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-
1750653 Ontario Inc. operating as Pub 31 Licensee
DECISION ON FINDINGS
Panel: Kirsti Hunt, Vice-Chair Joan Lougheed, Board Member
Decision Date: November 21, 2011
Hearing Location: Ottawa, 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 1750653 Ontario Inc., Licensee ) Marthe Mpendubundi, Representative
Authorities
- Horseshoe Valley Resort Ltd v. Ontario (AGCO), [2005] 0.J.No.5895
- 1213963 Ontario Ltd ( c.o.b. Sin City Bar fand Eatery) v. Ontario ( AGCO)
Exhibits
- Book of Documents with items in Tab 10, 11, and 14 removed at the request of Registrar’s Counsel
- Notes and typed summary of PC Charles Proulx
- Documents / Summaries and handwritten notes of Det. Constable
- Statement of Tom Wei-shao, summary of the investigation, handwritten notes of Dodds
- Smart Serve certificate for Ms Hayes
Allegations
- A hearing into Notice of Proposal (“NOP”) number 18521, dated February 15, 2011 to suspend liquor licence number 21841 (the “licence”) issued to 1750653 Ontario Inc. (the “Licensee”) operating as PUB 31, 5375 Bank Street South, Ottawa, Ontario K1X 1H1, on the basis of alleged violations of section 29 of the Liquor Licence Act (the “LLA”) and clause 31(1)(c) and subsections 34(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA was held on June 6, 7 and 8 , 2011 in the City of Ottawa.
Decision
- The Board FINDS that the Licensee contravened subsections 34(1), 45(1) and clause 31(1)(c) of the O.Reg. The Board DISMISSES the allegation under section 29 of the LLA. Reasons follow.
Preliminary Matters
As a preliminary matter and on consent of all parties, the Board ORDERED the exclusion of witnesses.
The Licensee waived its right and elected to proceed without counsel or other representative.
The interpreter, Ms Odette Borris, was sworn in and affirmed to translate from English to French and French to English. The Licensee indicated that she is satisfied to have the interpreter assist as needed in the event that she has difficulty understanding the proceedings.
All parties agreed to proceed with the adjudicating panel being one Francophone and one Anglophone member.
On agreement of all parties, the Board accepts that the Licensee CONTRAVENED section 31(1)(c) of the O.Reg. The Board notes that the Licensee expressed regret relating to the purchase of alcohol off licence.
Registrar’s Evidence
- Ms Harari provided the Board with an opening statement indicating that the Notice of Proposal to suspend for 45 days, addresses the three remaining allegations:
a. liquor was sold to an intoxicated person,
b. the licence holder permitted drunkenness and disorderly conduct, and
c. A patron was permitted to remove liquor from the licensed premises.
Most of evidence relates to the first two allegations, from September 9, 2010, where a drunken female patron, Ms D, was at the premises, drank there, and when she left she was involved in a motor vehicle accident (“MVA”) resulting in the death of a 17-year-old youth.
Ms D has been convicted of driving while intoxicated and causing death. Registrar’s Counsel indicated that there is no question about these facts, given that there has been a conviction.
Police Constable (PC) Frederic Proulx, was working in uniform in a police vehicle in the East Neighbourhood on September 9, 2010 (Exhibit 1). Just after 9 p.m. he received two calls about an erratic driver in a Chevrolet pick-up truck. Shortly after, there were several other calls relating to this vehicle. He also received information that the truck was reported as being a stolen vehicle.
PC Proulx came up to the truck on the northbound shoulder of the road at 9:31 p.m. He was about 12 km from Pub 31.
He pulled up, with the front end of his vehicle to the front end of the truck. As he exited his vehicle, the truck pulled forward and collided with the cruiser.
On approaching the vehicle, he noted a lone occupant, who was the female driver, identified as Ms D. When she stepped outside the vehicle, PC Proulx detected an odour of alcohol on her breath. Ms D stated she had five drinks. Her words were slurred. She was placed under arrest for impaired operation and dangerous driving.
While being transported to the police station Ms D made sexual overtures to the police officer. Ms D was transported to police headquarters and on entering the cell block she was loud and screaming, accusing PC Proulx of prejudicial comments and of beating her up. When given a phone to call her legal counsel, Ms D grabbed the phone and smashed it against the wall.
PC Proulx stated that PC Mark Miller, the breath technician, conducted the breathalyzer test taking three samples with the results indicating, in order, 269 mg/100 ml blood, 234 mg/100 ml blood and 230 mg / 100 ml blood. All indicated that she was three times over the legal limit to drive.
It was after the test concluded that he learned from a co-worker that the body of a young boy had been located in the vicinity where he had picked up Ms D.
On cross-examination PC Proulx stated he never went inside the truck and did not notice if there was alcohol in the vehicle. He could not address drug use since he does not have this expertise.
PC Charles Proulx was on duty on September 9, 2010 and at 11:47 pm he was dispatched to follow up with a missing person call (Exhibit #2). PC Charles Proulx located a damaged bicycle and started the search for the youth who was reported missing.
PC Charles Proulx noted that throughout the evening he had heard calls about an impaired driver. His partner John Ross was involved in this matter and he had a suspicion that this might be related to his call about the missing person.
The officer found the youth, without vital signs, about 100 feet north of the location of the bicycle. When paramedics arrived, it was confirmed that the male was deceased.
PC Charles Proulx stated that when his partner arrived on the scene and they started looking for evidence, they found debris and glass believed to be from Ms D’s vehicle. He said that Ms D’s truck was stopped about 6 or 7 km south of the accident scene.
Detective Constable (DC) Jason Arbuthnot interviewed Ms Hayes, the bartender, and Ms. Mpendubundi, the Licensee for Pub 31 (Exhibit 1, Tab 15).
The interview with Ms Hayes was recorded. Officer Shaun Wahbah was in a separate room typing details of the interview and these notes do not reflect a transcript of the interview. PC Arbuthnot stated he has not seen the video.
On September 10, 2010 Sgt Sam Hill asked him to assist with the investigation of events of the previous night, specifically that he interview Ms Hayes and the Licensee ( Exhibit 3).
DC Arbuthnot reviewed his chronological report. At 8:35 a.m. on September 10th he contacted Ms Hayes. She seemed worried asking if it had anything to do with the accident she heard on the radio. She agreed to come to the police station to be interviewed that morning.
DC Arbuthnot stated that during the interview Ms Hayes told him that a Ms D had wanted to call a cab. Ms Hayes stated that there were not many patrons in Pub 31 on Sept 9th. She stated that Ms D was in the pub for about 45 minutes that night and recalled serving her a Porn Star shot, which is an alcoholic drink. She also served her a Smirnoff cooler, which Ms D did not drink.
When she served the shot, Ms Hayes realized that Ms D was impaired. Ms D was more flamboyant than normal. DC Arbuthnot explained that he thought Ms Hayes meant that Ms D was dancing provocatively and doing “humps on the ground”.
Ms Hayes indicated to DC Arbuthnot that, at this time, the Licensee was driving a patron home. When she returned, Ms Hayes learned that her truck was missing from the parking lot and realized Ms D was no longer in the bar.
DC Arbuthnot stated that he was trying to figure out if vehicle was stolen or loaned.
Ms Hayes indicated that she assumed Ms D had taken a cab.
DC Arbuthnot stated that Ms Hayes told him that her truck was parked at the pub because there was not enough room at her home and that she had permission to park at Pub 31. The keys to the truck were in the glove box and the truck was unlocked.
