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-
681311 Ontario Limited operating as Shots Sports Tap & Grill (Licensee)
DECISION ON FINDINGS
Panel: Allan Higdon, Board Member Decision Date: May 19, 2011 Hearing Location: Kanata, Ontario and Ottawa, 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: Joyce Taylor, Representative 681311 Ontario Limited, Licensee: Mark Huckabone and Chris Taylor, Representatives
Allegations
A hearing into Notice of Proposal number 15815 dated November 27, 2007 to suspend liquor licence number 91379 (the “licence”) issued to 681311 Ontario Limited (the “Licensee”) operating as SHOTS SPORTS TAP & GRILL, 185 Pembroke Street East, Pembroke, Ontario, K8A 3J6 (the “establishment” or the “premises”), on the basis of alleged violations of section 29 and subsections 30(1), 30(2) and 30(4) of the Liquor Licence Act (the “LLA”) and subsections 41(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on March 7, 2008, July 15 and 17, October 27, 2008 November 4, 2008, March 26, 2009 and December 2, 2009 in the Cities of Kanata, Ontario and Ottawa, Ontario
A motion was filed by the Licensee seeking a dismissal or stay of proceedings of the hearing due to possible prejudice against witnesses for the Licensee. It had been reported by Registrar’s Counsel that witnesses were heard discussing their testimony during a break. The Board asked only counsel to be present when the issue was argued before the Panel. It was agreed by both parties that upon disposition of the motion, the panel would call for submissions on findings, if required. In a separate written decision, the Board found that no prejudice had taken place. Counsel for both parties were present during arguments, the dispute was resolved amicably and witnesses for both parties were advised not to discuss testimony.
Decision
- The Board FINDS the Licensee in breach of section 29 and subsection 30(4) of the LLA and subsection 45(1) of the O.Reg, and DISMISSES the allegations of violations of subsections 30(1) and 30(2) of the LLA and subsection 41(1) of the O.Reg.
Preliminary Matters
Registrar’s Counsel asked to amend the Notice of Proposal and have an additional allegation added stating that on August 17, 2007 two intoxicated patrons were in the licensed premises.
Ms. Taylor stated there has been full disclosure on this issue and there is no prejudice to the Licensee. Licensee’s Counsel agreed to the additional allegation being added to the Notice of Proposal.
Registrar’s Counsel requested the exclusion of witnesses. On agreement of both parties exclusion was ORDERED.
The Licensee, Ms. Kim Brown, was seated with her representative, Mr. Mark Huckabone.
Registrar’s Evidence
Andrew Rowntree has been an inspector with the Alcohol and Gaming Commission of Ontario (the “AGCO”) since September 2006.
On the morning of August 17, 2007 he visited the premises in the early morning and made notes, to which he has made no changes. He arrived alone in an undercover capacity at 12:22 a.m.
The witness was with Inspector Lambert on a joint tour of Pembroke establishments. Inspector Lambert initially stayed in the car while the witness proceeded alone. Inspector Lambert was checking the parking lot and would act as a back-up if the witness required support.
The witness ordered a beer, walked around the premises and made observations.
He saw a patron wearing a baseball hat, dress shirt and running shoes who showed signs of intoxication. He had glossy, red eyes, was unsteady on his feet and had slurred speech. He had difficulty controlling his balance as he walked to the washroom.
Inspector Lambert entered the premises and noticed the same patron. Inspector Lambert identified the patron to security staff and he was removed from the premises. Inspector Lambert then left the establishment.
The witness continued his observations and noticed a blond female patron wearing black sandals, a white miniskirt and a tank top who showed signs of intoxication.
She was being held up by other patrons and had slurred speech when talking to friends. When walking to the washroom she bumped into poles, had trouble controlling her balance, and had difficulty holding on to the stair railing leading to the washroom.
The witness noted there were about 130 to 140 patrons in the premises. The establishment was not particularly crowded. Inspector Rowntree later saw the woman leave the premises.
The witness left around 1:50 a.m., and joined Inspector Lambert in their vehicle to make exterior observations.
On cross-examination the witness outlined his training. He attended a security program at Loyalist College and completed the 10 week training program for liquor inspectors in Orillia.
In addition, the witness has in-house support and participates in continued training sessions. He had been an inspector for less than a year at the time of the alleged incident.
The witness stated he had not made notes on the age of the alleged intoxicated male, the colour or style of his baseball cap, dress shirt, height, weight, build or facial features.
A 20 minute adjournment was called in order to copy the floor plan of the establishment.
Upon resumption, Registrar's Counsel stated an inspector overheard Ms. Brown discuss hearing details with waiting witnesses. Ms. Brown was heard saying, “You need to say that.” Counsel was concerned that the intent behind the order to exclude witnesses was being violated. Registrar's Counsel asked for both Ms. Brown and her mother to be excluded.
The Chair ordered all but counsel to leave the room as this was a procedural issue and should not be heard by potential witnesses.
In response, Licensee's Counsel stated he was not present when any corridor discussions took place and the people concerned denied any conversation. The Board should continue the proceedings.
The Board ruled the hearing would continue but it would contemplate further exclusions if the hearing process was considered compromised.
The parties were invited back into the hearing room and cross-examination resumed.
Exhibit #1, a floor plan of the Sports Bar, was introduced.
Inspector Rowntree was asked to indicate on the floor plan where the man in a baseball cap and dress shirt was standing when he first saw him. The witness stated there were two males, one with dreadlocks and the other the subject male. The subject male was identified on the plan by Licensee's Counsel.
Inspector Rowntree stated the intoxicated male was observed from three to six feet away. He noted his glossy red eyes. There were no intervening persons and the lighting was adequate to see clearly. He was unable to recall if he saw the man drinking alcohol.
The witness saw the male with dreadlocks drinking Molson Canadian. He had slurred speech and was speaking loudly to be heard over the loud music. The man was unsteady on his feet at the bar and while he walked to the washroom.
The witness agreed there was no mention in his notes of the man speaking loudly, or any particular movement indicating unsteadiness, or where he was leaning. These were independent recollections. He recalls the man had trouble controlling his balance as he climbed stairs to the washroom. He did not recall him banging into anything.
The witness stated there were about 100 to 140 people in the premises at the time. He made his notes shortly after his visit. He and Inspector Lambert both saw the intoxicated male.
The inspector observed the female about 10 minutes after the male was ejected. She was on the dance floor with some friends. The inspector noted her from about six to eight feet away. She was blonde, about 25, well dressed, and wore a white miniskirt, black tank top, and black sandals. She was of a heavier build. Two friends were holding her up as she tried to dance.
The woman was very loud, speaking over the loud music. Her speech was slurred and she bumped into people. She also bumped into the wall and stumbled as she walked to the washroom. She had trouble walking up the small flight of stairs to the washroom.
The witness said the woman’s speech was slurred and hard to understand. He later saw her outside on Pembroke Street about 20 to 30 feet away from his vehicle.
Responding to a question, the inspector said he did not recall if her eyes were bloodshot or if she smelled of alcohol. He had no description of her two friends.
The witness stated there was a police car outside the premises, an observation not in his notes. Inspector Lambert spoke to an officer in the car.
The witness stated his notes were written within a half hour of exiting the premises.
On reply, the witness was asked why certain details were not in his notes. He stated his notes were an aid to his memory with key items written. They did not note every detail as this would require a complete book in which to write, not just a notebook.
The witness stated his focus was on intoxicated persons, not necessarily the surrounding detail. He had received extensive training from experienced inspectors.
Mark Lambert has been a liquor inspector with the AGCO since July 2006.
On the night of June 29, 2007 he arrived at the premises at 1:29 a.m. He was alone and entered through the rear door.
Once inside, he noticed a female in her 20s, with brown curly hair, blue jeans and a black top. Her eyes were extremely droopy and she had lethargic body movements while speaking. A friend had an arm around her holding her up.
The woman was drinking Bud beer and speaking loudly with a slurred voice. The woman was unsteady as she approached her table. After she sat down her head wobbled from side-to-side.
The witness spoke to a door security man, Tony Burrell, about the woman’s signs of intoxication. Mr. Burrell said, “I could tell just by looking at her.” Mr. Burrell then evicted the female patron.
The witness later observed an intoxicated male in his late 30s to early 40s. He wore a white multicoloured top, had brown hair, and was chugging a Labatt Blue.
When the man stood he nearly fell over, was very unsteady, and would have fallen over if a female had not steadied him.
One of the security staff, Mark, was seated behind the witness. He noticed the inspector looking at the intoxicated male and said the man had been refused entry earlier in the evening and he did not know how he got back inside.
As the man left with an older man, the witness noted his eyes were extremely glossy, he was unsteady on his feet, and he talked very loudly with slurred speech. The witness could not understand what he was saying.
The witness then had an unobstructed view of a third intoxicated male in his early 20s who wore a black baseball cap and a fleece sweater. The witness had seen the man in the premises earlier in the evening when the man consumed two large mugs of draft beer.
The man appeared very tired and was sitting with a group on the patio. He was holding two Labatt Blue bottles and hugging a friend. He appeared very unbalanced and unfocused – his eyes were almost crossed. Earlier in the evening he had not appeared unsteady and unfocused.
The witness concluded the man exhibited very clear signs of extreme intoxication as noted above.
The witness advised security staff member Tony Burrell of his observations and Mr. Burrell approached the man. The patron chugged one bottle of beer and staggered towards the front entrance saying “I’m sorry” to the witness. His speech was extremely slurred.
The witness stayed near the front entrance. He observed a blond female with a red top and blue jeans walk from the dance floor to the front entrance and go over to the bar area. Her eyes were very bloodshot and she was very unsteady on her feet.
