that Phil’s head was almost touching the table. There was no inconsistency between the testimony of Detective Sergeant Thompson and Inspector Leadbetter on this or any other point.

86It is at the discretion of the officer to lay charges for being drunk in a public place.

87There was no evidence to support the argument that Mr. Stanghi and Phil drank the same amount and should have been equally drunk.

88The Commercial Tavern case is not applicable. First of all, there are not a lot of reasons for the Board’s decision in this case. Further, in this case, the individual who is alleged to have been drunk actually testified.

Analysis/Reasons/Findings

89The Board preferred the evidence of the Registrar’s witnesses to the evidence of the Licensee and its witnesses for the following reasons. The Registrar’s witnesses, Inspector Leadbetter and Detective Sergeant Thompson, gave clear, cogent and consistent evidence. They are both trained and experienced in recognizing signs of intoxication, took notes at the time of incident or shortly thereafter, and have no self-interest in the outcome of the case.

90Conversely, Ms Wu admitted to speaking to her witnesses during the break about the evidence of Inspector Leadbetter and Detective Sergeant Thompson, nothwithstanding the order excluding witnesses. Ms Wu also has an obvious self-interest in the outcome of the case.

91Further, Detective Sergeant Thompson testified that she heard a potential witness counsel Mr. Stanghi in the waiting room about how to testify thereby tainting Mr. Stanghi’s evidence. Further, Mr. Stanghi, did not take notes at the time of the incident or shortly thereafter. He only learned that he would be testifying at the hearing the night before and his recollections were vague and imprecise.

92Ms Tamyunhal’s evidence was not helpful as she did not see the patron in question enter the establishment and she left before the inspectors arrived.

93For a finding under subsection 45(1) of the O.Reg there is a two part test. First, it must be established that the patron was drunk. And second, it must be established that the Licensee permitted the drunkenness. (Sin City – Ontario Court of Appeal).

94Based on the evidence of Inspector Leadbetter and Detective Sergeant Thompson, the Board is satisfied, on a balance of probabilities, that the patron in question was drunk for the purpose of the first part of the test under subsection 45(1). Inspector Leadbetter and Detective Sergeant Thompson testified that the patron exhibited a number of signs of intoxication including, slouched over in his chair with his forehead touching or almost touching the table; poor motor skills; slurred speech; inability to respond to questions in a comprehensible manner; and laughing for no apparent reason. Inspector Leadbetter, who was standing close to the patron, also testified that he smelled strongly of alcohol.

95Inspector Leadbetter and Detective Sergeant Thompson were aware that the patron was visually impaired when they were assessing him for signs of intoxication; when asked on cross-examination, they were adamant that they were not confusing signs of intoxication for visual impairment or tiredness. Indeed, the Board found the Licensee’s argument that the patron’s visual impairment had the appearance of intoxication to be troubling, unsubstantiated and self-serving.

96Mr. Smart is correct that Mr. Stanghi may not have been admitting to his friend being intoxicated when he told Inspector Leadbetter, “Even if he is drunk, I’m looking after him.” However, Detective Sergeant Thompson also testified that she heard Mr. Stanghi say in the waiting room on the day of the hearing that “I don’t understand why they care whether my friend was drunk because he wasn’t going to be driving.”

97Mr. Smart’s submission that the patron in question and Mr. Stanghi consumed the same amount of beverage alcohol was also not substantiated. There was no evidence about how much beverage alcohol the patron consumed prior to arriving at the establishment and only limited evidence concerning how much he consumed at the establishment. Even if they did consume the same amount of beverage alcohol, the assertion that the alcohol would have the same affect on the two individuals was also unsupported by the evidence.

98Further, as Ms Brooks noted, the fact that Detective Sergeant Thompson did not charge the patron with intoxication in a public place has no bearing on whether or not he was in fact drunk. It is at the officer’s discretion to lay such charges and typically such charges are only laid when there is a concern for the intoxicated person’s safety or the safety of others. In this case, Mr. Stanghi said that he would ensure that the patron got home safely.

99For, the purpose of the second part of the test under subsection 45(1), Ms Wu was aware that the patron in question was in the establishment and of his appearance and behavior. In fact, she pointed the patron out to Inspector Leadbetter and Detective Sergeant Thompson shortly after they entered the premises and told them he was visually impaired. Given Ms Wu’s responsibilities, as a Licensee under the legislation, the Board is satisfied that she knew or ought to have known that the patron was drunk and thereby permitted the drunkenness. Therefore, the second part of the test under subsection 45(1) has also been met.

100The Board agrees with Ms Brooks that the facts of the Commercial Tavern case are distinguishable from the present case. As such, this case is not helpful or applicable.

Conclusion

101For the reasons given, the Board UPHOLDS the alleged violations contained in OMP number 292, issued to 1751056 Ontario Inc., operating as FLEUR DE LIS, 355 Coxwell Avenue, Toronto, Ontario, M4I 3B8, liquor licence number 809941 and CONFIRMS the monetary penalties sought by the Registrar in the amount of $1,750. 00.