On September 16th the Licensee, Ms Mpendubundi came to the police station for a video interview (Exhibit #3).
Ms Mpendubundi told the officer that she has owned Pub 31 for three years. She would open in the morning, take a break from 11:00 a.m. to 5:00 p.m. and then return until closing.
On September 9th, Ms D was not in the pub when the Licensee arrived around 5:00 p.m. After an hour, Ms Mpendubundi left the pub to go shopping, returning between 8:30 p.m. and 9:00 p.m. Ms Hayes, the bartender, told her, on the phone that it had not been busy and they decided to close early when four patrons, including Ms D, came in. Ms D was there about 30 minutes.
Ms Mpendubundi told the officer that she felt Ms D was not normal that night, appearing very excited. She had asked Ms D if she had taken any drugs; Ms D told her she had not. The Licensee told the officer that Ms D is a stripper and often came to the pub in the company of different men.
DC Arbuthnot was told by the Licensee that she had planned to take Ms D home after driving another patron home. When the Licensee returned to pick up Ms D, the parking lot was empty and the truck gone. Ms Mpendubundi told the officer that both she and Ms Hayes thought it had been stolen.
During the interview, Ms Mpendubundi stated that she was surprised to see Ms D in the pub alone. She has known Ms D for three years. She said that when Ms D is intoxicated she behaves badly and usually dances around and touches other men.
Ms Mpendubundi said Ms D was sitting at the bar when she saw her, there were no drinks in front of her at that time and Ms D seemed really tired.
David Taylor is a regular patron at Pub 31. On September 9, 2010 he arrived around 5:30 p.m. - 6 p.m. for dinner.
While he was reading a newspaper, a female came in and sat next to him. She ordered a small shooter. Suddenly the glass flew across his newspaper and she slapped him on the back of his head. The female then got up, went to another man, grabbed his neck and threw him on the floor. He stated that she was yelling and screaming at everyone in the bar. She turned from Dr. Jekyll to Mr. Hyde. She was lying on the floor acting like a stripper and sitting on the laps of some male patrons.
Mr. Taylor did not see Ms Mpendubundi during this time. One waitress was on duty and was preparing dinners. He said the waitress was as amazed as everyone else because it all happened in minutes. That occured about twenty minutes after the female arrived.
Mr. Taylor said he left Pub 31 around 8:00 p.m.
Seargent (Sgt) Ann Lapointe interviewed Ms D on September 10, 2010 (Exhibit #1, Tab 13). She was advised that Ms D was in the cells, had been arrested for impaired driving and had not yet been charged with causing death and criminal negligence causing death.
Sgt LaPointe began the interview, explaining to Ms D that she was under arrest. Ms D denied killing anyone.
During the interview, Ms D told Sgt LaPointe that the previous day she had started drinking at about noon at home. She had six beers and took a nap. At 7:00 p.m. she took a cab to Cabaret Canada, where she had one drink before going upstairs to the Chinese restaurant where she had 2 or 3 glasses of wine. After this she took a cab to Pub 31 around 10:00 p.m. At Pub 31 she drank wine and beer. She did not black out that night.
Ms D told Sgt LaPointe that she did not do drugs and had been clean for about two years.
Sgt LaPointe stated that Ms D described leaving the bar in a truck that belonged to her friend Jennifer. She denied having hit anyone while driving the truck.
The officer stated that Ms D had an extensive record but nothing relative to this event.
PC Mark Miller has specific training and certification to conduct a breath analysis and to use a toxilyzer. On September 10, 2010 (Exhibit #1, Tab 17), he was asked to conduct a test of Ms D at the police station.
When Ms D was brought from the cell block, she was initially in a hysterical state and he was not sure he would be able to conduct the test. She then completely changed and became overly friendly.
PC Miller conducted three tests with, these results: 269mg/100ml blood, 234 mg/100ml blood and 230mg/100 ml blood. Between the test times, Ms D kept changing from being happy, to sad, to flirtatious, to rude. He stated that the results indicated that she was over three times the legal limit of 80mg/100ml blood. He stated that in his opinion she was probably higher than 269mg, given the time lapse for the test and her reluctance to give a deep lung sample.
He stated that she was definitely intoxicated and impaired. He noted that she had to be carried and dragged in. Ms D was not able to walk or was refusing to walk; she was swaying when standing still and staggering, using the wall for balance. He stated that there was an odour of alcohol, and red, glassy, bloodshot eyes; she was overly flirtatious and friendly, trying to grab him a few times, which is very unusual for a person who is under arrest.
Ms D admitted to him that she had been drinking en route to her boyfriend’s house. She estimated that she had seven beers and four shots. Ms D told PC Miller that she started drinking at 9:00 p.m. and stopped “just now.” PC Miller noted that it was now 9:45 p.m., which would mean she drank it all in 45 minutes. He stated that it was hard to say if she even knew what time it was.
In answer to questions PC Miller said that at the time of the test he was not trained to recognize drug or substance abuse. The test readings are only for alcohol. He stated that Ms D was obviously intoxicated, exhibiting these signs: odour of alcohol, pupils dilated, eyes bloodshot, watery and glassy. Ms D was stuttering and confused, not able to concentrate on a single task, changing topics, being hysterical. He noted that her clothes were disorderly.
On cross-examination PC Miller stated that the first test was conducted about 1½ hours after the arrest of Ms D at 9:45 p.m. If Ms D had been drinking while in the vehicle, the results of the tests would go up.
In response to questions from the Panel, PC Miller stated that a toxicology report is not part of the breathalyzer test. Based on his experience, he said that Ms D probably drank more than she had told the officer.
Detective John Ross, on September 9, 2010, received several calls about a possible drunk driver, driving erratically (Exhibit #1, Tab F). The calls started around 9:15 p.m. While en route he was notified that the vehicle had been stopped and the driver was in custody.
At the scene, Det. Ross did not have contact with the person in custody, but focused on getting a statement from a passerby. He noted extensive damage to the front of the truck before it was towed away.
Det. Ross received a dispatch that Ms Hayes, at Pub 31, was reporting her vehicle stolen.
When he arrived at the establishment, he felt that Ms Hayes was acting strangely, being overly dramatic and covering her face when told there was damage to her vehicle. She asked several times if anyone was hurt.
Ms Hayes told the officer that she leaves the truck parked at Pub 31. The vehicle was not insured or registered and she stated that she had permission to park there. She said she never uses the truck and the keys were left in the glove box.
After taking statements from Ms Hayes and Ms Mpendubundi, Det. Ross was en route to give PC Proulx the statements when he received a call that the deceased victim had been located. He joined PC Proulx at the site of the accident. He remained there until 7:25 a.m., when he was relieved and this concluded his involvement.
On cross-examination he stated that he did not see wine in the vehicle, but did note an orange coloured drink in a glass in the front consul. He did not identify the contents of the glass.
On questioning, he confirmed that the people interviewed at Pub 31 knew that someone was in custody and that there had been an accident.
Sgt. Bryan Dodds, was the lead officer in the investigation. All officers reported to him and he completed the final report (Exhibit #1, Tab 9G ). Ms D was charged with mischief, damage to property not exceeding $900.00, being impaired causing death. He stated that Ms D was sentenced to six years for impaired operation of a vehicle and remains incarcerated.
