Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 7093/LLA
CASE NAME: 7093 v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Suspend a Licence
2146056 Ontario Inc. o/a Babyface Bar.Club.Lounge Applicant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER
ADJUDICATOR: E. Alan Garbe, Vice-Chair
APPEARANCES:
For the Applicants: Randall Barrs, Counsel
For the Respondent: Lorenzo Policelli, Agent
Heard in Toronto: April 17, 2012
DECISION AND ORDER
BACKGROUND
This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of a Notice of Proposal, number 18992, dated November 24, 2011, issued by the Registrar, Alcohol and Gaming Commission of Ontario (“AGCO”) under the Liquor Licence Act (the “Act”). The Notice of Proposal which proposes to suspend the liquor licence of the Applicant for 14 days was appealed to the Tribunal.
REGISTRAR’S POSITION
It is the position of the Registrar that the Applicant’s liquor licence should be suspended for 14 days due to contraventions of the Act, which contraventions are:
(a) permitting a person who appears to be under the age of 19 to have or consume liquor in the Applicant’s premises, contrary to Section 30(4) of the Act;
(b) failing to inspect pieces of identification of persons apparently under the age of 19 years old prior to selling or serving liquor to that person, contrary to Section 41(1) of Ontario Regulation, 719/90 under the Act; and
(c) permitting drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the Applicant’s premises or in areas under the control of the Applicant, contrary to Section 45(1) of Ontario Regulation, 719/90 under the Act.
APPLICANT’S POSITION
It is the Applicant’s position that there is not sufficient evidence to prove that the persons identified as being under age were indeed under age or were consuming alcohol or that they were intoxicated to warrant the suspension of the Applicant’s liquor licence.
EVIDENCE
Evidence of Andy Pattenden
The witness testified that he is a member of the York Regional Police Service and one of his responsibilities is to enforce the Act.
Officer Pattenden testified that on Saturday, July 30, 2011, at approximately 1:08 a.m., he attended at the premises of the Applicant and entered through the front door, proceeded across the dance floor and came to a karaoke room, identified as room number 1. This room has a glass viewing window, which enabled the Officer to look into the room prior to entering. The witness stated that he was familiar with the premises as he had been there previously.
Officer Pattenden testified that he witnessed a waitress coming in and out of room number 1 on several occasions and noticed at the back of the room a woman sitting on a bench with her head down being held up by friends. At one point this woman was swaying and vomited into a jug. While being observed by Officer Pattenden, the woman vomited a second time on the bench. At this juncture, Office Pattenden entered the room and spoke with the woman, whose speech was slurred and she appeared to have glassy eyes.
Officer Pattenden testified that the woman appeared to be intoxicated. The witness stated that he had received training to identifying intoxication and had taken extensive courses offered by the AGCO which information is necessary for the purposes of identifying impaired driving and when doing inspections, such as the one conducted at the Applicant’s premises.
Officer Pattenden stated that, having determined that this woman was intoxicated, he escorted her out of the Applicant’s premises and spoke with her in the Applicant’s parking lot. During the course of the conversation with the woman, the Officer testified that she stated that she was allergic to alcohol; however, when asked if she needed a paramedic, she declined the offer.
The witness testified that while they were standing in the parking lot he observed that the woman was swaying.
Officer Pattenden stated that he charged the woman with violation of the Act for being intoxicated in a public place. He did not know the outcome of those charges.
Under cross-examination, Officer Pattenden stated that at the time of the inspection there had been between 100 and 150 people in the Applicant’s premises and acknowledged that only one person was observed by him to appear to be intoxicated.
The witness acknowledged that no server was in room number 1 at the time the woman was being assisted by her friends. Officer Pattenden confirmed that the room was filled with predominately Asian people. He acknowledged that he never saw the woman consuming alcohol. Officer Pattenden also acknowledged that he did not investigate further the woman’s statement that she was allergic to alcohol. The witness stated that the woman said she had been drinking. He repeated that the woman’s speech was slurred, but he could not recall if she had an accent.
When asked about the prevalence of designer drugs in the Markham area, the witness stated that he had never been in contact with anyone on drugs and acknowledged that he would have no way of knowing what was in this woman’s body. Officer Pattenden agreed that he had not been told how much alcohol the woman had consumed or where she had consumed alcohol.
Officer Pattenden repeated that when he escorted the woman outside, he observed that she had trouble with her balance and she had red and glassy eyes. The witness acknowledged that he had not spoken with the server he saw going in and out of room number 1. He could not recall if he spoke with the Applicant’s manager.