The woman ordered a Bud from the bartender, Noreen, who served her a beer. Noreen did not acknowledge the patron’s intoxicated appearance.
While standing at the bar steadying herself, another female approached Mr. Burrell and said, “That blonde girl you kicked out is at the bar getting a beer.”
The witness observed Mr. Burrell approach the female and pull her from the bar. The woman stated she was waiting for her change. Mr. Burrell brought the woman to the front entrance, directly in front of the witness, and asked her to leave.
The woman became aggressive and argumentative. Her speech was very slurred and there was a strong smell of alcohol on her breath. Before things escalated the woman’s friends pulled her away and took her out of the bar.
The witness remained near the front entrance and observed another intoxicated male. He was in his 30s, wore a white golf shirt with pinstripes and blue jeans. The man was unsteady on his feet, swaying on his heels and his eyes were red and puffy.
The witness stated the man was standing directly in front of a waitress while talking to a female friend. The man spoke loudly and had a strong smell of alcohol. He fell toward the female and began kissing her cheek in a sloppy fashion.
Inspector Lambert testified Mr. Burrell noticed him observing this incident. Mr. Burrell then approached the male patron and escorted him to the front door.
The patron spoke in extremely slurred speech and said, “Let me check if I have my coat.” He reached into the pocket and said, “Got it.” The patron was practically incoherent. He continued to stagger out the front door, very unsteady on his feet.
Inspector Lambert noted numerous other patrons in an advanced state of intoxication.
The witness advised Mr. Burrell of infractions of “permit drunkenness” and of “service to an intoxicated person.”
Mr. Burrell acknowledged the infractions and did not dispute any. He appeared anxious and said, “Do you ever feel like you were the only one stuck doing everything? It’s frustrating.”
The witness advised Mr. Burrell the infractions would be reported. Mr. Burrell said he would advise Kim Brown of the infractions.
The witness exited the premises at 2:16 a.m. to complete his notes. As he departed he noticed a male exiting the establishment and vomiting on the sidewalk and on the side of the building.
Inspector Lambert spoke to Kim Brown for about 20 minutes, on the day of incident, June 29, at 7:10 p.m., and advised her of the infractions.
Ms. Brown was extremely irate and angry and said he was taking food out of children’s mouths. She noted, “It’s not you. It’s just very frustrating.”
Regarding the events of August 11, the witness stated he did not visit the establishment that night.
On August 13 at 9:00 a.m. the inspector was contacted by a Ms. Brenda Labelle. She stated she was the mother of J.W., aged 17, who she alleged was permitted entry into the establishment on August 11, 2007.
The mother sounded extremely upset. The inspector said he would investigate the complaint, verify any details, and speak to her son.
The witness visited the home of the complainant on August 14 and introduced himself to Ms. Labelle and her son, J.W.
J.W. was upset with his mother, said he was scared to get into trouble, and appeared very reluctant to speak to the inspector. The inspector told the mother it was up to her son whether he wanted to speak or not.
The inspector told J.W. he was not in trouble; he just wanted J.W. to tell his story. The youth began writing while the inspector left the room and J.W. later came out with a written statement.
The inspector asked J.W. questions for clarification and showed him the answers he had written. The youth signed his statement on the porch in the company of the inspector.
The youth told the inspector his girlfriend had also been drinking at the establishment underage but he did not want to “rat” on her.
The inspector told the mother and youth the statement could be used in a court case.
Regarding the events of August 17, 2007 the witness arrived at the establishment at 12:22 a.m. with Inspector Rowntree who was conducting an undercover inspection.
Inspector Rowntree entered the premises while the witness waited outside and checked the parking lots.
The witness entered the premises at 12:51 a.m. through the front entrance and identified himself as an AGCO Inspector.
The witness noticed the bar was very busy. He walked up to the second level to the pool hall area and positioned himself at the bar.
The inspector noted Greg Meighen, the manager on duty, was serving at the bar.
Inspector Rowntree noticed a male from the pool hall area heading down the stairs. He was approximately 6 feet tall, extremely skinny, wearing a green baseball cap and a white pink and orange button-up shirt.
The man appeared about to fall over the stairs. He was extremely unsteady and, although he grasped the hand rail, was very wobbly going down the stairs.
The man was out of breath, breathing heavily, and had a strong odour of alcohol on his breath. The patron made direct eye contact with the inspector and laughed hysterically. His eyes were extremely glossy and dilated, almost as if he was on narcotics.
The man was definitely 100 per cent intoxicated. His clumsy walk, lethargic movements, unsteady posture, uninhibited behaviour and breathlessness clearly indicated his intoxicated condition.
The inspector observed this patron until 1:05 a.m. and identified him to the manager who said, ‘Yeah, oh yeah, I noticed him.” The manager approached security and the patron was escorted out the back door. The patron was very unsteady as he walked out.
The inspector exited the premises at 1:24 a.m.
The witness said that he and Inspector Rowntree did not converse in the establishment. They used eye contact to signal to each other persons of interest.
The witness stated he called Ms. Brown, the Licensee, on August 22 and informed her of the July and August events. She was belligerent and said he “just wanted to shut us down.”
The hearing adjourned and resumed on July 15, 2008.
Preliminary Issues
Procedural issues were argued relating to a lack of disclosure under the procedural rules of the AGCO and a challenge under the Canadian Charter of Rights and Freedoms.
The Panel ruled on the issues in the following manner:
Decision on Preliminary Issues
A disclosure issue was raised. In particular, the Application Record and Factum of the Applicant received by the Board this morning, clearly violates AGCO Rule of Practice 14.3 (d), requiring 10 days notice. Therefore, the Application Record and Factum of the Applicant cannot be admitted into the proceedings today, but can be admitted on a subsequent hearing date.
The Panel has also considered the challenge made under the Canadian Charter of Rights and Freedoms, section 11 (d). The Panel notes this section is specifically identified as referring to “Proceedings in Criminal and Penal Matters,” not to proceedings before administrative tribunals.
The Panel therefore denies the consideration of a challenge under the Charter.
An issue was raised regarding possible testimony from the underage youth alleged to have been served in the establishment. The youth is currently in a youth detention centre and is unavailable to testify. In the youth’s absence, the Panel was asked to accept a statement given by the youth to a private investigator the night before.
The Panel ruled that the statement, which was obtained the night before the hearing, was not admissible at this time due to the AGCO rules of disclosure requiring 10 days notice. The statement was accepted at a subsequent hearing as Exhibit 5.
This concluded the argument on preliminary issues.
The hearing continued with the start of cross-examination.
Registrar’s Evidence
On cross-examination Inspector Lambert stated before joining the AGCO he had been employed as a security guard, a youth worker, and a by-law officer.
The witness had visited the premises before the events in question but not in a social capacity.
The witness stated he identified himself to staff on the nights of June 29 and August 17, 2007. Staff were co-operative and approachable. No information was withheld.
The witness said his observations on overcrowding in the premises, fights and the smell of marijuana are not merely his judgement but facts.
On June 29 and August 17, Shots was operating as a dance bar. People were dancing and walking about, not sitting at tables drinking.
On the two nights, the majority of patrons were under 40 years of age.
The music was loud and continuous both nights.
The lighting inside was adequate to see clearly. The witness could read and write and discern the colour of clothing and beer labels. It was more difficult to see things on the dance floor as there were lasers and black lights.
The witness said he did not interact with patrons on June 29 and August 17. He stood near to people but did not engage.
The witness stated there was nothing in his notes to indicate how long he stood beside the individuals. The notes just refreshed his memory and provided triggers to bring back a more complete recollection.
The witness acknowledged he did not have human kinetic training, or training in medicine, toxicology, or speech and language.
The witness stated there is not a definitive test for drunkenness. It is a judgement call on which two persons might disagree.
Inspector Lambert stated the establishment could have used more security. He was not aware if staff was Smart Serve certified.
The inspector did note security people with ear pieces and he saw signs outside the bar outlining their ID policy.
The witness stated he considers the door security man, Tony Burrell, to be mature and responsible.
The witness stated either the rear door or front door staff had allowed an intoxicated patron back in after ejection. He did not see the person re-enter.
The witness stated he observed a woman who was drunk ordering a beer. The bartender Noreen served the beer, but it was taken by the security person Tony before any of it could be consumed.
The witness stated police were not with the inspectors during their bar investigations. The team consisted of the two inspectors only.
The witness stated he has laid eight to 10 provincial offence charges since he began as an inspector. The vast majority of disciplinary measures were Notices of Proposal (NOPs).
On the night of June 29, 2007 the witness pointed out an intoxicated female to security. She was immediately removed from the premises. There was no dispute as she was obviously intoxicated.
A male who had been seen by the inspector consuming alcohol in another licensed premises was pointed out to security and evicted promptly.
A female who had been evicted earlier was evicted again. However, this was done before the inspector arrived at the premises.
The witness did not see the bar staff evict anybody. This was done by door security.
The person on door security, Tony Burrell, stated to the witness, “It’s frustrating to think you are the only person here doing security.”
The hearing adjourned and reconvened on July 17, 2008.
- Ms. Taylor continued to represent the Registrar. The Licensee was again represented by Mark Huckabone, with the addition of Chris Taylor.
Preliminary Issue
Licensee’s counsel recounted the efforts made to have the youth J.W. available to testify but no progress had been made. A long discussion ensued regarding the possibility of getting the youth released from detention to testify. Licensee’s counsel will continue efforts to have the youth available.
Proceedings resumed with the continuation of cross examination.
Mark Lambert stated that Renfrew and Lanark counties are part of the territory for which he is responsible as an Inspector with the AGCO.
The witness estimated there are more than 100 licensed premises in each of the counties. It is a big workload. He admitted he does not have a perfect memory. However, he does remember key details that enable him to retain a solid memory of specific events.
