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-
1709936 Ontario Inc. operating as Riverside Bar and Grill Licensee
DECISION
Panel: Allan Higdon, Board Member Bruce S. Miller, Board Member
Decision Date: August 29, 2011
Hearing Location: Kingston, 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 1709936 Ontario Inc., Licensee ) Ainslie Dunstone, Representative
Allegations
- A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 256 dated September 15, 2010, issued to 1709936 Ontario Inc., (the “Licensee”), operating as RIVERSIDE BAR AND GRILL, 98 King Street East, Gananoque, Ontario, K7G 1G1 (the “establishment” or the “premises”), liquor licence number 92454 (the “Licence”), pursuant to section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, in respect of an alleged violation of subsection 45(1) of Ontario Regulation 45(1) (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”), was held on March 18 and May 16, 2011 in the City of Kingston.
Decision
- After considering all the evidence and submissions, the Board UPHOLDS the alleged violations contained in the OMP and CONFIRMS the monetary penalties sought by the Registrar. Reasons follow.
Preliminary Matters
The Chair of the panel reviewed the role of the Board in this matter, stating that the penalty can only be confirmed or set aside. The Chair noted that the monetary penalty amount cannot be modified by the panel.
The Board excluded witnesses on consent.
Registrar’s Evidence
Jayne Curtis arrived at the Riverside Bar and Grill on January 16, 2010 at around 11:20 p.m. with a group of friends who had been curling.
The witness had been present for approximately 20 to 25 minutes when she heard a shout from a patron that someone had just “sucker punched” Aaron, a member of her party.
When the witness and her daughter went to investigate, Terry Wilson, an employee of the bar, pushed and grabbed her daughter by the throat and told her to “Get the f--- out.”
The witness asked Mr. Wilson to stop. When he asked who the f--- she was the witness replied she was her mother. A tussle ensued in which the bar owner, Rick Wilson, broke a beer bottle at the bar and appeared to “flip out”.
Amy Curtis, daughter of the witness, intervened. Rick took a swing at her with the broken bottle. He missed and nicked the witness who called police on her cell phone.
A bouncer, Troy Maxwell, escorted the witness’ party out of the premises where they gave statements to police.
The witness stated she is Smart Serve certified and understands the obligations of a licensee.
The witness testified the behaviour of Mr. Wilson was absolutely inappropriate. The witness felt threatened by the broken beer bottle and was scared enough to call police. A total of approximately 50 patrons were present.
On cross-examination the witness said she had been in the bar about 20 times and never had problems previously.
The witness did not see the origin of the fight. The whole incident lasted about 10 minutes.
Rick Wilson did curse her but did not threaten her directly. However, he did step forward towards her.
When the fight broke out the witness had just ordered her second beer.
Exhibit #1 was introduced consisting of a statement made by the witness to AGCO Inspector Stacey Langois on June 15, 2010.
The witness stated she had requested her statement be withdrawn because she lives in a small town and people talk. There could also be adverse effects on her place of work.
The witness stated she has been back to the Riverside Bar twice since the incident.
When police arrived at the establishment, the group went to the home of the witness where statements were taken.
On reply, the witness stated she was at the premises for over four hours on the night of the incident.
The witness stated she had to consider herself and her daughter when thinking of the impact of her witness statement. She was not attempting to rescind her account of the night’s events when she asked to withdraw her statement.
Amy Curtis was a member of the curling group who attended Riverside Bar and Grill on the night of January 16, 2010.
The witness stated there was a scuffle in the bar which involved her friend Aaron and she tried to help him.
When Terry Wilson shoved her mother with both hands, she grabbed him. Mr. Wilson grabbed the witness by the throat in response. Her mother then grabbed Mr. Wilson.
Rick Wilson intruded. He was irate and swinging punches at her mother.
The witness stated, “You’re the owner – you should be trying to help, not make things worse.”