Sgt. Dodds summarized the events (Exhibit #4) stating that the deceased victim had been working at a local grocery store and finished work around 9:00 p.m., returning home on his bicycle.
He stated that Ms D was arrested. The vehicle she had been driving had severe damage to the front end but Ms D did not recall hitting anything. It was later confirmed that this was the vehicle that had struck a cyclist in a fatal accident between 9:00 and 9:30 p.m.
Inside the vehicle was a large quantity of personal possessions including bedding, clothing, a purse, a wine bottle that was ¾ full with a cork in the neck and a cocktail glass, half full, with an unknown liquid, and empty food containers. There were a number of Budweiser beer cans in the box of the truck, which could not be accessed from the cab.
Sgt. Dodds reviewed the list of the nine people who had called 911 over 23 minutes from 9:03 p.m. to 9:26 p.m., providing information on the erratic driving, speed and the direction the vehicle had taken.
Sgt Dodds stated that he conducted an investigation of Ms D’s movements at Pub 31 and at the All Wing Restaurant where he learned from the owner, Mr. Tom, that Ms D had been in the restaurant between 5:30 and 6:00 p.m.
Mr. Tom informed Sgt. Dodds that Ms D had told him that she had been thrown out of the Club Cabaret, which is next door. When he observed her drinking a glass of red wine that she had not been served, he confronted Ms D and told her he would pack up her food so she could drink elsewhere. Mr. Tom told Sgt. Dodds that Ms D was not intoxicated at the time, but was being obnoxious to customers. He drove her to Pub 31, going inside for about ten minutes. Mr. Tom told the officer that he spoke to Ms Hayes who said she would take care of Ms D.
Sgt Dodds stated that at Club Cabaret, he spoke to a server Ms Eleanor Murphy. She stated that Ms D was barred from the premises and had been there for about five minutes before being told to leave. Ms Murphy told the officer that Ms D was sober and had not been served any alcohol.
On cross-examination Sgt Dodds stated that the alcohol in the vehicle was not seized, stating that it would not have been possible to open the corked bottle while driving.
Stephane Godard, an Alcohol and Gaming Commission of Ontario (AGCO) Inspector, was at the premises at 8:30 a.m. on September 22, 2010 as follow up to the incident of September 9th. He stated that the purpose of the visit was to find out if Ms D was in the premises that night, for how long and when she left.
The Licensee told him that Ms D was known to be violent and aggressive, but knowing her, the Licensee felt she could handle the behaviour. The Licensee had instructed staff to contact her immediately if Ms D showed up and were told not to serve her Tequila, as Ms D reacted violently.
Mr. Godard stated the Licensee said that Ms D “was a bit of a mess”, her eyes were big, white and glossy, she had drool coming from her mouth. The Licensee agreed to take her to her boyfriend’s home, which is about 30 minutes away. First she planned to take another patron home. On returning to the premises, she noted that Ms Hayes’ truck was missing from the parking lot and that Ms D was gone. Ms Hayes reported the truck being stolen to the police.
At Pub 31 on September 22nd, the Inspector also interviewed Ms Hayes, the bartender at Pub 31. She told the Inspector that she had been employed there about three months and had started work on September 9th at 6:00 p.m.
Ms Hayes told the Inspector that Ms D was a regular at Pub 31 coming in once or twice a week. It was not unusual for Ms D to be loud and vocal and dancing on the pool tables. On Sept 9th Ms D arrived before 9:00 p.m. and was at the bar about 45 minutes.
Ms Hayes was in the kitchen when Ms D arrived. She served Ms D a Smirnoff Ice, but Ms D did not drink it. She did not think she was intoxicated on arrival and was behaving properly. She stated that as time went on, Ms D was disturbing patrons and being rude. When the Licensee arrived, they formulated a plan to take Ms D home. Ms Mpendubundi planned to drive Ms D home after taking another patron home.
Ms Hayes said that when Ms Mpendubundi returned, she asked where Ms D was, but she was busy and did not notice Ms D leave. At this time she noticed her truck missing. She did not want to accuse Ms D of taking it, but did call police to report the missing vehicle since it was not plated or insured.
On cross-examination Inspector Godard stated that he knew Inspector Rowntree was investigating the circumstances leading up to the accident.
Andrew Rowntree, an AGCO Inspector, conducted his investigation in conjunction with the police reports (Exhibit #1, Tab 7 & 8), setting up interviews with various establishments to determine the timelines and witnesses to events.
At Diamond’s Gentlemen’s Club (previously known as Cabaret Canada), Inspector Rowntree spoke with George Swde on September 21, 2010, and was in attendance with AGCO Inspector Mark Daniels.
Mr. Swde told the Inspector that Ms D had attended the establishment on September 9th. She was known as a former employee and exotic dancer at the establishment, where she worked for five years. Mr. Swde received a call that Ms D had arrived. This was between 5:00 and 6:00 p.m. He told the Inspector that Ms D had been barred from the establishment for past, aggressive behaviour. The server was instructed not to serve Ms D and to have her leave.
Mr. Swde told the Inspector that Ms D left and went upstairs to another establishment, the All Wing Restaurant. He confirmed that Ms D was not served, she was not intoxicated and also stated that he, personally, was not present on the premises.
Inspector Rowntree stated that they then went to the All Wing Restaurant and spoke with the owner, Mr. Tom. Mr. Tom told the Inspectors that Ms D was in the establishment at approximately 6:00 p.m.; she was aggressive and swearing at patrons.
Mr. Rowntree said that Mr. Tom told him that he saw a wine bottle in Ms D’s bag and that she had a coloured substance in her glass which should have contained ice water. He told the Inspector that he had never seen Ms D before and when he saw her alcohol, he told her she would have to leave. He was the one who drove Ms D to Pub 31, leaving her with the bartender.
Mr. Tom told the inspector that Ms D dragged him into the pub, wanting to buy him a drink for driving her there. She told him that if he did not go in, she would get her gangster boyfriend to shoot him. Mr. Tom indicated that they each had a tequila shot at approximately 7:00 p.m.
Inspector Rowntree indicated that Mr. Tom stated that he did not serve Ms D any alcohol but his wife may have served her.
On September 22, 2010, Inspector Rowntree went to Pub 31 to speak with the Licensee, Ms Mpendubundi (Exhibit #1, Tab 8). He attended with Inspector Godard.
Ms Mpendubundi said she had known Ms D for about one year, and Ms D was known to have a life consisting of drugs, alcohol and bad behaviour. She said that Ms D came into the establishment about once a month and indicated she had been trying to help Ms D. Servers had been instructed to call her if Ms D entered the premises and she was not to be served tequila under any circumstances.
On Sept 9th, she arrived at Pub 31 at approximately 8:00 p.m. Ms D and one male patron needed a ride home. After taking the male patron home, she came back to the pub around 9:00 p.m. and noticed that the truck, belonging to Ms Hayes, was gone.
Ms Mpendubundi told the Inspectors that Ms D was normally loud but took care of herself. On September 9th, Ms D was aggressive, her eyes were large, she was swearing at patrons, and was not nice to see, with drool on her face. She did not recall seeing a drink in Ms D’s hand.
Inspector Rowntree then interviewed Ms Hayes who had worked at Pub 31 for about three months. She said that she does not have Smart Serve training. Ms Hayes stated that she knew Ms D and she had stayed at her house in the past.
