Registrar, Alcohol and Gaming Commission of Ontario v. 2142575 Ontario Limited, 2011 CanLII 31527

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-

2142575 Ontario Limited operating as XS Licensee

DECISION ON FINDINGS

Panel: Eleanor Meslin, Chair, AGCO Brian J. Ford, Board Member

Decision Date: April 14, 2011 Hearing Location: Toronto, Ontario

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

Appearances

Registrar, Alcohol and Gaming Commission ) Rena Khan, Representative 2142575 Ontario Limited, Licensee ) Randall Barrs, Representative

Authorities

1197801 Ontario Inc. (c.o.b. Body English) (Re), [2008] O.A.G.C.D. No. 253

Allegations

1A hearing into Notice of Proposal number 18163 dated June 24, 2010 to suspend liquor licence number 810853 (the “licence”) issued to 2142575 Ontario Limited (the “Licensee”) operating as XS, 261 Richmond Street West, Toronto, Ontario, M5V 3M6, (the “establishment” or the “premises”), on the basis of alleged violations of section 30(4) of the Liquor Licence Act (the “LLA”) and section 29 and subsections 45(1) and 45(2) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on December 1 and 2, 2010 in the City of Toronto.

Decision

2The Board FINDS that the Licensee contravened section 29 of the O.Reg and DISMISSES the allegations of violations of subsection 30(4) of the LLA and subsections 45(1) and 45(2) of the O.Reg. Reasons follow.

Registrar’s Evidence

3John Wood is a Constable (“Cst.”) with the Toronto Police Services working out of 52 Division.

4Cst. Wood told the Board he attended at XS on February 14, 2010 at 12:35 a.m. on a general inspection of the liquor premises. He stated he proceeded to the 2nd floor VIP area, where he noticed five to six people drinking beer and mixed drinks.

5Cst. Wood stated two of the males looked youthful. He spoke to one of the youths who produced a driver’s licence in the name of D. M. d.o.b. May 5, 1990.

6Cst. Wood stated the photo on the driver’s licence did not match the young man who presented it to him. The young man was asked to accompany the officer outside in front of the premises, whereupon he was asked further questions.

7During the questioning of the youth, the youth admitted that the licence was not his. He told the officer his name was J.M. with a d.o.b. of July 2, 1991. He was then cautioned about using a false identification.

8Cst. Wood stated he kept the drivers licence in his possession for evidentiary reasons.

9Cst. Wood stated his partner dealt with the other youth. He also stated he advised the head doorman of what had transpired with respect to the young male patron.

10Cst. Wood stated the establishment was very busy and there were security staff at the door checking the identification of people entering the establishment.

11Cst Wood stated the young males were off in a corner of the VIP area and appeared youthful and he became suspicious. He also stated only two of the males were questioned one by him and one by his partner.

12The youth he questioned and found to be underage was holding a beer bottle and he was seen drinking from it. Cst. Wood stated he and his partner had observed the group for about two to three minutes.

13In cross-examination Cst. Wood was asked if his partner that night was at the hearing, he replied he was not because he was ill. He was further asked if the youth his partner talked to was at the hearing, and he replied he was not.

14When asked how many people were in the establishment, Cst. Wood replied he did not know.

15Cst. Wood stated, in response to a question, that security were checking ID at the door and one minor got through.

16Cst. Wood stated that in the establishment he used his flashlight to examine the identification used by J.M. He noted the height on the licence was 183 centimetres or about 6 ft. He did not feel it matched J.M.

17Cst. Wood stated the youth was not charged and he confiscated the driver's licence.

18Cst. Wood also stated he advised the head doorman who had followed him around in the club and outside with the youth but did not show him the ID comparison. He did not get the head doorman's name. He also stated he did not recall speaking to the manager Mr. Arthur Geringas.

19Cst. Wood stated he checked the label of the beer and it was not an alcohol free beer. He did not keep the bottle.

20Cst. Wood stated the Head Doorman followed him outside and stood close by, but he did not know if he heard him talking with the youth.

21Cst. Wood stated he did not believe the ID and the youth were the same person when he looked at it.

22J. M. is the youth who was in the establishment. He stated on February 14, 2010 he went with a group of friends to XS arriving around 11:00 p.m. He said that he was at the establishment a couple of hours drinking beer.

23J.M. stated he drank Corona and had one bottle and nothing else.

24J. M. was asked if he showed ID on entering XS. He stated he believed he handed it to a friend and the friend gave the ID to the doorman.

25J. M. stated he was part of a group of 10 people. He personally had a province of Ontario driver’s licence that belonged to a friend of his.

26J.M. stated his friend D.M.A. is a year older, 19 years, and he was 18-years-old at the time.

27J.M. stated that he was upstairs talking with a friend when the two officers came up to them and asked for ID J. M. stated that when the officer looked at the Driver’s Licence he asked J.M. to come outside with him. The other asked his friend outside as well.

28J.M. stated he ordered the beer he had from the service bar.

29In cross-examination J. M. stated in response to a question that he was 5"11" in height and the height of the person whose ID he used was 6".

30J.M. agreed that there was a strong possibility that the ID would pass as the two were similar in appearance.

31He stated he thought he was drinking Corona but was not sure, but it was beer.

32Josee McFadden is a Liquor Inspector with the AGCO with 2 ½ years experience.

33Inspector McFadden stated she attended XS on February 20, 2010 at 2:53 a.m., in company with Liquor Inspectors Leadbetter, Higuera and Joseph.

34On entering the establishment Inspector McFadden stated she noticed two carafes and two plastic cups on a table in the VIP area. She also stated that she did not know what was in the carafes.

35Inspector McFadden stated on entering the female washroom, she noted three females at one of the toilet stalls. Two of the females were speaking to a female who was in the stall.

36She noted the three females exited the stall and one of the females was unable to stand on her own and stumbled backward into the stall wall.

37Inspector McFadden noted that the female being held, her eyes were drooped. Inspector McFadden requested ID from the female being held and one of the other females produced a University of McGill ID. She said it was the only ID the women had. Her name was S.H.

38S.H. told the Inspector that she had been vomiting in the stall as her stomach ached and she was feeling sick.

39S.H. also told Inspector McFadden she had consumed only one Smirnoff drink and had consumed nothing prior to attending the establishment. S.H. advised Inspector McFadden she had arrived at the establishment at approximately 1:00 a.m.

