ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: ALCOHOL AND GAMING REGULATION AND PUBLIC PROTECTION ACT S.O. 1996, C.26, S.14.1, SCH
B E T W E E N:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
2185671 Ontario Inc. operating as Liverpool Arms Pub Licensee
DECISION
Panel: Bruce S. Miller, Board Member; Patricia McQuaid, Vice-Chair Decision Date: April 29, 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: Aviva Harari, Representative 2185671 Ontario Inc., Licensee: Jerry Levitan, Representative
Allegations
1A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 261 dated October 6, 2010, issued to 2185671 Ontario Inc. (the “Licensee”), operating as LIVERPOOL ARMS PUB, 9390 Sheppard Avenue East, Toronto, Ontario, M1B 5R5 (the “establishment” or the “premises”), liquor licence number 812235 (the “Licence”), pursuant to section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, in respect of alleged violations of subsection 45(1) of Ontario Regulations (“the O.Reg”)719/90 made pursuant to the Liquor Licence Act (the “LLA”) was held on April 4, 2011 in the City of Toronto.
Decision
2After considering all the evidence and submissions, the Board DISMISSES the alleged violations contained in OMP number 261 and SETS ASIDE the monetary penalties sought by the Registrar. Reasons follow.
Preliminary Matters
3An order excluding witnesses was made on consent.
Registrar’s Evidence
4Ryan Baird and Christopher Tassone, both AGCO Inspectors, attended at the licensed premises for a routine spot inspection on May 14, 2010, arriving at 12:32 a.m. accompanied by P.C. Clayton Richer of Durham Regional Police. P.C. Richer did not give evidence at the hearing.
5Inspector Tassone is the inspector for the area in which the Liverpool Arms Pub is situated so he took the lead on the inspection. Inspector Baird’s principal role was to make and note his observations.
6Both inspectors noted four intoxicated males. That conclusion is based on observations and interaction with the males. Inspector Baird observed the first male within approximately five minutes of their arrival. It was not a busy night at the establishment. The male was at the bar area. He did not observe the male, identified as DB (or patron #1), holding a beer.
7Inspector Baird heard DB say that he had eight to nine beers at the establishment in response to a question from the police officer. Inspector Tassone did not note this comment, rather he stated that he inquired of the sole bartender, DS, working that night how much he had been served and she stated he had five to six beers at the establishment. Neither inspector asked DB or DS how long he had been in the premises.
8Regarding DB, both inspectors described him as having slurred speech, though his words were understandable. He repeated himself and spoke loudly. Inspector Baird indicated that DB’s loudness drew his attention to him. DB did not stumble nor hold onto anything to keep himself upright though Inspector Tassone stated he swayed from side to side and described his eyes as red and glossy.
9The inspectors then noted three male patrons (referred to as patrons 2, 3, and 4) standing together on the patio. Patron #2 was, in their view, showing signs of intoxication. His speech was very slurred, his eyes were red and glossy and half shut at times and he was very unsteady on his feet. He was swaying from side to side, using the patio fence to hold himself up while spilling beer from his glass onto the patio. Patron # 2 seemed unaware that he was spilling the beer. Both the inspectors and his two friends pointed this out to him.
10Inspector Tassone asked DS how much he had to drink and she indicated three pints.
11Patron # 3 was described by Inspector Baird as having very slurred speech, a flushed face, red glossy eyes, unsteadiness on his feet and repeating himself. Inspector Tassone described patron # 3 similarly, but in addition stated he was swaying from side to side, falling into chairs and tables, at times holding on to them to prevent himself from falling fully and spilling his pint of beer.
12Patron # 4 was described by Inspector Baird as having red glossy eyes, slurred speech, a strong odour of alcohol and slow motor skills. As this patron reached for the cigarettes in his back pocket while speaking to the inspectors and P.C. Richer, the cigarettes fell out of the pack onto the ground. The patron had difficulty picking up and putting the cigarettes back into the package.
13Inspector Tassone described patron # 4 similarly, but, additionally stated that patron # 4 was speaking loudly, using foul language to the other patrons and was also spilling his beer on the ground.