Ms Hayes told the Inspector that Ms D was in the pub before 9:00 p.m. and stayed for about 45 minutes. Ms D came in alone, ordering a cooler. Ms Hayes felt that Ms D was fine to start but then began dancing, and getting aggressive with patrons. Ms D was told that she would not be served any more alcohol.
Ms Hayes told Inspector Rowntree that she was aware that Ms D was not to be served tequila. She did not recall an Asian male coming in with Ms D. She then said she thought that Ms D arrived around 7:00 p.m., stating that she was not good with times.
Inspector Rowntree stated that he looked at video surveillance while on the premises, but was not able to obtain a copy, since the equipment was not working properly and video was not being taped.
On September 22, 2010, Inspector Rowntree contacted a patron, Dave Taylor, by telephone (Exhibit #1, Tab 8). He told Inspector Rowntree that on September 9th Ms D was in the establishment and was “crazy and just corked,” flashing parts of her body, slapping him on the back of the head and choking another patron.
On September 22, 2010, Mr. Tom spoke with the Inspector and advised Inspector Rowntree that his wife did not serve alcohol to Ms D. He stated that when in Pub 31, Ms D introduced him to some customers and seemed to know everyone.
On September 22, 2010, Inspector Rowntree spoke with Ms Eleanor Murphy who had been working at the Gentleman’s Club on September 9th. Ms D was already on the premises when she arrived for work between 6:30 and 6:45 p.m. Ms Murphy stated that Ms D had been barred from the premises and said that on September 9th she was showing signs of intoxication, including slurred speech, aggressive behaviour, lying about her reason for being at the Club, saying that George Swde had called her.
Ms Murphy told Inspector Rowntree that she knew Ms D from a drug program that they had attended. Ms Murphy indicated that she had been free of drugs for 5 ½ years.
Inspectors Rowntree and Daniels attended the pub to meet with patron, D. Taylor. Mr. Taylor told the Inspectors that he was a friend of Ms Hayes and also wanted to see justice for the family of the victim of the fatal accident. He stated that he smokes marijuana on a regular basis. He saw Ms D arrive around 7:30 p.m. and leave about 40 minutes later. Ms D told him that she was dropped off by somebody. Mr. Taylor told the inspectors that Ms D was showing signs of intoxication: had trouble speaking, she slopped drinks all over the bar, was flashing herself and sitting on the laps of patrons, being aggressive.
Inspector Rowntree spoke on the phone with a patron of Pub 31, Alain Fugere. The patron was in the pub about 1 ½ hours and had seven or eight beers. He did not recall what time he arrived or left. He told the Inspector that Ms D was drunk, had slurred speech, was unsteady on her feet, and offered to go out to the parking lot to perform a sexual act. He did not see her come into the pub and did not recall her having any alcohol while he was there. He told her to stay away from him. He confirmed that he got a ride home from Ms Mpendubundi.
Inspector Rowntree stated that he met with Ms Hayes again on September 24, 2010. He had received a call from her saying she had her vehicle back and wanted him to see some things that did not belong to her, including a partial bottle of wine and a large bag. She said the bottle was not sold in Pub 31.
On October 14, 2010, Inspector Rowntree met with the Licensee to inform her that a report would be filed.
On October 18, 2010, Inspector Rowntree received a call from the Licensee who asked about the legality of a licensee, Mr Tom, leaving a patron at her bar. Inspector Rowntree told Ms Mpendubundi that the bartender was asked by Mr Tom if Ms D could be left in her care. Ms Mpendubundi told him that Ms Hayes did not see Ms D come in with Mr Tom.
Inspector Rowntree, in answer to questions, said that Mr. Taylor told him that he saw Ms D come in the establishment with someone, but he could not provide a description because he was reading a newspaper.
On October 26, 2010, (Exhibit 1, Tabs 2 & 3), Inspector Rowntree was at the premises, and during the inspection he observed a 28 pack of empty Budweiser beer bottles behind the bar. He noted that the establishment does not sell this brand of beer and that a 28-pack of beer cannot be purchased on licence. This was discussed with Joe Pharand, the bartender.
On October 27th, 2010 he spoke with the Licensee and requested the last 3 months of beer store receipts. On October 28th Inspector Rowntree did a spot inspection at Pub 31 and delivered the NOP for suspension. During the inspection he saw a male in the unlicensed vestibule with a beer bottle in plain view (Exhibit 1, Tab 3). On October 29th, the Licensee was informed of the infraction.
Inspector Rowntree met with Ms Mpendubundi on October 29, 2010 to discuss the alcohol purchased off licence. The Licensee told the Inspector that she owed money to the beer store and had purchased off licence while trying to catch up on her bills. The Licensee was advised to put up signs in the licensed areas, warning patrons not to take alcohol beyond this point. The Licensee did place signs at the front door and on the patio. The Licensee also agreed to a training session on November 9, 2010.
Inspector Rowntree stated that the Licensee has always been cooperative, calls when there is a question or concern and he feels he has a positive working relationship with the Licensee.
On cross-examination Inspector Rowntree stated that he understood from his investigation that Ms D was in Pub 31 between 7:00 and 9:00 p.m.; potential witnesses were more focussed on the behaviours of Ms D, rather than what she was drinking or how much.
Wei-shao Tom is the former owner of the All Wing Restaurant. His business is no longer operating. He did not know Ms D
s name, he learned this later, but did remember her coming into the restaurant on September 9, 2010 around 4:00 or 5:00 p.m. Ms D was served water, but when he returned from a food delivery he noted that she had some kind of alcohol in her glass. Mr Toms wife told him she did not serve Ms D.Mr. Tom stated that Ms D was causing a commotion, swearing at customers. She was told to stop causing trouble. She then asked him for a drive to Pub 31. Mr Tom stated that Ms D was loud, not really drunk, but did not seem normal to him.
He took her to Pub 31 and said Ms D wanted him to come in to meet the owner, who was absent, and asked him to have a drink with her. Mr Tom asked for something quick and the bartender poured two tequilas.
Mr Tom stated that he told the bartender what happened at his restaurant and asked if he could leave Ms D at the establishment. He was told it was ok to leave her there. He did not pay for the tequila and left after ten minutes.
On cross-examination Mr. Tom stated that he assumed, in his restaurant, the coloured content of the glass was alcohol and it looked like wine. It was a two minute drive to Pub 31.
Mark Daniels, an AGCO Inspector, attended the Diamond
s Gentlemens Club on September 21, 2010 (Exhibit 1, Tab 5). He spoke to George Swde.Mr. Swde told him that Ms D had worked at the club about five years ago. She was barred after arguing with patrons and issued a trespass warning. On September 9th, Ms D arrived at the establishment between 5:00 and 6:00 p.m. and Mr. Swde met with her.
Inspector Daniels asked if Ms D had been served alcohol and Mr. Swde adamantly stated she did not. Mr. Swde had been contacted by a female server who told him Ms D was at the establishment. He was not on the premises.
Mr. Swde told the Inspector that Ms D went to the All Wing Restaurant after leaving his Club. He called Mr. Tom to advise him not to serve her alcohol. He said that Ms D was not intoxicated.
Mr. Swde said that after she left, she went upstairs to the restaurant. He called Tom to advise him not to serve her alcohol.
Mr. Tom, told Inspector Daniels that Ms D was argumentative and aggressive from the moment she came into the restaurant. He did not serve her alcohol and she was given a glass of ice water. Shortly after that he noticed that the glass had wine which he had not served. He cautioned her that the only alcohol she can consume is alcohol from his establishment. He packed up her food and drove her to Pub 31.
