DECISION

Panel: David C. Gavsie, Former Chair, AGCO Joan Lougheed, Board Member

Decision Date: May 5, 2011 Hearing Location: Windsor, Ontario

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

Appearances

Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative 1614804 Ontario Inc., Licensee ) Karl Melinz, Representative

Exhibits

Exhibit #1 - notes of PC Bortolon Exhibit #2 - affidavit signed by E.K.

Allegations

A hearing into Notice of Proposal number 18299 dated September 22, 2010 to suspend liquor licence number 202698 (the “licence”) issued to 1614804 Ontario Inc. (the “Licensee”) operating as COLCHESTER BAR & GRILL ROUTE 67, 67 County Road 50 West, R.R.3, Harrow, Ontario, N0R 1G0 (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”), was held on January 28, 2011 in the City of Windsor.

Decision

After considering all the evidence and submissions, the Board DISMISSES the allegations. Reasons follow.

Preliminary Matters

The Board ordered the exclusion of witnesses on consent of the parties.
Mr. Melinz submitted an affidavit from E.K. who was unable to attend due to health concerns. The Registrar had no objection under the circumstances and it was accepted by the Board as Exhibit #2.

Registrar’s Evidence

James Markham, an Ontario Provincial Police (“OPP”) officer since February 2000, arrived at the establishment on Jun 26, 2010 at approximately 3:15 a.m. He was following up on a domestic investigation and was told that the male party might be at the establishment.
He attended the premises, but did not go inside. He spoke with a female, E.K., at the door. Constable (“Cst.”) Markham stated that it was evident that she was intoxicated. He observed slurred speech, the odour of alcohol on her breath and red, bloodshot eyes. E.K. had difficulty spelling her last name. She summoned the male, Chris Morand, who was inside the establishment.
Cst. Markham stated that when talking with Mr. Morand, it was apparent that he was “slightly intoxicated”. He observed red, bloodshot eyes, slurred speech, and the odour of alcohol on his breath.
Both people were co-operative. When he talked to Mr. Morand about the domestic matter, he was co-operative and forthcoming with his information.
While standing outside, Cst. Markham saw three or four people still inside the establishment. He did not see any evidence of alcohol and did not enter the premises to ask what they were doing inside at 3:15 a.m.
After speaking with Mr. Morand, he left the scene.
On cross-examination, the witness was asked about the differing terms used to describe the intoxication of the individuals, saying that the written report stated E.K. was “extremely intoxicated,” but the notes stated she was “very intoxicated” and that Mr. Morand was “very intoxicated” but in testimony said he was “slightly intoxicated.”
Cst. Markham stated that E.K., on a scale of intoxication, would be eight out of 10, and Mr. Morand would be a five or six out of 10.
He confirmed that he was not sent to the establishment to investigate the Licensee. He received the call for a domestic investigation at 2:06 a.m., and went to the Colchester after completing an earlier call.
His investigation indicated that E.K. had driven Mr. Morand and his female partner home and then E.K. drove Mr. Morand back to the bar.
Cst. Markham was not aware of any medical issue that would affect the speech of E.K. He confirmed that the outside restaurant lights were off, but that he could still see the bloodshot eyes of the two people that he spoke to outside.
E.K. was known to him to be a staff person at the establishment, but he did not know if she was working that night.
When asked about the videotapes from the establishment, Cst. Markham stated that he was not sure if there was video surveillance, and although he saw obvious signs of intoxication, he was not there for this purpose and stated it was not relevant to ask for tapes as part of his investigation that night.
In response to questions from the Board, he stated that he talked to the two people for about 10 minutes and did not follow up with the other people seen inside the establishment.
Rich Bortolon, is a Constable and has been with the OPP for 16 years. On June 26, 2010, he attended the establishment in a marked patrol unit.