The group was escorted out of the bar. One of the bouncers punched one of the group in the face, leaving him covered in blood.
The police came and told the group to go home where they took statements.
The witness stated Terry Wilson did not ask her to leave or try to control the situation. When he grabbed her throat, her mother intervened to try to protect her.
Bouncer Troy Maxwell was very professional. He separated Rick Wilson from the group while Rick was screaming and yelling.
On cross-examination, the witness stated she did not give a written statement. She was grabbed by the throat for 15 to 20 seconds.
The witness had six drinks that night.
The witness stated bouncer Troy Maxwell said fights happened all the time in the establishment. He would quit if it did not stop.
The witness stated Terry Wilson did not try to stop the fighting but actually aggravated it.
Timothy Closs has been a Constable in the Gananoque Police Service since 2002.
On January 16, 2010 the witness attended the bar at 12:18 a.m. A female had phoned in a complaint of an assault.
Upon arrival, the woman, Jayne Curtis, stated she was with a group and an altercation had taken place. She had been grabbed by bouncer Terry Wilson.
The woman described the incident in detail and said that although she had wished to file a criminal complaint she had decided not to because of possible repercussions.
The witness stated several small fights were going on outside the establishment. He called for back-up but needed three OPP officers as well as a colleague to bring the scene under control.
At 12:35 a.m., the witness went through the premises with his back-up and noted all was calm and the crowd had dispersed.
The witness stated that Amy and Jayne Curtis were lucid and controlled. They had consumed four to five beers each throughout the night.
On cross-examination, the witness stated both Jayne and Amy Curtis were calm and well behaved when they spoke to him on the night of the incident.
The witness stated the atmosphere at the bar was very hostile with people yelling and whooping. He called for back-up because he feared for his safety.
Curtis Watson has been a member of the Gananoque Police Service since 2003.
The witness stated he attended the Riverside Bar and Grill on March 1, 2010 at 1:31 a.m. after receiving a radio call regarding an intoxicated person in the bar.
The 9-1-1 call was made by an intoxicated person needing a ride.
The man was stumbling back and forth and fell down head first from the stairs at the rear of the premises landing in a heap in front of the police cruiser.
The man had a strong odour of alcohol, his eyes were closed, and he was possibly unconscious. An acquaintance of the man stated the man was very intoxicated. He had been drinking at the Riverside and had been trying to make his way home but had been unable to do so.
An ambulance was called and arrived at 1:42 a.m. The man shouted, “So what if I’m drunk?”
The man was undoubtedly intoxicated. He had slurred speech, was weaving from side to side, his eyes were heavy, his face red, and he had a strong odour of alcohol. He was unable to stand on his own.
The bartender told the witness the man had come to the bar between 10:30 and 11:00 a.m. in the morning and had been asked to leave between 1:15 – 1:30 a.m. that night.
The man said he had consumed from 12 to 15 rum and water drinks at the bar. He had no other liquor on him.
On cross-examination, the witness stated he had never dealt with this particular man before.
A suggestion was made by management that the man had been drinking from a flask but he never saw any evidence of one.
Andrew Larose is an employee of the Riverside Bar and Grill.
The witness was present at the Riverside Bar and Grill on the night of March 1, 2010.
The witness stated Eric Cook appeared normal as he entered the bar with two males.
Mr. Cook returned to the bar several times and was told by the bartender that he was cut off from liquor service.
The witness stated Mr. Cook was “pretty drunk” at the bar. He was arguing with everybody, weaving back and forth, had pale skin, and was leaning against the wall.
The witness never saw Mr. Cook drink out of a flask.
On cross-examination, the witness stated he never saw Mr. Cook going outside the premises to drink. However, he did go outside throughout the evening for a cigarette.
Eric Cook is a self-employed renovator. He was in the premises on the night of March 1, 2010.
The witness had three to four ounces of rum before he arrived at Karaoke night at the Riverside.