40Inspector McFadden stated she detected an odour of alcohol on the breath of S.H. She also noted that the female was leaning on one of the other females.

41Inspector McFadden stated S.H. was barefoot and needed help from one of the other females to put her shoes on.

42One of the friends stated she would be responsible for S.H.

43Inspector McFadden stated S.H. needed the assistance of her friends when walking.

44Inspector McFadden spoke with the Manager along with AGCO Inspector Leadbetter and asked if it was common practice to allow patrons in with just a University ID.

45The Manager stated all patrons must have a photo ID for entering the club. He did not reply regarding the validity of university ID, or what ID he considered valid.

46Inspector Leadbetter advised the manager of the infractions found and they left at 3:12 a.m.

47In cross-examination Inspector McFadden stated they arrived at 2:53 a.m., a few minutes after 2:45 a.m.

48Inspector McFadden was asked if the carafes and cups were seized. She responded they were not seized.

49Inspector McFadden stated S.H. had droopy eyes and agreed that it could have been because she was very tired.

50Inspector McFadden was questioned about whether she had inquired if S.H. had used drugs. She responded she did not inquire about drugs, as she smelled alcohol on the breath of S.H.

51It was suggested to Inspector McFadden that the woman's condition could have been from other causes such as the flu as at the time it was in the height of the flu season.

52Inspector McFadden stated she did not have any medical background.

53Jade Leadbetter is a Liquor inspector with the AGCO. She stated she attended at XS with Liquor Inspectors McFadden, Joseph and Higuera on February 20, 2010 at 2:53 a.m.

54Inspector Leadbetter stated when she walked into the club, which is split into two different rooms, and when she walked into the first room there was no one in it.

55Inspector Leadbetter then walked through the entranceway into the next room on the east side. On entering this room she noticed there were several signs of alcoholic beverages still present on the tables and on a stage area in the room.

56Inspector Leadbetter stated she saw a number of plastic cups with beer and was advised that another Liquor Inspector had found a bottle of vodka in the stage area.

57Inspector Leadbetter stated that the substance in the plastic cups was the colour of beer with a white foam consistent with beer and smelled like beer.

58She also stated there were just plastic cups with beer, no bottles, and she did not remember the exact number of cups, but they were littered throughout the area.

59When asked where the staff of the establishment was Inspector Leadbetter stated that she did not recall where they were and did not see anyone cleaning up.

60Inspector Leadbetter advised she was then notified that Inspector McFadden was in the women's washroom dealing with a female who was exhibiting signs of intoxication.

61Inspector Leadbetter attended the washroom area and observed Inspector McFadden speaking with three females. Inspector Leadbetter stated she observed a female between two other females who were exhibiting signs of intoxication.

62Inspector Leadbetter stated the female in the middle was being held up by her two friends. She noted the female's eyes were droopy and she had no shoes on and there was a piece of gum on one of her toes.

63Inspector Leadbetter stated she then noticed another female at the sink area in the washroom who was wiping her mouth and appeared to have just vomited.

64As the woman who was leaving the washroom area walked she appeared to stagger out of the washroom and on her way she hit the wall.

65Inspector Leadbetter stated she identified herself to the woman and asked her for ID. She was shown an Ontario driver’s licence in the name of S.R. born October 20, 1988.

66Ms S.R. told Inspector Leadbetter she drank two rum and cokes in the establishment and had not drank prior to arriving at the establishment.

67When S.R. was asked about her condition she stated, “I would not drive like this.” She also said that she had vomited in the toilet and not the sink.

68Inspector Leadbetter found the woman to be belligerent and uncooperative. She also detected a smell of alcohol on her breath.

69S.R. stated she was leaving with a sober driver and left.

70Inspector Leadbetter stated she spoke with Arthur Geringas, the manager, and advised him of her observations of alcohol still present after 2:45 a.m. She suggested to him that staff begin clearing earlier so all signs can be cleared by 2:45 a.m.

71Inspector Leadbetter also advised Mr. Geringas of the two females in the washroom who exhibited signs of intoxication.

72Inspector Leadbetter stated Mr. Geringas said he was disappointed in his staff and asked to have an educational session for his staff.

73Inspector Leadbetter stated they left the premises at 3:12 a.m.

74In cross-examination Inspector Leadbetter, in response to a question about the liquid in the cups, stated the colour and smell was of beer and that there were different amounts in the cups.

75She stated it was her opinion that the liquid was beer. She also stated she only saw plastic cups and was not aware that they also served non-alcoholic beer.

76Inspector Leadbetter was asked if she told Mr. Geringas that he was only going to get a warning. She replied that she only said she would submit a report.

77Inspector Leadbetter also stated that there was no one drinking from the cups, they were just sitting at the tables.

78Inspector Leadbetter stated that of the four females in the washroom she only spoke to one.

79She did not speak to any of the three females Inspector McFadden was dealing with. She also said she was not aware that one female was vomiting and that she only had one drink.

80Inspector Leadbetter was asked if there was any effort to bring S.R. to the hearing. She was not aware of any. She did have her name and address.

81Inspector Leadbetter stated the woman said she had only two drinks. She also admitted to vomiting.

82When asked if the woman might have taken drugs. Inspector Leadbetter stated she had not asked her if she had taken any drugs.

83Inspector Leadbetter stated there are many types of drugs that could be taken. However she believed the woman was intoxicated by alcohol, as she could smell alcohol on her breath.

84Inspector Leadbetter stated the woman S.R. was also belligerent. She could not recall what type of footwear she had on. She also did not ask what table she was at or how she was served the drinks.

85In response to a question by the Board, Inspector Leadbetter stated she could understand the woman when she was speaking and she spoke clearly. She stated there was no slurring. She reiterated the woman was belligerent and had definitely been drinking.

86Amanda Higuera is a Liquor Inspector with the AGCO and attended XS in company with Liquor Inspectors Leadbetter, McFadden, and Joseph.

87Inspector Higuera stated there were approximately 20 patrons in the club when they arrived.

88On entering the establishment she noted plastic cups with beer in them on the bar. She picked up the cups and they smelled like beer. She noted that there was a male behind the bar but he was not cleaning up.

89Inspector Higuera stated she attended the female washroom and saw Inspector McFadden speaking with a black female who was being held up by two friends.

90Inspector Higuera stated the woman's friends helped her put her shoes on.

91Inspector Higuera stated she did not speak to any of the staff.

92In cross-examination Inspector Higuera stated in response to a question that they entered the establishment 8 minutes after 2:45 a.m.