Around 2:06 a.m. he and his partner attended a residence at 32 Harrison Street in Colchester Village, following a 911 call. Cst. Markham arrived first and they went to 32 Harrison Street together. They spoke with a female, Ms V., about boyfriend problems.
Cst. Bortolon said it was clear that Ms V. was upset and wanted E.K. arrested for drunk driving. She felt that E.K. and Mr. Morand were drunk and E.K. should not have been driving to the bar. Ms V. wanted the officers to go to the bar and tell Mr. Morand to go home.
On arriving at the establishment, he observed some people inside. Two people came out at the request of Cst. Markham. They appeared to be very intoxicated. Mr. Morand was swaying side-to-side, had slurred speech and did not make sense when responding to questions. E.K. was unsteady, her eyes were glassy and words slurred.
Mr. Morand told the officers that he was not going back to Harrison Street. Cst. Bortolon was satisfied with this. No further action was required, in relation to the domestic call.
On cross-examination, on Exhibit #1, his notes from that night, PC Bortolon accepted that his notes did not address any allegations. He stated that they had a pre-conceived idea of the two people being intoxicated before arriving, having spoken to Ms V. of intoxication
No sobriety test was administered.
Cst. Bortolon stated that he may have gotten E.K.’s date of birth from the computer system, after being at the establishment.
When asked if the two people at the premises were questioned separate or together, Cst. Bortolon stated that they were both present outside the establishment. He stated that Cst. Markham and he had separate cars, but he was “pretty sure” that they were there together.
He confirmed that he saw lights on inside the bar, but did not recall any lighting being on outside the establishment. He said that there was a streetlight He did not know if there were video surveillance cameras. He stated that Cst. Markham received the call and he went to help, but had no other responsibility on the case.
In response to questions from the Board, Cst. Bortolon stated that he did not remember how many were observed inside the premises, but the people he saw may have been Mr. Morand and E.K.
He did not see any alcohol and did not speak to the Licensee or anyone else at the establishment.
Inspector Kevin Holman, a former police officer, has been with the Alcohol and Gaming Commission of Ontario (“AGCO”) since 2006. He received the police report on June 29^th and did follow up by telephone, speaking with the Licensee on June 29^th and July 5^th 2010 about an occurrence dated June 26, 2010.
Ms Appleby, the principal of the Licensee, was advised of the report, and was given names, times and details. She asked for several days to look into the matter.
On July 5^th, Inspector Holman followed up by phone. Ms Appleby confirmed that E.K. was an employee, but not working that night.
The Licensee told him that Ms V. was the girlfriend of Chris Morand and that she had called the police, asking them to go to the establishment. The person working that night told her that at 12:30 a.m. there was a domestic argument in the premises between Ms V. and Mr. Morand. They left the premises and went across the street. E.K. went out and brought Mr. Morand back to the premises. Ms V. went and stayed home.
Inspector Holman stated that he advised the Licensee of the details of the police report. During the conversation of July 5^th, he stated that the Licensee did not deny the intoxication of the two people and the Licensee was told that a report would be submitted.
On cross-examination, Inspector Holman stated that he was not present on June 26, 2010, but had received information from the police and would have interpreted their report. He was not aware if the bar had video surveillance.
In August, he spoke on the phone to the Licensee, telling Ms Appleby that if she wished to apply for an extension of her licence, she would have to address the matter of dealing with over-service in order to obtain approval.
In response to Registrar’s Counsel, Inspector Holman stated that Ms Appleby never indicated that she had a video system in place. If she had, he would have asked to see the tapes.

