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-
1240277 Ontario Inc. operating as Fanny’s Adult Entertainment
Licensee
DECISION ON FINDINGS
Panel: David C. Gavsie, Former Chair, AGCO Brian J. Ford, Board Member
Decision Date: April 8, 2011
Hearing Location: North Bay, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative
1240277 Ontario Inc., Licensee ) Bill Rees, On behalf of the Licensee
Allegations
- A hearing into Notice of Proposal number 18398 dated November 5, 2010 to suspend liquor licence number 807624 (the “licence”) issued to 1240277 Ontario Inc. (the “Licensee”) operating as FANNY’S ADULT ENTERTAINMENT, 1420 Seymour Street, North Bay, Ontario, P1B 9P5, (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on January 25, 2011, in the City of North Bay.
Decision
- The Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg. Reasons Follow
Preliminary Matters
- Bill Rees is a friend of the Licensee. He appeared on behalf of the Licensee who waived the right to be represented by a licensed representative.
Registrar’s Evidence
Jeffrey Allen Smith told the Board that he was at Fanny's on May 29, 2010 after 11:00 p.m. Mr. Smith stated he drank three beers while he was at Fanny's.
Mr. Smith stated he worked until 5 p.m. on May 29, 2010 after which he went to a pub, had two beers and a shot of whisky. He stated that he watched some hockey and left.
After leaving the first establishment he decided to pop into Fanny's. He said he met a buddy of his who was there and he went in to see him.
Mr. Smith said he met up with his friend who ordered him a beer. He noted that he was not served by the server.
Mr. Smith stated the beer his friend bought was ordered about ten minutes after he arrived. He took 10 to 15 minutes to drink the beer.
After drinking the first beer he went up to the bar and ordered a beer from the bartender.
Mr. Smith stated that he also talked with a female server while he was walking back to his seat.
Mr. Smith stated he drank the beer he bought. He also stated that his friend bought him another beer.
Mr. Smith was asked if he finished all three beers and he replied that he did.
Mr. Smith stated shortly after finishing his third beer he got up and left. He went out and got into his car to drive home.
Mr. Smith stated that he was pulled over by police while he was driving home. He said the police officer told him he was over steering his vehicle. He was placed under arrest and charged with drinking and driving.
Mr. Smith stated he was taken to the North Bay Police station and given a breathalyzer test. Mr. Smith stated the test revealed he had a blood alcohol level of .245.
Mr. Smith said he was charged, went to court and plead guilty. He was fined and had his drivers Licence suspended.
Mr. Smith was asked if anyone in Fanny's approached him to say he had too much to drink and he replied they did not.
Mr. Smith was also asked if it was busy at Fanny's and he replied that it was definitely busy.
Mr. Smith stated there were five people at his table.
On cross-examination Mr. Smith stated he arrived at Fanny's at 11:30 p.m. He also stated he drank three beers. He was asked if he could hold his liquor and he replied no he couldn't.
Mr. Smith was asked if he recalled doing anything that might bring attention to himself. He replied that he was quiet while at Fanny's.
In response to a question from the Board, Mr. Smith stated he arrived at Fanny's between 11:00 and 11:30 p.m. and left at 1:00 a.m. or a little after.
Mr. Smith stated he was at Fanny's roughly 1½ hours.
Mr. Smith stated while at Fanny's he only interfaced with staff when he bought a beer at the bar. He also stated he talked with a female.
Mr. Smith stated again that the only staff he talked to was the bartender.
Matthew Parker is a Constable (“Cst.”) with the North Bay Police Service with five years experience.
Cst. Parker stated that he was on general patrol in the area of Fanny's when at 1:06 a.m. he noticed a motor vehicle exiting the parking lot of Fanny's.
Cst. Parker stated the vehicle headed south towards Hwy 11. The vehicle made a wide turn onto Hwy 11.
Cst. Parker stated he pulled in behind the vehicle. He noted the vehicle went onto the shoulder of the lane he was travelling in. The driver corrected and moved back into the travelled portion of the highway.
At the time the vehicle was doing 90 km/h. The vehicle again went onto the shoulder hitting the rumble strips and then back onto the highway.
Cst. Parker stated the driver was weaving from side to side crossing onto the shoulder of the road several times from the curb lane to the outside lane.
Cst. Parker stated he activated his emergency roof lights. The vehicles travelled approximately half a kilometre after brake lights came on.