93She was asked if she seized any of the drinks and she stated they did not, and did not speak to any of the females, or the bartender.

94Trevor Joseph is a Liquor Inspector with the AGCO and he stated he attended XS with Liquor Inspectors, Higuera, McFadden, and Leadbetter at 2:53 a.m.

95Inspector Joseph stated on entering the establishment he noticed numerous plastic cups with what appeared to be liquor in them.

96Inspector Joseph stated he went to the stage area and noticed a 750 ML bottle of 42 Below Vodka with alcohol content of 42 per cent, on the stage.

97The Vodka bottle had a mix of some sort in it as it was reddish pink in colour. He also stated he did not open or smell the liquid in the bottle.

98Inspector Joseph stated he made a notation regarding the bottle of vodka and spoke to Mr. Geringas about the bottle.

99Inspector Joseph stated that the liquid in the plastic cups smell like alcohol and beer. He also noted that not all had alcohol in them, some had water.

100Inspector Joseph stated when he entered the premises less than 30 patrons were in the establishment and he saw no staff cleaning up.

101In cross-examination Inspector Joseph, in response to a question, stated they entered the establishment 8 minutes after all signs of sales and service should have been cleared.

102Inspector Joseph stated that he did not seize any of the alcoholic beverages.

103With reference to the bottle of vodka he stated that it was a partial bottle and that he did not open it or smell it.

104Mark Hall is an Inspector with the AGCO and he stated that on April 4, 2010 he also with Liquor Inspector Stephen Durham, Detective Constable (“D/Cst.”) Peter Harmsen and D/Cst. Christopher Hunt attended XS. He stated they entered the establishment at 1:26 a.m.

105On entering the establishment Inspector Hall stated he noticed the smell of marijuana in the air. He noted that to the right of the entrance is a VIP area with two booths and the smell seemed strongest at the second booth.

106Inspector Hall stated that he did not see anyone in the booth smoking at the time.

107Inspector Hall stated he and Inspector Durham walked away from the booth and took up a position across the room from the booths.

108While Inspector Hall was standing across from the booths he noticed that two security members of the establishment stood near the booth but did not enter it. They then walked away.

109Inspector Durham walked back to the area where the smell was strongest and noticed a man with his back towards the dance floor. The man was smoking a cigarette (joint).

110Inspector Durham identified himself and asked the patron what he had in his hand. The patron then threw the cigarette onto the floor. Inspector Hall noted there were approximately eight patrons in the booth at the time.

111Inspector Hall stated the male was asked to come outside and he refused. Inspector Hall described the male as Asian.

112Inspector Hall identified himself to the male and requested his identification and the male declined to show him it.

113D/Cst. Harmsen and D/Cst. Hunt came to the booth and removed the patron. Inspector Durham retrieved the joint from the floor and turned it over to D/Cst. Hunt of the Toronto Police Service.

114The male was arrested and released by the Toronto Police after showing his ID.

115Inspector Hall stated that they spoke to the Manager and informed him of the infraction and observations but did not recall if the Manager commented regardng the narcotics. They left the establishment at 1:48 a.m.

116Inspector Hall stated when he first arrived the establishment was busy, but there was plenty of room to move around.

117He described the location of the VIP Booth area stating it is in the main area and immediately to the right, noting there are two booths.

118Inspector Hall stated the smell came from the second booth. He also stated they observed the booth for several minutes from across the room.

119Inspector Hall stated he was also making observations of the dance floor while keeping eye contact with the booth to see if anyone would light up and also watching staff.

120Inspector Hall stated that security attended the booth and that they were readily identified as security by the clothing they wore. He said they walked up to the booth stayed for a minute and then walked away. There was no other staff in the vicinity.

121Inspector Hall stated when he and Inspector Durham went back to the booth they noticed the male smoking a joint but did not get his ID. He also said they did not notice anyone else smoking.

122Inspector Hall stated he noticed the smell as soon as he walked into the establishment.

123Inspector Hall stated he did not recall if the manager responded to the comments with respect to the infraction.

124In cross-examination Inspector Hall stated he walked into the establishment and the smell of marijuana was in the air.

125He noted two security people attended the bar and at the time he could not see anyone with them. The security stayed there up to a minute and then they walked away.

126Inspector Hall stated the male had his back to him and that he was cupping the joint when he and Inspector Durham identified themselves. The male then threw the joint on the floor.

127Inspector Hall stated in response to a question that the establishment had metal detectors and that patrons even if patted down could easily sneak a joint in.

128Inspector Hall stated that there were approximately 600-700 patrons in the establishment that night.

129Inspector Hall stated that the male was uncooperative and the Toronto Police officers came and assisted. He also said they let the man go.

130In response to the Board’s questions, Inspector Hall stated he did not speak to the security guard. He did not tell security about his suspicions. He did not see anyone light up or smoke while security was there. He did not follow up with them. He also said he did not know what the security saw.

131Stephen Durham is a Liquor Inspector with the AGCO and he stated he attended XS on April 4, 2010 at 1:26 a.m. with Liquor Inspector Hall, D/Cst. Hunt and D/Cst. Harmsen of the Toronto Police Service, in plain clothes.

132Inspector Durham stated on entering the establishment he could smell a strong odour of burning marijuana. He stated the smell was coming from the VIP booth area.

133Inspector Durham stated he and Inspector Hall went to the area where the smell was strongest to see if they could see anyone smoking.

134Inspector Durham noted that security personnel were present and in front of the VIP booth area.

135Inspector Durham stated when they approached the booth after watching it, he noticed an Asian male with his back turned to the dance floor.

136Inspector Durham stated he identified himself to the male and the male threw the joint on the floor. The male also refused to identify himself to Inspector Hall.

137Inspector Durham stated the police officers who attended with them then took the male outside. Inspector Durham picked up the joint and turned it over to D/Cst. Hunt.

138Inspector Durham stated that he spoke to Mr. Geringas out in front of the premises. He advised him of the male with the marijuana and that his security walked right by and took no action.

139Inspector Durham stated that when he first entered XS he walked to the area of the VIP booths and then to the bar area to watch the VIP booths.

140Inspector Durham stated that he did notice the security people and that they had red shirts with security written on them. The security people at one point were right in front of the booths.

141Inspector Durham stated he was approximately 10 feet from the booths at the time.

