Registrar, Alcohol and Gaming Commission of Ontario v. 1536636 Ontario Limited, 2011 CanLII 31669

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-

1536636 Ontario Limited operating as Koi Restaurant & Lounge Licensee

DECISION

Panel: Grace Kerr, Board Member Bruce S. Miller, Board Member

Decision Date: April 7, 2011

Hearing Location: Hamilton, 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 ) Aviva Harari, Representative 1536636 Ontario Limited, Licensee ) Michael Puskas, Representative

Authorities

1213963 Ontario Ltd. ( Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] ONCA 323

Horseshoe Valley Resort Ltd. v. Registrar of the Alcohol and Gaming Commission of Ontario, 2005 CanLII 81108 (ON SCDC), 264 D.L.R. (4th) 686

Allegations

1. A hearing into Notice of Proposal number 18285 dated September 8, 2010 to suspend liquor licence number 809618 issued to 1536636 Ontario Limited (the “Licensee”), operating as Koi Restaurant & Lounge (the “establishment” or the “premises”), 27-29 Hess Street, Hamilton, Ontario, L8P 3M7, on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”) was held on February 25, 2011 in the City of Hamilton.

Decision

2. After considering all the evidence and submissions the Board DISMISSES the allegation that the Licensee violated subsection 45(1) of O.Reg 719/90, made pursuant to the LLA.

Preliminary Matters

3. Ms Harari requested an order to exclude witnesses that the Board ORDERED on consent.

Registrar’s Evidence

4. David Kerkhof has served as a police constable (“PC”) with the Hamilton Police Service for 14 years. He has dealt with the Licensee in his capacity as a police officer both on duty and for paid duties. He has also been a patron at the Koi Restaurant & Lounge.

5. The witness was on patrol on March 14, 2010 at 1:02 a.m. driving a police cruiser in Hess Village, which is the entertainment district. Someone threw a beer bottle which hit the spotlight on his police cruiser. The bottle was thrown from the area of the Koi Restaurant & Lounge.

6. He went to the premises and two doormen directed him upstairs to the patio. He went upstairs and was met by a security staff member, Dan Pearce. Mr. Pearce had three males with him in the stairwell and indicated that S.T. was the male who threw the bottle. The other two males were N.S. and F.Z.

7. N.S. became belligerent and stated he did not throw the bottle. N.S. was drinking a Miller Genuine Draft bottle of beer, which was the same brand that had struck the police cruiser.

8. All three males were intoxicated.

9. The witness arrested S.T. who needed some assistance to get down the stairs as he was “slightly unsteady” on his feet and was somewhat resistive.

10. The witness was concentrating on the mischief investigation because of the damage to his police cruiser. He stated that all three males had a “level of intoxication” as they had glossy eyes, an odour of alcohol and slurred speech.

11. He gave S.T. an appearance notice for the damage to his police cruiser and released S.T. at 1:30 a.m. He also released the two other males.

12. He first started to deal with the three males at 1:10 a.m.

13. He recorded in his statement that the males were not “stupefied.” This meant they were not in need of medical attention because of their consumption of alcohol. He felt that none of the three males was able to operate a motor vehicle.

14. The males had their faculties and they did not need to be incarcerated. He was not concerned for their safety.

15. On cross-examination the witness stated he did not know the result of the disposition of the criminal charge.

16. He released S.T., as he did not think he would cause further problems. S.T. was released after the two males who had been with him had left. He did not watch S.T. walk away. He did not charge S.T. with public intoxication. S.T. was no longer intoxicated when he left.

17. N.S. was belligerent and the witness could not recall if F.Z. was belligerent. The witness stated that some people become belligerent towards the police when they are not drinking.

18. All of the males had slurred speech but they were understandable. All three had glossy eyes and their breath smelled of alcohol.

19. He was dealing with S.T. and he did not see the two other males walk downstairs as they were following behind him.

20. He would not have done anything about the three males if they had just been standing or sitting at a table and were not doing anything.

