Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2012-08-03

FILE: 7404/AGRPPA

CASE NAME: 1168075 Ontario Ltd. Operating as Grand Night Club v. Registrar of Alcohol and Gaming

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

1168075 Ontario Ltd. Operating as Grand Night Club Applicant

-and-

Registrar of Alcohol and Gaming Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Alex McCauley, Member

APPEARANCES:

For the Applicants: Claude Michel, self-represented

For the Respondent: Aviva Harari, Counsel

Heard in Sudbury, Ontario: July 24, 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 May 4, 2012, imposed a monetary penalty on 1168075 Ontario Ltd. (the “Applicant”), with respect to contraventions of Subsection 45 (1) of O. Reg. 719/90 under the Liquor Licence Act (the “LLA”).

FACTS

The Registrar alleges that on March 4, 2012 there was an intoxicated male person on the premises of the Grand Night Club. The Registrar further alleges that this intoxicated male was permitted to be on the licensed premise in an intoxicated condition, contrary to subsection 45 (1) of O.Reg. 719/90 under the LLA.

Evidence for the Registrar

The Registrar called two witnesses.

Witness B.G.:

The witness attends Laurentian University. He also works part time as an athletic therapist and equipment manager. He is 20 years of age. On the night in question,,March 4, 2012, the witness attended at the Grand Night Club accompanied by a female companion. He arrived at the Grand Night Club around 12 a.m. The witness had not consumed any alcohol prior to attending at the Grand.

The witness was celebrating his birthday and met many friends at the Club. His friends began purchasing alcoholic beverages for him. He could not recall how many drinks he consumed but estimated it was between six and ten. He recalled speaking with Darrel Sargeant, a Liquor Inspector. A female friend, who was with him, got him a glass of water from the bartender on duty. The witness stated in his evidence that he was drunk; the drunkest he has ever been.

The witness does not know if he was visible to staff and he does not know the staff. He stated he had been dancing on the dance floor earlier in the evening. While seated at the bar, he vomited in a glass. He had no discussions with any staff person as to his level of sobriety, nor did anyone inquire as to how he was getting home. He left the bar around 1:30 a.m. after calling for a designated driver.

In cross examination the witness did not recall buying any drinks himself; they were purchased for him by friends He also stated that he was drinking in various locations throughout the bar, describing himself as a “social butterfly”. He recalled the licensee being with Darrel Sargeant when Inspector Sargeant was speaking with him and recalled advising them that he had a designated driver.

Darrell Sargeant, Liquor Inspector, AGCO:

The witness has been a Liquor Inspector for four and a half years. On March 4, 2012, he attended at the licensed premises Grand Night Club on 28 Elgin St. Sudbury. He arrived for his Inspection at 1:10 a.m. He did a general walk through the licensed premises At approximately 1:21 a.m. he observed a male person who, in his view, was apparently intoxicated. This male person was later identified as B.G. He was observed coming up the left side ramp and was being assisted by a female friend. The ramp in question is about twenty five feet long.

B.G. was assisted to a bar stool. Inspector Sargeant noted that B.G. had red glassy eyes and his face was flushed. While seated at the bar, the B.G.’s female friend seemed concerned about him and rubbed his back. At this time Inspector Sargeant was about six feet away from the intoxicated male.

During his observation, Inspector Sargeant noted that the intoxicated male was getting drowsy and was still showing signs of intoxication. In the view of the Inspector B.G. was clearly visible to staff of the licensed premises. At different times, the bartender on duty in that section would have had a clear view of the intoxicated male, being no more than three feet away. At this point, B.G. was seated sideways to the bar and hunched over. The female friend with B.G. asked the bartender for a glass of water, which was provided, but the bartender never spoke to B.G..

According to the Inspector, the bar at that time was not busy. There were perhaps twenty patrons around the whole bar. The bartender went by B/G several times. A Club employee stood looking at B.G. for some time from a distance of no more than four feet. This person was not security but a “bar back”, an employee who assists to stock the bar.

During this time the Inspector noticed other security personnel in the area;, five just standing around watching. Two came toward B.G. but took no action. The Inspector saw B.G. vomit into a cup. In the Inspector’s opinion, the bartender could well have observed this but took no action.