142Inspector Durham stated when he spoke to the Asian male, the security were approximately two to five feet away. He did not speak to the security personnel.

143Inspector Durham did not believe security knew who he and Inspector Hall were.

144In cross-examination Inspector Durham stated the security personnel shirts could have been black he was not sure. He also noted there were security personnel throughout the establishment.

145Inspector Durham stated the security consisted of an airport type metal detector and body search (pat down).

146Inspector Durham agreed with a suggestion that a joint could be secreted into the club easily hidden on a person’s body.

147Inspector Durham stated when he went in he walked in the direction of the smell of marijuana and that it got a little stronger near the VIP booth. He and his partner then moved about ten feet away to watch for the source of the smell.

148It was suggested to Inspector Durham that it was pure chance that he caught the man with the joint before security. Inspector Durham responded he believed if the security had gone into booth they would have seen the male.

149In response to questions, the inspector indicated that security did not interfere when inspectors or police questioned patrons.

150He did not know if this individual had been charged or that the bar’s policy was that if caught they would be banned for life.

151To the Board’s questions, Inspector Durham said he had experience and taken the AGCO course in identifying the smell of marijuana.

152Peter Harmsen is a D/Cst. with the Toronto Police Service and he stated that he attended XS along with D/Cst. Hunt, and AGCO Liquor Inspectors Durham and Hall, on April 4, 2010 at 1:22 a.m.

153D/Cst. Harmsen stated that on entering the establishment he noticed a smell of marijuana. The smell he noted was a little stronger in the dance floor area.

154He and his partner checked on a patron who appeared intoxicated but turned out not to be.

155He was then notified by one of the liquor inspectors that they had located a male with a marijuana joint in the VIP area.

156D/Cst. Harmsen and his partner went to the area where the male was and spoke to the individual and took him outside. The joint was handed to the officers by one of the Liquor Inspectors.

157The Joint was placed in an evidence envelope and subsequently sent to Health Canada for analysis.

158The male was identified as C.B. He had no previous record and he was not charged for possession of an illegal drug. He was cautioned and released. The male went back into the establishment with security and retrieved his coat. He advised the club of his findings.

159In cross-examination D/Cst. Harmsen stated the liquor inspectors brought the patron and his partner over to the VIP area. He also stated the male with the joint had no previous contact with the police.

160Chris Hunt is a D/Cst. with the Toronto Police Service and he stated he along with D/Cst. Harmsen, and AGCO Liquor Inspectors Durham and Hall attended XS on April 4, 2010 at 1:20 a.m., in plain clothes.

161D/Cst. Hunt stated on entering the establishment he could smell marijuana but that the smell was not strong. He and his partner checked on one patron thought to be intoxicated, who was not.

162D/Cst. Hunt stated once in the dance floor area the smell of marijuana was strong. He also noticed a few security in the area, in the second booth.

163D/Cst. Hunt stated he noticed the AGCO Liquor Inspectors speaking with a male person in the VIP Booth area.

164Liquor Inspector Hall turned to the officers and advised them he had observed this male smoking in the VIP area.

165D/Cst. Hunt and his partner, after identifying themselves, escorted the male out of the establishment. Inspector Durham seized the joint most of which had been smoked and turned it over to him.

166The cigarette was tagged in an envelope and sent to Health Canada for analysis and came back as cannabis marijuana.

167The male person who was smoking the joint was released at the scene with a caution. D/Cst. Hunt also said they spoke with the manger of the club about the incident.

168D/Cst. Hunt stated there were 8 to 10 people in the area where the male was smoking.

169The marijuana was sent for testing (Exhibit 1).

170The male was allowed to go back into the club after his release to obtain his jacket.

171In cross-examination D/Cst. Hunt stated the second time he went into the dance floor area the smell seemed stronger near the VIP area.

Licensee’s Evidence

172Arthur Geringas is the General Manager of XS.

173Mr. Geringas told the Board that a Mr. John Tsoraklidis is the head of security at XS.

174Mr. Geringas stated he knows D/Cst. Harmsen and that he has a very good professional and positive relationship with the police.

175Mr. Geringas stated XS has three rooms and two entrances both of which are off Richmond Street. There are two large rooms joined by a hallway. The VIP area is raised and overlooks the club.

176Mr. Geringas stated the capacity of the downstairs area is 1,100 and the VIP area upstairs is 100.

177Mr. Geringas stated that security at the point of entry, perform a chat and check, which consists of talking to each patron and checking their identification as they enter the establishment. They are checking for signs of intoxication and drug use. A person will not be allowed in if high on drugs or intoxicated.

178After the chat and check all patrons are checked for ID and all security have flashlights. He further noted that the security personnel only accept government issued photo ID such as a driver’s licence, LCBO card, passport or citizenship card.

179Mr. Geringas stated that all forms of student ID are handed back and are not valid.

180Mr. Geringas stated the first point of contact for patrons is when they pass through a metal detector. He also stated that there is a pat down checking cigarette packs, shoes and pockets as well to assist in checking for drugs and weapons.

181Mr. Geringas stated it is his experience that most patrons hide drugs on areas of their body they know will not be searched, such as underwear.

182Mr. Geringas noted there are other clubs in the area with large capacities. He also noted the area clubs are checked frequently by police and liquor and city officials.

183Mr. Geringas stated that on Saturday nights with approximately 800 patrons there are 20 to 25 security on staff.

184Mr. Geringas stated all security wear black security shirts with a name tag and security number on the shirt. All are licensed by the Province. He also stated he discusses issues regularly with the head of security.

185Mr. Geringas stated that all security and the Manager had radios with microphones and ear pieces.

186Mr. Geringas stated the club is approximately 14,000 sq. ft. in size.

187Mr. Geringas stated the club is U shaped and that the VIP area is on the north wall and is called Hollywood.

188Mr. Geringas stated that if you stood at the bar you would be standing 10-15 feet away from Hollywood 2.

189Mr. Geringas was asked about groups presenting ID and he stated groups are not allowed to present ID as a group; all ID is check individually.

190Mr. Geringas stated he saw the ID the youth presented and there were similarities between the card and the holder. He stated that sometimes youths use a card of a friend who is similar in size and looks and that it is very difficult to detect or to stop. If there is any concern, they are denied entry.

191Mr. Geringas stated he was given notice of the infraction of J.M. several weeks after the event happened. He also stated that the police did not speak to him or approach him.

192Mr. Geringas stated he thought Officer Wood said something to the head doorman. Mr. Geringas stated his security always advise him when an incident occurs.