21. The Licensee’s staff was helpful.

22. The witness took no action with regards to the LLA. He did not see the need to launch an investigation under the LLA.

23. In response to questions from the Board he stated he did not watch any of the three males walk away. His focus was the mischief investigation.

Licensee’s Evidence

24. Kyle Skinner has worked for the Licensee for 10 years and has been the general manager of Koi Restaurant & Lounge for the past six and a half years. His duties are to oversee the entire operation. The premises are on three levels which front on Hess Street.

25. The first floor has a bar, restaurant and a kitchen. The second floor has several bars and a dance area and the third floor is a smaller version of the second floor.

26. There are two doormen at the front door and another doorman just inside the front door. There are also two doormen on the second floor and a team of two roving doormen.

27. The doormen are instructed to interact with the customers when they try to enter the premises. They are told to engage the customers in conversation as this assists the doormen in checking for signs of intoxication. They make all customers wait for a period even if there is not a line-up.

28. There is a small and narrow patio on the third floor. Customers use the patio for smoking. There is no security on the patio.

29. Mr. Skinner was working on March 14, 2010. It was not a busy night and the third floor was dead.

30. The witness was standing on the second floor when he saw a beer bottle come from the third floor. He notified security and was advised that one of the staff had the suspect. He went to the front door and notified the police officer that his staff had the male who threw the bottle. The police officer thought the bottle had been thrown from the neighbouring licensed premises.

31. When the officer brought the patron outside, the patron stated he had been drinking Budweiser beer. The witness told the officer they did not carry Budweiser beer.

32. On cross-examination the witness stated he has received training from his ownership group. He took a security course from someone who used to work for the Licensee. Koi Restaurant & Lounge gives staff ongoing training. They have a consultant who provides them weekly advice. They also have house policies that deal with issues such as security and intoxicated patrons.

33. Their total capacity is approximately 450 persons. There are different capacity limits for different areas of the premises.

34. The patio measures approximately fifteen feet by eight feet and has a capacity of 13.

35. He did not come in contact with PC Kerkhof until the officer came downstairs with the suspect.

36. The three patrons in question would not have been allowed in the premises if they were intoxicated.

Registrar’s Submissions

37. The Licensee permitted drunkenness and there were three drunken patrons inside the premises.

38. The Licensee was extremely cooperative with police and should be credited with apprehending the three males.

39. PC Kerkhof was with the three males for about 20 minutes. He noted N.S. had glossy eyes, slurred speech and was belligerent. F.Z. had glossy eyes, was belligerent, had slurred speech and had an odour of alcohol. Finally S.T. who threw the bottle, was unsteady on his feet, had alcohol on his breath, had glossy eyes and had an odour of alcohol. PC Kerkhof stated all three had too much to drink to operate a motor vehicle.

40. There is no evidence as to the condition of the three males when they entered the premises. It is not known when they entered the premises. It is known from Mr. Skinner that they would not have been allowed in if they had shown signs of intoxication. Therefore, they must have become intoxicated while on the premises so the Licensee permitted drunkenness. PC Kerkhof was a credible witness and there was no evidence the males were not intoxicated. The Board should make a finding.

Licensee’s Submissions

41. The Registrar has failed to make out a case for intoxication and has also failed to make a case for permitting drunkenness.

42. There is a distinction between intoxication and impairment. PC Kerkhof was focused on the male who threw the bottle and not on the two other males. PC Kerkhof noted the two other males had glossy eyes, slurred speech and an odour of alcohol. One of them was belligerent. He did not see them walk down the stairs or walk away. This limited evidence does not justify a finding they were intoxicated.

43. The male who threw the beer bottle had some signs of intoxication but was released twenty minutes after being taken into custody. There is no doubt this male was impaired. It is important to note that the officer released him and was not concerned enough about the male’s condition to watch him walk away.

44. There is no evidence of the conduct of the three males in the bar. The decisions in Sin City and Horseshoe Valley require that there be some evidence the Licensee permitted drunkenness. This was a criminal investigation and not a liquor investigation. It is not known how long they were in the bar for, if they were served alcohol or how much they had to drink.