The witness stated he did not remember the day of the week on which the June 29 incident took place.
The witness stated with regard to the first allegedly drunk female that he made no note as to the time of observation, the duration of observation, his position at the bar while observing or the location of the woman under observation. He also did not note lighting conditions or obstructions.
The witness acknowledged the same information was not noted in his observations of female #2 and male #3.
The inspector stated his conversation of June 29 with the Licensee, Kim Brown, was not recorded in his initial notes. The conversation is recorded in his notes of August 13.
The inspector stated his observation notes were made in the early hours of June 29 and transcribed 18 hours later into an inspection report.
The witness stated his report on female #1 on June 29 noted her voice was slurred. There was no observation about her being loud.
The witness stated that although he did not record in his notes several other details he does have a clear memory of the incident because it was such a unique event.
In reference to the August 17 incident, the witness confirmed he did make observations about a male. The witness recorded only details he considered relevant.
The witness did not record the manner in which the male moved or breathed. He knew he did not need notes to recollect such details. The male was wearing white pinstriped clothing, something the witness had never seen before. This made it easy to recollect details.
The August 17 incident took place in the early morning. The inspector was in attendance from 12:50 a.m. to 1:24 a.m. He observed a woman wearing black sandals and a black tank top who had trouble walking. He judged her to be drunk.
On June 29, the witness had a telephone conversation with Kim Brown lasting over one hour.
On redirect, the witness stated the lighting and music levels are controlled by the Licensee. It was not necessary for levels to be adjusted to see and hear clearly.
The witness stated he could clearly hear conversation as people were shouting over the music. That is why he did not speak to suspects directly.
The witness said the identified patrons were clearly intoxicated, although they were not a public safety risk.
The inspector stated it is the responsibility of licensees to control their patrons. However, he has never seen the Licensee of record on the premises.
The witness said he has received extensive training in identifying intoxicated patrons. He has taken courses and has regular training upgrades.
The inspector had requested a copy of any video recordings taken on the premises. He was told by Steve White the recorder was broken and no video record was available.
Regarding the June 29 incident, the witness encountered the head of security, Tony Burrell, who was dealing with an aggressive and angry woman. Mr. Burrell had asked her to leave and she appeared unable to understand she had to leave the premises. The woman was incoherent. A friend had to pull her away and take her out of the bar.
The witness stated the minor, J.W., was left by himself to make his statement. The interview report (Exhibit #2) consists of the statement and a series of questions posed by the witness with answers from the minor.
The inspector stated his report of the June 29 incident was begun while he was at the premises. His notes were completed at the end of his shift within minutes of exiting the premises.
The witness stated Inspector Rowntree was in the premises longer than he was. Inspector Rowntree was on the premises for about 1.5 hours. The witness was present for about 30 minutes.
Licensee’s Evidence
Kimberley Brown has been the Licensee of Shots Sports Tap and Grill since 1994. Her parents were licensees before. The witness is 50 per cent co-owner of the premises with Steven White.
The witness stated she does most of the administration such as payroll and government documentation. She normally works from 9 a.m. until the afternoon/evening, as time demands.
The witness stated she does not work in the evenings. The establishment is run in the evenings by Greg Meighen, known as “Whitey.”
The establishment has 20 to 25 employees depending on the season. Of that number four to six are security staff, 10 are servers/bartenders and the rest are cleaning staff. Of the bar staff, three are full-time.
During the period of June to August 2007, Tony Burrell was employed as head of security. He is still on staff and has been employed for the past six to seven years there. He has been in the military for 25 years.
Most of the security staff has a military background. They listen well and follow instructions.
All security, server, and bar staff has Smart Serve.
Both Whitey and Noreen Giroux, a full-time member of the bar staff, have been employed since the beginning of 1994. They had previous experience in the hospitality industry.
Security staff are trained by Steve White. They review policies, rules and other written materials. All are posted in the back hallway.
Security staff are instructed to remove patrons if they are intoxicated.
People are ejected for infractions such as fighting, erratic behaviour, rudeness, and not following house rules.
No drugs are permitted. If use is observed, patrons are removed and barred permanently. A list is kept of all such people.
Intoxicated patrons are not tolerated and they will be removed by security. A cab is paid to take them home.
Security staff patrol the building every 20 to 30 minutes to ensure good behaviour.
Although their liquor licence does not prevent persons under 19 years of age from entry, the house rule is not to allow minors in after 9:00 p.m. However, a family with young children is allowed to stay after 9:00 p.m., to finish a meal.
Patrons under the age of 19 are permitted during the day as the facility is a restaurant.
The witness stated she did not know the minor, J.W. She has never spoken to him or met him or his mother. The mother is currently banned from the premises for fighting.
The witness first met Inspector Lambert in October 2006. She saw him a couple of times subsequently. He usually comes by the premises between midnight and 2:00 a.m.
Inspector Lambert gave the witness some suggestions for improving security. He suggested she hire extra door staff for the busiest nights. She hired one extra person. He also suggested counters for front door staff so they could keep track of entry and exit numbers. She ordered counters immediately.
On a typical Thursday to Saturday night there are four security on duty – one at the front door, one patroller, and two inside. These are the three busiest nights.
Security screening begins at 10:00 p.m. There is no door staff before then.
The premises have a capacity of 323 persons, including staff. The maximum allowed in on Thursday to Saturday nights is 290 persons. This has been a policy for years to ensure there is never overcrowding.
The premises installed an ID reader which has been operational since August 2006. This machine eliminates the risk of false ID for underage drinkers.
Before August 2006, suspected underage patrons were asked for a driver’s licence, passport or some other official form of photo ID.
People presenting false ID are ejected and their ID is confiscated.
The witness stated she was not at the club when Inspector Lambert visited from June to August 2007.
Although she is not always at the club, ‘Whitey” is on duty as a manager from Thursday to Saturday and has full authority.
The witness acknowledged that patron P.B. has attended the premises and been ejected on occasion. He was permitted to enter the premises on August 17.
The witness described P.B. as an eccentric person of “stringy” build who appears “wobbly” and dances everywhere. He works at a movie theatre and she has seen him dancing there. She has seen him inside Shots once.
Helene Coburn is a regular patron. Staff has told her she is in the establishment frequently.
The witness stated she had a phone conversation with Inspector Lambert on June 29, 2007 regarding an incident that took place the night before.
The conversation with Inspector Lambert was lengthy and she was upset and frustrated. There had been no problems for months before and the inspector said some people in the premises were intoxicated and others showed definite signs of intoxication.
The witness denied she had used foul language in her conversation with the inspector or had attacked him. She was just very upset that he was not helping her to make anything right.
After the June and August incidents the witness met with staff to discuss the incidents. She has never refused to implement any suggestions for improvement made by the inspector and she has never made him feel unwelcome on his inspections.
The witness stated she is satisfied with the security arrangements of the premises. She has confidence in the head of security and his staff.
Music is handled by several different DJs. The establishment has four or five large speakers in the ceiling and the music is extremely loud Thursday, Friday and Saturday nights.
On Thursday and Friday the music is loud throughout the entire bar. The televisions are on and the lights are dim. The horseshoe area around the bar is especially busy and congested.
The bar has approximately 20 stools and normally three bar staff are on duty. Staff have to shout their orders as the noise level is so high.
Regarding the intoxicated female Inspector Lambert saw on June 29, the witness stated she did not know who that could be. She was unable to help identify any of the allegedly intoxicated patrons as she was not on the premises that night.
The patron identified by Inspector Rowntree on the night of August 17 is Helene Coburn. This woman is a regular but she has never seen her drink alcohol. She dances a lot with three to four girlfriends and they have a lot of fun. Sometimes they can get silly. She would not eject Ms Coburn if she saw her shove somebody.
The hearing adjourned and resumed October 27, 2008
On cross-examination the witness stated she was not present on the premises on the nights of June 29, 2007, August 11, 2007 or August 17, 2007. Consequently, she has no personal knowledge of any events which took place on these nights.
The witness is Smart Serve certified.
On the nights in question staffing would normally consist of four to six security, 10 servers, and three to five bartenders. On big nights four door staff would be on duty starting between nine and 10 p.m. One would be at the front door and one at the back door, with two floaters. A big night would have about 290 people in the establishment.
With one floater at the front door, there would be only one other security member to circulate through the premises.
The witness acknowledged Inspector Lambert had suggested additional staff for the premises. Specifically, he advised there should be two counters, one inside and one out.
On June 29, 2007 the witness spoke to Inspector Lambert on the phone about the intoxicated patrons. She made notes but cannot recall any details of their conversation.
Asked if the inspector was suggesting more staff to monitor patrons, the witness replied she would assume so.
No staff has ever told her the music volume is too loud.
On reply the witness stated management is responsible for enforcing security during daytime hours of operation.
Greg Meighen lives in Pembroke and is employed at Shots Sports Bar and Grill. He is known by the name “Whitey” and has been in the service industry for 22 years, with over 14 years at his current job.
The witness is the night manager responsible for all staff and operations. He works on Thursday, Friday and Saturday from 6:00 p.m. to 3:00 a.m., and 5:00 p.m. to 1:00 a.m. on Wednesday. He does not work Monday or Tuesday nights. The busiest nights are Thursday and Saturday.
His duties include dealing with complaints, helping in the kitchen and working at the bar.
The witness has ejected patrons for misbehaviour. Usually he will identify questionable patrons to the door staff to be removed. He keeps an especially close eye out for people who might attempt to enter when intoxicated.
The witness stated he is Smart Serve certified. He calls the owners if there is a problem such as a fight or any kind of altercation.
