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-
Neka Food Services Inc. Operating As Portly Piper (The)
Licensee
DECISION
Panel: Patricia McQuaid, Vice-Chair, AGCO Beryl Ford, Board Member
Decision Date: August 25, 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
Neka Food Services Inc., Licensee ) Noel Gerry, Representative
Allegations
- A hearing into Notice of Proposal (“NOP”) number 18539, dated February 22, 2011 to suspend liquor licence number 200365 (the “licence”) issued to Neka Foods Services Inc. (the “Licensee”) operating as PORTLY PIPER (THE), 235 Bayly Street West, Ajax, Ontario, L1S 3K3, 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 (the “LLA”), was held on May 9, 2011 in the City of Toronto.
Decision
- The Board DISMISSES the allegation that the Licensee contravened subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
- An order to exclude witnesses was made on consent.
Registrar’s Evidence
Ryan Baird, an inspector with the Alcohol and Gaming Commission of Ontario (the “AGCO”) for the past seven years, testified that he attended the premises of the Portly Piper on October 29, 2010, arriving at approximately 12:25 a.m. He was accompanied by AGCO Inspector Chris Tassone.
On entering the premises his attention was drawn towards the rear of the establishment in an area known as the “pool table area.”
The Inspector observed a male patron, wearing black pants, a blue shirt and a hat, yelling very loudly at another patron in the area. The Inspector proceeded to the area of the bar where he could closely observe the male who was yelling. He observed that he had slurred speech and glassy eyes. As the male walked down three steps to the bar area with a glass of beer half filled in his hand, he appeared to be unsteady on his feet as he navigated the steps.
The Inspector went up the steps to the pool table area and observed that there were empty beer glasses and empty shot glasses on a table where the male had been located. The Inspector then observed another male who appeared to be with the first male. He too, appeared intoxicated.
The Inspector spoke to the supervisor who was on duty, Julie Seaton. He pointed out the male who was yelling and advised her that the male was intoxicated and that it was an infraction of the LLA
Ms Seaton spoke with the bartender about the issue. The Inspector testified that he never spoke to any of the patrons himself, nor did he see Ms. Seaton speak directly to the patrons.
When the Inspector left the premises at approximately 12:39 a.m., he observed the male that had been yelling still on the patio with the other male patron.
In cross-examination, the Inspector confirmed that he had entered the premises to do a routine inspection. He was near the bar and pool table area when he first saw the male who was yelling at another patron, a distance of approximately 12 to 18 feet from the male.
His observation of the male’s glassy eyes and slow motor skills was made as the patron came down the steps towards the bar area where the Inspector was standing. At this point, they were approximately one to two feet away from each other. He stated that the slurred speech was evident to him when the male was yelling at the other patron.
When the first male came down the steps he slowed down to wait for the second male to join him. They both moved towards the patio and exited the premises onto the outside patio.
The Inspector indicated that he did not speak to either male patron. The first patron appeared intoxicated and it was his opinion that his loud and aggressive tone and intoxicated appearance created an unsafe situation for him to speak to the patron.
The Inspector stated that he did see the supervisor, Ms. Seaton, go to the pool table area. He then saw her go onto the patio. The patio was visible from the main entrance of the premises where the Inspector exited the premises.
He did not see either of the male patrons leave the establishment. The Inspector exited the premises at 12:39 a.m.
Mr. Christopher Tassone is an Inspector with the AGCO.
Mr. Tassone confirmed that he arrived at the premises on the evening of October 29, 2010 at approximately 12:21 a.m. with Inspector Ryan Baird. Their task that evening was to conduct routine inspections of licensed premises under the LLA.
The premises was not busy that particular evening
Inspector Tassone testified that on entering the premises, he went towards the pool/bar area to his right. Within one minute, he observed a male in the rear area of the establishment known as the ‘pool table area’ - he appeared intoxicated. The male was yelling profanities at another male patron who he appeared to be with. There were empty beer glasses and shot glasses on the table where they were located.
From a distance of about five feet, the Inspector observed that the first male had slurred speech and his eyes were red and glossy. He was consuming beer from a pint glass. The Inspector observed the male for a few minutes.
He then watched him walk towards the bar area and down three steps to the main level. He was swaying from side to side, he had difficulty walking, and poor motor skills.