Cst. Parker stated the vehicle went onto the shoulder of the road at 80 km/h and came to a stop.
At 1:07 a.m. Cst. Parker got out of his cruiser and approached the vehicle. He noted the driver’s side window was up.
Cst. Parker stated the male occupant saw him and opened the driver’s side door partially. At that point he handed Cst. Parker his driver's licence.
Cst. Parker stated at that point he could smell alcohol from within the vehicle.
Cst. Smith stated he opened the car door fully and noted that the driver’s eyes were glassy, red and blood shot.
Cst. Parker asked the driver to step out of the vehicle and noted the driver struggled to get out. The driver used one hand on the door and the other on the roof of the vehicle to assist himself.
Cst. Parker stated as the driver got out he staggered backwards. Cst. Parker took physical control of the driver and advised him he was under arrest at 1:09 a.m.
Cst. Parker stated he cuffed the driver and escorted him back to the police cruiser. Cst. Parker noted the driver was unsteady on his feet.
Cst. Parker conducted a search of the driver at which time the driver asked if he could speak to the officer. Cst. Parker stated the man's speech was slurred and there was an odour of alcohol on his breath.
Cst. Parker read the driver his charter rights.
At 1:10 a.m. Cst. Parker stated he cautioned the driver and advised of right to counsel. He asked the driver if he understood and he said no. The caution was repeated and then he said yes. He also said he did not have counsel.
Cst. Parker stated that the driver’s licence given to him identified the driver as Luca Rodney Boyes, 918 Main St. North, Callander, Ontario.
Cst. Parker stated that the driver on arriving at the North Bay Police station told him that he was not Lucas Boyes. He stated his real name was Jeffrey Smith, date of birth 12/01/79.
Cst. Parker stated that Mr. Smith was allowed to call duty counsel.
Cst. Parker stated he turned Mr. Smith over to the Breath Tech at 1:41 a.m.
Cst. Parker stated he learned that Mr. Smith's blood alcohol level was .245 on the first sample and .247 on the second sample taken.
Cst. Parker also advised that he searched Mr. Smith's vehicle and found no alcohol in the vehicle.
Mr. Smith was subsequently charged with impaired driving and reading over .80.
Ken Rice is a constable with North Bay Police Service and is a breathalyzer technician.
Mr. Kulis at this time entered into evidence Exhibit #1 the alcohol influence report regarding Jeffery Smith of 980 Main Street, Callander Ontario.
Cst. Rice stated that he read Mr. Smith the breath demand at 1:42 a.m. He also advised him of his right to counsel.
Cst. Rice stated he preformed the first breath test at 1:45 a.m. The breath sample analysis showed .245 mgs of alcohol in 100 ml of blood.
Cst. Rice stated that a video recording was taken during the process. A copy of the video was entered into evidence as exhibit #2.
Cst. Rice stated that he noted during his interview with Mr. Smith that the effects of alcohol were extreme.
Cst. Smith stated the second breath sample was taken at 2:05 a.m. and it showed a reading of .247 mgs of alcohol in 100 ml of blood.
Cst. Rice stated Mr. Smith's speech was slurred, his eyes were blood shot, his face had a flushed appearance, he was unsteady on his feet and was talkative.
Cst. Rice stated he did not think that Mr. Smith grasped the severity of the matter.
On cross-examination Cst. Rice was asked if Mr. Smith with a reading of .245 would be considered a seasoned drinker? Cst. Rice replied he was up there but not at the extreme end.
In response to a Board question, Cst. Rice stated that with readings of .245 and .247 a novice drinker would have difficulty drinking and would most likely be passed out before they reached that level.
Cst. Rice stated that Mr. Smith with a reading of .245 and .247 would have had the equivalent of 10.92 beers (341 ml) of 5% alcohol in his system or the equivalent standard drinks.
Cst. Rice noted that Mr. Smith staggered.
Licensee’s Evidence
Irena Watson works at Fanny's in the capacity of collecting the cover charge. She stated she has worked there for 1½ years.
Ms. Watson stated that On May 29, 2010 she did not notice anyone that night who was intoxicated.
On cross-examination Ms. Watson was asked if it was busy or slow on the night in question and she replied that she could not remember. She also said she was at the door from 9:00 p.m. until 1:00 a.m.
Ms. Watson was asked if everyone is required to pay a cover charge and she replied they were. She also said she sees everyone who comes into the establishment.
Ms. Watson was asked if she took a break at any time and she replied she did not. She stated she stays near the door the whole time.