Inspector Daniels stated that Mr. Tom told him that Ms D dragged him inside, insisting on buying him a drink. Initially he refused and complied after she threatened to get her gangster boyfriend to shoot him. Mr. Tom told him that they had a shot of tequila and he left.
On September 22, 2010, he attended Pub 31. A patron, Mr. Taylor, told him that Ms D had been dropped off at the pub and he did not know the driver of the vehicle. Ms D slapped him so hard on the head that he saw stars and then she grabbed another male by the throat; she was dancing like a stripper and knocking drinks over on the table. Ms D arrived around 7:30 p.m. and was at Pub 31 for about 45 minutes.
On cross-examination, Inspector Daniels confirmed that Mr. Tom told him he could hear bottles in the bag that Ms D carried. Mr. Tom said the bottle was corked and Ms D left his restaurant with it.
Inspector Daniels stated that he did not know how Mr. Swde knew Ms D was not intoxicated when at his establishment.
Eleanor Murphy works at Diamonds Gentlemen’s club, formerly known as Cabaret Canada. On September 9, 2010 she was working as a server and bartender when Ms D arrived about 6:15 p.m. She was on the premises about five minutes and was not intoxicated. She was not served anything and Ms Murphy did not know where Ms D went when she left.
Ms Murphy stated that she knows Ms D well, as they both had attended AA meetings. She herself has been dry for seven years. Ms Murphy stated that when Ms D is drinking she has slurred speech, she staggers and becomes loud and obnoxious.
Alain Fugere, a patron of Pub 31 on September 9, 2010, arrived around 8:00 p.m. He noted that there were 3 or 4 people in the bar, including Ms D. He thought she was a little drunk, talking loudly and non-stop and being rude. Mr. Fugere stated that he saw Ms D go to the washroom and said that when she came back she was “very excited”. He thought she went in to do some drugs, saying that she was ‘bouncing off the walls’ and was even more agitated. He observed her drinking a Smirnoff Ice.
Mr. Fugere left the establishment around 9:00 or 9:30 p.m., being driven home by the Ms Mpendubundi. Ms D was still in the establishment.
In response to questions the witness stated that he had drank three or four beers at home and another three or four at the Pub. This would have been over approximately two hours. He stated that he did not think this affected his ability to observe what was going on in the Pub.
On cross-examination Mr. Fugere stated that he did not remember how many times Ms D went to the washroom.
George Swde, is the general manager of Diamonds Gentlemen`s Club, which was formerly called Cabaret Canada. He stated that Ms D used to work at the Club as a dancer. He did not know why she came into the establishment that night since she was banned from the premises.
Mr. Swde stated that he was in his office when someone told him that Ms D was on the premises. When he came out of the office, Ms D left right away. He did not think anyone gave her alcohol.
In response to questions, Mr. Swde stated that he has not seen her drunk, but that she was kicked out because of fighting. He did not know where she went after leaving the Club.
Licensee’s Evidence
Ms Hayes was employed by Pub 31 upon her return from Alberta. When hired, she showed the Licensee her resume and Alberta certification for serving liquor.
Ms Hayes stated that Ms D used to come into Pub 31 two times a week but was only seen twice in the last month before the incident in question. When asked to describe Ms D, she stated that she was outgoing, but difficult to gauge since sometimes she was calm and professional and other times very excitable and demonstrative.
Ms Hayes stated that she had, at various times, observed Ms D coming in with different gentlemen. She overheard that they had come from the Cabaret and believed that she was a regular at the Cabaret.
On September 9, 2010, Ms Hayes was working alone in the bar and kitchen areas. She did not see Ms D enter and did not see her with anyone. She served her a shot drink called Porn Star and then served her a Smirnoff ice. She did not see Ms D consume it.
Ms D asked Ms Hayes for a drive to her boyfriend’s house. Ms Hayes offered to drive her at the end of her shift. Ms Hayes stated that she had never seen Ms D drive and did not think she knew how to drive. Ms Hayes saw Ms D outside on the patio, using her cell phone. Ms Hayes assumed Ms D was calling a taxi or her boyfriend.
Ms Hayes went back inside to look after patrons and this was the last time she saw her. She thought Ms D was in the pub for about 45 minutes.
Ms Hayes said that when the owner Ms Mpendubundi came back, she told her that her truck was missing out of the parking lot. Ms Hayes said she called the police.
Ms Hayes stated that she knew Ms D was special and had been told to contact the owner anytime Ms D came in. Ms Hayes did not notify the owner this time since she had received a call that Ms Mpendubundi was on her way to the establishment.
Ms Hayes stated that she did not serve Ms D any tequila and would never serve her any.
Ms Hayes stated that Ms D was in business dress and did not appear suggestive. She was not being loud or profane and seemed calm and relaxed. She did not see Ms D strike Mr. Taylor, but did see her start an altercation with Mr. Fugere. At this time, she took Ms D out to the patio and she seemed to calm down.
In response to questions, Ms Hayes stated that Ms D possibly had two shooters at the bar. She was also served a Smirnoff but stated that she did not drink it. Ms Hayes stated that the shooters were porn stars. Ms D did not have tequila
On cross-examination Ms Hayes stated that she started working at Pub 31 in mid June until the night of the accident. She did not return to work, by her own choice, but has been to the establishment about three times.
Ms Hayes stated that Ms D stayed overnight at her home on one occasion only. When Ms D was drinking, Ms Hayes saw her get more physical with the patrons and get louder.
Ms Hayes stated that it was not uncommon for the owner to drive patrons home, since they were in a more rural area and taxis do not like to come out so far.
Ms Hayes stated that Ms D came in around 8 p.m., just after she started her shift. She was in the kitchen when Ms D arrived and she did not see Ms D with anyone. The first drink was served within 10 or 15 minutes of her arrival. Ms D paid cash for the shot. She then gave her a Smirnoff at the bar. She stated that she did not have to refuse service, since Ms D was acting properly; she was not staggering and did not show other signs of intoxication. Ms D was acting in a sexually suggestive manner, but this was not out of character for her.
Ms Hayes confirmed that she did not see Ms D hit Mr. Taylor but did see Ms D grabbing Mr. Fugere. She felt that this behaviour was “over the top” even for Ms D and this was when she took her outside, away from patrons to calm her down. She left Ms D unattended on the patio to call a cab while she went to serve patrons inside the establishment.
Ms Hayes stated that it was a nice evening, the patio was fenced and she assumed Ms D would come back in when she wanted to enter again.
The witness did not know what time the Licensee returned to the establishment, but recalled that when she came back, Ms Mpendubundi told her the truck was not in the parking lot. Ms Hayes called the police and said that the officer arrived very quickly.
In response to questions Ms Hayes stated that most of the items in the truck belonged to her and she contacted the AGCO Inspectors about the wine. She assumed the inspectors and police corroborated evidence - so did not contact police directly.
Ms Hayes said that she did not recall seeing Mr. Tom. She stated that it would have been odd for a person to ask for permission to leave a grown woman in the pub.
When asked how Ms D would have been able to drive the truck, Ms Hayes stated that the keys were stored in the glove compartment. She did not think that Ms D would have known this. The doors of the vehicle would not have been locked and the keys would have been available to move the vehicle.
Marthe Mpendubundi is the Licensee. She stated that she has an environmental degree and is a chemist with public health training. She has worked for the United Nations, setting up public health in developing countries.