The witness stated he does not remember anything after 10:00 p.m. He woke up in the police station and does not recall being asked to leave the premises.
The witness stated he was “pretty much drunk.” Once he entered the premises he drank only alcohol served from the bar. He has never in his life carried a liquor flask.
The witness said he left the bar to smoke on the back deck but he did not drink out there.
The witness testified he has been charged with intoxication in a public place and is awaiting disposition.
He has no medical problems.
On cross-examination, the witness stated he did not remember falling down the stairs.
He has not been back to the premises since the incident as he has been barred.
Licensee’s Evidence
Troy Maxwell is an employee of the Riverside Bar and Grill and was working on the night of January 16, 2010.
The witness was working at the front door as security.
He noted Jayne Curtis came in with a group of visiting firefighters.
He was called to break up a fight. He sent the firefighter group to the back area and out the back door.
Another altercation took place. Rick Wilson was yelling and Jayne Curtis said, “I’ll have your licence for this.” Rick yelled at her to get out.
The witness did not see Rick pick up a bottle or threaten anybody. As for a bottle being broken, nobody saw it and there was no broken glass on the floor.
The witness did not see Terry Wilson grab Amy Curtis by the throat.
After the incident, Jayne Curtis phoned the police and they came in five to 10 minutes. The witness sat with them waiting for the police.
On cross-examination, the witness stated he did not see the incident of January 16 as he was not in the room.
The event was a quick skirmish. The women were not intoxicated.
Shelley Moynes was a customer of the Riverside Bar and Grill on the night of January 16, 2010.
The witness was standing at the bar around midnight when a fight broke out between two men. The owner, Rick Wilson, told one of the men to leave and he tried to escort him off the premises.
The witness never saw Rick Wilson assault anyone. He just asked people to leave.
The witness arrived at the bar around 9:00 p.m. and a group of men were there then. They were slurring their words and close to falling down drunk.
The witness never saw a bottle smashed or a person threatened or grabbed by the throat.
On cross-examination, the witness stated the bar was fairly crowded with probably a little over a 100 customers present.
A fight broke out between two men. She did not hear the details.
On reply, the witness said she did not see anyone grabbed by the throat.
Debra Balderson was present at the Riverside Bar and Grill on the night of January 16, 2010. She was at the bar and saw the fight.
The witness heard people yelling and stood up to watch. The waitresses grabbed the bottles and glasses off the bar.
Amy Curtis was in the middle of the fight and was pinned against a booth by Terry Wilson. He had his arms open and was blocking her.
Both Amy and Jayne Curtis got into the middle of the scuffle. Jayne Curtis yelled she was “going to have their licence.”
The fight was resolved quickly. She did not see anyone get hit, it was just some shoving.
The witness stated Terry Wilson did not touch a female patron.
On cross examination, the witness stated the fight took place at about 1:00 to 1:30 a.m. The bar was very crowded and the fight took place in front of the bar about five to six feet away from the servers.
The witness did not see the genesis of the fight but she did see a woman leave her table and head to the fight. The woman, Jayne Curtis, was about four feet in front if her.
The witness did not know what caused Ms. Curtis to say, “I will get your licence.”
In reply to the panel, the witness said she saw no throat grabbing, just pushing. There was no smashing of bottles or threats made to patrons.
Kimberley Chetney has been a bartender for 15 years and has worked at the Riverside for four years. Her statement of June 30, 2010 was entered as Exhibit #5.
The witness gave evidence on the incident which took place on the night of February 28/March 1, 2010. She stated the patron, Eric Cook, had met with his ex-wife and seemed upset and agitated.
The witness called a cab for the patron and took him out to the vehicle. He refused the cab and tried to re-enter the premises but was not allowed in. The patron tried both the front and back door to enter and screamed a bunch of profanities.
The witness stated she cut the patron off as he was showing signs of intoxication. He bought drinks for other patrons, including his cousin and ex-wife.