The Inspector had Claude Michel, the principal of the licensee, attend and observe B.G.. Together, they spoke to B.G.. It was initially difficult to get information from him because of his severe state of intoxication. He was extremely unsteady on his feet when standing and had to be assisted by the Inspector to a seat in the foyer. B.G. told the Inspector that he had consumed a variety of different liquors at the bar, purchased for him by his friends.

The Inspector advised he had been observing B.G. for about thirty minutes. He reiterated that, in his opinion, the bar was not busy. At no time while he was in attendance did anyone in the licensed premises mention an altercation requiring security’s attendance on the dance floor. The Inspection was completed at 2:07 a.m.

In cross examination, the witness stated he had observed B.G. initially walking up the left side ramp. He stated that B.G. was visible from the waist up and as he walked up, he had full view from the bar area. When B.G. vomited in the glass, it almost filled the glass. It is possible that there was a little mess on the floor. He also stated he did not see a fight on the dance floor and that he had a clear view of the dance floor.

B.G. was seated in an area at the bar where he was clearly visible to anyone walking by. Exhibit 3B depicts a photo from the lobby to an area of the bar where allegedly B.G. was seated. Inspector Sargeant stated that B.G. was visible from that angle.

Evidence for the Applicant

N.J.P, Bartender, Grand Night Club

The witness has a total of eight years experience bartending, the last five and one half years at the Grand. He has never met the alleged intoxicated male B.G.. On March 4, 2012, he recalls serving water to a female party toward the end of the night. Twenty minutes after that he was approached by Inspector Sargeant who told him that there had been an intoxicated male at the bar. He did not recall seeing this person, although he later stated he saw a person sitting with his back to the bar who was hunched over as though he were texting.

Looking at the photo Exhibit 3C, the witness stated that you could see persons coming up the ramp but the view for bartenders was obstructed, usually because people were seated in the booth depicted in the photo. He stated once the person walking up was at the top of the ramp (left side of photo), you had a full view of the person. He stated he did not know that the female party and B.G. were together and that he was busy at the time he served the water to her. He said there were four or five people in his section. He described the ramp walkway in question as being fifty to sixty feet in length (Exhibit. 4D). Once at the bottom, there is access to a lower bar and a dance floor. The dance floor is the old theatre stage.

The witness stated that if there was a fight in progress on the premises, it would take priority over an intoxicated person. He stated that he cuts patrons off from the service of alcoholic beverages if he notes three signs of intoxication. He stated he did not see B.G that night. He dumped vomit from a glass that was only 25% full.

In cross examination, the witness stated that there were ten bartenders on duty on March 4, 2012 as well as ten to fifteen security officers, two cleaning staff, and five bar backs. He stated security was in the area of his bar and passed his bar every ten to fifteen minutes. He said he did not see any incident that drew security away, but came to understand that apparently there had been some incident on the dance floor around the time B.G. was at his bar.

The witness stated he had to reach out to pass the water to the female patron. (photo. Exhibit. 4B).

The witness explained the symptoms he looks for when assessing intoxication in a patron; the classic symptoms glassy eyes, slurred speech, and unsteady balance.

The witness stated that if any staff including cleaning staff noted problems with a patron they would notify him if it was in his area or security. There is a two drink limit at a time when ordering drinks at the bar. He stated he has refreshed himself on the policy manual from the licensed premises. He could not recall when. He has no responsibility for maintaining an incident log. The witness was not arguing that B.G. was impaired. He just did not see him. He stated he cuts four to five persons off a night from alcoholic beverage service. There are five bartenders on duty at his bar.

In response to a question from the Chair, he admitted that it was unusual that none of the bar staff noticed someone sitting at the bar, vomiting in a glass. He went on to say that if he had seen it, he would have taken action.

G.C., Security officer at Grand Night Club

The witness is a qualified security guard. He has worked at the Club for four years. He has a number of qualifications including his “Smart Serve”. He described March 4, 2012 as a busy night. He stated there was an altercation on the dance floor. He escorted one person out through the lower exit and then returned to check on the victim. He stated the second person, the “victim”, was ejected as well. He stated the disturbance happened around closing time. That night his assigned area was the dance floor.