On Thursday or Saturday nights the witness is on duty with two women at the bar. Business usually picks up between 11:00 p.m. and 11:30 p.m.
The witness said the owners support him in any disciplinary measures necessary for patrons. He has known Inspector Lambert for two years, although he has only spoken to him once. The inspector usually speaks to the owners or to the head of security.
Prior to June 2007, Inspector Lambert visited the premises about once a month.
The witness never discussed issues regarding intoxication with Inspector Lambert. Only once did the inspector identify a drunken patron.
Inspector Lambert said he was impressed by the security arrangements. His visits lasted normally for 1 – 1.5 hours.
The inspector said he was happy with the number of security staff on the front door and the number of counters. All his suggestions for improvement were followed.
The witness stated lighting in the bar was dimmed around 11:00 p.m. Lighting is uniform throughout the entire premises except for the dance floor, which is lit by pool lighting.
The pool table area is bright and constantly used. The highest traffic is around the bar.
The premises use two DJs. They control the music volume. The DJs are used Thursday, Friday and Saturday nights, starting at 10:00 p.m.
Inspector Lambert never discussed the music volume.
Patrons tend to be under 35 years of age. In the case of a fight, a doorman would intervene and eject a patron. They could be suspended for six months to one year. Some are barred for life.
The door staff are primarily responsible for weeding out underage drinkers.
Regarding the events of August 17, 2007, the witness had a conversation with Inspector Lambert concerning the patron P.B.
P.B. had been barred from Shots, but he was able to enter the premises some time between 10 p.m. and 10:30 p.m. He was served two Budweiser beers and seemed fine.
That night he was his usual self – very flamboyant, mannered, and effeminate, with bulgy eyes.
P.B. came down a flight of stairs with a beer bottle in one hand and playing air guitar with his right hand.
Inspector Lambert stated P.B. looked like he was over-served. The witness replied, “I don’t think so.” However he took the patron to the doorman and had him evicted.
P.B. was not drunk – his manner is just the way he is. He may have appeared unsteady but he was dancing.
The witness has not spoken to Inspector Lambert or P.B. since the incident.
On August 17, his total interaction with Inspector Lambert lasted 30 seconds.
On cross-examination the witness stated normally four door staff are on duty. If there is a line-up to enter, two of those would be at the front door.
The witness stated he did not introduce himself as the manager to the inspector as he was working the bar and would appear to be a bartender only.
The bar is usually very busy. It is not possible to keep an eye on patrons as well as pouring drinks and doing cash.
Although lights are turned down there is still enough light to check for intoxicated patrons. Other signs such as slurred speech are identifiable despite any loud music.
The witness stated he remembers the events of August 17, 2007 clearly. It was a Thursday night and they were close to capacity. The witness spoke to Inspector Lambert around 1:15 a.m.
The inspector had come in through the back door. The witness had just served a drink and then noticed him.
The witness escorted P.B. to the doorman for removal as soon as the inspector pointed him out.
The witness stated he sometimes evicts people who have eluded the door staff.
On reply, the witness stated he was directly opposite the inspector when P.B. came down the staircase.
Peter Van Hoof is a Pembroke resident who was employed by the Ontario Provincial Police (the O.P.P.”) for 27 years. He is now retired but has worked privately as a paralegal and investigator for the past 14 years.
The witness was hired by Shots to conduct an investigation. He reviewed liquor inspection reports, offered opinions to legal advisors, interviewed employees and tracked down patrons.
The witness has visited the premises socially about five times in the last 10 years. He has no relationship with the owners or staff. The establishment was not under his jurisdiction as an O.P.P. officer. It is the responsibility of the Pembroke City Police.
The witness conducted a 30 minute sight inspection on February 16, 2008, a Saturday night.
The premises was near capacity with an overall smell of beer. The lighting was very dim. At only two locations was it possible to see the eyes of patrons. It was not possible to tell the colour of eyes and whether they were bloodshot or dilated.
It was hard to hear in the premises due to the volume of sound. One had to speak in a loud voice at the front door. Once inside it was necessary to yell to be heard, especially near the dance floor.
The witness observed two bar staff on duty.
The witness made a return visit to the premises and noted a distance of six to eight feet. from the spot where Inspector Lambert noticed P.B. It was not possible to see the face of someone descending the staircase as it is only backlit from the pool table area.
Once again, the witness could not overhear conversations due to the noise. People held up beer mugs to order refills.
The clientele was aged mid 20s to mid 30s.
On cross-examination the witness stated there were two door staff on duty when he arrived.
The witness acknowledged staff knew he was an investigator hired by Shots.
The witness stated he was not present on the premises on the night of any infraction. His on site experience is confined to his visits of February 2008.
The witness is not normally in bars and was not active in liquor enforcement when he was a police officer. His work had nothing to do with regulating liquor establishments.
There was no reply examination.
The hearing adjourned and resumed November 4, 2008
Anthony (Tony) Burrell has worked at Shots since January 2006. After six months on the job he was promoted to Head of Security. He career is in the Armed Forces. Prior to employment at Shots he worked security at a number of premises over the years. He is Smart Serve certified.
The witness stated he was hired by Keith Brown. Keith Brown and Steven White dealt with door staff and had the authority to hire and fire. Almost all the door staff was military.
Staff received training in which safety was stressed as paramount. They were told to separate parties who were fighting and remove them. A safety manual was issued to all staff outlining house procedures.
The check at the front door required government issued ID. Fake documents were confiscated.
Line-ups were common on Saturdays and long weekends. The counters at the front door used clickers to keep track of numbers entering and exiting. There is also an ID reader to detect counterfeit ID.
There is no “pat down” of patrons or a metal detector. Any altercation by a patron results in a three month suspension. People barred from the premises are registered in a book.
The witness stated Inspector Lambert was wearing jeans when he first met him and identified himself. Inspector Lambert came to the premises often on Thursday and Saturday nights.
The witness initially got along with Inspector Lambert but later thought he was prone to “making things up.”
Inspector Lambert made suggestions regarding more counters, doormen, and procedures related to intoxicated persons.
On an average Saturday night the witness arrives at 9:45 p.m. He confirms schedules of employees and discusses any incidents of the previous week.
The lights are turned down at 10:15 p.m. until closing time.
The music speakers are above each door in the ceiling. There are big speakers facing the dance floor where the music is very loud. Volume is controlled by the DJ.
The witness stated he could detect intoxicated persons by their body movement, speech and facial expression.
The witness was working on June 29, 2007 when he saw Inspector Lambert. It was a Thursday night. Lambert arrived around 12:00 a.m. to 12:15 a.m.
The inspector identified a seated female 5'10”, thin, with long dark hair, and said she was borderline intoxicated. The witness stated the inspector made his observation when he was about 12 feet away from her. He never saw the inspector speak to the woman.
The witness spoke to her in the kitchen area and asked her how much she had consumed. She said “a couple.” He told her to go home. A friend took care of her and they left the premises. She did not attempt to re-enter.
The witness said the woman showed no signs of intoxication – her speech was not slurred, she answered questions competently, and she was not unsteady. However, he could tell one more drink could put her over the edge.
The witness referred to a man standing in front of the bar. The doorman said he had asked him to leave and he had refused. The inspector was about 8 feet from the patron.
The man was heavy set, mid 40s, with brown hair, wearing a grey shirt and blue jeans. He appeared to have had enough to drink – he was loud, boisterous, and yelling, but he got up and left after being challenged by the witness.
When the man got up he was unsteady on his feet.
The witness stated another patron was observed by the inspector. This was a young man wearing blue jeans, a coloured shirt, and brand new Puma running shoes. The inspector stated the man was obviously drunk and could hardly stand up. The inspector was seven to nine feet away from the patron.
The patron told the witness he had just finished playing two hours of soccer and was limping.
The witness could detect no signs of intoxication in the patron. The patron was defensive saying, “I’m sorry about putting you in a bad position.”
Another patron was observed by the witness. This was a short, older lady sitting at the bar. She was 5”4, blond, wearing running shoes, a red jacket and blue jeans.
The witness remembered her. He had asked the woman to leave earlier in the evening. He had no idea how she had got back in. The woman had a full beer on the bar and is a frequent visitor. She screamed and yelled at him for two minutes and then left by the front door.
The woman had been asked to leave because she had been harassing staff, exhibiting disruptive behaviour, and was intoxicated.
The witness stated he had asked a few other people to leave that night. Inspector Lambert was complimentary about his handling of the situation.
The witness said to the inspector, “Ever have one of those nights - me against the world?”
The witness testified he had known patron P.B. for about three to four years. He likes to dance, is flamboyant and friendly but is no bother. One time on his birthday he was asked to leave because he had too many shooters. P.B. was a sporadic patron, coming in two to three times a month.
The witness was not present for the August 17, 2007 incident.
On cross-examination the witness stated the sound and light conditions in the premises did not prevent him from doing his job. He was sure he could assess patrons for signs of intoxication.
The witness acknowledged he was paid to ensure the safety of patrons.
Door staff control the line-up and check ID. There is one counter at the front door and two at the rear door.
June 29, 2007 was a Thursday night. The witness did not recall what time Inspector Lambert entered and exited the premises.
Inspector Lambert identified one drunken patron. The witness considered the patron borderline, not drunk.
The inspector did not tell the witness he had five intoxicated patrons.
The witness stated he did not have the bar’s Incident Report Book at the hearing.
Inspector Lambert did ask if the premises required more security staff. The witness agreed more security could be useful. However, patron numbers have declined so there is no need.
The witness stated the inspector appeared to be looking for mistakes as opposed to making helpful suggestions. Most of the incidents in the inspector’s mind were not real infractions.
The witness acknowledged that slurred speech, loud speech, being held up by friends, and wobbly gait were signs of intoxication.