Ms Mpendubundi stated that she drinks very little and rarely drinks in her establishment. Pub 31 is a rural bar and not busy. Everyone knows one another. This is how she came to know Ms D. They usually close at 10 p.m., if there are no customers. She only has one staff person on duty working with her. Occasionally she goes home at the early evening shift change, returning later in the evening.
In relation to the allegation regarding removing liquor from the licensed premises, the Licensee stated that the bartender, Joe Pharand, told her that a patron received a phone call, he ran to the vestibule to take the call and took his drink with him. That is when the inspector came in.
Following the incident and with advice from the Inspector she placed appropriate signage as directed and there have not been any further problems.
On September 9th, the Licensee was not on the premises in the early evening, but was reachable by phone. She had called around 7:38 p.m. and Ms Hayes told her the bar was not busy. They talked about closing at 9 p.m.
Since the bar was not busy, on this evening, the Licensee decided to make a stop before arriving at the bar around 8:45 p.m. She was surprised to see Ms D at the bar, not having received notification. Ms Hayes told her that she did not call since she thought that the Licensee was on her way to the pub.
When questioned, Ms Mpendubundi stated that she has banned some people, but she felt she could manage Ms D and had never seen her hit anyone, as others described. When she saw Ms D, she thought she looked very tired and asked her what she had done to herself. She did not see a drink in front of Ms D.
Ms Mpendubundi stated that many people thought she and Ms D were cousins, since they were of the same skin colour. This hearing was the first time she heard that Ms D was telling people she was part owner in the business.
On September 9th, Ms Hayes told the owner that she had not serve Ms D any tequila and the owner believed her, as she was considered to be a trustworthy employee.
Ms Mpendubundi told Ms D that she would take her home after driving another patron home. Ms D was told to stay until she returned.
When she returned, Ms Mpendubundi did not see Ms D. She could not imagine that she would be driving or that there was a vehicle in the parking lot with keys. Ms Hayes was asking about the whereabouts of Ms D and her truck
There was no answer when she tried to contact Ms D`s boyfriend. After several tries, Ms Hayes called the police. Minutes later the police arrived and confirmed that Ms D had been stopped on the road. It was a difficult time and police came in finding both women panicking.
After the accident she heard that Ms Hayes’ smart serve certificate was being questioned by police and the inspectors. She had seen the certificate and the books do not say it must be an Ontario Smart Serve Certificate; it says a recognized certificate and this was a Canadian certification. Ms Hayes was a credible employee, being accurate, on time and trustworthy in her work.
Ms Mpendubundi was told by Ms Hayes that she did not serve tequila. She stated that she believed Ms Hayes and there was further proof of this being true when she measured the liquor bottles in the morning as is her usual practice. She stated that the next morning she measured the quantity of alcohol remaining in the bottle and there was one shot missing.
Ms Mpendubundi stated that Ms D had a changing personality and fooled everyone. She stated that the history of Ms D’s past surprised her. She thought she knew Ms D, and knew she was a sick person that night as was evident in her drooling.
She did not see technical signs of intoxication during her contact as Ms D and she did not speak, nor did she see her walk during their brief conversation on September 9th.
She stated that she knows Ms D did not have much to drink when in the bar and she did not have tequila. She stated that she continues to wonder what happened with Ms D before she came to Pub 31. She questioned the responsibility of a restaurant owner who saw a client carry alcohol in a bag, leaving it in her possession and then transporting the client and the alcohol from his place of business to her bar and saying that he did not serve the person alcohol. Ms Mpendubundi asked why that owner would not have removed the alcohol when the client was on his premises. She stated that she would have done so.
She expressed concern that another business owner saw Ms D being aggressive towards his own patrons, took her out of his restaurant, and drove her to Pub 31. Mr. Tom even stated that Ms D threatened him until he agreed to have a drink with her. He took the drink and did not let the bartender know that the patron was carrying alcohol and nonchalantly asks the bartender if it was ok to leave Ms D there. She does not accept that his actions were that of a Good Samaritan.
Ms Mpendubundi noted that Ms Murphy, who works at the Gentlemen’s Club, had been in contact with her, asking for work at Pub 31 and she had also come in from time to time with friends.
Ms Mpendubundi stated that she allowed Ms Hayes to park her vehicle in the parking lot at Pub 31 since she had limited parking in the trailer park. At times the vehicle would be moved off the lot, but she did not pay a lot of attention to it, since it was not going to be there permanently. She never asked about vehicle insurance or the location of the keys.
On cross-examination Ms Mpendubundi stated she did not recall when Ms Hayes started parking the vehicle. Ms Hayes started working at Pub 31 on June 15, 2010.
This is the first pub ownership experience for Ms Mpendubundi and she does have her Smart Serve certificate. She had worked as a waitress and bartender when in Switzerland. Pub 31 opened 3½ years ago with a silent partner who is co-owner of the building. She stated that the pub is her primary job and she works there full time, managing all aspects of the business.
Ms Mpendubundi trains staff on dealing with customers, briefing staff on specific customers, teaching opening and closing routines and providing a list of duties.
The Licensee has an older security system that uses VHS tapes and she has found it hard to maintain. She stated that she uses the system to monitor what is happening in the bar while she is in her office. The camera in the parking lot does not function.
Ms Mpendubundi stated that she is planning to purchase a new security system. When asked why no staff were called as witnesses, especially the male bartender, Ms Mpendubundi stated that the male bartender was taking care of the business while she attended the hearing; another staff person has been sick. With the advice of Inspector Rowntree, she has corrected the problem with patrons standing in the vestibule with a drink. She did not think she needed to call witnesses relating to this allegation.
Ms Mpendubundi stated that she first met Ms D when she bought the bar and was introduced to her more than 3 ½ years ago. She was told her name and informed that this patron was a stripper at the Cabaret. When they first met, she seemed normal to the Licensee. She did not know about a past criminal record or that Ms D was not supposed to be in bars, or drinking alcohol.
She stated that Ms D usually came with other people since she did not drive. She came to know that Ms D could not tolerate tequila. Ms Mpendubundi said that Ms D respected her and she would be able to keep her calm and under control, when Ms D would start to get out of control, becoming loud and going after men.
She stated that Ms D seemed to be in bad shape. Normally she is outgoing but on this evening she did not greet the owner, nor hug her as she would normally do. She was sitting and - drooling. That was when Ms Mpendubundi asked “what did you do to yourself?”
Ms Mpendubundi confirmed that she was not at the pub for shift change and had gone to the grocery store around 6 p.m. She had called Ms Hayes around 8 p.m. and they agreed to close at 9 .pm. She arrived at the pub between 8:40 and 8:45 p.m. She left about 8:50 p.m. to take a male patron home before returning to take Ms D home. She returned in about 10 minutes and did not see Ms D. She had planned to drive her home, but did not want to make the 35 minute drive alone and had planned to have Ms Hayes accompany her in taking Ms D to Winchester.
The Licensee agreed that the first call to police would have been around 9:03 p.m. to report the missing vehicle. When asked how Ms Hayes reacted, the Licensee stated that she started to panic. She was not able to confirm whether Ms Hayes had called her husband or had called police twice. The Licensee tried to call Ms D’s boyfriend and another part-time bartender.
When police arrived about 20 to 25 minutes later, she did not participate, letting Ms Hayes speak to police about the truck. She recalled feeling relief that police had stopped Ms D, if it was her driving. She did tell police of her suspicions.
