Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-04-30
FILE:
7053/AGRPPA
CASE NAME:
7053 v. Registrar, Alcohol and Gaming Commission of Ontario
An Appeal from an Order of Monetary Penalty #455, dated November 2, 2011, imposed by the Registrar of Alcohol and Gaming under the Alcohol and Gaming Regulation and Public Protection Act, 1996 S.O. 1996 c.26
Riley's (Oshawa) Inc. o/a Riley's/The Junction
Applicant
-and-
Registrar, Alcohol and Gaming Commission of Ontario
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Richard Macklin, Vice-Chair
APPEARANCES:
For the Applicant:
Domenic F. Basile
For the Respondent:
Tamara Brooks
Heard in Toronto:
April 19, 2012
REASONS FOR DECISION AND ORDER
BACKGROUND
The Registrar, Alcohol and Gaming Commission of Ontario, has ordered the imposition of monetary penalties against the applicant/licence holder, Riley’s (Oshawa) Inc. o/a Riley’s/The Junction (“Riley’s”), in the total amount of $6,000.00 (see Order of Monetary Penalty #455, dated November 2, 2011). The Applicant appeals to the Licence Appeal Tribunal (“the Tribunal”).
The grounds for the penalties are that the licence holder permitted drunkenness to occur on the licensed premises, contrary to s. 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act (“the Regulation”) and failed to ensure reasonable measures and efforts in respect of disorderly conduct, contrary to s. 45.1 of the Regulation. In closing argument, the Registrar Counsel conceded that the burden in respect of the breach of s. 45.1 of the Regulation had not been met and was thus proceeding only on a penalty of $3,000.00 related to the breach of s. 45(1).
FACTS
The evidence regarding the breach of s. 45(1) (permitting drunkenness) was provided by Sgt. David Mounsteven of the Durham Regional Police Service. The alleged drunkenness was that of a patron, A.G. Sgt. Mounsteven testified that on May 14, 2011, he had been assigned the responsibility of co-ordinating enhanced police security in the downtown Oshawa area. There had been an incident the week before in this area involving a bar (not Riley’s) that resulted in injuries to police officers and civilians. At 2:30 in the morning, Sgt. Mounsteven was parked near the intersection of King Street and Charles Street, in Oshawa. He had a clear view of the front entrance of Riley’s. He observed a woman, whom he later determined was named A.G., staggering out of the bar. He observed that she was extremely intoxicated. She was having difficulty walking and she was “bouncing off of people”. She walked past the front door, past a Riley’s staff person and sat on a retaining wall. She then fell over into a nearby hedge. Before Sgt. Mounsteven was able to get to Ms. G, she had gotten up and started walking across King Street. Sgt. Mounsteven was able to take hold of Ms. G., remove her from the middle of the street and place her safely in his cruiser. He proceeded to interview her. Her speech was extremely slurred and much of what she said was difficult to understand. Sgt. Mounsteven testified that Ms. G. was ultimately able to communicate to him and stated that she had “come from Riley’s”, “was not drunk when she got there but now was”. She advised Sgt. Mounsteven that she had sober friends at a nearby Pizza Pizza restaurant and asked that he take her there, which he did.
THE LAW
Section 45(1) of the Regulation states:
- (1) The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.
Under sections 14.1(1) and (2) of the Alcohol and Gaming Regulation and Public Protection Act, 1996 S.O. 1996 c.26 (“the Act”), the Alcohol and Gaming Commission of Ontario (“the Commission”) may impose monetary penalties against licence holders in respect of contraventions of various legislative provisions, including s. 45(1) of the Regulation. An appeal from such an imposition lies to the Tribunal. Under s. 14.1(7) of the Act, the Tribunal’s powers on appeal are limited to confirming the monetary penalty or setting it aside.
The test for the finding of a violation of s. 45(1) of the Regulation was set out by the Court of Appeal for Ontario in the case of 1213963 Ontario Ltd. v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1533 (C.A.) at paragraphs 2-3, as follows:
2 The prohibition in the regulation has two components. They are:
drunkenness on the premises; and
permitting that drunkenness.
3 In our view, permitting drunkenness on the premises requires proof that the licensee knew or ought to have known of the drunkenness on the premises. That determination, of course, must be made in all the circumstances and, in particular, in the context of the various obligations and duties placed on the licensee by the relevant legislation and regulations: see The Queen v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299; The Queen v. Royal Canadian Legion, 1971 CanLII 372 (ON CA), [1971] 3 O.R. 552 at 559 (C.A.). [Emphasis added]
APPLICATION OF FACTS TO LAW
The Tribunal finds that Ms.G. was intoxicated outside the bar. The Tribunal, however, heard no evidence regarding signs of intoxication she may have exhibited inside the bar or how long she was inside. The Tribunal also heard no evidence regarding Ms.G.’s level of contact with Riley’s staff, and thus cannot – in the circumstances of this case – make a finding that the staff, and thereby the licensee, would have known, or ought to have known, that she was intoxicated. Thus, on the test pronounced in 1213963 Ontario Ltd., supra, the Tribunal cannot make a finding that drunkenness was permitted by the Applicant.
Moreover, this is not a case like Salty Dawg Roadhouse Restaurant (Re), [2001] O.A.G.C.D. No. 426. In that case, extensive evidence regarding what had occurred in the bar was called at the hearing. The Tribunal in Salty Dawg had evidence that the person in question was intoxicated when she was found by police and inferred that she was in that state when she left the Salty Dawg bar. Based on that finding, the Tribunal found that the licensee had permitted the drunkenness. This latter finding was based, in part, on the “length of time [the intoxicated person] spent at the Salty Dawg, and her extensive interaction with Salty Dawg staff” (see paragraphs 48-49).
ORDER
For the above reasons, by the power invested in the Tribunal under s. 14.1(7) of the Act, the Tribunal orders that the monetary penalties imposed under the Order of Monetary Penalty #455 be set aside.
LICENCE APPEAL TRIBUNAL
Richard Macklin, Vice-Chair
Released: April 30, 2012