The witness does recall the conversation with the inspector regarding a man in his early 40s near the front entrance. He had played soccer and was in a striped shirt.
The witness could not recall why he had originally kicked out the patron.
The witness did say to Inspector Lambert, “Did you ever feel like you are the only one doing everything? It’s frustrating.”
The witness stated Thursday June 29, 2007 was a busy night with lots of people at the bar.
On reply the witness stated two security guards roamed the premises looking for infractions – one on the lower level and one on the upper.
David Sloan is a sergeant in the Armed Forces. He has worked part-time at Shots since 1998, first as a doorman and for the past four years as a DJ.
The witness works from 10:00 p.m. to 2:00 a.m. on Friday and Saturday nights.
As a DJ the witness spends most of the evening inside his booth. He does not drink or serve alcohol.
If the witness sees a patron intoxicated he notifies security or bar staff. He does this once or twice every weekend.
The witness knows Helene Coburn. She often requests songs, is very energetic and constantly happy. He always talks to her and has never seen her drink alcohol. She dances regularly and spends 85 per cent of her time on the dance floor.
On cross-examination the witness stated his songs are on CD’s.
The witness was not working the night of June 29, 2007.
Helene Coburn is a widow, aged 55, who works as a cleaner and cake decorator.
She stayed at home for three years before starting to go out in 2006 after her husband’s passing. She goes with her sister and other girlfriends. She does not drink alcohol so she acts as a designated driver.
The bar has good music but it is loud. You have to be about a foot away from someone to be heard.
There is a strong smell of sweat. You would have to be close to smell alcohol. Due to the dim lighting you would have to be three to four feet away to make any detailed observation of someone’s eyes.
The witness dances freestyle using her whole body. The atmosphere is “hyper” with lots of loud talk.
On cross-examination the witness said she has never seen anybody “loaded” on the premises.
The hearing adjourned and resumed on March 26, 2009
The hearing on March 26, 2009 consisted of procedural discussions regarding the evidence of a minor.
Licensee's Counsel stated the minor was in detention and it was not possible for him to appear. Licensee’s Counsel also stated his evidence was crucial and material to the ends of justice. The Licensee must be accorded every opportunity to test evidence.
Licensee's Counsel requested an adjournment to enable the youth to testify. A bench warrant would be sought.
After significant discussion the hearing was adjourned for the purpose of giving Licensee's Counsel another opportunity to secure the testimony of the minor.
The hearing adjourned and resumed on December 2, 2009.
As a preliminary issue Licensee's Counsel reviewed the history of the attempt to obtain the testimony of the youth, J.W. The youth was expected today but had still not arrived. Licensee's Counsel requested a recess until 10:30 a.m. The recess was granted.
The hearing resumed at 10:30 a.m. Mr. Kelly stated the youth was present and would testify.
J.W. lives in Pembroke, attends grade 11, and has a D.O.B. of November 26, 1989. He stated he worked at a call centre for nine months in 2007/08. He also worked as a labourer at various companies but got laid off for winter.
The witness stated he has a conviction under the Youth Criminal Justice Act for theft and numerous breaches (20) of recognizance and curfew conditions.
The witness stated he had three theft convictions (cars, computers) and one for possession of stolen property. He served a year in jail in addition to one year probation for forcible entry and confinement.
The witness stated 90 per cent of his breaches of probation were due to alcohol abuse. The alcohol stopped being a problem in 2008. He used to be in jail every weekend due to alcohol abuse.
The witness stated he did not get along with his mother and had no respect for authority figures.
The witness testified he was in a fight that took place in an alley beside Shot’s between 2:00 am and 3:00 a.m. on the evening of August 11, 2007. The witness spoke to police that night who wanted to take him to the hospital. He refused and they drove him home. His mother later called police about the incident.
J.W. stated he met with Inspector Lambert of the AGCO and told him what happened. He does not recall the details of what he told the inspector. The witness could have been drinking outside or inside the premises.
The witness testified his interview with Inspector Lambert took place the day following the fight. He examined Exhibit #2, the interview report of Inspector Lambert, and stated the writing was his, as was the signature.
The witness examined Exhibit #5 dated July 14, 2008 consisting of an interview between J.W. and a private detective hired by Licensee's Counsel. He could not remember if he read the document before signing it. He stated he was unsure whether he had been drinking inside the bar or not. He just remembers waking up in an ambulance.
On cross-examination the witness stated his mother called the AGCO after the fight incident. Inspector Lambert came to his mother’s house and told J.W. there was no problem if he did not want to give a statement.
The witness acknowledged he had a clearer memory of the incident when he wrote the statement for Inspector Lambert than he does now.
The witness stated Teresa Mallette, a close family friend, said she had bought him four beers in the bar.
His uncle urged him to write his Exhibit #4 statement because he wanted J.W. to say he was not drinking in the bar.
J.W. stated he did not buy beer in the bar and was never asked for ID.
He was drinking before he got to Shots, having had approximately 10 beers before arrival.
The witness acknowledged he was drunk when admitted to Shots. He stayed in the bar from 7:00 p.m. until closing.
The witness admitted he “probably” would not remain in the bar for over an hour if he did not drink. He was not served beer but was given beer in the bar by a family friend, Teresa.
J.W. stated this was not his first time in Shot’s. He has previously often been kicked out for not having ID.
The witness stated he has been told totally different versions of how the fight began. An argument started and that led to a fight. The incident began when a man cut in while the witness was dancing inside the premises.
In response to the panel, the witness stated he “made an ass of himself” that night by getting into a fight.
J.W. confirmed he was drunk while on the premises. He stated he has been admitted to the premises while drunk on many occasions. On this occasion he was not served in the premises.
The panel adjourned for lunch and resumed at 1:15 p.m.
Registrar’s Submissions
Inspector Mark Lambert visited the Licensee’s premises on June 29, 2007 and found five intoxicated patrons in the establishment.
The first patron was a female in her 20s with brown hair, blue jeans and a black top. Her eyes were droopy and tired looking, her body movement lethargic and speech was slurred. She was talking loudly and had a friend helping her to stand up.
When the head of security saw her he agreed with the assessment of the inspector and said, “I could tell just by looking at her.” He walked the woman towards the front door and removed her. The inspector noted the woman was very unsteady on her feet as she was leaving.
The second intoxicated patron observed by the inspector was a male in his late 30s or 40s who was wearing a multi-coloured top and had brown hair. He was chugging a Labatt Blue beer and almost fell over because he was so unsteady. His eyes were glossy and he talked very loudly with extremely slurred speech. A member of the security team stated he had refused admission to this patron earlier in the evening and did not know how he had gained entry. The drunken patron left with an older man.
The inspector continued his observations and was near an ATM machine when he saw three more intoxicated patrons. One was a male who he had seen at another establishment earlier in the evening drinking two large mugs of draft beer. In Shots the man was drinking two bottles of Labatt Blue. He appeared to be intoxicated with barely audible slurred speech. When he was approached, he chugged a beer and staggered to the front door saying “I’m sorry.”
Inspector Lambert was still near the front door when he observed an intoxicated blonde woman wearing a red top and blue jeans walking very unsteadily from the dance floor to the service bar. Her eyes were bloodshot. She staggered up to the bar, ordered a beer, and was served by a female bartender who made no attempt to assess her condition. The patron had to steady herself by holding the bar when she ordered the beer.
A woman approached the head of security, Tony Burrell, and stated “that blonde girl you kicked out is at the bar getting a beer.” Mr. Burrell went up to the blonde woman at the bar. Her speech was very slurred. She was also verbally aggressive and argumentative with a strong smell of alcohol on her breath. Patrons removed the woman from the establishment.
Inspector Lambert saw a fifth intoxicated patron, a male in his 30s, wearing a stripped golf shirt and blue jeans. His eyes were very red and puffy. He had a strong odour of alcohol and was speaking loudly. He lost his balance and fell toward his female friend.
The inspector saw Mr. Burrell observing him make note of the drunken male patron. On his own initiative Mr. Burrell approached the man and escorted him out the front door. When the man spoke the inspector could hear his speech was very slurred. He wanted to check if he had his coat, apparently unaware he was wearing it. When he left he was very unsteady going out the door.
The five patrons observed by Inspector Lambert all showed extreme signs of intoxication. Mr. Burrell did not dispute that the establishment had permitted five intoxicated patrons to be present.
In cross-examination Mr. Burrell acknowledged he had said to Inspector Lambert, “Do you ever feel like you’re the only one stuck doing everything – it’s frustrating.” This comment is much more consistent with Inspector Lambert’s evidence of what took place at Shots rather than Mr. Burrell’s denial of intoxication on the premises.
It is undisputed by the Licensee that the intoxicated female patron at the bar was previously removed from the establishment for showing signs of intoxication. Not only was she able to gain re-admittance but she was served alcohol at the bar. Staff knew or ought to have known about her drunken condition and stopped her from re-entering the bar, let alone serving her more liquor.
The second intoxicated patron (male, multi-coloured top, brown hair) had also been refused entry because he showed signs of intoxication at the door. However, he had been admitted by a staff member who knew or ought to have known that the patron was drunk, thereby permitting drunkenness to occur on the premises.
Three other patrons also showed very strong signs of intoxication which should have been observed long before they reached that state.
The Registrar therefore submits that the Licensee permitted five intoxicated patrons to be in the establishment on June 29, 2007 in contravention of subsection 45(1) of the O.Reg and that the Licensee permitted the service of liquor to an intoxicated person in contravention of section 29 of the LLA.
On the night of August 11, 2007, a 17-year-old minor, J.W., drank 10 beers elsewhere and was admitted to the establishment, although drunk. He was refused entry at first because he did not have ID but gained admittance through the back door.