The Inspector testified that he felt it unsafe to approach the male and speak to him because he appeared angry and was yelling loudly.
Inspector Tassone spoke to Ms. Julie Seaton. She was in the bar area, close to the kitchen area at that time. The Inspector advised Ms. Seaton of the infraction, namely, the intoxicated patron on the premises.
Ms. Seaton told the Inspector she was not serving that particular area that evening and would speak to the server responsible for that location. He was not sure, but thought that Ms. Seaton did speak to the server.
In cross-examination, Inspector Tassone testified that he did not see either male playing pool. When he went into the pool area to check the table, he could not recall if Inspector Baird was with him at that time, but thought he was.
The Inspector did see the first male walk down the stairs to the main level, but didn’t recall him carrying a glass of beer.
The male patrons went onto the patio, however, the Inspector was speaking to Ms. Seaton at that time and did not have occasion to observe them on the patio. After leaving the premises, the Inspector could see, from a distance of about seven feet, the patrons on the patio. The first male was still yelling at the second male patron.
Licensee’s Evidence
Mr. John Branch is a construction contractor who works in the Greater Toronto Area.
Mr. Branch testified that he has been a long time patron of the Portly Piper. The establishment has a Pool League of three teams, Mr. Branch is the Team Captain for the league.
On October 29, 2010, Mr. Branch arrived at the establishment at approximately 9:00 p.m. He was in the company of two other local contractors “B.” and “L.” B is from Newfoundland. Mr. Branch had picked up B. around 8:00 p.m. to take him to the establishment. L. had travelled in his own car. He could not recall if he had had a drink at B.’s house, but it is possible he had a beer before they left.
Mr. Branch noted that there were probably 30 to 40 people in the premises when they arrived, however, no other patrons were in the pool table area during the time they were there.
He and his colleagues played pool all evening. There was only one table of people at the establishment when they left.
During the evening, they purchased ‘rounds’ of beer. He estimated that they had four to five beers each between their arrival and leaving at approximately 1:00 a.m. B. also consumed two shots of rye whiskey.
Mr. Branch testified that he did not have red eyes, his speech was not slurred and he was not unsteady on his feet. He was not drunk, neither were his companions. They had been engaged in playing pool.
L. and B. got into an argument and into ‘each other’s face.’ They yelled and swore at each other.
The dispute apparently started when B. was complaining about a situation involving L.’s ‘guys’ on a construction site they were working on. “They had this verbal disagreement and it ended in about one minute.”
Mr. Branch and B. went out to the patio to have a cigarette. They had been going to the patio about once an hour to smoke. They went down a couple of steps from the pool table area, passed the bar and out to the patio area. The steps down from the pool table area were a bit uneven; the top step was shorter than the remaining steps.
When they were on the patio Mr. Branch told B. that he was ‘out of line’ when he was arguing inside with L.
Julie Seaton came out to the patio. She told them to shut up and that there were Inspectors in the bar.
They decided to leave at that time. He and B. took taxis home while L. drove his car.
The witness testified that they each paid their own bills. On questioning as to why he used a taxi service to take him and B. home, Mr. Branch responded that whenever he had two or more beers at the establishment he would use a service that would drive them home for approximately $20. He stated that was always his practice as he didn’t want to be stopped by police and ‘blow over the limit’ because his job depends on him using his vehicle. He was being extra cautious.
In cross-examination, Mr. Branch stated that no person other than Julie their server, came to the pool area the entire time they were there. It is a small area that only holds three tables. One table is visible from the bar area. He would notice if someone else came up to the pool area.
The details of the evening were clear in his mind because since that evening which involved the argument between B. and L. he has had no “dealings” with B.
Ms. Julia Esther Seaton has been a supervisor at the Portly Piper for the past three years. Previously, Ms. Seaton worked as a bartender in various establishments over a period of 10 years.
Ms. Seaton was working on the evening of October 29, 2010.
She recalled that the restaurant was almost cleared out and staff were cleaning up for the night when the inspectors arrived.
Two liquor licence inspectors came into the establishment. The manager, known as Saj, was in the office which is located near the bar area. He sent her to speak to the two Inspectors as she had spoken to them in the past. The Inspectors were located near the bar in an open area near the bathroom. This area is visible to the pool table area. Her recollection was that nobody was in the pool table area at that time.