Licensee’s Evidence

Chris Morand stated that he and Ms V. were together for about nine months. They resided at his address. He never considered her a common-law spouse.
He had been working all day, putting in long hours. On June 26^th he and Ms V. decided to walk down to the bar around midnight. The bartender, Michelle Ann Garvey., served them each two drinks. They were in the establishment until approximately 1:30 a.m. – 2:00 a.m.
Mr. Morand stated they did not get along very well and on June 26^th, they were arguing when they decided to leave and walk home after 1:30 a.m. Mr. Morand stated that they were “arguing terribly”. E.K. came out to calm them down so the neighbours would not be disturbed. She was not successful and got her truck to pick them up and drive them home.
Mr. Morand did not have any concerns about her ability to drive them home.
When E.K. dropped them off, Ms V. was very angry. Mr. Morand gave her a key and said he was going back with E.K. and would be staying at the home of Michelle Garvey.
At the bar, he was inside waiting for Michele Garvey to finish cleaning up and planned to go with her and her common-law partner to stay the night. No drinks were served, as it was after-hours.
At approximately 2:00 a.m. the police came to the door, asking for him. The police told him that Ms V. wanted them to make sure he was ok. He told the police that he was not going back to his house that night and stepped back inside. At no time did the police comment to him about his state of sobriety.
Mr. Morand stated that his eyes may have been bloodshot, but it would have been due to being very tired, having worked long hours. It was late and he was ready for bed.
He stated that he did not drink before going to the bar. Michelle Garvey served him two drinks and said that if Ms V. said anything else, she was not telling the truth.
On cross-examination he stated he had two mugs of Old Vienna beer at the establishment. He had been working afternoons and finished work at 11:00 p.m.
His witness statement was prepared about two months before the hearing, after being informed that the AGCO was investigating events of the evening. He wrote, from memory, what he could recall of the evening.
Mr. Morand stated he considered himself a moderate drinker and recently has not been drinking at all.
In response to questions from the Board, Mr. Morand stated that he lives about 1½ blocks from the establishment and it is about a five minute walk.
He thought that E.K. was inside the bar when he went outside to speak with the OPP officers.
He confirmed that he did not have anything to drink before consuming the two mugs of beer at the bar.
Michelle Anne Garvey lives with her common-law spouse, Chris. She has been a bartender at this establishment for four years and is Smart Serve certified.
She knows Mr. Morand and Ms V. and recalled serving them each two drinks on the night in question during the 1½ hours they were in the establishment, having arrived around 12:00 a.m. and leaving around 1:30 a.m. While there, they were arguing, but were not intoxicated.
E.K. entered the bar just as Mr. Morand and Ms V. were leaving. They were walking home. While on the patio, having a cigarette, she could hear them arguing down the street.
She recalled that E.K. confronted the two of them and, after getting her vehicle, went with them back to their house. E.K. and Mr. Morand were back to the bar a short time later.
Ms Garvey stated that she served E.K. one drink. E.K. was not intoxicated and had come to the bar late, between 1:00 a.m. and 1:30 a.m.
When Mr. Morand and E.K. came back around 2 to 2:30 a.m., the bar was closed. She stated that her partner, Chris, Mr. Morand, E.K. and herself were the only ones inside. She invited Mr. Morand to stay at her house so he and Ms V. would not argue further.
Ms Garvey stated that E.K. was diagnosed with throat cancer and had a sick husband. Her raspy voice became worse with her illness. She had no concerns about E.K. driving home.
She stated that when police came to the door, E.K. went out to talk to them and then called Mr. Morand to go outside to speak with the police. The police never came inside. The outside lights were off at 2:00 a.m.
Ms Garvey confirmed that there are surveillance cameras inside and outside the building. She never had any contact with Inspector Holman
On cross-examination, Ms Garvey stated that she walks home, living kitty corner to the bar. She heard that the licence was at risk in August or September.
Ms Garvey stated she did not know when the Licensee, Ms Appleby, became aware of the allegations.
Ms Garvey stated that she did not think anything was wrong, in relation to that night, until the letter arrived.
The licence extension would have been for an annual pig roast with the application being submitted before the letter was received. The extension was granted for 2010 and to her knowledge there was no other extension request for 2010.
Ms Garvey thought that Mr. Morand and Ms V. were drinking mixed drinks, of rye and coke, that night. She served two drinks to each. As there was no food served, there would be no table check.
She thought the police arrived at the bar after it closed, around 2:30 a.m. E.K. answered the door and spoke with the police for about ten minutes and then Mr. Morand did the same. They were not outside together.
When the police left, Mr. Morand and E.K. told Ms Garvey that Ms V. had called the police. She did not report the incident to the owner since the incident did not relate to the bar.
Julie Lynn Appleby is the sole owner of the establishment. It has been operating for seven years. She is Smart Serve certified and recently went to an educational seminar provided by the AGCO.
Ms Appleby stated that Ms Garvey was the only bartender working on the night of the incident. She would have stopped service at 2:00 a.m. Closing can take up to an hour.
E.K. was employed at the establishment until diagnosed with throat cancer in March. A problem was noticed in her speech before she was diagnosed.
In June she stopped working, as she was unable to continue due to treatments and chemotherapy.
She outlined staff training: a handbook with the latest quarterly newsletters, staff meetings, and ensuring all are Smart Serve certified. Presently, there are only two other employees, along with the Licensee.
She stated that surveillance cameras are in place and she was certain that the inspectors knew this. The system records to a DVD and automatically erases when at the end.
She indicated that on June 27^th or 28^th, she spoke with Inspector Holman, and asked for time to investigate the incident. She spoke with him once after that, when he indicated that he would be sending a report to the AGCO. If she had known there would be further action she would have saved the tape.
She told the inspector that a domestic dispute had occurred in the bar and that it continued on the street. She reported this to Inspector Holman in July.
The application for an extension for the pig roast was submitted in mid-July. Staff at the AGCO told her there were no objections and they were waiting for some information from a clerk. Ten days later she learned there was a problem and called Inspector Holman right away. He told her that the reports had been filed and that there must have been a reason found for the allegation to be filed. He said that he must file a report if police come to a bar.
She was told, by the inspector, that she needed to submit a plan to prevent drunkenness at the pig roast.
By the end of August she was no longer able to retrieve the video and felt that the police had not investigated any concerns for drunkenness and did not know all the circumstances.
On cross-examination, she stated that she spoke to Ms Garvey after the incident, but did not realize there was a problem until too late. The Licensee was not working that day.
When asked why Ms Garvey did not know about the allegations until August, Ms Appleby stated that her employee did not recall the conversation.
She indicated that the cameras are only installed inside the premises, not outside. Since nothing happened inside, there was no reason to view the tape. She interviewed the people involved and after giving a verbal phone report to the inspector, she said that there was nothing to indicate he was not satisfied.
In response to questions from the Board, Ms Appleby stated that the cameras are located inside the premises: one over the cash register and one in a corner over the front door entrance. The cameras have a view of the patio area and part of the parking lot. The service bar is horseshoe shaped and there is one camera on each side.
The Licensee keeps an incident book behind the bar and there was nothing written or reported for the night of June 26^th. Staff has clearly been instructed to record any time that the police come in.