Prior to his being refused re-entry to the bar the patron had come and gone from the bar about half a dozen times. He was not a smoker.
The witness estimated that it took about 45 minutes for the police to arrive after the patron was first ejected. She stated the patron consumed six or seven drinks on the premises in two hours. His signs of intoxication included anger, shouting, and yelling.
On cross-examination, the witness stated the patron was in the premises for “a good two hours.” The man was not a regular patron and he has not been back at the bar since the incident.
On questions from the panel, the witness stated the patron’s six or seven drinks consisted of one ounce shots of alcohol. She did not call the police when the man was intoxicated because she had hailed a cab for the patron and the incident appeared to be under control.
Cody Campbell is a regular patron of the premises and was present the night of February 28 /March 1, 2010. Her statement dated June 30, 2010 was introduced as Exhibit #6.
The witness stated she was standing behind the male patron in question at the bar that night. He was not very drunk but he was very annoying. The man poured two drinks from a silver flask which he kept in the inside pocket of his coat. On one occasion he commented on the lousy service and took a swig from the flask.
The male patron was a smoker and he went outside to smoke frequently. The witness remembers him at the rear of the premises taking a drink from his flask, whereupon he fell down the back stairs.
The witness said the man was “not that drunk” when he was kicked out of the bar.
The witness stated she saw the man drinking from a flask three times.
On cross-examination, the witness stated the man told her there was alcohol in the flask. She saw the patron served two drinks.
There were no reply questions.
Analysis and Reasons
The Board received submission from both parties. Their content is reflected in this analysis.
Two allegations were made by the Registrar. The first is that on January 16, 2010 two female patrons, Jayne and Amy Curtis, were assaulted by a bouncer at the Riverside Bar and Grill.
The second allegation is that on the evening of February 28/March 1, 2010, a patron was drunk in the establishment.
The Board will deal first with the allegation of assault.
Counsel for the Registrar presented testimony from the two female patrons who stated a fight broke out on the premises in which they became involved. Jayne Curtis testified she was pushed by a security guard. Her daughter, Amy Curtis, testified that when she went to help her mother the bouncer grabbed her by the throat. Jayne Curtis, in turn, pulled the bouncer off her daughter.
Ms. Jayne Curtis stated she is Smart Serve certified and manager of a premises with a liquor licence. She understands the obligations of a licensee. She considers the actions of the Riverside bouncer on the night of January 16, 2010 to have been absolutely inappropriate. The situation could have been handled much differently.
Ms. Amy Curtis stated the bouncer was out of control. He grabbed her by the throat and was screaming and yelling. The bouncer held her by the throat for 15 to 20 seconds. He was not trying to stop the ruckus – instead he was aggravating it by his behaviour. Another bouncer told her this kind of thing happened all the time.
Constable Timothy Closs of the Gananoque Police Service attended the bar on January 16, 2010. Jayne Curtis told him she had been assaulted by a male member of the bar staff inside the bar. She also stated her daughter had been grabbed by the throat.
Several days later Jayne Curtis told him she no longer wished to proceed with assault charges as she was scared of any repercussions.
The Officer testified the fight inside the premises ended up outside. It took him, his partner and three OPP to get things under control. There were 10 to 20 patrons actually fighting with 20 to 30 more standing around or trying to break up the fight.
Once the fighting outside had been quelled the witness walked through the bar. He saw several patrons who appeared to be intoxicated. The place “seemed to be on the edge of control” with cat calls, yelling and whopping from the patrons.
Constable Closs noted Jayne and Amy Curtis spoke to him in a lucid, calm, controlled manner.
The testimony of the Officer supports the claim made by the Curtis women that staff appeared to be incapable of preserving order. Their poise in addressing their complaints to him also supports their contention that they were sober and responsible on the evening when they spoke to him.
The Licensee acknowledged that a “skirmish” broke out at the establishment on the date in question.