The minor was in the establishment for at least an hour. He did not buy drinks but four drinks were purchased for him by a relative.
The minor was with two young women. He got into a dispute with a male who cut in on him and was tossed out after arguing and then punching the man. The man then assaulted the minor in an alley beside the establishment. The youth blacked out and woke up in an ambulance.
It is clear the youth was drinking in the establishment and that he was close to the bar when he consumed. He was not asked for ID once in the bar. He should have been asked for ID when alcohol was purchased for him.
The minor was not pressured in any way to give a statement to Inspector Lambert. His mother contacted the AGCO because she was angry he had been assaulted both inside and outside the establishment.
The statement given to Inspector Lambert was the statement given closest to the night in question. The minor was later reluctant to give any further evidence.
The Registrar maintains the Licensee permitted a minor to enter the establishment when clearly drunk, permitted him to consume alcohol when staff knew or ought to have known that he was under 19 years of age, and failed to ask him for ID when he drank beer purchased for him. These are breaches of subsection 30(4) of the LLA and subsections 41(1) and 45(1) of the O.Reg. The Licensee also permitted the minor to behave in a disorderly manner by failing to stop an argument and fight that took place on the dance floor, and later in an alley beside the premises.
On August 17, 2007 Inspectors Rowntree and Lambert conducted a further inspection of the Licensee’s premises.
Both inspectors observed a drunken male patron, identified as P.B. He was unsteady on his feet, his speech was slurred and motor skills were impaired. Inspector Lambert got close to the patron and noticed his eyes were very glossy and dilated, his behaviour uninhibited, and he had a strong odour of alcohol. His movements were lethargic. The evidence is clear the man was showing strong signs of intoxication.
The inspectors approached the manager, Greg Meighen, who was very busy dealing with liquor purchases. When the inspectors drew his attention to the drunken male he admitted he disliked watching the patron because he believed him to be gay and his behaviour made him uncomfortable. The manager had waiting customers so he did not see the male stagger out the back door.
Later in the evening Inspector Rowntree saw a blonde female, wearing a white mini skirt and black top who appeared intoxicated. She was held up by other patrons. When he was close to her he observed she had slurred speech and had difficulty focusing. She had trouble controlling her balance and was bumping into other patrons.
The Registrar states the Licensee permitted two drunken patrons in the establishment on August 17, 2007, contravening subsection 45(1) of the O.Reg.
In conclusion, the Registrar maintains the Licensee knew or ought to have known about the presence of all the drunken patrons observed by the inspectors on June 29, 2007 and August 17, 2007, and the drunken minor on August 11, 2007.
Licensee’s Submissions
Counsel for the Licensee noted that Inspector Lambert on June 29, 2007 did not attempt to speak to any of the alleged intoxicated patrons, did not try to find out any information regarding the individuals, did not make any inquiries to bar staff about the persons, did not observe any of these patrons for more than ten minutes, and did not wait to see if certain patrons exhibited any additional signs or repeated those signs.
The premises hold close to 300 patrons. On June 29, 2007 and August 17, 2007 the bar was extremely loud and full of people. The area occupied by the alleged intoxicated patrons was crowded and dimly lit. The evidence of loud, crowded and dimly lit surroundings was not challenged by the Registrar.
Tony Burrell did not admit that intoxicated patrons were in the bar on June 29, 2007. In fact, he specifically disputed that allegation or any suggestion that he did not live up to his responsibilities under the LLA.
The Board should also consider that both Inspector Rowntree and Inspector Lambert had been on the job less than one year at the time of the incident. In contrast, staff for the Licensee had years of experience in alcohol service.
Tony Burrell (Head of Security) was a responsive, detailed witness. He holds a responsible position in the Canadian Armed Forces. None of the differences between his testimony and that of Inspector Lambert was challenged.
Peter Van Hoof is a retired police officer of great experience. He observed patrons from the same vantage point as the inspectors and testified it would be very difficult to hear any voices or see someone’s eyes from where the inspectors were standing.
In his evidence in chief, Inspector Lambert observed a woman in her 20s with brown hair wearing blue jeans and a black top. He stated the woman’s eyes were extremely droopy, she was very tired looking and had lethargic body motions while speaking. The woman was speaking in a loud tone with very slurred speech. A friend was holding her up.
The inspector stated Mr. Burrell went over to the woman and evicted her. The inspector said the woman had a very unsteady walk. He acknowledged he made no note in his report about the woman being loud.
Tony Burrell described the woman as being “close to the line”, “not intoxicated but getting there.” Mr. Burrell took the woman to the kitchen area and spoke to her where he found she did not have slurred speech, did not smell of alcohol, and was not unsteady on her feet but he could tell she was lethargic.
Inspector Lambert did not suggest the woman had been served alcohol inside the premises and he knew nothing about how long she had been there. Upon Inspector Lambert pointing out the woman, Mr. Burrell immediately responded by interviewing and evicting her.
The second alleged intoxicated patron was a man in his early 40s wearing a multi-coloured top, and had brown hair. He was chugging a Labatt Blue. Inspector Lambert suggests the man nearly fell over when he stood up and was very unsteady. The inspector said the man talked very loudly and his eyes were extremely glassy and watery. He also stated the man had extremely slurred speech and he was not able to understand what he said.
Mr. Burrell stated the man was sitting down and appeared boisterous. The patron did appear unsteady on his feet but Mr. Burrell disputed the assertion the man was intoxicated.
Mr. Burrell immediately ejected the patron because the man had previously been asked to leave. The evidence would suggest the man was under the influence of alcohol but he was unwilling to say the man was intoxicated. No specific indices of intoxication were given about the man’s unsteadiness or his slurred speech.
Inspector Lambert testified he had an unobstructed view of a male wearing a black cap, red fleece sweater and recognized him from a previous establishment where he had consumed two large drafts of beer.
The inspector stated the man was sloppy. The man chugged his beer, his speech was slurred and barely audible. He further stated the man was very unbalanced as he staggered towards the entrance and made the comment “I’m sorry.”
Mr. Burrell stated he had met this patron earlier in the evening. The man had told him he had been playing soccer all day long. Mr. Burrell did not consider the man impaired but told the patron he would have to leave because of the inspector. The man was merely apologising for causing the misunderstanding with the inspector.
Inspector Lambert stated a bartender served an intoxicated woman at the bar. The woman was steadying herself by holding the bar. Her eyes were very bloodshot. Another woman approached Mr. Burrell and told him a woman he had evicted was at the bar.
Inspector Lambert stated that Mr. Burrell pulled the woman from the bar and asked her to leave. She became very aggressive and slurred her speech. There was a strong odour of alcohol on her breath.
Mr. Burrell testified the woman who was served after being ejected never took possession of the beer served to her as he immediately took it away.
The Licensee immediately dealt with this patron who had re-entered after eviction and escorted her out without incident. This is how security is supposed to work.
Inspector Lambert testified he was at the front entrance when he observed a male wearing a white golf shirt with pinstripes. He was unsteady on his feet, his eyes were red and puffy and he had large bags under his eyes. He stated the male was directly in front of him. There was a strong odour on his breath and he spoke loudly. The male fell forward and began kissing a woman in a sloppy fashion.
Inspector Lambert stated Mr. Burrell escorted the male to the front door. The male had extremely slurred speech and was looking for his coat, despite the fact that he was wearing it. He was incoherent, very unsteady and staggered out the front door.
Mr. Burrell did not recall this individual. He indicated he asked other people to leave that night and did not particularly notice this individual.
Inspector Lambert testified that on the night of August 17, 2007 he observed a male coming down stairs from the pool table area in the premises to the first level. The man was six feet tall, skinny, wearing a pink and orange pin-stripped shirt and he looked like he was almost going to fall over the stairs.
The inspector stated the male was extremely unsteady and appeared to be out of breath. The man laughed hysterically, his eyes were glossy, and he had a strong odour of alcohol on his breath. The inspector considered him 100 per cent intoxicated.
The male was escorted off the premises.
Mr. Burrell stated the male was flamboyant, liked to dance and always looked tired.
Greg Meighen testified he served the man two beers. He stated the man was effeminate and always acted in that manner.
The notes of the inspectors are incomplete and often fail to state the distance between observer and patron, lighting conditions, obstructed sight lines, ages of patrons, and other important information that was presented in evidence only as recollections unsubstantiated by recordings, written or otherwise.
The evidence given by the youth is doubtful because of his patent lack of reliability and credibility. All the evidence submitted about the events of August 11, 2007 should be treated very cautiously.
The youth was a reluctant witness who had failed to appear on previous occasions. He has a long record of convictions and has been diagnosed with various disorders. The youth was presented with the three statements attributed to him and responded that there was some truth in all of them.
The youth was clear that alcohol was not served to him at Shot’s.
The youth’s testimony neither proves nor disproves any of the allegations regarding the night of August 11, 2007. Consequently, no finding should be made.
Registrar’s Reply Submissions
The Licensee has made several incorrect assumptions in his submission.
The Licensee has confused this administrative proceeding with a criminal proceeding. The Licensee has voluntarily submitted to a regulatory regime by applying for a liquor licence. This is a fundamental distinction between proceedings before a court and those before the Board.
The Licensee assumes that a five to 10 minute observation of conduct is not long enough to see whether a person is showing signs of intoxication. However, such a period is more than ample to assess a person’s sobriety. The Court of Appeal recognized five to eight minutes of continuous observation as sufficient in the Sin City decision. Most assessments of intoxication are made by staff in far less time. The assumption that Inspector Lambert did not have enough time to assess signs of intoxication is clearly incorrect and his evidence cannot be dismissed for this reason.