Registrar’s Submissions

Mr. Kulis stated that the Board has heard two stories that are diametrically opposed.
The police officers arrived at approximately 3:15 a.m. and both had similar descriptions of the two individuals: speech slurred, odour of alcohol on their breath and eyes bloodshot. E.K. could not spell her last name.
The police evidence has the ring of truth, and the officers did not have a reason to make up the issue of intoxication. They did have some idea, from Ms V., that they were intoxicated, and then made their own observations.
In following up on the domestic call, they realized they did not need to be involved in this matter. At that time of morning, seeing there was not really any issue, they wanted to clear the issue, as it was the main purpose for being there. It seems they were not prepared to deal with the matter of drunkenness.
Without ulterior motives, or any reason to fabricate the matter, they saw two drunken people who were in the premises.
The officer stated that, in determining drunkenness, E.K. would be eight out of ten on a scale of one to ten and Mr. Morand would be five or six.
The police had the opportunity for observation over a long period of time, talking with each individually and then with them both. Although one officer stated that the speech problem could possibly be related to throat cancer, his evidence was clear that she was drunk.
The police have no reason to fabricate a story, while employees and patrons may have reason to cover-up something that happened in the bar.
Mr. Morand, in his evidence, was clearly irritated with Ms V. for calling the police and saying he was drunk.
The Registrar stated that the Licensee must have known that the allegation was serious and could have repercussions relating to possible discipline. She did not look at the video, or save it.
The Licensee said they have an incident log but a police incident was not noted there.
There is conflicting evidence about whether the couple walked home or drove, and over what drinks were served. The Licensee said she talked with Ms Garvey after speaking with the Inspector, but Ms Garvey said she did not talk with the owner until August.
The credibility of evidence lies with the police officers and with the inspector.
Drunkenness did occur.

Licensee’s Submissions

Mr. Melinz stated that the matter comes down to a credibility issue. The evidence does not show that a violation occurred. The Licensee’s witnesses established that there was not drunkenness.
The OPP visit to the premises was triggered by a domestic dispute.
The only evidence of possible drunkenness presented by the OPP was presented during brief contact with the patrons. The evidence in the police reports is conflicting. Both constables said that no sobriety test was conducted on either person.
Ms Garvey stated that the lights were out, but the police state that they could see. E.K. has throat cancer, but the police did not find this out, even when they spoke of her difficulty spelling her name as an indicator of intoxication. This difficulty could be an indication of her illness or the effect of the morphine she was taking.
The descriptive language in the occurrence report differs from the officers’ notes, having been exaggerated and embellished. The officers never did enter the establishment.
The actions taken by E.K. were proactive to prevent greater harm or an escalation of the incident in relation to a domestic situation. This is not the action of an intoxicated person.
Having interviewed Ms V., police came with a pre-conceived idea that people were intoxicated. Police stated that they observed others in the restaurant, but did not investigate further. The OPP and the inspector should have done more in their investigation.
Inspector Holman’s report should be discounted as evidence, as he only copied information provided by police.
The Licensee gave evidence that she genuinely felt this was not a serious incident, and she accepted information from her staff that Mr. Morand and E.K. were not drunk.
She gave no further thought to the matter until a letter came in relating to an SOP licence application. By this time the video was erased.