14Inspector Tassone in his evidence described the three males on the patio as extremely intoxicated. He indicated that it is his practice to engage patrons in conversation by asking them how much they had to drink and how long they had been at the establishment. In this way, he listens to their speech and assesses their demeanour. He recalled that the males stated they were going to a party later, but could not recall their answers to the questions he would usually ask about the number of drinks or time at the establishment.
15After making their observations, the inspectors, and specifically Inspector Tassone, advised DS, who had identified herself as the person in charge, of the infractions found, specifically the four intoxicated patrons. She was, according to Inspector Baird, cooperative. Inspector Tassone stated that DS said that she would stop service to the patrons and called a taxi for them.
16Inspector Tassone indicated to DS that it was in her best interest to have the patrons leave.
17Both inspectors stated that they understood from Mr. Vasanthakumar that DS had been fired subsequent to this incident.
18On cross-examination each inspector indicated that they did not know how long DB or the other patrons had been there nor whether they, specifically Inspector Tassone, had asked DS that question. When asked by the panel, Inspector Tassone reiterated that he could not recall if he got information from the patrons regarding their length of time at the premises or how much they consumed. He stated that he felt in any event that he had observed enough signs of intoxication to conclude they were drunk and decided to remove himself over a concern for his safety. When questioned further on this point by Mr. Levitan, the inspector did acknowledge that the patrons gave no signs of aggressiveness or indications that his safety was in jeopardy nor was there any reference to this in his notes.
Licensee’s Evidence
19Anton Benedict has been a cook at the licensed establishment for almost two years and was present on May 14, 2010. It was not busy when the inspectors arrived at about 12:30 a.m. At that time, he was standing at the bar area. DS, who he described as always truthful, was the bartender, but he stated that he was “in charge” of the whole of the premises, though DS was in charge of the bar.
20Mr. Benedict did observe the male at the bar whom the inspectors described as intoxicated. The patron arrived 15 to 20 minutes before the inspectors. He only saw him drink one beer. The male was not making trouble. He did not fall down.
21Regarding the three males on the patio, he stated that he could see them through the glass window. They were having a smoke on the patio. Mr. Benedict stated that he saw them arrive, order one beer each and then head out to the patio. They looked “okay” when they arrived.
22On cross-examination Mr Benedict confirmed that he now has his Smart Serve certificate. He watches patrons to ensure they are not drunk, by monitoring their talk, and their walk. On May 14th, he did not talk to any of the four males nor did he hear the discussion they each had with the inspectors. He did not speak with the inspectors or police, though he stated he told the inspectors that he was in charge.
23In terms of the timing of the patrons’ arrival, Mr. Benedict stated that when he came out to the bar area from the kitchen at about midnight, the male was already seated at the bar. He did not see the three patrons on the patio arrive. Rather, he stated that when he asked DS about the inspectors’ concerns later, she told him that all four of the patrons arrived about five minutes before the inspectors and that they had one drink each. She never told him that she had indicated to the inspector that the male at the bar had five to six drinks. He did not know whether DS called a taxi for the patrons.
Analysis/Reasons/Findings
24The Board heard from three witnesses and Ms. Harari asks that we prefer the evidence of the two inspectors over Mr. Benedict. While not finding that Mr. Benedict lacked credibility, the Board does conclude that his evidence was not particularly helpful to one of the central issues before it: were the patrons drunk? His evidence was inconsistent as to when the patrons first arrived or how long they were there, but more importantly is the fact that he did not have any direct dealings with any of them – no conversations, and with regard to the three patrons on the patio, no close observation. Therefore, he could not have, in the Board’s view, reasonably assessed their level of intoxication.
25This leaves the Board then with the evidence of the two inspectors: Inspector Tassone who was the lead on the inspection and who appears to be the one who interacted most directly with the patrons and Inspector Baird whose principal responsibility was to make observations. Regarding those observations, Inspector Baird’s notes were detailed in one respect: he described the appearance of each of the patrons – the colour of the hair and the clothes they were wearing. Yet in other respects, Inspector Tassone’s evidence either through his notes or recollection in his oral testimony purports to be more detailed. For example, Inspector Tassone described patrons #3 and #4 as spilling their beer when interacting with him. There was no such note made by Inspector Baird (there was consistency regarding the spilling of beer by patron #2), though he was tasked to make observations. Inspector Tassone describes patron #3 as falling into chairs. Not so, Inspector Baird. Inspector Tassone recollects that the patrons on the patio said they were going to a party. That was not noted by Inspector Baird. Inspector Tassone states that he would, usually, when assessing a patron for drunkenness talk to the patron, asking how long they had been at the premises and how much they had to drink. In this instance, he could either not recall the answers if asked or he did not in fact get the information, because, on recollection, he may have decided he had enough signs of intoxication and, for concern for his safety, removed himself from the scene. This observation, offered at the end of his testimony, was in the context of all of the evidence, unsubstantiated.