When asked about the keys in the vehicle, Ms Mpendubundi replied by asking who would leave keys in a vehicle. She stated that there was an area in the bar for leaving customer keys and Ms Hayes could have used this area.
In response to questions from the Panel, Ms Mpendubundi stated that there is no requirement on the liquor licence that she maintain video surveillance equipment. She confirmed that the entire patio area is licensed.
Reasons for Decisions
The Board has carefully reviewed and considered the evidence, exhibits and written submissions of both parties in this matter.
In reviewing submissions, the Board became aware that the Licensee presented new information and made additional argument. The Board, in reaching a decision, points this out noting that some of this information was not in evidence presented at the Hearing and was not taken into consideration during the analysis of evidence.
The Board found all the witnesses to have given their evidence in a clear and direct manner but also recognizes the inconsistencies that in part, seem to reflect a response of witnesses to the sensitivities of an accident involving the death of a young person.
In reaching a decision, the Board was mindful of the scope of the police investigation into a fatality and the parallel investigative work of the AGCO Inspectors; the Board remained cognitive of the area of authority of the AGCO.
The decision reflects an analysis of evidence as it relates directly to the allegations directed toward the Licensee. The Board notes the sensitivity of this case and of some of the evidence presented, given that there was loss of life that involved a young person in a small rural community.
The Board heard evidence relating to the out-of-province smart serve certificate held by Ms Hayes. The Board is not dealing with allegations relating to this matter and will not be addressing the matter in this decision. The Board notes that it is the responsibility of the Licensee to ensure that staff have the appropriate required certification as contained in section 40 of the O.Reg.
Re: section 31(1)(c) of O.Reg 719/90
Early in the proceedings, the Board heard that all parties agreed that the Licensee had liquor on the premises that was not purchased under the licence.
Therefore, the Board FINDS that the Licensee violated subsections 31(1)(c) of the O.Reg.
Re: subsection 34(1) of O.Reg 719/90
Subsection 34(1) of O.Reg 719/90 states that the licence holder shall not permit a patron to remove liquor from the premises to which the licence applies.
The Board accepts the undisputed evidence of Inspector Rowntree that on October 28th, during a spot inspection, he saw a male in the unlicensed vestibule with a beer bottle in plain view. The Board also accepts the testimony of the Licensee that the bartender had seen the patron step into the vestibule to use a cell phone at the time the Inspector arrived for the inspection.
Inspector Rowntree indicated in evidence that, at the time of the infraction, he advised the Licensee to put up signs in the licensed areas, warning patrons not to take alcohol beyond this point. The Licensee did place signs at the front door and on the licensed patio. The Licensee also agreed to a training session, which was held on November 9, 2010.
The Board also takes note of testimony by Inspector Rowntree indicating that the Licensee has always been co-operative, calls when there is a question or concern and that he stated that he has a positive working relationship with the Licensee.
The Board acknowledges that it is common for a person to find a quiet location when using a phone device. Regrettably in this instance a patron went into the unlicensed vestibule with a bottle of beer.
The Board has also given consideration to the positive working relationship that exists between the Licensee and the AGCO Inspector. There was further evidence that the Licensee took immediate steps to post the signs and held a training session within two weeks of the infraction, following up on the recommendation of Inspector Rowntree.
The Licensee admitted that the infraction had taken place. The Board accepts her evidence that she put up the signs recommended by the Inspector. The Board is satisfied that this infraction has been dealt with, but given the admission of the infraction, the Board finds that the alleged violation occurred. The cooperation and the prompt remedial action taken by the Licensee is not a consideration at this stage but will be a consideration in deciding on an appropriate sanction.
Therefore, the Board FINDS that there has been a violation of subsection 34(1) of the O.Reg.
Re: September 9, 2010
When considering the allegation relating to September 9, 2010, the Board accepts as fact that a female, Ms D, was in attendance at Pub 31 before taking a motor vehicle from the parking lot. She drove the vehicle, and was involved in a motor vehicle accident resulting in the death of a 17-year-old cyclist before being pulled over by police.
The Board accepts as fact that Ms D has been convicted of driving while intoxicated and causing death.
The Board found that the evidence of all the witnesses contained inconsistencies. The same persons who had a connection with Ms D on September 9th were interviewed by police and by several AGCO Inspectors. There were repeated interviews at differing times and locations and the Board had to deal with varying pieces of evidence that was garnered from the same witnesses under these circumstances. The Board has concerns about the inconsistencies of times but accepts the order of events as generally described by witnesses.
Re: [section 29](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)
For a finding under section 29 of the LLA, the evidence must demonstrate that liquor was sold to a person who was or appeared to be intoxicated.
It is the opinion of the Board that there is a lack of evidence to make a finding under section 29 of the LLA. The reasons follow.
The Board accepts evidence of witnesses who provided information on the places that Ms D attended on September 9th. These events are outlined as follows:
a. Ms D during a police interview stated that she had six beers at home before going to Cabaret Canada (aka Diamond’s Gentlemen’s Club). Ms Murphy, the bartender at Cabaret Canada stated that Ms D arrived between 6:30 and 6:45 p.m.; she was not served alcohol. Ms D was on the premises for about 5 minutes and was asked to leave, having been banned for past bad behaviour on the premises.
b. Ms D then went to the All Wing Restaurant. Mr. Tom told Sgt Dodds that she arrived between 5:30 and 6:00 p.m. and during the hearing he stated that she arrived between 4:00 and 5:00 p.m. He stated that Ms D ordered food and was given a glass of water. Shortly after she was found by the owner, Mr. Tom, to be drinking a coloured substance in a glass that he thought was alcohol that was not purchased on the premises. Mr. Tom stated that Ms D was causing a commotion, swearing at customers. She was told to stop causing trouble. He told her she would have to leave and he offered to drive her somewhere.
c. Mr Tom stated in evidence that Ms D was loud, but she was “not really drunk” although her behaviour did not seem normal to him. Mr. Tom also gave evidence that he saw Ms D with a partial bottle of wine, about ¾ full, with a cork in the neck. This bottle was in her bag.
d. At Ms D’s request, he took her to Pub 31. They both entered the premises around 8:00 p.m. and he had a drink with her at the bar counter. The evidence was consistent that they each had a shot, but the evidence was inconsistent as to whether Ms D had a shot of tequila or a porn star.
e. The Board heard evidence from Ms Hayes and the Licensee that Ms D would have a negative reaction if she drank tequila.
f. Mr. Tom asked the bartender if Ms D could remain at Pub 31. The Board did not hear any evidence that Mr. Tom informed the bartender that he had to remove Ms D from his restaurant for drinking alcohol not purchased on the premises, about her disruptive behaviour or about the open wine bottle in Ms D’s bag.
The evidence was consistent that Ms D was at Pub 31 for about 45 minutes, arriving around 8:00 p.m. The evidence was also consistent that Ms D had one shot with Mr. Tom and that she was also served a Smirnoff Ice; she did not finish the drink and the bartender, Ms Hayes, took the bottle away.
The Board must make a decision on whether the Licensee for Pub 31 sold liquor to a person who was or appeared to be intoxicated.
The Board has concerns about the inconsistencies of times but accepts the events as generally described by witnesses. There are also gaps of time unaccounted for from approximately 6:00 p.m. to 8:00 p.m. before Ms D arrived at Pub 31 that is of concern to the Board.