His witness, Troy Maxwell, was a member of the bar staff who the Curtis women stated did his job responsibly and acted appropriately.
Mr. Maxwell stated the incident came to his attention when he heard yelling and noted Jayne Curtis saying, “I’ll have your licence for this.”
He did not see Terry Wilson grab Amy Curtis by the throat or any of the other elements described in evidence, such as the breaking of a bottle.
It was his opinion the incident was handled appropriately.
Another witness for the Licensee, Shelley Moynes, present on January 16, 2010 when the fight broke out. She stated a “bunch of hysterical women” were causing the disturbance. She never saw anybody assaulted or a bottle smashed.
Ms. Moynes stated the bar was busy with over 100 patrons present. She also testified she does not know the person alleged to have committed the assault.
The conflicting evidence presents the Board with two very different versions of the events of the night of January 16, 2010.
It is clear there was a major fight on the premises and outside on the night in question. The fact that it took two Gananoque Police Officers and three OPP to bring the situation under control attests to this.
The Board found the testimony of Jayne and Amy Curtis to be compelling in its detail. Their descriptions of the events were reasonable and consistent. The fact that Jayne Curtis withdrew assault charges demonstrate to the Board a lack of malicious intent in bringing this incident to the attention of authorities.
The Board would have been greatly assisted in this matter if the person accused of the assault, Terry Wilson, had testified and been subjected to cross-examination. The Board can only draw an adverse inference of his conduct on the night in question in his absence.
The onus of proof rests with the Registrar in this matter. The Board finds the testimony of the assault complainants to be credible, consistent and compelling. Persons with direct evidence to the contrary were not called by the Licensee.
The Board therefore FINDS, on the balance of probabilities, that two female patrons were assaulted by staff of the Riverside Bar and Grill on the night of January 16, 2010.
The second allegation is one of a drunk on the premises on March 1, 2010.
The evidence in support of this allegation was overwhelming.
Riverside employee Kimberley Chetney testified that she cut the man off because he showed signs of intoxication. She called a cab for him. She described signs of intoxication such as unruly behaviour demonstrated by shouting and yelling. He also appeared agitated and irritated. She estimated he drank six to seven one ounce drinks in two hours while on the premises.
Constable Curtis Watson of the Gananoque Police Service testified he received a radio call regarding an intoxicated person in the bar. He arrived to see a man attempt to walk from the upper deck at the rear of the building to a lower deck. The man stumbled and fell head first down the staircase, landing in a heap. He was unconscious with his eyes closed and breathing heavily.
The man had a strong odour of alcohol. A friend confirmed that the man was very intoxicated. He had been drinking at the Riverside.
The man awoke and stated belligerently “So what if I’m drunk?” He had slurred speech, his eyes were heavy and his face red.
The man was charged with intoxication in a public place.
The allegedly intoxicated man testified and stated he did not remember anything past 10:00 p.m. He woke up in the police station. He stated that he was “pretty much drunk” and that he drank only alcohol from the bar of the Riverside. He had no flask and has never used one in his life.
The Board considers this evidence sufficient, on the balance of probabilities, and FINDS that a male patron was drunk in the establishment on March 1, 2010.
The Board FINDS that two female patrons were assaulted in the Riverside Bar and Grill on January 16, 2010 and that a patron was drunk in the establishment on March 1, 2010.
Conclusion
- For the reasons given, the Board UPHOLDS the alleged violations contained in OMP number 256, issued to 1709936 Ontario Inc., operating as RIVERSIDE BAR AND GRILL, 98 King Street East, Gananoque, Ontario, K7G 1G1, liquor licence number 92454, and CONFIRMS the monetary penalties sought by the Registrar in the amount of $5,000.
DATED AT TORONTO THIS 29th DAY OF August , 2011
ALLAN HIGDON, BOARD MEMBER BRUCE S. MILLER, BOARD MEMBER