Jenna Richey works for Fanny's as a waitress. Ms Richey stated she is constantly watching patrons of the establishment to determine if they are showing signs of intoxication.
There was no cross-examination.
Laura Lawrence is a bartender at Fanny's and was working on May 29, 2010.
Ms. Lawrence stated when a customer orders a beer she assesses their condition and she also monitors the rate of consumption of a customer.
Ms. Lawrence stated if she notices a patron exhibiting signs of intoxication she notifies the doorman and cuts the patron off.
On cross-examination Ms. Lawrence was asked if she had seen anyone on the night in question who was exhibiting signs of intoxication and she replied she had not.
Ms. Lawrence was asked if it was busy that night. She replied that is was slow only 30 to 40 patrons. She stated the capacity is 200.
Ms. Lawrence could not remember how many drinks were sold that night.
In response to a Board question Ms. Lawrence stated patrons could order drinks directly from her or through a server.
Robert Martel is a doorman working at Fanny's. Mr. Martel stated he was working on May 28/29, 2010.
Mr. Martel stated he assesses customers who come into the establishment.
Mr. Martel was asked if he saw anyone who was exhibiting signs of intoxication on May 28/29, 2010 and he stated not to his knowledge and if he did it would have been written down in a log.
At this point Exhibit #3, 34 pages of the Licensee’s log book, was entered as evidence.
Mr. Martel stated the log book keeps track of a count of people in the bar and a record of any incidents that occur.
In response to a Board question, Mr. Martel stated there three people working as security. There was one at the front door one at the back and one roaming the floor.
On cross-examination Mr. Martel was asked about the code regarding patrons showing signs of intoxication and said the code was “A”.
Mr. Martel was asked about page 11 of 34 of exhibit #3 and if it was an “A”, he replied that it was.
Mr. Martel was asked about page 12 of 34 and he did not recall. He was also asked about page 13 of 34 - it was not his handwriting. He was then asked about page 14 of 34 and stated it was his handwriting.
Mr. Martel was asked about pages 15 of 34, 16 of 34 and several other pages. He stated that some were his, others were not his and he could not recall the incidents.
Rex Wood works for Fanny's as a doorman (security).
Mr. Wood stated that if a customer is exhibiting signs of intoxication they are not allowed into the premises and the incident is noted in the log book.
On cross-examination Mr. Wood was asked about a number of pages from the log book which were part of Exhibit #3. He identified those that were his handwriting but he could not recall the incidents.
Chris Hodgins worked as doorman on the date in question, May 28/29, 2010.
Mr. Hodgins was asked if he recalled anyone exhibiting signs of intoxication on that night and he stated not to his recollection.
On cross-examination Mr. Hodgins was asked about a number of pages in Exhibit #3. He was vague in his answers and could not remember what happened.
In response to a Board question, Mr. Hodgins stated that the log book is kept at the front door of the establishment and is filled out when an incident happens.
Mr. Hodgins said the book was mainly for the Police if they came.
Mr. Hodgins said there were three security, front, back and rover. They normally start around 7:30 to 8:00 p.m.
Registrar’s Submissions
Mr. Kulis pointed out the NOP allegation is of a violation of subsection 45(1) of the O.Reg - permit drunkenness. Mr. Kulis notes that Mr. Smith was drunk and was in the premises of Fanny's in that condition.
Mr. Kulis noted Mr. Smith arrived at Fanny's between 11:00 and 11:30 p.m. leaving at 1:00 a.m. During his time at Fanny's he consumed three beers.
Mr. Kulis also noted that Mr. Smith while in Fanny's made himself visible to the staff of the licensed premises.
Mr. Kulis stated Mr. Smith was drinking with friends and walked up to the bar and ordered a beer from the bartender. He then went back to his table drank another beer and left.
It is Mr. Kulis’ opinion that Mr. Smith could have been visible to the staff of Fanny's. However they did not notice him.
Mr. Kulis pointed out that Mr. Smith was there and he did consume alcohol. He was very drunk. They should have noticed him and his condition.
Mr. Kulis stated Mr. Smith is fuzzy on the amount he consumed. It is not unusual for someone to fudge the number of drinks they consumed. He stated he had three beers in Fanny's and one shot and two beers prior. The amount does not even come close to the amount of alcohol in Mr. Smith's blood.
It is Mr. Kulis’ opinion that the staff at Fanny's should have known he was intoxicated.