There was no evidence presented, indicating that staff at Pub 31 were aware that Ms D might be intoxicated when she arrived at Pub 31. The Board accepts that when Ms D arrived, at the outset, she did not exhibit signs of intoxication.
This seems reasonable given that she did not appear intoxicated to Ms Murphy when she was at the Cabaret, and according to Mr. Tom, Ms D did not appear intoxicated when she was at his restaurant.
The facts were consistent in that Ms D arrived with Mr. Tom and they sat at the bar for about 10 minutes, having a drink together. There was no evidence that there was a disturbance that would alert Ms Hayes to possible drunkenness.
Mr. Tom did not indicate to anyone at the bar that he had concerns and in fact testified that Ms D was not intoxicated at his restaurant. He did not warn Ms Hayes about the partial bottle of wine in Ms D’s bag nor did he warn the bartender about the behavioural problems in his establishment. The two sat at the bar to share a drink; Mr. Tom left about 10 minutes later and there was no indication of problems with behaviour or signs of intoxication that would have raised concerns for the bartender, Ms Hayes.
In coming to a decision, the Board expects a Licensee to stop serving a person who is or appears to be intoxicated. The Board must also be mindful that realistic expectations have to be applied to enforcing the law and a Licensee, in meeting the responsibilities of oversight, must have reasonable time to scrutinize a patron. In this case, it is possible that Ms Hayes, on first contact, and for the first ten minutes would not have been concerned about Ms D’s level of intoxication.
The Board cannot confirm if Ms D was served tequila, a substance that was confirmed to have a very negative impact on her. No receipts or cash register tapes were ever provided as evidence to confirm how much or what kind of alcohol was purchased. There were no video tapes available.
After carefully considering all of the evidence, the Board finds, on a balance of probabilities, that there is insufficient consistent evidence to make a determination and DISMISSES the allegations of a violation under section 29 of the LLA.
Re: subsection 45(1) of the O.Reg
The Board acknowledges that the police investigation was primarily focused on the investigation of a fatality, which may account for the lack of a fulsome investigation into the liquor infractions. The AGCO Inspectors conducted their own in-depth interviews of witnesses, some who had already been interviewed by police.
The Board has a concern about this duplication and that there was some information relating to alcohol found in the vehicle that was not analyzed or shared between the two ongoing investigations. The Board is of the opinion that the dual investigations on the same matter but with a different focus has led to some of the variations in the evidence.
The Board agrees with the Registrar, who in submissions stated that there were inconsistencies in evidence. Ms Harari suggested that Mr Tom’s evidence be preferred over that of Ms Hayes. The Board disagrees with this suggestion, given the dissimilarity that pervaded the testimony of both witnesses and the differences in their evidence to that of other witnesses.
However, the Board is of the opinion that there are enough consistencies to make a determination on the allegation.
Mr. Swde’s evidence was not given consideration, as his version of events was contradictory to the totality of evidence.
In making a decision the Board must be satisfied through a two-part test. First to establish, on the facts, that there was drunkenness in the licensed establishment under the Licensee’s control and second, that the Licensee knew or ought to have known that the patron was drunk, thereby permitting drunkenness.
The legislation states in part that the licence holder shall not permit drunkenness, riotous, quarrelsome violent or disorderly conduct to occur.
In the first part of the test, it is clear that Ms D started showing signs of intoxication sometime after Mr. Tom left and while she was at Pub 31. Although it was suggested by witnesses that there may have been drugs or tequila (a substance that was known to adversely impact Ms D), involved, the Board points out that this is immaterial in the determination, as intoxication can occur alone or in combination with other substances.
Based on all the evidence, particularly from patrons of Pub 31 and the bartender, Ms Hayes, Ms D started showing signs of intoxication after Mr. Tom left the premises. She tossed a shot glass at another patron, she was loud, rude, tried to grab or choke another patron, was lying on the floor, and sitting on the lap of patrons.
The first part of the test is satisfied in that there was drunkenness in the licensed establishment under the Licensee’s control.
For the second part of the test, the Board must determine if the Licensee knew or ought to have known that the patron was drunk, thereby permitting drunkenness.
It has already been determined that there was drunkenness, as evidence by the quarrelsome, violent and disorderly conduct of Ms D.
Ms Hayes and Ms Mpendubundi had a phone conversation just prior to the arrival of Ms D at the pub. When Ms D arrived, Ms Hayes did not make a second call, according to the procedures put in place by the Licensee, expecting the owner to arrive shortly.
Knowing it was a quiet night at the pub and expecting to close early, Ms Mpendubundi made the decision to make a stop on her way into the pub. It is this unfortunate set of circumstances that led to the escalation of events in the establishment.
The Board’s concern relates to the responsibilities of the Licensee and staff in the establishment. Ms D was on the premises for approximately 45 minutes and started showing signs of intoxication after 10 minutes, when Mr. Tom left.
For approximately the next 35 minutes, the sole staff person on the premises had to serve patrons and to maintain control over the premises. Although Ms Hayes escorted Ms D outside to the patio to calm her down, she did not take the initiative to call a taxi, contact police or take other immediate steps to have the patron safely removed from the premises.
When the Licensee arrived, she immediately noticed that Ms D was drooling and was “in bad shape”. There was a further delay in removing the patron from the premises when the Licensee tried to accommodate another patron’s need for transportation home, thereby permitting Ms D to remain on the premises.
Although Ms Mpendubundi had good intentions, attempting to personally organize the transportation needs of various patrons, her choice left Ms Hayes alone on the premises with a drunken patron.
The Board recognizes that in a rural area, transportation can be a challenge but the Board must look at the role and responsibility of the Licensee in managing all aspects of a licensed business under legislation, which includes ensuring the safety and protection of staff, patrons and the general public.
The intoxicated patron was not being properly monitored as Ms Hayes attended other duties – during which time Ms D left the premises unnoticed. The tragic result was a fatal accident that occurred after the patron took the keys - from a vehicle in the parking lot and drove away.
Ms D was known to have behavioural problems and had not been banned from the premises. Ms Mpendubundi indicated that she wanted staff to contact her if Ms D came to Pub 31 and stated that she felt she could control Ms D.
It is the view of the Board that it was only a matter of time before this method of managing a difficult patron would cause problems, as regrettably occurred on September 9,2010.
The Board believes that the Licensee knew Ms D was intoxicated and did not immediately and safely remove her from the premises, which therefore violated subsection 45(1). It is the responsibility of the Licensee to ensure the safety and well being of all patrons and to ensure that measures are in place to deter disorderly or misconduct so no harm is done.
The Board is of the opinion that the Licensee did not have adequate policies and procedures in place to deter disorderly conduct or deal with intoxication. The Board is satisfied that the second part of the test has been met
The Licensee did not take the necessary steps to ensure compliance and finds, in the two-part test, that the Licensee permitted drunkenness and knew or ought to have known patrons were drunk leading to quarrelsome, disorderly behaviour, the unsafe departure of a drunken patron from the premises and the resultant fatal accident.
Accordingly the Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg.
Conclusion
For the above reasons, the Board FINDS that the Licensee contravened subsections, 34(1), 45(1) and clause 31(1)(c) of the O.Reg and DISMISSES the allegation under - section 29 of the LLA.
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 21st DAY OF November , 2011
KIRSTI HUNT, VICE-CHAIR JOAN LOUGHEED, BOARD MEMBER