When questioned as to why certain of his statements were not recorded in his notes which had been provided to the Applicant’s counsel, Officer Pattenden stated that he was going from his memory and that he recalled certain specifics which he had not recorded in his notes. Officer Pattenden’s notes were made Exhibit 3 in these proceedings. Counsel for the Respondent noted in reply that the Officer had indicated at the beginning of his testimony that he had an independent recollection of the events and that the notes were only to refresh his memory.
Evidence of John Clarke
The witness is a police officer with the York Regional Police Service. Officer Clarke stated that he was a partner of Officer Pattenden and they were conducting the investigation together.
Officer Clarke stated that on Saturday, July 30, 2011, at approximately 1:08 a.m., he attended the Applicant’s premises with which he was familiar. The witness testified that he knew the manager of the Applicant. Officer Clarke also passed through the Applicant’s premises to room number 1 where he observed a woman with her head down and who appeared to have thrown up.
The witness testified that when he entered room number 1, which was a large room, he observed a woman lying on a bench throwing up. Officer Clarke stated that he turned his attention to the rest of the room as Officer Pattenden approached the woman. Officer Clarke stated that he observed the woman vomit into a plastic water jug two times and on to the floor. This woman was escorted outside of the Applicant’s premises as she was too intoxicated to be in the premises. The woman had friends with her who helped escort her out of the Applicant’s premises.
Officer Clarke testified that there was no issue in understanding what was being said by the woman and that there was no language issue.
The witness stated that while outside, the woman confirmed that she had consumed alcohol and said she was allergic to alcohol. Officer Clarke observed the woman to be shaky while she was standing. He stated that he had been trained to identify intoxication and that he had taken numerous seminars conducted by the AGCO for the purposes of recognizing signs of intoxication.
The witness stated that, with respect to this woman, the indications of intoxication were the smell of alcohol, slurred speech, unsteadiness on her feet and the need for her to be assisted out of the premises by her friends.
Under cross-examination, Officer Clarke acknowledged that he had never seen this woman before or since; that he had not observed her drinking nor had he asked where she had been drinking, how much she had had to drink or how long had she been in the Applicant’s premises.
When asked about the discrepancy between his testimony that the woman was lying on the bench and the testimony of Officer Pattenden that the woman was sitting on the bench, Officer Clarke indicated that he may have been incorrect as his attention was more focused on the rest of the room while Officer Pattenden attended to the woman. When asked what the witness meant by the expression “escorted out by friends”, Officer Clarke stated that he meant that the woman had to be physically helped by her friends and that she could not have made it out of the Applicant’s premises without their help. Officer Clarke acknowledged that the woman was allowed to go on her way. No questions had been asked of the staff or the manager with respect to this incident.
Evidence of Sharon Hayat
The witness is a volunteer auxiliary officer with the York Regional Police Service and had been appointed in 2009. The witness stated that amongst his responsibilities are inspections under the Act.
Officer Hayat testified that he attended at the Applicant’s premises on August 7, 2011, at approximately 1:30 a.m., where he witnessed two women dancing on the dance floor, who appeared to be under the age of 19.
The witness stated that he approached the two women and asked that they provide identification.
One of the two women produced a health card and when the witness examined the health card, it appeared to him that the picture on the card did not match the appearance of the woman who produced the card. When asked her date of birth, the woman provided information different from that on the health card.
The health card was given to Officer Hsiung for further investigation. The woman who produced the health card was identified as JL.
Officer Hayat testified that when the other woman was asked for identification she told him that a friend had her identification. This woman was subsequently identified as YFC whose date of birth is April 7, 1995.
The witness stated that the information he had obtained was given to Police Constable Hsiung.
Under cross-examination, Officer Hayat stated that he estimated that there were approximately 80 to 90 people in the Applicant’s premises, but admitted that he was using his best estimate.
The witness acknowledged that the majority of the people in the Applicant’s premises were Asian, half of whom were women. None of them were known to the witness.
The witness acknowledged that he did not see any drinking nor did he see any of the patrons in the Applicant’s premises being served alcohol.
A copy of the health card produced by JL was entered as Exhibit 4 in these proceedings.
Officer Hayat acknowledged that it was fairly dark on the dance floor awhen he looked at the health card, produced by JL, and stated that the person’s face in the photograph was rounder than JL’s face.
He did concede that if the date on the health card was correct, the person to whom the health card belonged would have been 21 years of age.
The witness testified that he was present when JL was subsequently identified and that JL’s birth date was July 4, 1993, which meant that she was 18 years of age at the time of the incident. Officer Hayat stated that he was told that JL had used the card to get into the club.
