Licence Appeal Tribunal

Appeal from an Order of Monetary Penalty of the Registrar of Alcohol and Gaming under the Alcohol and Gaming Regulation and Public Protection Act, 1996, R.S.O. 1996, c. C. 26

Date: 2012-04-19 File: 6996/AGRPPA Case Name: 6996 v. Registrar of Alcohol and Gaming

2000758 Ontario Ltd. o/a Unicorn Applicant

-and-

Registrar of Alcohol and Gaming Respondent

REASONS FOR DECISION AND ORDER

Adjudicator: Patricia McQuaid, Vice-Chair

Appearances: For the Applicant: Elizabeth Luca, Agent For the Respondent: Aviva Harari, Counsel

Heard in Toronto: April 19, 2012

DECISION AND ORDER

BACKGROUND

This is a hearing before the Licence Appeal Tribunal (the "Tribunal") arising out of an Order of Monetary Penalty issued by the Registrar of Alcohol and Gaming, under the Alcohol and Gaming Regulation and Public Protection Act, 1996 (the "Registrar" and the "Act" respectively.) The Order dated September 16, 2011 imposed monetary penalties on 2000758 Ontario Ltd. o/a Unicorn (the "Applicant"), with respect to contraventions of sections 43 and 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act.

Prior to the hearing, the parties resolved all but one issue, namely the allegation of an intoxicated person in the premises in violation of s.45(1) on May 7, 2011, and the monetary penalty imposed as a result.

By way of preliminary matters, Ms. Elizabeth Luca, one of the principals of the Applicant, confirmed that she wished to proceed with the hearing and waived legal representation. As well, the Tribunal issued an order for the exclusion of witnesses.

REGISTRAR'S EVIDENCE

The Registrar called two witnesses, AGCO Inspectors Ka Ng and Trevor Joseph. The inspectors arrived at the establishment at 1:37 a.m. on May 7, 2011. They identified themselves to the staff person at the entrance. Inspector Ng testified that upon entering the premises, which were busy that evening, he walked to the service bar where he observed a female, standing at one end of the bar, approximately 10-12 feet from him. She was swaying back and forth and staggered as she walked. Her eyes were bloodshot and her eyelids heavy. Two bartenders were working the bar area and did notice her. She was standing with 2 or 3 friends. They were hugging each other. He did not observe her drink any alcohol. After 2-3 minutes, he went to the front of the establishment and spoke to Inspector Joseph, advising him that he had observed a female exhibiting signs of intoxication. He then did a count inside the premises, after which he and Inspector Joseph spoke to Mr. Armando Luca, one of the owners, advising him of the infractions noted, including that of the intoxicated female.

Inspector Ng stated that when he spoke to Inspector Joseph about the female, they had looked around for her, but did not see her. Some time after speaking to Mr. Luca, Inspector Joseph yelled for him as he saw a drunk female in the kitchen. Inspector Ng identified her as the female that he had observed earlier. The female was very emotional and reluctant to leave. Mr. Luca seemed to be trying to get her out of the premises, but he, Mr. Ng, was concerned for her safety as a lone female. He asked Mr. Luca to call her a cab.

When he asked Mr. Luca who she was, Mr. Luca responded that she was an off duty employee and had been there about 40 minutes. Although the bar was noisy and there was music playing, he clearly understood Mr. Luca to say that she had been there forty minutes, not four as suggested in cross examination. She had arrived in an intoxicated state. Mr Luca was upset that she was there, drunk. There was no discussion with Mr. Luca as to why they had permitted her entry. In Mr. Ng's view, it was incumbent upon the licensee to deny entry to an intoxicated person. By allowing her in, and then allowing her to stay, the licensee was "permitting drunkenness".

There is a laneway at the rear of the premises. Mr. Luca accompanied the two inspectors, together with the female, to the rear door, accessible through the kitchen, where they waited, in the laneway, for a cab. He and Inspector Joseph waited with the female outside. He did not feel it was safe to leave her on her own. Mr. Luca was with them for some of this time, but he did have other matters to take care of inside the establishment. Inspector Ng stated that he and Inspector Joseph attempted to have a discussion with the female while they were in the laneway.

Inspector Ng did not ask the female why she was at the establishment. He may have asked how long she had been there, but she did not respond. She seemed highly emotional and in no state to answer questions.

When the cab arrived after approximately 20 minutes, the female was reluctant to get in. The inspectors called upon Mr. Luca to persuade her to get in, which he did. Inspector Ng estimated that she left about one hour and twenty minutes after her arrival at the bar.