The Inspectors told her two males were arguing. She left the inspectors and looked out onto the patio. She saw B. and John on the patio with a beer. She asked if everything was ok. They did not appear to slur or have glossy eyes. They were not intoxicated, they were arguing over personal stuff, issues with money and work.
Ms Seaton went back inside and spoke to the Inspectors who were now in the pool table area. She told them the two patrons on the patio were finishing a beer and would be leaving. She had a discussion with the Inspectors who told her she should keep a journal of the happenings in the bar. They did not otherwise indicate to her that there was a problem.
The server in the pool area was identified as K.H. She had not served the patrons herself. K.H. was the only server and when she left nobody took over from her.
Ms Seaton spoke to K.H. who advised that she had served the patrons five beers over the course of the evening and they were all okay.
Ms Seaton explained that it was a Pool League night; there would have been about 15 people that started to play pool around 7:00 p.m. They usually leave around 10:00 p.m.
John and B. were in the pool table area when she first noticed them. She didn’t see a third person. John had told her there were three of them together.
Ms Seaton clarified that she had not seen the patrons on the stairs or walking to the patio.
John comes into the establishment two nights each week; this has been common practice since she has worked there. He had done some contracting work around the premises. She did not know B. as he was not a regular patron.
Ms Seaton clarified that she did not see L. that evening, nor did she hear yelling or fighting in the bar.
Sajeevan Pathmanathan is the night manager of the establishment. He has worked there for 18 months.
His job is to ensure everything is in order at the “front of the house.” He is Smart Serve trained and he ensures staff are Smart Serve trained and that staff follow the process of ensuring safe service of alcohol. On his walk-about that evening, he did not hear or see any yelling in the pool table area or patio.
John Branch is a Pool League player. He is a regular and the establishment has never had any problems with him. The witness has never had any interaction with the other patrons who were with John that evening.
He estimated that John came in around 7:00 p.m. that evening and was there a couple of hours. He said ‘hello’ to John when he came in; he didn’t have any other conversation with him, nor did he have occasion to speak to him later. K.H. was the server in the pool area; she left around 11:30 p.m.
Mr. Pathmanathan had no record of what John was served and did not discuss with K.H. what she had served him.
Mr. Pathmanathan confirmed that when the Inspectors came in, he asked Julie to deal with them as he was in the back office doing paper work. There were probably nine to 10 patrons there at the time.
Julie reported to him the discussion she had with the Inspectors when they had left. He did not speak to the males on the patio himself.
In cross-examination, Mr. Pathmanathan confirmed that he thought John had come into the establishment around 7:00 p.m. He was not sure if there were any other people with him at that time. He shook hands with John on his arrival and did not smell alcohol on him at that time. John usually comes in two or three times a week and usually has about two to four beers.
The witness said that he believed the pool group had ordered wings.
He normally does three or four walkabouts each evening, his last walk through was around 11:00 p.m. that evening.
Registrar’s Submissions
On October 29, 2010, an intoxicated person was in the licensed premises. The Registrar called two experienced Inspectors, though their evidence was not word for word on each point.
Each Inspector said they had a discussion with Ms Seaton, each said the intoxicated male passed them within two to five feet. Each observed some intoxication, glossy eyes, slurred speech, yelling, raised voices, and stumbling, or swaying, all consistent with signs of intoxication.
The premises were not crowded. It is also possible that one inspector went up to the pool area and the other stayed at the bottom to make other observations. Ms Harari submits that the evidence of the inspectors was consistent whereas the Licensee’s witnesses’ evidence was not.
John said he arrived at 9:00 to 10:00 p.m. Ms Seaton said he arrived at 7:00 p.m.
Evidence suggests John had five beers that night; it is also possible that he had a beer at B.’s house before arriving.
By Ms Harari’s calculation, the evidence suggests that John has been to the Portly Piper over 200 times in the last few years, yet there were no notes and no receipts for the evening. She questioned how one recalls, in 200 visits, one particular evening.
Mr. Branch testified he did not want to drive home; the Registrar submits there were signs of intoxication. John stated he did not want to drive home; something must have made him think he was intoxicated.