193With respect to February 20, 2010, he stated it was an urban night and plastic cups were used as a safety measure since there are often fights that night. There had been 300 patrons on that night and only one room was used, the large main room.

194On that night when the AGCO Inspectors were there Mr. Geringas stated he was just finishing his cash out when security advised him they were there.

195Mr. Geringas stated he spoke with Jade Leadbetter, whom he knew, and she told him of the infractions. He stated that he did not see as many cups as they were saying and almost everything in them was water.

196Mr. Geringas stated alcohol sales are cut off at 2 a.m. and all bars are shut down. However, you can still get pop and water after 2 a.m.

197Mr. Geringas stated that some of the liquid did look like beer, but he noted beer does not stay foamy for 53 minutes. He also stated that they serve some non-alcoholic beer.

198Mr. Geringas stated his staff start cleaning up every night at 2:15 a.m.

199Mr. Geringas stated the liquor inspectors did not show him the vodka bottle.

200Mr. Geringas stated Inspector McFadden mentioned three black females in the washroom. He said he did notice them walking back to a booth and they did stumble. However he noted they were wearing very large high heels and were very heavy.

201Mr. Geringas spoke to the server who advised him the booth had 15 patrons and was served one Bacardi Rum bottle and one Vodka bottle.

202Mr. Geringas stated the females were only pointed out as they walked when leaving and he was not asked if he felt they were intoxicated.

203Mr. Geringas stated Inspector McFadden asked if he let people in with student ID and he told her only government issued ID was accepted.

204Mr. Geringas stated he is a member of the BIA and is working with the city and others to develop standard best practices for bars.

205With respect to April 4, 2010, Mr. Geringas stated he was outside and he observed the police officer remove an Asian male. The inspector told him they saw security walk up to the booth, saw people smoking and walked away.

206Mr. Geringas stated there is a zero tolerance for drugs in XS and that he followed-up with staff about the incident. There is a no smoking policy for the whole club.

207Security told him they were looking for the source of the smell, but did not see anyone smoking, and left.

208In cross-examination Mr. Geringas stated that on February 14, 2010 there was security at the door checking ID. He also stated the check is done every night.

209When asked about taking group ID, Mr. Geringas stated security would not take ID from groups.

210Mr. Geringas stated on February 20, 2010 he was cashing out at 3:00 a.m. when he was advised there were liquor inspectors in the premises.

211He was told of the plastic cups and stated he did not pick up the cups to smell the content.

212Mr. Geringas did not have a recollection of any conversation with the liquor inspectors about beer or non-alcoholic beer, only about the cups not being cleared.

213With regard to the females in the washroom on February 20, 2010, Mr. Geringas stated he was told by the inspectors that there were several intoxicated females in the washroom, however he did not see them. He also did not know if staff were in the washrooms.

214Mr. Geringas stated he did see the three females walking with difficulty and they had their shoes on.

215When asked about the woman who was belligerent, Mr. Geringas stated at the end of the night it was not uncommon for people to be belligerent when approached by enforcement personnel.

216Mr. Geringas stated that some people when drinking become belligerent and some become compliant.

217With respect to the person smoking the joint, Mr. Geringas stated he was outside when the person was caught.

218After the incident he met with his security and asked if they saw anyone smoking and they advised him they did not.

219When asked by the Board if security talked to him about the patron, he replied they had not done so.

220Pasquala Cerundolo is a member of the security staff at XS. He stated that he works at XS as a part-time security and that his full-time job is with the City of Toronto.

221Mr. Cerundolo stated he monitors the door and does ID checks. He looks at facial features and uses a flashlight when checking ID. He also stated there is zero tolerance and only Government ID is accepted. If there is any doubt about the identity, the person is not allowed in.

222On April 4, 2010 Mr. Cerundolo stated he was working inside the establishment and got a call on his radio about the smell of marijuana and he and his partner tried to find the source.

223Mr. Cerundolo stated as he approached the Hollywood booths he witnessed an Asian male and officers escorting him outside.

224Mr. Cerundolo stated the individual found with the joint would not be allowed back, as the club has zero tolerance for drugs.

225In cross-examination Mr. Cerundolo stated he was working security primarily at the front door. At 12:30 a.m. he came inside and was made aware of the smell of marijuana.

226Mr. Cerundolo stated he was looking for the source when he noted the police had already found it.

227William Bragioni is a member of the security staff at XS. He was made aware of the smell of marijuana and was looking for the source when he noted two plain clothes officers talking to an Asian male.

228In cross-examination Mr. Bragioni stated he had been looking for the source of the smell for 5 minutes but could not locate who was smoking it.

Registrar’s Submissions

229Ms. Khan noted that on February 14, 2010, D/Cst. Wood while doing a routine inspection with his partner noticed J.M. who appeared to be underage.

230D/Cst. Wood states he immediately noticed that the photo ID did not look like J.M., and noted the height was not accurate and the hair colour appeared different.

231The youth when questioned admitted that he was using someone else’s ID.

232Ms. Khan notes that J.M. testified he went with a group and all of the ID cards were given to the bouncer. He stated the bouncer did not have opportunity to look at each person individually.

233Ms. Khan's submission is that the photo ID used does not look like J.M.

234With respect to February 20, 2010, Ms. Khan notes the evidence of the liquor inspectors who attended that there were two intoxicated females on the premises both of whom vomited.

235One female, Ms. Khan notes, was found in a cubical in the washroom with two friends when Inspector McFadden entered the washroom. According to Inspector McFadden, the woman, Ms H., looked intoxicated and admitted to throwing up and was unsteady on her feet. The female was also barefoot.

236Ms. Khan’s submission is that the woman may have been sick, however, that would not have made her look intoxicated.

237Ms. Khan notes that Mr. Geringas stated in evidence that his attention was directed by the inspectors to two females coming from the washroom area. He indicated that they were heavy set with high heeled shoes.

238Ms. Khan notes the Inspectors testified the woman, Ms H., was so intoxicated she required assistance to walk.

239Ms. Khan stated Ms H. may have been heavy set but that does not change the fact that she had alcohol on her breath and droopy eyes and trouble walking or standing on her own.

240Ms. Khan also noted that the second intoxicated female, Ms. R., admitted to throwing up in the toilet. Inspector Leadbetter smelled alcohol on her breath. This woman admitted drinking at the establishment.