Inspector Joseph's evidence was fairly consistent with that of Inspector Ng. He described seeing staff escort a female who appeared to be intoxicated, toward the kitchen area. She seemed to need assistance. He observed that she was unsteady on her feet. Her eyes were bloodshot and glossy. Her speech was slurred. It seemed to him that staff were trying to get the female out of the premises quickly, perhaps because of the inspectors' presence. Had he not observed them escorting her, they would have been successful.

It was after this that he first spoke to Mr. Luca. He had a lengthy discussion with him about the female, learning that she was a staff person, though not working that night. She had arrived at the premises in an intoxicated condition. He did not ask Mr. Luca how long she had been there; he was not sure whether Inspector Ng asked that question. Mr. Luca indicated to Inspector Joseph that he was concerned for her safety which was why she was there. Inspector Joseph stated that if the female had been identified to them upon their arrival, the situation may have played out differently as they would have given direction as to how best to deal with her.

The female remained in the kitchen at this point. The inspectors obtained her identification and spoke with her there. She was responsive to their questions. Inspector Joseph wanted to find out if she had been drinking at the premises. She had not. He did not learn how long she had been there. Kitchen staff assisted with the female who was, described as being uncooperative at times. He recalled that she left in a cab though he had no specific note of that.

Inspector Joseph testified that he "got a feeling that they were trying to get her out of the facility", by the speed with which they seemed to be moving with her toward the kitchen.

APPLICANT'S EVIDENCE

The Applicant called three witnesses, the first being the intoxicated female, referred to in this decision as NM. She is a bartender at the Unicorn, but was not working on the night of May 7th. NM testified that she arrived at the Unicorn between 1:35 and 1:45 a.m. She walked there from a friend's place which was located a couple of blocks away. She estimated that she had the equivalent of nine drinks that evening, acknowledging that this was quite a bit to drink. She did not want to take the night bus home on her own so her intention was to get a ride home from a friend who was working at the Unicorn that night. The doorman was not thrilled to see her given her intoxicated condition. She told him that she wanted to wait in the staff room until her friend finished for the night. He waved Mr. Luca over and she pleaded her case to him.

She asked Mr. Luca if she could wait for her co-worker. He agreed, but told her to go straight through to the staff room. To access the staffroom, she had to walk past the service bar area, through to the kitchen. On her way, she ran into a friend who she had not seen for a long time. She described herself as "bouncy" at this point. She stopped to talk to her friend, at the service bar, for 2-4 minutes. Her co-workers knew that Mr. Luca's instructions were that she be in the staffroom so they came and physically ushered her into the kitchen area. The inspectors and Mr. Luca joined her there.

NM conceded that she was drunk, but at that point she probably did not feel that she was. She was probably rude and defensive. The inspectors asked her if she had been drinking at the Unicorn. Her conversation with the inspectors lasted five to ten minutes. She tried to answer their questions, but she really just wanted to leave as she was feeling some amount of shame and embarrassment about her condition and the situation she had created. She left through the back exit. She denies being put into a cab, stating that she walked back to her friend's place, on her own.

One of the staff who assisted NM into the kitchen was the busboy, Andrew Oliveros. He first saw NM about 1:30 to 1:45 a.m. when she entered. He did not take note of her condition at that time. About five minutes later, Mr. Luca talked to him. He was angry and upset, saying that he did not want NM standing at the bar, where she was talking to friends. Mr. Luca said she was supposed to be in the back and that he and one of the bartenders should escort her there. They escorted her to the kitchen at which point Mr. Oliveros returned to his tasks. His interaction with NM was no more than a minute.

Armando Luca has been operating the Unicorn for 12 years. He does not dispute that NM was intoxicated when she arrived. He would not have allowed a patron into the premises in such a condition. The doorman knew she was drunk (her speech was slurred) and did have an issue with letting her in so he called him over. It was about 1:40 a.m. Mr. Luca was concerned about her safety outside on her own, and because she said that a colleague was going to give her a ride home, he allowed her to enter. He told her to go straight to the staffroom to wait. To access the staffroom, she had to go across the bar area and into the kitchen.

The bar was busy that night and he did not have two doormen on duty, as is the norm. If he had, he would have asked one of them to escort NM to the staffroom, but in the circumstances, he allowed her to walk there on her own. He was not concerned for her safety in letting her walk on her own; people in the bar knew her. About 3-4 minutes later, he saw NM standing at the bar which angered and upset him. He asked Mr. Oliveros and one of the bartenders to escort her into the kitchen. At this point, he was not aware of the inspectors' presence. He saw them for the first time as NM was being escorted into the kitchen.