Inspector Lambert was always in a better position to assess patrons than Tony Burrell who was frequently distracted by other issues during the course of their inspections. Inspector Lambert, on the other hand, had as his sole focus the assessment of intoxication.
The Licensee has challenged the content of notes made by the inspectors and their relation to testimony. Notes have been affirmed by the courts as useful to refresh the memory of witnesses. They do not need to specifically document or support all elements of oral testimony as recollected by a witness. A detail does not need to be included in notes to be credible.
The Licensee has made an error in law in assuming there has to be evidence that the Licensee “knew” about drunken patrons and did nothing. That is incorrect. The issue is whether the Licensee’s staff ought to have seen the drunken patrons observed by Inspectors Lambert and Rowntree and taken appropriate action. The Court of Appeal has found the Board can reasonably expect that a patron observed by inspectors for five to eight minutes should have come to the attention of staff properly doing their job.
Reasons and Analysis
Numerous allegations were made by the Registrar against the Licensee in the Notice of Proposal.
The Board intends to begin by addressing the allegations related to the minor.
Events of August 11, 2007
The Licensee submits that all the evidence given by the youth should be treated cautiously due to his patent lack of reliability and credibility. However, certain facts were not disputed.
There is no dispute that the minor was present in the establishment on the night of August 11, 2007. There is no dispute he got into a fight.
There are three statements from the youth. The first (Exhibit #2) is dated August 14, 2007 and was given to Inspector Lambert at the youth’s home just days after the incident.
The second statement (Exhibit #4) dated September 2007 consists of a single sheet denying he was served liquor in Shots. Any details, such as the date of the incident, are missing.
The third statement (Exhibit #5) was given in July 2008, almost a year after the incident, to an agent hired by the Licensee.
The youth testified he was under pressure to write Exhibit #4 because his uncle wanted him to say he was not drinking at the bar. Given this testimony and the very brief content of the exhibit the Board gives little weight to the credibility of this document.
As for Exhibit #5, the witness contradicted its content in his testimony. In the statement the youth says, “I had nothing to drink and I got kicked out.”
The youth testified he was not served beer but was bought beer in the bar by a family friend, whom he named. Given that he arrived at 7:00 p.m. and stayed until closing it goes well beyond a balance of probabilities to consider that this youth, who had a serious drinking problem and a history of attending this establishment, would stay in the bar for that amount of time without having an alcoholic drink, if not several.
The Board considers the statement obtained by Inspector Lambert (Exhibit #2) to be the most credible as it was taken within days of the incident and contains specific recollections (such as the brand of beer the youth drank). The youth was left alone to write his statement before presenting it to the inspector. He also acknowledged he had a clearer memory of the incident when he wrote this statement than he had now.
In his statement the youth acknowledges he was “hammered” when he was admitted to the bar. He notes a friend purchased four beers (Alexander Keith’s) for him in the bar. He states he has been in Shots before with fake ID. He was accompanied by a female minor and noted in his statement there were numerous underage drinkers in the bar. No one checked his ID all night.
The youth confirmed in testimony that he was drunk while on the premises on the night of August 11, 2007. The youth later got in a fight outside the premises.
Based on the statement (Exhibit #2) and testimony of the youth the Board finds the Licensee to be in breach of subsection 45(1) of the O.Reg in that the Licensee permitted drunkenness to occur on the licensed premises.
The youth’s adverse history with the premises is a major consideration in assessing the remaining allegations.
The youth testified he had previously often been evicted from Shots for not having ID. He also stated he had been admitted to the premises while drunk on many occasions.
Given this extensive history, security staff at Shots should have been well aware of this minor, yet he was admitted to the premises at 7:00 p.m. while drunk, and allowed to stay until closing without an ID check or any supervision to ensure he was not drinking alcohol.
Clearly, the Licensee knew or ought to have known the youth would drink alcohol once he was in the premises. In fact, he was drinking beer throughout the evening. He stated he drank four Alexander Keith’s. His statement on never being asked for ID was not challenged.
Based on this evidence, the Board finds the Licensee permitted a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises.
The Board dismisses the allegation of a breach of subsection 41(1) of the O.Reg. There is insufficient evidence the youth was sold or served liquor.
The Board dismisses the allegation that the Licensee knowingly sold or supplied liquor to a person under nineteen years of age for the same reason. There is insufficient evidence of the sale and service of alcohol to a minor.
The Board dismisses the alleged breach of subsection 30(2) of the LLA as there was insufficient evidence that the Licensee or agent sold or supplied liquor to a person who appeared to be under nineteen years of age.
Events of June 29, 2007
On June 29, 2007, Inspector Lambert arrived alone and entered the premises at 1:29 a.m. through the rear door.
Once inside he noticed a female in her 20s with brown curly hair, blue jeans and a black top. He stated her eyes were extremely droopy, she was lethargic, speaking loudly in a slurred voice, and a friend was holding her up. She had a very unsteady walk. After she sat down her head wobbled from side-to-side.
The inspector testified he spoke to the door security man, Tony Burrell, about her and Mr. Burrell said, “I could tell just by looking at her.”
Tony Burrell in testimony denied he said this. He stated he took the woman into the kitchen to assess her in better light. She was not unsteady on her feet, and did not have slurred speech – in fact she showed no signs of intoxication. Asked how much she drank she stated “a couple.” However, he could tell one more drink could put her over the edge.
Counsel in submission stated Mr. Burrell evicted the woman. The inspector testified the woman was put in the care of her friend and the two left the premises.
The Board considers the testimony of Mr. Burrell regarding this patron to be unreliable and contradictory. He stated he saw none of the signs of intoxication observed by Inspector Lambert, yet he could tell after close and detailed examination that she was “close to the edge.” Obviously, the woman demonstrated evident signs of impairment or Mr. Burrell would not have reached that conclusion and had her evicted.
The Board considers the testimony of Inspector Lambert to be more credible given his clear, consistent and detailed observations and finds on the balance of probabilities that the woman was drunk on the premises.
Inspector Lambert later observed an intoxicated male in his late 30s or early 40s with brown hair, wearing a white multicoloured top, chugging a Labatt Blue beer. The patron’s eyes were glossy and he talked very loudly with unintelligible, slurred speech. He was very unsteady and would have fallen over if a woman had not assisted him.
Inspector Lambert testified a member of the security team, Mark, noticed him observing the man and stated he had been refused entry earlier in the evening and he did not know how he got in.
Tony Burrell acknowledged in testimony the man appeared to have had enough to drink in that he was loud, boisterous and yelling. He challenged the man, who then got up and left. Mr. Burrell noted he was unsteady on his feet.
The Board finds on the balance of probabilities that this patron was drunk on the premises given the indices of intoxication noted by both Inspector Lambert and Mr. Burrell.
Inspector Lambert had an unobstructed view of another intoxicated patron - a male in his early 20s who wore a black baseball cap and a fleece sweater. The man appeared tired and very unbalanced and unfocused.
Inspector Lambert stated the patron was approached by Mr. Burrell. The man chugged one bottle of beer and staggered towards the entrance saying, “I’m sorry”. His speech was extremely slurred.
The inspector concluded the man showed clear signs of extreme intoxication.
Tony Burrell testified the inspector was seven to nine feet away from this patron when he made his observations.
Mr. Burrell stated the man told him he had just finished playing two hours of soccer and was limping. He saw no signs of intoxication. The patron said, “I’m sorry about putting you in a bad position.”
Again the issue of credibility arises. Inspector Lambert saw clear signs of intoxication. Mr. Burrell saw none, instead suggesting the man’s behaviour was due to a two hour soccer game and consequent limping.
The Board considers Inspector Lambert’s testimony more credible in this instance. If the man was merely tired, limping with an injury, it is unlikely he would meekly assent to being evicted from the premises for drunkenness, muttering an apology as he did so. Most tellingly, he demonstrated clear signs of intoxication such as lack of focus, staggering, and slurred speech.
The Board finds, on the balance of probabilities, that the patron was intoxicated on the licensed premises.
Inspector Lambert subsequently noticed a blonde female wearing a red top and blue jeans walk from the dance floor to the service bar where she ordered a Budweiser beer. Her eyes were bloodshot and she was very unsteady on her feet. The bartender did not acknowledge her intoxicated appearance and proceeded to serve her. Inspector Lambert testified a woman approached Mr. Burrell and said the blonde woman had been evicted earlier and was now ordering a beer. Mr. Burrell approached the woman, pulled her from the bar and brought her to the front door. She did not consume the beer as Mr. Burrell intervened and took it away from her.
Inspector Lambert stated the woman became aggressive and argumentative. Her speech was very slurred and there was a strong smell of alcohol on her breath. The woman’s friends took her out of the bar.
Mr. Burrell testified he had asked the woman to leave earlier in the evening and had no idea how she got back in. She had been harassing staff, exhibited disruptive behaviour and was intoxicated.
On being asked to leave for the second time, Mr. Burrell stated the woman screamed and yelled at him for two minutes and then left.
The Board finds that the woman was drunk on the premises given the admission by Mr. Burrell that she was intoxicated and the evident indices of intoxication noted both by him and Inspector Lambert.
Inspector Lambert testified the intoxicated female ordered a Budweiser beer from the bartender and was served. He stated Mr. Burrell intervened and prevented her from consuming it. Mr. Burrell acknowledged in testimony that the woman had a full glass of beer in front of her at the bar.
The Board considers the placement of beer in front of a customer to be clear evidence of purchase and sale. Even if the beer was put on a “tab” and no cash had yet changed hands, a transaction had been agreed upon which constitutes a purchase.
In this instance the inspector testified he heard the woman state she was waiting for her change, indicating clearly that a purchase had taken place.