241Ms. Khan notes the woman, when she left the washroom, staggered and hit the wall. Ms R. was belligerent, and uncooperative with the liquor inspector. All signs, in Ms. Khan's opinion, of intoxication.

242Ms. Khan stated that the Licensee provided no evidence as to Ms R. She also noted staff were not present in the washroom area.

243Ms. Khan stated that Mr. Geringas admitted that he did not follow up with female staff regarding the checking of the female washroom to see if any one had been seen vomiting in the washroom, even though the inspector brought it to his attention.

244Ms. Khan submitted, it is the Registrar's position, that if the females were exhibiting signs of intoxication inside the washroom, then they would have been showing them outside as well.

245Ms. Khan also notes that on the night of the February 20, 2010, the liquor inspectors found plastic cups littered around the club when they started their inspection. Some of the cups had a substance that smelled and looked like beer.

246Ms. Khan notes that Inspector Joseph found a bottle of vodka partially full on the stage area of the establishment. None of the staff was seen to be clearing up.

247Inspector Higuera, Ms. Khan notes, saw a male standing behind the bar making no effort to clean up.

248Ms Khan notes that when the inspectors spoke with Mr. Geringas on the night of February 20, 2010 about the cups with what looked and smelled like beer in them, he offered no explanation that they might contain liquid other than alcohol.

249Ms. Khan noted that Mr. Geringas stated they may have contained beer, juice, water or non- alcoholic beer. He did not point this out to the Inspectors on the night in question.

250Ms. Khan notes with respect to the incident on April 4, 2010, that the liquor inspectors and two Toronto police officers smelled burnt marijuana on entering.

251Ms. Khan notes the two liquor inspectors went to the VIP area and found that was where the smell was coming from. At the time there was no security there.

252Ms. Khan stated that while the inspectors were observing, they did notice security attending the area.

253Ms. Khan states that it is the Registrar's position that the security went there because they knew the AGCO inspectors were watching the booth.

254Ms. Khan referred the Board to a Board Ruling in Registrar Alcohol and Gaming vs. 1197801 Ontario. Inc. to support her opinion of the security being present only because the AGCO inspectors were present.

255Ms. Khan stated the circumstances in that case were similar to the ones in the incident on April 4, 2010in that security was on heightened alert.

256Ms Khan’s submission is that there is ample evidence to make a finding of a breach of:

a. Subsection 30(4) of the LLA;

b. Section 29 of the O.Reg;

c. Subsection 45(1) of the O.Reg; and

d. Subsection 45(2) of the O.Reg.

Licensee’s Submissions

257It is Mr. Barrs submission that no finding can be made on the balance of probabilities in this case.

258Mr. Barrs notes that the allegation of serving a minor is taken very seriously by Mr. Geringas.

259Mr. Barrs states it is evident by the proactive action and comprehensive steps taken and that continue to be taken by management and staff to not allow such occurrences.

260Mr. Barrs notes that although the identification used by J.M. belonged to another youth, Mr. Barrs surmised the two looked so much alike they could have been twins.

261Contrary to Ms Khan’s allegation that the hair colour was the same and the height of the individuals was very similar, one was 6 ft. and the other 5'11".

262The Registrar, Mr. Barrs states, wants the Board to rely on everything the young man said. He told the Board that one person presented a group of ID’s to the doorman. This, Mr. Barrs said, is patently wrong.

263The Registrar wants the Board to believe that the security did not have time to compare all the IDs. Security would not have taken all the IDs together. He believes J.M. meant that all the IDs were looked at one after the other.

264The Registrar, Mr. Barrs notes, should have withdrawn the allegation, instead the Registrar’s submissions were of a convoluted argument regarding J.M.’s statement.

265The young man who presented the driver’s licence of his friend looked very much like him.

266Mr. Barrs also notes that not only do security look at the photo but they follow up with questions and if unsure, ask for other ID.

267Mr. Barrs noted that Officer Wood felt there was a discrepancy in the height and that was one of the reasons why he followed up. Mr. Barrs also noted that the officer said the photo on the driver’s licence was similar to J.M.

268Mr. Barrs notes that Officer Wood was vague on who he notified about the incident at the establishment and admitted that he did not speak to Mr. Geringas or head of security about the matter. In Mr. Barrs view, this may have led to whomever he spoke to think that nothing would come of it.

269Mr. Barrs notes that legitimate cards used by others will get through since people prepare themselves by memorizing particulars of a document to thwart attempts to catch them.

270Mr. Barrs contends that there is no evidence of permitting service to a minor as J.M. got in by fraud. He used ID that looked like him in every respect - height, hair colour and size.

271It is Mr. Barrs submission that no finding can be made.

272Mr. Barrs notes that on February 20, 2010 the doors to XS were closed to stop entry when the AGCO came into the establishment. Inspector McFadden saw two carafes and plastic cups. Mr. Barrs maintains that the two acrylic carafes contained juice and the cups contained water.

273Mr. Barrs notes that on urban nights all drinks are served in plastic cups. The Registrar must prove that what appears to be beer colour with foam and the smell of beer, is a residue of alcohol.

274Mr. Barrs states that you don't get penalized for cups out there in a club with no alcohol or a bottle with no vodka in it. It was up to the inspectors to seize the exhibits and have them analyzed.

275Mr. Barrs submission is, in the case of the vodka bottle that Mr. Joseph found, the colour pink/red is not consistent with vodka. It should have been seized and tested.

276Mr. Barrs notes that of the three females in the stall in the bathroom, one was sick and her stomach was bothering her. He also suggested that it is possible that the women could have been doing drugs of some sort.

277Mr. Barrs notes that when the females came out of the stall Ms. H. gave clear cogent statements to Inspector McFadden, although she was uncooperative and belligerent.

278Mr. Barrs notes that the woman was not seen drinking and had been sick and vomiting. Her droopy eyes are consistent, in his submission, with drugs or lack of sleep.

279Inspector McFadden notes the woman's friend presented a university ID to identify the woman.

280Mr. Barrs stated it would help if the Registrar brought witnesses to the hearing so that they could tell why they behaved the way they did. The Registrar had the documentation and had the power to do so to prove the allegation of intoxication by alcohol. The onus of proof is on the Registrar.

281The evidence is, Mr. Barrs notes, that the woman had one Smirnoff vodka and nothing more. If the Registrar disagreed he should have had her testify.

282Mr. Barrs contends Ms H. had clear speech. She had alcohol on her breath and she was leaning because she was sick.