Registrar’s Reply

In reply, Mr. Kulis stated that the police would have only noted events relating to the domestic matter, as follow up to the call. They did note that no further action was required.
The officers recorded what they were sent to investigate and then came across another incident.
The Licensee, with early knowledge of the allegations should have been looking at the tapes.

Reasons and Analysis

In making a decision, the Board must be satisfied through a two-part test. First, to establish on the facts that there was drunkenness in the licensed establishment under the Licensee’s control and second, that the Licensee knew or ought to have known that the patrons were drunk, thereby permitting drunkenness.
The Board acknowledges that all the witnesses gave their evidence in a clear and direct manner. However, there remains a concern relating to conflicting evidence and the lack of detailed evidence that would have come from a more fulsome investigation.
The police evidence was consistent, that they were at the door of the premises to investigate a domestic call. The evidence was inconsistent relating to whether they had spoken to E.K. and Mr. Morand together or separately. They noted people inside the bar after closing time, but were not consistent in evidence as to whether the people were E.K., Mr. Morand and the bar staff, or if others were present.
They stated that their presence outside the bar that night was specific to meeting Mr. Morand and following up on the domestic call received. They are to be commended for handling the situation with sensitivity.
The police officers chose not to investigate further the possible intoxication of the two people they spoke to outside the bar, such as inquiring how much they had to drink and where they had been drinking that night. The officers did not enter the premises, did not report seeing alcohol being consumed nor investigate the people seen inside the premises after closing time. No evidence was given relating to seeing anyone drinking alcohol or having seen alcohol on the bar or on any table in the bar.
The police testified that they observed signs of intoxication, including the odour of alcohol on the breath, slurred speech and bloodshot eyes.
In evidence they used a scale of one to ten to describe the level of intoxication. For E.K., they rated her eight out of ten and for Mr. Morand, five or six; but the Board notes that this is an unusual manner of assessing intoxication and is a completely subjective observation and description.
The police did not question Mr. Morand or E.K. about the amount of alcohol consumed that night, but they were satisfied that both were able to get home safely and were not concerned that E.K. was driving.
The Registrar has suggested that the onus was on the Licensee to investigate more fully, once she received the call from the Inspector. However, the Board must acknowledge that there is responsibility on all parties to investigate fully and to gather evidence that may support the allegations under subsection 45(1) of the O.Reg.
The Board accepts the evidence of Ms Garvey and the police officers, that the police did not enter the bar and the investigation did not relate to the premises.
Ms Garvey made the decision that this incident, being domestic, did not require a written report in the incident book. In submissions, the Board also heard that the notes of the officers focused on the domestic call. The Board finds, that in considering all the evidence, that Ms Garvey made a reasonable decision.
Given all the evidence of the events on the evening of June 26^th, 2010, the Board also finds it reasonable for the Licensee to have received information from the inspector, and having talked with her staff, making the decision not to pursue a more in-depth follow up or review of the tapes. The Board notes that the Inspector did not come to the establishment to pursue a more in-depth investigation and his follow up was only by phone.
There was discrepancy in the testimony of the Licensee’s witnesses, relating to the kind of alcohol consumed by Ms V., Mr. Morand and E.K. However, the witnesses were consistent in stating that Mr. Morand and Ms V. consumed only two drinks in the 1½ hours they were in attendance at the premises. There was no evidence presented disputing this.
Mr. Morand presented evidence in a clear, open manner, stating that he had been working long hours, was tired and had just finished a shift of work at 11:00 p.m. The Board accepts that this may be a reasonable factor contributing to the observations made by the police.
Witnesses were consistent in presenting the health issues that may have contributed to misinterpretation of E.K.’s slurred speech.
Although all the witnesses gave their evidence in a clear and direct manner, there were many discrepancies in the testimony. It is clear that there was a domestic dispute that occurred in the licensed premises, which continued onto the street and resulted in a call to police.
On reviewing all of the evidence, the Board is unable conclude that, on a balance of probabilities, the two people interviewed by the police outside of the establishment were intoxicated in the licensed premises. Even if the Board could make such a conclusion, there was no evidence adduced that the Licensee permitted drunkenness in the establishment.

Conclusion

For the reasons given, the Board DISMISSES the allegations under subsection 45(1) of the O.Reg.

DATED AT TORONTO THIS 5^th DAY OF May , 2011

DAVID C. GAVSIE, FORMER CHAIR, AGCO JOAN LOUGHEED, BOARD MEMBER

Registrar, Alcohol and Gaming Commission of Ontario v. 1614804 Ontario Inc., 2011 CanLII 31199

Case Summary