The manager said the patrons ordered wings; Mr. Branch made no mention of that. When one considers the inconsistent evidence of Mr. Branch and Ms. Seaton, the evidence of the Inspectors is preferable.
The Registrar submits that on the analysis of the evidence and that on the balance of probabilities, an intoxicated patron was at the Portly Piper on the evening of October 29, 2010 and asked for a finding under subsection 45(1) of the O.Reg, that 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.
Licensee’s Submissions
The NOP alleges that the liquor licence holder permitted intoxication, specifically that a drunk patron was in the licensed premises on October 29, 2010.
John was not yelling, he did not stumble down stairs. There was an argument between B. and L.. John was not yelling, rather he was saying ‘what are you doing’ to B.
There were only nine patrons in the establishment at the end of the evening. The Inspectors were in the premises for 18 minutes, but their stories are not consistent.
Inspector Baird said he never went up to the pool area, Inspector Tassone said they did.
Inspector Baird said the patron had a beer in his hand on the stairs, Inspector Tassone said he didn’t see a beer in the patron’s hand.
Inspector Baird said the intoxicated person was a foot or two away when he passed them.
Inspector Baird stated that the patron was unsteady only when going down the stair; Inspector Tassone said he was swaying the whole time.
The Licensee’s counsel said the Board should disregard the Inspectors’ evidence, that it was obvious they went through a ‘check list’ and said ‘check, check.’
The Inspectors were multiple feet from the patrons, they did not know if they had glossy eyes; they did not know how much alcohol they had consumed. It was John Branch who said he had five beers.
The Inspectors could have found out how much the patrons had consumed. They didn’t speak to the patrons.
The evidence suggests that the stairs are uneven. If, in fact, the patron was carrying beer on the stairs, and stumbling, no beer was spilled.
Julia spoke to John and B. on the patio, they told her the argument was about money and a business deal. She didn’t see a problem and told the Inspectors that. They did not ask her to tell the patrons to leave.
Nobody from the staff heard the patrons arguing, there is no doubt they were arguing and yelling at each other, but not enough to attract attention.
John ordered the taxi service because he did not want to drive and perhaps ‘blow over the limit’ in a police check. You don’t need to be drunk to blow over, he was being responsible.
The two males went to the patio; they left shortly after in a taxi in a responsible manner.
No liability should be attached; there was no drunkenness or intoxication and no evidence on the balance of probabilities to suggest that he “knew or ought to have known” part of the test under subsection 45(1) has been met.
Reasons and Analysis
The Board carefully considered all the evidence and the submissions presented.
The allegation is that the Licensee contravened subsection 45(1) of the O.Reg on October 29, 2010.
The Registrar’s case relies upon the evidence of two Inspectors who were on a routine inspection on the night in question. They entered the establishment of the Portly Piper at 12:25 a.m. The premises were not busy with about nine patrons present at that time.
Inspector Baird testified that he observed a male patron from about 12 to 18 feet away in an area known as the pool table area at the rear of the premises; he was showing signs of intoxication and yelling at another male.
He described what the male was wearing but did not know his name.
The male was yelling loudly at another male, the intoxicated male left the area and walked towards the Inspector down three steps to the main floor. He was then two to three feet from the Inspector. He was unsteady on his feet, his speech was slurred, his eyes were glassy and he had slow motor skills. He slowed down at the bottom step and waited for another male. At this time, he was carrying a glass half filled with beer. Both males moved towards the outside patio.
The Inspector went to the pool table area and observed empty beer and shot glasses on a table. The Inspector left the premises at 12:39 a.m.
Inspector Tassone also observed a male in the pool table area of the establishment. The male was yelling at another male, he had slurred speech, red glassy eyes and was consuming beer from a pint glass. The Inspector was approximately 12 feet from the male patron and observed him for about seven minutes. He chose not to speak to the male as he considered the situation unsafe due to the yelling and aggressive tone of the patron.
Inspector Tassone saw him walk down the three steps to the main floor. He was swaying from side to side, he had difficulty walking and his motor skills were poor. He did not see him carrying a glass with beer in his hand. He later saw the two males on the patio when he was exiting the building; the male was still yelling and swearing at the other male. He could not recall if Inspector Baird went with him to the pool table area
The Board heard evidence that John Branch is a regular at the establishment and organizes a house league pool teams. Mr. Branch was clear in his evidence that he picked up a colleague, B., at his home around 8:00 p.m. and arrived at the establishment around 9:00 p.m., where they met up with L., another work colleague.