When asked about sophisticated techniques, such as laser printing to create false identification, the witness stated that he had no knowledge of these procedures. Officer Hayat acknowledged that he never asked the security personnel if the health card had been used as identification to gain entrance into the Applicant’s premises.
Officer Hayat stated that the other woman, YFC, indicated that her date of birth was April 7, 1995. Officer Hayat acknowledged that he had never asked security personnel what identification YFC had used, if any, to gain entry into the Applicant’s premises.
Evidence of Ian Hsiung
The witness has been a police officer with the York Regional Police Service since 2002.
Officer Hsiung stated that on August 7, 2011, at approximately 1:39 a.m., he attended at the Applicant’s premises on Alden Road in Markham, accompanied by Officer Hayat. When he interviewed the two women presented to him by Officer Hayat, he determined through their driver licences that YFC was born on April 7, 1995, and the photo on the drivers licence matched this individual’s appearance.
The other woman, JL, was identified as having a birth date of July 4, 1993. Both women were taken outside. Neither of the women matched the picture on the health card (Exhibit 4). Officer Hsiung stated that both persons were charged with the offence of improper identification under Section 30(12) of the Act.
The witness stated that he was familiar with the manager of the Applicant, who was present and that he recalled speaking to the manager and to the person in charge of security for the Applicant. When asked if everything was alright, he advised as to what had happened with respect to the two women and that they had been charged.
On cross-examination, Officer Hsiung acknowledged that he never presented the two women or the health card to the security personnel or the manager to determine how they gained entry into the Applicant’s premises. The premises were not busy the night of his attendance. When he was told by Officer Hayat that the two women appeared under age, Officer Hsiung conducted his own investigation.
The witness acknowledged that he did not know what identification had been presented to security in order for the two women to gain entry into the Applicant’s premises.
Evidence of Trevor Joseph
The witness has been an inspector with the AGCO since 1993 and in that position he attends various locations to conduct spot checks and to investigate complaints.
Mr. Joseph stated that on August 7, 2011, he attended at the Applicant’s premises at approximately 1:39 a.m. with another inspector, Amanda Farrell and members of the York Regional Police Service.
He spoke to the manager with respect to YFC being on the premises and that she was 16 years of age at the time. Mr. Joseph stated that there was a minor language issue but this did not cause any problem in his conversing with YFC. Mr. Joseph stated that he knew the manager of the Applicant who was present when he questioned YFC.
The witness stated that YFC said that she had used her friend’s identification to get into the Applicant’s premises. Mr. Joseph stated that after interviewing JL and YFC they were escorted to the main door where the police charged both parties. The witness acknowledged that he did not see YFC drink anything and did not see the identification presented by her to gain access to the Applicant’s premises.
When cross-examined, Mr. Joseph stated that he did not see any identification with respect to YFC’s date of birth, but was told verbally that it was April 7, 1995. The witness testified that YFC stated that she had used a friend’s identification to gain access and had given the identification back to that friend. He had not seen YFC served nor drinking any alcohol. Mr. Joseph stated that YFC told him that she had one beer when she arrived.
Evidence of Amanda Farrell
The witness has been an inspector with the AGCO since 2010 and in that capacity she conducts inspections of various licensed facilities.
Ms. Farrell stated that she conducted routine inspections of the Applicant’s premises on July 30 and August 7, 2011.
With respect to the inspection which took place on August 7, 2011, the witness stated that she arrived at approximately 1:39 a.m. and walked through the Applicant’s premises with officers from the York Regional Police Service and an Auxiliary officer.
Officer Hayat approached two women on the dance floor and when it appeared that one of the women had false identification they moved from the dance floor to the Applicant’s patio. Ms. Farrell testified that while on the patio, she compared the picture on the health card (Exhibit 4) with the face of JL. She noted that JL was a petite person with a slender face and straight hair, which did not match the photograph on the health card. When asked what her birth date was, JL said it was February 4, 1990, whereas the birth date on the health card was April 4, 1990. JL then told Ms. Farrell that the real date of her birthday was July 4, 1993. The witness stated that JL was hesitant at first but did provide her address.
At the time that she interviewed JL, Ms. Farrell stated that JL smelled of alcohol. JL told her that security personnel had checked her identification and let her in based on the health card. Ms. Farrell stated that she spoke with the Applicant’s manager and another individual with respect to the incident involving the two underage women. The conversation with the two women took place on the patio and then they moved to the front of the Applicant’s premises where the tickets were issued.
The witness stated that the manager spoke with the two women and observed what had taken place. Ms. Farrell confirmed that there were no language issues in dealing with the two women.