Mr. Kulis noted that Cst. Parker stopped Mr. Smith immediately after he drove away from the licensed premises.
Cst. Parker noticed him weaving from side to side hitting the rumble strips. His driving was immediately noticed.
Mr. Kulis noted Cst. Parker's observations of Mr. Smith, he smelled of alcohol, his eyes were glassy and he had difficulty getting out of his car. He also noted that Mr. Smith fell backward.
Mr. Kulis pointed out that Mr. Smith had slurred speech and was unsteady on his feet.
Mr. Kulis also noted that Cst. Parker checked Mr. Smith's vehicle for alcohol and none was found. This indicates that he did not consume any alcohol after he left Fanny's.
Cst. Rice did the breath test on Mr. Smith and the analysis showed an alcohol level in his blood of .245 mgs of alcohol in 100ml of blood and the second test showed .247 mgs of alcohol in 100 ml of blood.
Mr. Kulis noted that Cst. Rice stated the alcohol level in the blood of Mr. Smith would indicate that he had the equivalent of 10.92 bottles of beer in his system at the time of the tests.
Mr. Kulis also pointed out that Cst. Rice stated that Mr. Smith exhibited extreme effects of alcohol.
Mr. Kulis stated Mr. Smith with this amount of alcohol in his blood and exhibiting the signs of intoxication as he did, when stopped by the police a short time after leaving Fanny's, would have been exhibiting signs of intoxication in the bar.
Mr. Kulis also stated that the staff should have noticed the violation under subsection 45(1) of the O.Reg.
Mr. Kulis stated that Exhibit #3, the Log Book entries, are very damning for the Licensee. He notes there are several incidents in the exhibit that show a number of incidents of drunken patrons on the premises.
Mr. Kulis stated that Smart Serve teaches not to get people drunk in the first place.
Mr. Kulis also noted that there were several “A” incidents that were not marked as “A” and in total there were 40 incidents of drunk patrons in 2 months. It is his opinion that this is a regular occurrence.
Mr. Kulis stated that the Board cannot rely on the memory of the staff as they don't remember what happened on any other date.
Mr. Kulis also noted that there was no challenge to the evidence of Mr. Smith or the police.
Mr. Kulis stated there is enough evidence to make a finding of a violation of subsection 45(1) of the O.Reg.
Licensee’s Submissions
Mr. Rees noted it would be irresponsible for an establishment to permit drunkenness. He also points out that Smart Serve teaches servers to look for signs of intoxication and to take corrective steps.
Mr. Rees pointed out that the establishment is a responsible establishment and its policy is to prevent drunkenness.
Mr. Rees stated staff at Fanny's are trained to recognize early signs of intoxication and to take appropriate steps when signs are present.
Mr. Rees stated staff assess patrons on their entry to the establishment and then continue to monitor the patron while they are at the establishment.
Mr. Rees stated the only proof that Mr. Smith was in the bar is his evidence. He states he has his doubts.
Mr. Rees stated that Mr. Smith's evidence is confusing and not accurate. He points out at one time, a time of 10:21 p.m. was stated and then at another 11:28 p.m. was noted.
Mr. Rees is of the opinion that Mr. Smith left the establishment and drank somewhere else.
Mr. Rees noted that no one saw him come out of Fanny's and no one saw him in Fanny's.
Mr. Rees also noted there is no evidence that he was exhibiting signs of intoxication in Fanny's.
Mr. Rees is of the opinion that Mr. Smith could have easily sat in a chair and not shown any signs of intoxication.
Mr. Rees stated it is reasonable to believe any one was exhibiting signs of intoxication in the bar.
Registrar’s Reply
Mr. Kulis stated that the evidence as to Mr. Smith being in the bar came from his own lips.
Mr. Kulis also stated that Mr. Rees could have asked in cross-examination if Mr. Smith was drinking at some other bar.
Mr. Kulis stated there is no reason to believe that Mr. Smith was not there.
Mr. Kulis stated Mr. Smith was in the Bar, he had a lot to drink and he was drunk.
Reasons and Analysis
The Registrar's representative is asking the Board to make a finding that the Licensee breached subsection 45(1) of the O.Reg by permitting drunkenness in the licensed establishment.
The Licensee's representative is asking the Board not to make a finding as there is no evidence to support the allegation that the Licensee permitted drunkenness in the licensed establishment.
Mr. Jeffrey Smith testified before the Board that he had been drinking in Fanny's and shortly after leaving in his motor vehicle he was stopped by the police and charged with impaired driving.