The Board therefore finds liquor was sold or supplied to a person who was or appeared to be intoxicated.
Inspector Lambert noted a fifth intoxicated patron. This was a male in his 30s, wearing a white pin-stripped golf shirt and blue jeans. He was very unsteady on his feet, swaying back on his heels. His eyes were red and puffy, there was a strong odour of alcohol on his breath and he spoke loudly. He lost his balance and fell forward into a friend.
Upon seeing the inspector making his observations, Mr. Burrell escorted the man out the front door. The man spoke and Inspector Lambert could hear his speech was extremely slurred. He was practically incoherent. The man asked about his coat, unaware he was wearing it. He staggered out the door and was very unsteady.
Mr. Burrell did not give evidence on this patron.
The Board finds on the balance of probability that the patron was drunk on the premises based on the credible and unrefuted evidence of Inspector Lambert.
Inspector Lambert advised Mr. Burrell of the infractions of “permit drunkenness” and “service to an intoxicated person.” He did not dispute them.
Mr. Burrell stated to the inspector, “Did you ever feel like you were the only one stuck doing everything? It’s frustrating.” In cross-examination Mr. Burrell acknowledged making this comment.
The Board considers this statement a significant admission that the premises lacked the resources necessary to run a responsible establishment.
Inspector Lambert testified he noted numerous other patrons in advanced stages of intoxication on June 29, 2007. This observation, combined with the unauthorized re-entry of at least two patrons who had been evicted that evening, leads the Board to conclude that management was negligent in its responsibilities and the premises was verging on ungovernable, given the number of intoxicated patrons observed that night.
August 17, 2007
Inspector Lambert testified he arrived at the premises at 12:22 a.m. with Inspector Andrew Rowntree who was conducting an undercover operation. Inspector Lambert entered the premises at 12:51 a.m. and identified himself.
The witness noted the manager, Greg Meighen, was serving at the bar.
The witness observed a male heading down the stairs from the pool hall area. He was six feet. tall, extremely skinny and wearing a white, pink and orange button up shirt.
The man was extremely unsteady, breathing heavily, and had a strong odour of alcohol on his breath. His eyes were extremely glossy and dilated. His clumsy walk, lethargic movements, unsteady posture and uninhibited behaviour clearly indicated his intoxicated condition.
The inspector observed this man until 1:05 a.m. and then identified him to the manager who said, “Yeah, oh yeah, I noticed him.” The manager then alerted security who escorted the patron out the back door.
The inspector exited the premises at 1:24 a.m. He did not converse with Inspector Rowntree in the establishment.
Inspector Rowntree testified he was on the premises on the night of August 17, 2007 in an undercover capacity and saw the same patron. He had glossy red eyes, was unsteady on his feet and had slurred speech. The inspector stated he observed the man from three to six feet away with no intervening persons.
Tony Burrell stated he had known this patron, P.B., for three to four years. He likes to dance, is flamboyant, and is an occasional customer, coming in two to three times a month. Mr. Burrell was not present in the premises on August 17, 2007.
Greg Meighen, the night manager, testified he was present in the premises and had a conversation regarding P.B. with Inspector Lambert on the night of August 17, 2007. P.B. had been barred from Shots but was able to enter the establishment some time between 10:00 p.m. and 10:30 p.m. and served two Budweiser beers.
Mr. Meighen stated the man was his usual self – very flamboyant, mannered and effeminate. The inspector said he was over-served but Mr. Meighen replied, “I don’t think so.” Despite this comment, Mr. Meighen took the patron to the doorman and had him evicted.
The Licensee, Kimberley Brown, was not in the premises on any of the nights in question, June 29, August 11, or August 17, 2007. She acknowledged P.B. had been ejected on occasion from the premises but permitted to enter on August 17.
The Board considers the evidence of Inspector Lambert more credible than staff for several reasons. His testimony was detailed and clearly outlined the indices of intoxication noted in the patron. These were independently corroborated by Inspector Rowntree. The patron P.B. has a history of misbehaviour in the premises and has been ejected before. In fact, he had been barred from the establishment. As soon as the patron was pointed out by Inspector Lambert, Mr. Meighen escorted him out. Despite being barred, the man was able to enter the premises and was served two beers. This is yet another example of the very poor security and service protocols prevailing at Shots.
The evidence of staff is that the man was merely exhibiting his normal behaviour – flamboyant but not intoxicated. Yet the “normal” behaviour of this man had resulted in his being barred from the premises.
The Board finds, on the balance of probabilities and the evidence presented, that the Licensee did permit P.B. to be drunk on the licensed premises on the evening of August 17, 2007.
Inspector Rowntree testified that on the evening of August 17, 2007 he observed a blonde female patron wearing black sandals, a white miniskirt and tank top who showed signs of intoxication. She was held up by friends and had slurred speech. Walking to the washroom she bumped into poles, bumped into people and a wall, had trouble controlling her balance, and had difficulty holding on to the stair railing. She later left the premises.
The witness later saw the woman outside on Pembroke Street about 20 to 30 feet from his vehicle.
The Licensee challenged the inspector’s testimony stating his notes did not have several details presented in testimony. It is not necessary for all details to be in notes as they are used only as an aid to recall events given in testimony. Inspectors testify from an independent recollection.
The inspector was clear in his testimony about the signs of intoxication observed in the woman.
No evidence was presented to refute the testimony of Inspector Rowntree.
The Board finds, based on the balance of probabilities and the evidence presented, that the Licensee permitted drunkenness to occur on the licensed premises.
The Board heard evidence from Peter Van Hoof a former O.P.P. officer who conducted a 30 minute site inspection of the premises on February 16, 2008. He testified the lighting was very dim, such that it was not possible to tell the colour of eyes or whether they were bloodshot. He could not overhear conversation due to the noise.
The witness made a return visit and found the same conditions.
On cross-examination he acknowledged staff knew he was an investigator hired by Shots. He stated he was not present on any of the nights cited for infractions.
The witness said his police career had nothing to do with regulating liquor establishments.
The Board accorded very little weight to this testimony given the fact the witness was not present on any of the nights in question and that none of his professional life as a police officer involved experience in the regulation and enforcement of the Liquor Licence Act.
The Board also heard from David Sloan, the club DJ, and Helene Coburn, a patron. The Licensee had stated the intoxicated female patron observed the night of August 17 was Ms. Coburn. However, the Licensee was not present on any of the nights in question and Ms. Coburn did not confirm if she was present that night or what she might have worn. Accordingly, the Board accords very little weight to the Licensee’s statement regarding Ms. Coburn’s attendance on August 17. In addition, Ms. Coburn stated she did not drink alcohol. It is highly unlikely she was the woman in question as that person exhibited marked signs of intoxication.
The remaining testimony of Mr. Sloan and Ms. Coburn described the general atmosphere of the club, not specific events referred to in testimony. They stated the music is often very loud and the lighting dim.
The Board acknowledges the statement made by the Licensee in submission that staff of the establishment was much more experienced than the inspectors in liquor enforcement due to their length of service as compared to that of the inspectors.
The Board notes that a number of patrons observed for intoxication on both June 27 and August 17, 2007 had initially been evicted from the premises and had found a way to evade security and re-enter the premises. This indicates a marked lack of professionalism and very poor enforcement of a security regime. Their standard of professionalism was abysmal. The inspectors need not be concerned as to their level of professionalism compared to what appears to have been a highly porous and ineffectual security regime.
The Board heard from the Licensee and other witnesses that music in the club is very loud and lighting is dim, to the point where observations for intoxication would be almost impossible. Both Inspector Lambert and Inspector Rowntree gave detailed observations that would indicate more than enough visual capacity was available to carry out their duties. Evidence was also given of numerous conversations between Inspector Lambert and staff and between staff and suspected intoxicated persons while the establishment was in full operation. They were able to communicate verbally without particular difficulty.
The Board was not presented with sufficient evidence to consider the sound and light conditions prevailing in the club on the nights in question to have affected the ability of the inspectors to properly assess intoxicated patrons.
The Board also notes that despite the lengthy period of time over which the hearings took place the Licensee never submitted into evidence the establishment’s Incident Report Book which should have recorded all the incidents described by the inspectors, particularly the fight involving the minor. In addition, evidence was given that the video camera system was broken and no recording exists for the nights in question. The Board considers this an additional indication of negligent management and poor compliance procedures.
Decision
Based on the above, the Board FINDS the Licensee in breach of five (5) counts of subsection 45(1) of the O.Reg in that it permitted five incidents of drunkenness to occur on the licensed premises on the night of June 29, 2007.
The Board FINDS the Licensee in breach of section 29 of the LLA in that liquor was sold or supplied to a female patron who was or appeared to be intoxicated on the night of June 29, 2007.
The Board FINDS the Licensee in breach of two (2) counts of subsection 45(1) of the O.Reg in that it permitted two incidents of drunkenness to occur on the licensed premises on the night of August 17, 2007.
The Board FINDS the Licensee in breach of subsection 30(4) of the LLA in that the Licensee permitted a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises on the night of August 11, 2007.
The Board DISMISSES the allegation of a breach of subsection 41(1) of the O.Reg. There is no evidence the youth was sold or served liquor. He stated he was given beer purchased by a friend.
The Board DISMISSES the allegation of a breach of subsection 30(1) of the LLA in that the Licensee knowingly sold or supplied liquor to a person under nineteen years of age for the same reason. There was no evidence of the sale and service of alcohol to a minor.
The Board DISMISSES the alleged breach of subsection 30(2) of the LLA as there was no evidence the Licensee or agent sold or supplied liquor to a person who appeared to be under nineteen years of age.
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 19th DAY OF May , 2011
ALLAN HIGDON, BOARD MEMBER