Ms. Farrell stated that on July 30, 2011, Ms. Farrell attended at the Applicant’s premises at 1:09 a.m., accompanied by York Regional Police officers. At the time of her attendance, the Applicant’s premises were not at capacity.
Ms. Farrell stated that she walked across the dance floor, past the karaoke room (referred to as room number 1) and then on to the patio. While on the patio the witness saw a woman seated on a bench-like couch crouched over in the company of a male person. The witness stated that the outside bar on the patio was not open but the seating area was open to customers. A security person was standing outside the door from the patio into the Applicant’s premises approximately 5 feet from where the woman was sitting. The security person was identified as DM.
Ms. Farrell stated that the woman was slouched over with her head down and when asked to stand, she had difficulty standing up and needed help from her companion. The witness stated that when she left the patio with the woman, DM held the door open so that they could walk through.
The witness stated that the woman had glassy eyes, trouble with basic motor skills, had to hold on to a railing to gain her balance and was also holding on to her male companion. Ms. Farrell stated that the woman identified herself with her drivers licence as WLM. WLM told the witness that she had arrived approximately 3 hours earlier and had been drinking vodka and tequila shots. Ms. Farrell stated that when she expressed concern about the safety of this person, she was told that the woman had a ride home.
Ms. Farrell testified that she observed the woman when she was walking away and noticed that at times she had to hold on to the railing or rely upon her male companion. The woman stated that she was “way over her limit”. Ms. Farrell stated that she had discussed her findings with the manager. The signs of intoxication she observed with respect to this woman were glassy eyes, inability to hold her head up and poor motor skills, such as trouble walking. Ms. Farrell stated that statement was made to her that the woman was on medication.
Under cross-examination, Ms. Farrell acknowledged that while on the Applicant’s patio, there was security at the door. Ms. Farrell also acknowledged that she never saw the woman, who appeared to be intoxicated, being served nor did she ever see this woman drinking.
Ms. Farrell stated that she did not, at any point, tell the manager to stand back or not to interfere with her interview of the woman.
The witness acknowledged that after the woman was interviewed she was allowed to leave. The woman spoke English and there was no language issue with respect to the conversation with the woman. Ms. Farrell told the manager that the Applicant would be cited and that others would then determine what steps would be taken with respect to the Applicant’s licence.
With respect to her attendance at the Applicant’s premises on August 7, 2011, Ms. Farrell received information from the York Regional Police Officers and then spoke with the individual identified as JL and compared JL’s appearance to the photograph on the health card. The witness acknowledged that she did not know the date of the photo. Ms. Farrell stated that the eye brows, the shape of the nose and mouth seemed to be different from the individual before her. The witness repeated that JL said that she had used the health card at the door to gain entry.
Ms. Farrell acknowledged that she took JL’s word for her “real” date of birth and address. She did not have a bartender identify the woman and never took the woman to security to see if they recognized her and whether they could establish what identification she had used to gain entry to the premises. The witness stated that the manager was aware of what took place.
Evidence of Andrew Leung
The witness is the manager of the Applicant’s premises and has been the manager for the past year and one-half. He was the manager on July 30, 2011 and August 7, 2011.
They retain a private bonded security company for the purposes of providing security services at the Applicant’s premises. At full capacity the Applicant’s premises would hold 280 persons inside and 97 persons on the patio.
Mr. Leung explained that there are three areas within the Applicant’s premises, the front bar, the dance floor and what was referred to as a VIP section with 8 rooms. The average age of the Applicant’s clientele was between 19 and 35 years of age and mainly Asian from mainland China and for the most part the clientele spoke English.
With respect to the allegation that the Applicant permitted drunkenness within its premises, Mr. Leung stated that he had made a check of all the rooms that comprise the Applicant’s premises prior to the arrival of the AGCO inspectors and police officers, firstly, to ensure that the customers were receiving proper service and, secondly, to observe the conduct of the patrons. The witness stated that at the time he did his routine check, he did not find any questionable conduct by any of the patrons.
Mr. Leung stated that he was not present when the person in room 1 threw up. Mr. Leung acknowledged that he saw the AGCO inspector lead the woman out and saw her talking to the inspector and the police. He was not allowed to ask questions of the woman, but was told to stand back. He did not see this individual drinking. When he asked the server about it, the server could only report that things appeared to be normal.
Mr. Leung stated that with respect to the July 30, 2011, incident, he had been watching the police interview the woman in question but did not speak with her.
With respect to the incident of August 7, 2011, it is the policy of the Applicant that no one under the age of 19 be allowed in the premises and everyone goes through a security check to make sure they are 19 years or older. The procedure was that the monitors were watched and when identification was taken, the security personnel questioned the party producing the identification as to their date of birth, address and compared signatures.