283Mr. Barrs notes that when Inspector McFadden confronted Mr. Geringas and accused him of letting people in with university ID, he immediately replied that was not the case. He stated that only government ID is valid for entry.

284Mr. Barrs maintains that Inspector Leadbetter’s testimony about signs of failure to clear should have been accompanied with proof of analysis that there was alcohol present in the cups. He maintains it could have been pop or juice or water. He also notes no one was drinking at the time.

285The woman that Inspector Leadbetter spoke to in the washroom told the inspector that she was sick and had only two drinks.

286The woman told the inspector she had vomited in the toilet not the sink.

287Mr. Barrs states that the only proof of service is that there were two bottles of alcohol being shared between 15 people,none of whom came to testify.

288Mr. Barrs notes both of the woman alleged to be intoxicated were vomiting and it was not necessarily from alcohol. It is more likely that they were taking drugs and were not intoxicated.

289Mr. Barrs maintains there is no evidence of permitting.

290Mr. Barrs notes, regarding clearing signs of service, the issue was that the Registrar alleged that there was still alcohol in the plastic cups after closing, but failed to produce this evidence at the hearing.

291The man behind the bar, that the Registrar claimed was not clearing, was unidentified and may not have been a service person.

292Regarding the contents of the vodka bottle, it should have been tested. Mr. Geringas was not shown the bottle or told about it.

293The case presented by the Registrar (Body English) involves obvious intoxication (paragraph 33) and is not the same as here, where the only thing obvious is that someone had been smoking marijuana. The case is not relevant.

294This is a case where one person sneaks a joint, out of 600. It is not a case of multiple smokers ignored by security. Security was seen near the booths looking for someone.

295The Board should rely on Mr. Geringas’s evidence of strong security measures, zero tolerance and using more security than mandated.

296Mr. Geringas was never brought to the women or told they had vomited.

297There was no proof of beer in the plastic cups and foam would not have been evident 53 minutes after it was poured.

298Mr. Barrs notes with respect to the marijuana being smoked on the premises, one person was found with a joint, XS security had been alerted to the smell of marijuana and were looking for the source among 600-700 people. One marijuana cigarette would be enough to cause a pungent smell in the area.

299Mr. Barrs notes the security did focus on the VIP area but could not see anyone smoking.

300Mr. Barrs notes the inspectors had also checked the area and they could not see anyone smoking either. He notes the person who was smoking the joint was hiding it from those looking for the source.

301Mr. Barrs also noted the VIP area is closed on three sides. He is of the opinion that it was only by chance that the person smoking was found.

302Mr. Barrs states when the inspectors did discover the man smoking he dropped it on the floor and tried to put it out.

303Although security were looking for the source of the odour, they took no action once the police were present at the location and located it. They only provided close protection. Mr. Barrs notes everyone was looking for the source.

304It is Mr. Barrs submission that there is no evidence of permit.

305Mr. Barrs states this is not a situation where anyone saw this individual light up or smoking. The individual was removed, but not charged. He was not brought in to testify. The Inspectors took time to locate the individual. Police and security were also trying to find the source.

306Therefore Mr. Barrs asked that the Board not make findings on any of the allegations.

Registrar’s Reply

307Ms. Khan stated that the evidence of J.M. was clear and credible. He was forthright in his evidence, and had no reason to lie.

308Ms. Khan also states there is no evidence other than J.M. about what took place regarding his ID at the door to the club.

309With respect to the two females, Ms. Khan notes the liquor inspectors are not medical practitioners but are trained to identify signs of intoxication.

310Ms. Khan notes that vomiting combined with droopy eyes, alcohol on the breath and unsteady on the feet are signs of intoxication.

Reasons and Analysis

311Subsection 30(4) of the LLA involves whether the Licensee or the licensee's agent permitted a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises.

312The Board heard the evidence of D/Cst. Wood of the Toronto Police that while doing a routine inspection at XS, he and his partner noticed two males who appeared to be underage.

313D/Cst Wood spoke to one youth and his partner to the other. It was revealed through questioning by D/Cst. Wood that the youth he spoke to was using another person's driver’s licence and that he was under the age of 19.

314The youth J.M. told the Board that he had borrowed the ID from his friend because they looked alike and his friend was of age.

315D/Cst. Wood stated the height on the ID, in his opinion, did not match J.M. and the hair colour seemed different. Ms. Khan suggested the same opinion in her submission.

316Mr. Barrs, however, contends that J.M. does, in fact, closely resemble the person whose driver’s licence he was using.

317The Board also heard evidence from the general manager of XS that the club takes the checking of identification very seriously and only allows individuals with government issued ID in. They also do follow up questions and may ask for additional ID when there is doubt.

318J.M. stated he gave his identification to one of the people in his group and that person gave all the ID to the doorman. It is the contention of the Registrar that this is why he got in and therein lies the permit.

319However the Board heard evidence from Mr. Geringas and one of the security personnel that that type of identification would not have taken place nor is it allowed.

320The Board during the hearing viewed the driver’s licence that J. M. used and found that the facial appearance on the licence closely resembled J.M. The hair colour was similar and the height was similar. J. M. is 5'11`` and the licence holder is 6`.

321The Board agrees that XS had very strict procedures in place for checking ID. The youth, J.M., used a driver’s licence of a friend who very closely resembled him and could have fooled the security.

322Therefore the Board finds that the evidence does not support the allegation that XS permitted a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises.

323Section 29 of O.Reg 719/90 sets out whether the licence holder failed to clear signs of service and consumption in the licensed premises within 45 minutes after the end of the period during which liquor may be sold and served under the licence.

324The Board heard evidence of three AGCO inspectors who attended XS at 2:53 a.m., eight minutes after which all signs of consumption and service were to have been cleared.

325The Board notes that all three of the inspectors gave evidence of plastic cups with beer in them still present on tables in the establishment.

326The inspectors testified that the substance in the cups looked like beer, smelled like beer and had foam as beer would.

327One inspector also saw a partial bottle of vodka on the stage.

328There was no credible evidence to dispute the evidence of the inspectors.

329It was suggested by Mr. Barrs that there may have been pop, juice or water in the cups. However that was not supported by evidence at the hearing.

330The Board therefore finds that the Licensee did breach section 29 of the O.Reg by failing to clear signs of service and consumption in the licensed premises within 45 minutes after the end of the period during which liquor may be sold and served under the licence.