They played pool for a few hours and consumed four to five beers each. Mr. Branch volunteered the information that B. also had one or two shots of rye.
An argument developed over work related matters between L. and B. The argument became heated and yelling occurred.
Mr. Branch and B. left the pool table area and proceeded to the patio to smoke. John Branch discussed the argument between B. and L. John Branch was not happy with what had happened and has had no business dealings with B. since that evening.
Questions were raised on why John Branch and B. had taken taxi services home when Mr. Branch had driven his car to the establishment. He informed the Board that this was a practice he had developed when he had more than a couple of beers. He was not prepared to take a chance on being stopped by police and find that he had ‘blown over’ in a roadside test even if he didn’t consider himself intoxicated.
In the final analysis, it is unclear which of the two, Mr. Branch or B., both of whom went to the patio, the inspectors allege was drunk.
Evidence indicated that B. had consumed more alcohol than John which included shots of rye whiskey. It was the yelling in the pool table area which attracted the inspectors’ attention. The evidence strongly suggests that the person yelling was B.
The Board heard that the steps to the main floor were uneven. A patron was carrying a glass of beer yet this allegedly intoxicated patron who was unsteady on his feet, swaying from side to side with poor motor skills had no difficulty carrying a beer down uneven stairs without spilling it.
Both Inspectors said the patron had slurred speech. The Inspectors testified that neither one of them spoke to any of the patrons. In the opinion of the Board, it may be difficult to determine if a person angry and yelling, with an accent, had slurred speech.
The Board also noted that the Inspectors did not advise the Licensee that the allegedly intoxicated person leave the premises. When Ms. Seaton returned to the inside after speaking to Mr. Branch and B. on the patio and being assured they were alright, she informed the Inspectors that they were okay and just finishing their beer.
Both patrons were on the outside patio when the Inspectors left the premises.
The allegation dealt with a violation of subsection 45(1) of the O.Reg under the LLA that the Licensee permitted drunkenness. For the Board to make such a finding, there must be first a finding, on the facts, that there was a drunken patron, and second that the Licensee “permitted” that drunkenness, that the Licensee “knew or ought to have known” of it.
The loud male, whom it is alleged was drunk, was on the evidence, B. There appears to have been a heated dispute between two of the males. Mr. Branch and B. leave the pool table area, and as they walk down the three steps and past the inspector, the inspectors make observations of indicia of drunkenness. It is only at this point that they would be close enough, at two to three feet, versus 12 feet (their point of initial observation,) to conclude, for example, that the patron had red glossy eyes.
The evidence from the Licensee’s witnesses, does suggest that B. had perhaps one beer before arriving at the establishment, four to five beer and a few shots at the premises. On the balance of probabilities, based on that evidence, the Board can conclude that B. was drunk. However, that in and of itself does not establish the essential component of “permit”. The male patrons were playing pool. They may have been served some wings in addition to the drinks. There was therefore some interaction between them and staff. However, it was B’s yelling that marked him, at first entrance, to the inspectors, as intoxicated. The best evidence as to the reason for the argument is from Mr. Branch: it was work related and not of long duration. He and B. removed themselves to the patio where they were admonished by Ms Seaton. From the patio, they departed. Ms Seaton spoke to the inspectors after her discussion with the patrons, and advised they were leaving after they finished their beer, to which, it seems, the inspectors did not take issue. Further it appears that Ms Seaton, unlike the inspectors, had no safety concern about approaching Mr. Branch and B., nor did she have trouble understanding either patron.
In this instance, the inspectors did little or no investigation to determine whether the Licensee “permitted the drunkenness,” even if the Board can conclude based on their observation alone, that B. was drunk.
The Board finds that there is insufficient evidence to prove that the Licensee permitted drunkenness.
Conclusion
- Therefore, for the reasons given, the Board DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg.
DATED AT TORONTO THIS 25th DAY OF August , 2011
PATRICIA MCQUAID, VICE-CHAIR BERYL FORD, BOARD MEMBER