26Mr. Levitan quite rightly pointed out that nowhere in this inspector’s notes was there any indication of any aggression by the patrons, nor did there appear to be any such suggestion in Inspector Baird’s evidence.
27In terms of demeanour, the “typical” signs of intoxication were cited: slurred speech, red glossy eyes, swaying from side to side. Beyond that, the Board was told the following: Patron #1 likely had five to six beers if the statement from DS is accepted. Patron #2 spilled his beer, used the fence to keep himself standing straight and perhaps had three pints. No inquiries seem to be made of DS how much patron 3 and 4 consumed. Patron #3 was rather repetitive in his answers. Patron #4 was loud, used foul language and when reaching for his cigarettes fumbled them causing them to fall out of the package, onto the ground. He had some difficulty getting them back in the package.
28In whatever conversations the inspectors may have had with the patrons, they were, despite the slurred speech, understandable.
29Pursuant to subsection 45(1) of the O.Reg, it is well established that the Board must determine whether the patron(s) was in fact intoxicated on the premises and second, whether the licensee permitted that drunkenness. Of the four patrons, as noted above, there were indications of the “standard” signs of intoxication. Beyond that, there may be evidence on which to conclude that Patron #1, having consumed five to six beers (Tassone’s evidence) or eight beers (Baird’s evidence) together with the swaying, red glossy eyes and slurred speech was intoxicated. Patron #2 with his spilling of the beer, unsteadiness, using the fence for support and some evidence of consumption (three pints), may also have been intoxicated.
30The evidence with respect of Patron #3 was minimal and insufficient to reach a conclusion on the balance of probabilities.
31Patron #4, through the fumbling of the cigarettes might be seen to be displaying poor motor skills, an indication, with the other signs, of intoxication.
32However, even if the Board accepts that three of the four patrons were intoxicated, the second aspect, the “permitted drunkenness” is not, on the evidence, made out. In submissions, Ms. Harari stated that not until they were pointed out did the bartender take action by calling a taxi. They were allowed to remain on the premises up to that point. The Board, however, must have persuasive evidence before it that the licensee knew or ought to have known that the patron(s) were drunk and failed, within a reasonable period of time, to take reasonable steps to effect their departure.
33“Permit” is no longer defined as a simple failure to prevent which is established once drunkenness on the premises is found to occur.
34While it is not sufficient for a licensee to simply assert that he/she did not observe a patron because he was on the patio out of a line of sight thereby avoiding responsibility – a level of diligent observation of patrons is incumbent upon a licensee – there is, in this instance, no evidence of “permit.” There is an absence of evidence as to how long the patrons were there, let alone whether the period of time in which the intoxication was manifest met the requirement of a “reasonable period of time.” There is little or no evidence of the conduct of the patrons in the premises prior to the inspectors’ direct interaction with them. The onus is on the Registrar to prove the alleged breach on the balance of probabilities.
35After considering all of the evidence, the Board cannot conclude, on the balance of probabilities, that the Licensee “permitted” drunkenness with regard to any of the four patrons within the meaning of the legislation. The Board therefore DISMISSES each of the allegations that the Licensee breached subsection 45(1) of the O.Reg.
Conclusion
36For the reasons given, the Board therefore DISMISSES each of the monetary penalties sought by the Registrar as contained in OMP number 261, issued to 2185671 Ontario Inc. operating as LIVERPOOL ARMS PUB, 9390 Sheppard Avenue East, Toronto, Ontario, M1B 5R5, liquor licence number 812235 and SETS ASIDE the monetary penalties sought by the Registrar in the total amount of $4000.00.
DATED AT TORONTO THIS 29 DAY OF APRIL, 2011
BRUCE S. MILLER, BOARD MEMBER PATRICIA McQUAID, VICE-CHAIR