Mr. Smith stated he arrived at Fanny's at approximately 11:30 p.m. leaving at 1:00 a.m. During his stay at Fanny's he stated he consumed three beers. He also stated that he went to the bar, spoke to the bartender and ordered one of the three beers. Mr. Smith stated he consumed the other beers at his table.
Cst. Parker of the North Bay Police Service testified that he stopped a vehicle driven by Mr. Smith at 1:06 a.m. Cst. Parker testified that he observed the vehicle driven by Mr. Smith leaving the parking lot of Fanny's. He followed the vehicle a short distance and pulled it over after observing it was being driven erratically.
Cst. Parker stated the driver of the vehicle (Mr. Smith) exhibited signs of intoxication. His eyes were glassy, blood shot, there was a smell of alcohol on his breath and he was very unsteady on his feet.
Cst. Parker stated Mr. Smith had to hold onto the door and roof of his motor vehicle in order to maintain his balance. He still stumbled backward in this position.
Cst. Parker also stated that Mr. Smith's speech was slurred when he talked.
Cst. Rice of the North Bay Police Service is a breathalyzer technician and he stated he preformed the breath analysis on Mr. Smith. The tests were done at the North Bay Police station.
Cst. Rice testified that the first test performed at 1:45 a.m. showed a level of .245 mgs of alcohol in 100 ml of blood. The second test done at 2:05 a.m. showed a level of alcohol of .247 mgs of alcohol in 100 ml of blood.
Cst. Rice testified that the amount of alcohol in Mr. Smith’s blood would indicate he had the equivalent of 10.92 bottles of beer in his system.
Cst. Rice also stated the effects of alcohol on Mr. Smith were extreme.
Cst. Rice also testified that a person who was a novice drinker would more than likely be passed out with the amount of alcohol that was in Mr. Smith's blood.
Staff of Fanny's testified that they did not notice anyone in an intoxicated condition on the night in question.
Security personnel who testified stated they did not notice anything out of the ordinary. They also stated if there was an intoxicated person it would have been noted in their log and it was not.
The Registrar entered into evidence a DVD video recording taken during Mr. Smith's breathalyzer examination.
The video shows Mr. Smith was clearly in an intoxicated condition, exhibiting all the classic signs of intoxication.
There is no question Mr. Smith was in Fanny's on the night he was stopped for impaired driving. Mr. Smith testified that he had been drinking there and there is no reason not to believe him.
The amount of alcohol Mr. Smith stated he drank and the amount of alcohol in his blood are at variances by a considerable degree. By Mr. Smith's calculations he had five beers and one mixed drink. The evidence of Cst. Rice clearly shows he had consumed the 10.92 (341ml) beers or equivalent standard alcohol drinks.
It is also clear that the time Mr. Smith said he left Fanny's is in keeping with the time that he was noticed driving out of the parking lot by Cst. Parker.
It is also apparent that Mr. Smith exhibited signs of intoxication when he was stopped by Cst. Parker within six minutes of leaving Fanny's.
None of the staff of Fanny's recall seeing Mr. Smith on the night in question.
The Board must decide whether or not Mr. Smith, while in Fanny's, would have exhibited clear signs of intoxication which the staff of the establishment ought to have noticed.
It is clear that, based on the evidence, Mr. Smith would have on the balance of probabilities exhibited the signs of intoxication while he was in Fanny's.
As suggested by Mr. Rees in his submission, if Mr. Smith just sat in a chair at a table it is possible he may not have been noticed or could have been missed.
However, evidence is that Mr. Smith did not remain seated. He got out of his seat and walked up to the bar and talked to the bartender, ordered and was served a beer. He also walked around and talked to others.
Evidence in this case is clear that Mr. Smith was indeed intoxicated and the effects of alcohol on him were extreme.
The Board finds that in the 1½ hours that Mr. Smith was in the bar prior to being stopped by the North Bay police he, on a balance of probabilities, exhibited signs of intoxication while he was consuming and being served alcohol in Fanny's and, further, that staff in the premises should or ought to have seen these signs.
Therefore the Board finds that the Licensee was in breach of subsection 45(1) of the O.Reg and permitted drunkenness in the licensed premises.
Conclusion
For the above reasons, the Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg.
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 8th DAY OF April, 2011
DAVID C. GAVSIE, FORMER CHAIR, AGCO BRIAN FORD, BOARD MEMBER