With respect to the two women who were said to be under age, the witness stated that he did not talk to them nor did he take the women over to security to inquire as to how they obtained entry. Mr. Leung stated that he did ask the police officers if they spoke to staff about the issue of gaining entry with identification and was told that they had not spoken to anyone about the matter. On any given night there could be one or two persons who try to gain entry using false identification and who are discovered and refused entry.
Under cross-examination, Mr. Leung acknowledged that there had been no language issues as far he could determine with respect to the persons involved with the events of July 30, 2011. The witness acknowledged that patrons may on occasion throw up. Mr. Leung he did not see the issue of minors trying to gain entry into the Applicant’s premises as a problem.
Evidence of Amir Hajinasira
The witness has been working for Shield Protection Services for approximately 4 years. He works for commercial clients during the day, does special events and provides security for licensed establishments in the evening. Mr. Hajinasira stated that he had been working for approximately one year at the Applicant’s premises.
The witness testified that part of the security services provided was control at the front door, included checking that identification was valid. In order to properly perform these tasks, there would be two to a maximum of eight or nine security personnel just inside the doorway of the Applicant’s premises. The witness stated that he has Smart Serve qualifications and understood the basic indications of intoxication.
Mr. Hajinasira testified that he had taken courses in addition to Smart Serve in order to detect fake identification and had been instructed in the appropriate methods of validating identification, which included asking for birthdates, addresses, postal codes and depending upon the type of identification, a signature comparison, which would require the patron to write out their name and compare it with what is on the piece of identification. The witness stated that at all times there is a person of Asian background working with the security personnel to act as an interpreter.
With respect to the August 7, 2011, incident, the witness was positive that no underage person had been allowed into the Applicant’s premises. Mr. Hajinasira testified that acceptable identification included drivers licences, passports, LCBO cards or army cards. They would never ask for a health card. It may be used as a second piece of identification but not as a primary identification as it does not contain much information. The witness stated that a health card alone would not be accepted as sufficient identification.
Mr. Hajinasira stated that neither the police officers nor the AGCO inspectors presented the women to the security personnel to ask if they recalled having let these two women into the Applicant’s premises.
DECISION
In order to find that there has been a violation of subsection 30(4) of the Act, it must be established: a) that a person who appears to be under the age of 19 years of age had or consumed alcohol in the Applicant’s premises and b) employees of the Applicant permitted such consumption. With respect to the August 7, 2011, incident, the Registrar has established, on a balance of probabilities, that the two women identified were under the age of 19 years. Except for the statement of Ms. Farrell that while interviewing JL she smelled alcohol and the comment made to Inspector Joseph, no direct evidence was introduced to show that either woman had or consumed liquor while in the Applicant’s premises. No inquiries were made of Mr. Leung or his staff about service of alcohol to these women. The Tribunal finds that there is insufficient evidence to support a finding of a contravention of subsection 30(4) of the Act.
With respect to a possible contravention of subsection 41(1) of Ontario Regulations 719/90 of the Act, the Tribunal is satisfied that the Applicant failed to inspect an item of identification for either of the two women. In order to be successful in proving a contravention of this section of the regulations, it must be shown that the failure to inspect occurred before liquor was sold or served to a person apparently under the age of 19. With respect to the August 7, 2011, incident, again there is insufficient evidence of sale or service of alcohol to either of the two women.
The Tribunal accepts the evidence of the Respondent that the woman who was found in room number 1 of the Applicant’s premises exhibited several signs of intoxication, including vomiting, trouble staying upright and glassy eyes. A server was observed coming in and out of room number 1 but no action was taken with respect to this individual. As no action was taken by the Applicant’s employees, the Tribunal finds that the Applicant did permit such drunkenness in contravention of subsection 45(1) of Ontario Regulation 719/90 of the Act.
The parties are invited to make written submissions on sanctions to the Tribunal, whose offices are located at 20 Dundas Street West, 5th Floor, Toronto, ON, M5G 2C2.
The Registrar shall submit to the Tribunal and to the Applicant his submission(s) within seven (7) days of receipt of this decision.
The Applicant shall submit to the Tribunal and to the Registrar its submission(s) within five (5) days of receipt of the Registrar’s submission(s).
The Registrar shall submit to the Tribunal and to the Applicant his response(s) (if any) to the Applicant’s submission(s) within three (3) days of having received the Applicant’s submission(s).
LICENCE APPEAL TRIBUNAL
E. Alan Garbe, Vice-Chair
Released: July 11, 2012