331Subsection 45(1) of O.Reg 719/90 sets out whether the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder.

332The Board heard the evidence of AGCO Inspector McFadden that she discovered three females in the female washroom of XS. All three of the females were at a cubicle in the washroom. Two females were assisting the third female. They appeared to be steadying her.

333Inspector McFadden stated the female being assisted appeared to be intoxicated. She noted her eyes were droopy, she could smell alcohol on her breath and she was unsteady on her feet and did not have shoes on.

334Inspector McFadden learned that the female being assisted had just vomited in the toilet in the cubicle. She was identified by her friend who presented the woman's university ID.

335The woman when spoken to spoke clearly, but smelled of alcohol. The two female friends helped her put on her shoes.

336Inspector McFadden stated that the woman needed help to leave the washroom area.

337Mr. Geringas stated that when the women were pointed out to him he noticed that they were very heavy set and had trouble walking in high heels. He also stated he had not seen them previously.

338Mr. Barrs in submission states that perhaps the three were doing drugs that may have made them sick and that is why they were in the cubicle. He also noted that it was at that time the height of the flu season.

339The woman told Inspector McFadden she only had one drink, a Smirnoff vodka, and nothing to drink prior to arriving at XS.

340Ms. Khan’s submission is that the female was intoxicated when found in the washroom and therefore should have been seen as intoxicated in the club.

341The question is, did the personnel of XS know or ought to have known that the female was intoxicated.

342The Board heard evidence that the inspector found the woman who was sick and appeared intoxicated in the woman's washroom.

343The Board also heard evidence that the woman only had one drink. There is no evidence of the woman drinking except for what she stated she had.

344The evidence is the woman was sick and that may have contributed to her unsteadiness.

345Inspector Leadbetter gave evidence that she also attended the women's washroom and spoke with a female whom she believed to be intoxicated.

346Inspector Leadbetter stated the woman was wiping her mouth and told her that she had vomited in a toilet in the washroom.

347Inspector Leadbetter stated the woman staggered when she was walking towards the washroom door and hit the wall with her shoulder.

348When Inspector Leadbetter spoke to the woman and noted a smell of alcohol on her breath, the woman spoke clearly to the Inspector but was belligerent with her.

349The woman told Inspector Leadbetter that she drank two rum and cokes and that she had no drinks prior to coming to XS.

350This woman was also sick to her stomach.

351Mr. Barrs in submission notes that there is no evidence of slurred speech on the part of either woman.

352There is no evidence that any of the staff of XS saw the females drinking while intoxicated or that they were served alcohol while intoxicated.

353There was no evidence presented to the Board that any of the staff of XS saw or ought to have seen the female in an intoxicated condition.

354There was also no evidence present to the Board that would indicate that the staff of XS permitted intoxication to occur.

355The Board therefore dismisses that the Licensee permitted drunkenness under subsection 45(1) of the O.Reg.

356Subsection 45(2) of O.Reg 719/90 sets out whether the licence holder permitted a person to hold, offer for sale, sell, distribute or consume a controlled drug or substance as defined in the Controlled Drugs and Substances Act, on the premises or in the adjacent washrooms, liquor and food preparation area or storage areas under the exclusive control of the licence holder.

357The evidence before the Board was that Inspectors Hall and Durham on entering XS noticed the smell of burning marijuana. They moved towards the location of two VIP booths where the smell was strongest.

358Neither inspector could detect the source of the smell at that time.

359Inspector Hall testified that they then moved back away from the booth near the bar. At the bar they kept watch to see if they could spot the source.

360Inspector Hall stated while they were at the bar he observed two security personnel walk over to the area of the booth where the smell was strongest. The security personnel were easily identifiable by there shirts which had security written on them in large letters.

361The security personnel stayed for a short time and then walked away and stayed in the area.

362Inspector Hall stated he and Inspector Durham again walked over towards the VIP booth and on this occasion noticed an Asian male with his back to them.

363The Asian male appeared to be cupping something in his hand. The Inspectors talked to him and he immediately dropped the butt to the floor.

364The male was not cooperative and did not give them any identification.

365Two Toronto Police Officers who were on the inspection with the AGCO inspectors arrived and gave assistance. The officers also said that they had noticed the smell of marijuana when they entered the establishment.

366The Toronto Police Officers stated that at first the smell was light but as they got near the VIP booths it became stronger.

367The officer took the Asian male outside for further investigation.

368Inspector Durham stated he retrieved the joint from the floor where the male had deposited it and turned it over to D/Cst. Hunt.

369D/Cst. Hunt stated he received the joint from Inspector Durham and placed it in an evidence envelope. The joint was subsequently sent to Health Canada for analysis. Analysis revealed it to be cannabis marijuana.

370The Asian male was questioned by the Toronto Police Officers, warned, and allowed to go.

371Evidence present at the hearing by two security personnel was that they smelled the marijuana and were looking for the source.

372The security personnel after moving away from the VIP booths were still looking for the source when they noticed the police back at the booth.

373The security personnel did not get further involved except to provide protection.

374This was also supported by Mr. Geringas who debriefed his security after the incident on the night in question.

375Evidence at the hearing showed XS searched patrons electronically and patted them down on entry to the club. However, as Mr. Barrs notes, it is easy to sneak a joint into the establishment by hiding it on your body.

376The evidence of Inspector Hall and of the security personnel support the notion that security personnel were actively seeking to find the source of the smell.

377Evidence also indicates that the AGCO Inspectors could not find the source at first and they too stood in front of the booth as did the security personnel.

378In the Board decision Registrar vs. 1197801 Ontario Inc. the security identified a drunken patron contemporaneously with the police. In this case that was not so.

379The security did not know the Inspectors were there and had been looking, prior to the inspectors finding the source, which the inspectors had trouble locating as well.

380The AGCO inspectors knew the security was looking for the source as well, but the inspectors did not speak to them to inform them or try to find out what they knew.

381The evidence before the Board does not support the allegation that XS permitted consumption of a controlled drug.

382Therefore, the Board dismisses the allegation that the Licensee permitted consumption of a controlled drug under subsection 45(2) of the O.Reg.

Conclusion

383For the above reasons, the Board FINDS that the Licensee contravened section 29 of O.Reg 719/90 and DISMISSES the allegations of violations of subsection 30(4) of the LLA and subsections 45(1) and 45(2) of the O.Reg.

384The 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 14^th^ DAY OF April , 2011