Mr Luca stated that he told Inspector Ng that NM had been in the Unicorn for four minutes, not 40. He explained to the inspectors his reasons for allowing NM to enter the premises. Inspector Ng asked him to call a cab for NM which he did. He had not thought to do so earlier because arrangements had been made with a co-worker for a drive home. The inspectors waited outside with NM. He did not see her get in a cab. When he went back outside, she had left. He called her, on her cell phone, about ten minutes later at which time she told him that she was at a friend's and that she was ok.

ANALYSIS

It is clear on the evidence that NM was drunk at the licensed premises on May 7, 2011. She arrived drunk. The Applicant's witnesses all placed her arrival between 1:35-1:45 a.m, which, based on the evidence that NM had made arrangements for a drive home from a fellow employee at the end of the night, is quite plausible. The two inspectors were less clear on the time of their interaction with her, but it appears it was within 30 minutes of their arrival at 1:37 a.m.

The doorman and Mr. Luca were aware NM was drunk. The Tribunal found NM to be credible. Her evidence was candidly given; her embarrassment genuine.

Ms. Harari, in submissions, suggested that although Mr. Luca said he was concerned with NM's wellbeing and thus allowed her entry when he was fully aware that an intoxicated person should not be on the premises, his actions indicate otherwise. He did not, for example, escort her to the staffroom, but allowed her to walk through the bar on her own. There is, however, no evidence to suggest that she was at risk of physical harm in so doing.. She had just walked a couple of blocks without injury. She was not ill nor falling down. She was drunk, but according to Inspector Joseph, she was able to respond to questions put to her, though emotional and distressed when they spoke to her. Mr Luca's concern was for a female on public transit and alone at that hour of the night.

NM testified that she stopped on route to the staffroom to speak to a friend, consistent with Inspector Ng's first sight of her which was, he thought, 5-10 minutes after he entered at 1:37 a.m. According to his evidence, perhaps ten minutes later, Inspector Joseph saw her in the kitchen having observed her being escorted there. He had a "feeling" that she was being taken to the kitchen quickly, by inference to avoid being seen by the inspectors. In all likelihood, she was being quickly escorted; Mr Luca was angry when he saw her standing at the service bar. He had expressly told her to go to the staffroom and wait there.

Inspector Joseph did state in his evidence that Mr. Luca indicated that NM was in the establishment because he was concerned for her. What perplexed the inspector was why NM had not been identified to them immediately upon their arrival because, if she had been, their response to what they observed that night would have been different.

There is no question that s.45(1) of the OReg – the prohibition on 'permitting drunkenness' - means that a licensee must ensure that persons (not just patrons) who are drunk do not enter the establishment. Ms. Harari cited the Divisional Court decision in Horseshoe Tavern v. Alcohol and Gaming Commission 2010 ONSC 3341 which upheld an AGCO Board decision in which that comment was quite clearly made. The Divisional Court in this decision considered whether there were any extenuating circumstances and found there were none.

On these facts, the Tribunal does find extenuating circumstances: NM, an off duty staff person arrived alone and drunk at approximately 1:40 a.m. She was allowed to enter on the condition that she wait in the staffroom for her drive, rather than sending her on her way, alone. What seemed to concern Inspector Joseph in particular was not that NM had been permitted entry, but that he and Inspector Ng had not been immediately apprised of the situation upon their arrival, giving rise to his "feeling" that the Applicant's staff was attempting to hide her from them. To the extent that Mr Luca wanted her out of the public area, perhaps to a degree they were: Mr. Luca clearly knew that by allowing NM to come in he could, strictly speaking, be running foul of s.45(1) of the OReg, but the Tribunal cannot give much weight to the inspectors' "feeling", absent evidence.

The Court of Appeal in 1213963 Ontario Limited (Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), 2009 ONCA 323 stated on the issue of 'permit drunkenness' as follows:

"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….."

The Tribunal must weigh the evidence in the context of his various obligations and determine whether Mr. Luca acted appropriately in allowing NM to enter the establishment on the stated condition that she wait in the staffroom, for what he anticipated to be a short period, given the time, out of concern for her wellbeing. The Tribunal concludes that he did.

Considering all the circumstances, and the relevant case law, the Tribunal cannot find, on the balance of probabilities, that the Applicant "permitted drunkenness" on the premises within the meaning of the legislation. Therefore, it dismisses the allegation that the Applicant breached s.45(1) of the O.Reg.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs that the monetary penalty in the amount of $1000 with respect to an intoxicated person on the licensed premises be set aside.

LICENCE APPEAL TRIBUNAL

Patricia McQuaid, Vice-Chair

Released: May 11, 2012