45. There is no evidence of either intoxication or permitting drunkenness and the Board should dismiss the allegations.

Registrar’s Reply

46. The bar has a responsibility to act proactively. The bar should have taken certain steps to prevent the males from becoming drunk. They have adequate staff and this should not have occurred.

Reasons and Analysis

47. The Board has carefully considered all the evidence and the submissions presented and DISMISSES the allegation for the reasons given below.

48. This matter concerns an alleged violation of subsection 45(1) of the O.Reg which reads as follows:

“The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”

49. There are two key issues for the Board in this case. The first is whether one or more of the three patrons was drunk on the premises and the second is whether the Licensee permitted that drunkenness.

50. PC Kerkhof was conducting a criminal investigation and that was his focus. PC Kerkhof concentrated on the suspect S.T., who had thrown the bottle at the police cruiser.

51. At one point in his testimony, PC Kerkhof stated that S.T. and the other two males were “intoxicated”; at another time, he described them as having a “level of intoxication.” He also stated they were in no shape to operate a motor vehicle. The first question for the Board is whether the males were drunk. The following facts were relevant to the Board’s conclusion that these men were not drunk or intoxicated, contrary to PC Kerkhof’s opinion.

52. PC Kerkhof did not conduct a LLA investigation nor did he see the need to do so. His attention was focused on S.T. He noted that S.T. had glossy eyes, an odour of alcohol, and slurred speech and that he was unsteady on his feet. Yet, he decided to release S.T. and allowed him to walk away. There was no evidence that the officer called a taxicab for S.T. or arranged for his transportation home. In fact, the officer was unconcerned about S.T.’s physical condition and did not even bother to watch S.T. walk away.

53. The officer’s testimony about the other two males is similar. There is evidence about the odour of alcohol, slurred speech, glossy eyes and some belligerence. The officer testified he was able to understand them. The officer did not see them walk. PC Kerkhof did not see the need to arrest them and did not even watch them walk away. Again, this implies that the officer was not concerned with their physical condition.

54. The Board agrees that the foregoing evidence supports a conclusion that all three males were impaired to some degree by alcohol but there is insufficient evidence for it to make a finding of drunkenness or intoxication. The Board agrees with Mr. Puskas’ submission that there is a qualitative difference between impairment and intoxication. The bar for this matter is intoxication or “drunkenness”, when a person’s mental and physical control is more extremely affected as a result of consuming alcohol or liquor than it is when a person is “impaired”.

55. Even if the Board had found that the males were drunk there was little evidence that the Licensee “permitted” drunkenness. To that end, the Board must consider whether the Licensee “knew or ought to have known” that a patron(s) was drunk as per the Court of Appeal’s reasoning in the Sin City decision. That decision also requires the Board to make this determination in “all the circumstances and, in particular, in the context of the various obligations and duties placed on the licensee by the relevant legislation and regulations.”

56. In this case, there is no evidence of how much the males had to drink or how long they were on the premises. More importantly, there was no evidence of the conduct or actions of the three males in the premises prior to the throwing of the beer bottle. Finally, it should be noted that PC Kerkhof, an experienced police officer, testified that if he just saw the males standing or sitting at a table that he would not have taken any action.

57. Thus, there was insufficient evidence in this case for the Board to find either that the males were drunk or that the Licensee permitted drunkenness.

58. Finally, Ms Harari was very fair in crediting the Licensee for its level of cooperation with the police on the evening in question. The Board expects all Licensees to cooperate with police. Unfortunately, the Board sees many incidents where the lack of cooperation is the subject of a Board hearing. The Board would also like to credit the Licensee for its degree of cooperation in this matter.

Conclusion

59. Therefore, for the reasons given, the Board DISMISSES the allegation that the Licensee violated subsection 45(1) of O.Reg 719/90, made pursuant to the LLA.

DATED AT TORONTO THIS 7 DAY OF April , 2011

GRACE KERR, BOARD MEMBER BRUCE MILLER, BOARD MEMBER