The protocol for intoxicated persons is to escort them out safely and ensure they get home. If they have no way to go home, a cab will be provided for them. The witness bases his judgement of intoxication on whether a patron is displaying two or more signs.

On an average Saturday night,ten to fifteen people are escorted out. Fights take precedence over intoxicated persons because of the safety factor. If parties have to be escorted out, they are escorted by two security persons. There are three to four security persons assigned to the dance floor. He stated the dance floor is the main focus of the bar and is generally busy until the end of the night. He stated that from his position he can see the front of the upper bar but not the far side.

In cross examination, the witness stated that the altercation referred to was not serious and that security had been alerted to it by patrons in the area. He stated that in addition to himself, two other security persons dealt with the disturbance. He is familiar with the policy manual (Exhibit 7), but makes no notation on any occurrences. They let the principal of the licensee, Claude Michel, know about incidents and he decides what is to be done.

The witness did not notice the Liquor Inspector Darrel Sargeant or the alleged intoxicated male B.G..

J.L., Security Officer, Grand Night Club

The witness has been employed by the Grand Night Club for five years as a security person. He is a qualified and licensed security person. His duties were as a “Floater” on March 4, 2012. He was aware of a disturbance on the dance floor. He had been waved over to the area by two colleagues. Two males were separated. One was escorted out via the lower exit. The other male was escorted up the ramp and out the front door. J.L. stated he returned to the dance floor area as his concern was the safety of staff and patrons. He stated the bar was busy with one hundred and fifty to two hundred patrons on the dance floor.

In cross examination, J.L. stated that approximately six staff persons were involved in dealing with the disturbance on the dance floor. He stated the disturbance incident took ten to fifteen minutes to deal with. He made no entries in any incident book, he simply reported the incident to Claude Michel. He stated that he may remove patrons with one or two signs of intoxication, depending on how the patron appears. As a rover he patrols the premises and passes by the various bars and observes patrons to ensure all is in order.

J.R., Security Officer, Grand Night Club

The witness is a licensed security officer and has been employed at the Grand Night Club for five years as a security officer. His duty on March 4, 2012 was as a rover, keeping observations for intoxicated patrons. He assisted other security personnel with a disturbance on the dance floor and assisted in escorting a patron involved in the disturbance out of the premises.

J.R. does not know the alleged intoxicated male, B.G.. He stated that security on duty at the ladies washroom may have their view of the upper bar obstructed because of patrons in the way. He generally watches for two signs of intoxication on the part of patrons before initiating any action to cut them off.

A person in the bar for one hour, who consumed six to ten drinks, would be a person of interest to J.R. If a patron is asked to leave the premises they do not record his or her name. He stated there were twelve to fifteen security officers on duty on March 4, 2012.

He stated he is familiar with the Club’s policies but cannot recall the last time he reviewed them. The fight was nothing out of the ordinary. They deal with one or two disturbances a month.

D.A-N.,, Security Officer, Grand Night Club

The witness has been employed at the Grand Night Club for ten years. He is a licensed security person. On March 4, 2012, he assisted with a disturbance on the dance floor.

He stated that persons involved in a disturbance at the Club are banned for life. Persons removed twice for intoxication are banned for life as well. His station is at the door. He turns back forty to fifty persons a night, for various reasons. He had limited involvement with the disturbance on the night in question. He keeps track of barred persons by visually identifying them; no lists are kept.

The witness is familiar with the policy manual, (Exhibit 7). The manual refers to a log book and entries to it. He stated he does not make entries in a log book, he simply advises Claude Michel verbally. Claude Michel is the only one who can authorize a call to police or EMS.

S.C., Employee, Grand Night Club

The witness was not present. The Applicant submitted a “will say” signed statement (Exhibit 8). The Registrar’s Counsel objected to the statement being filed as she would not be able to cross examine and test the veracity of the witness and, without this ability, the contents of the statement were very prejudicial to the Registrar. The statement was received, subject to weight from the Tribunal. Due to the potential for prejudice to the parties, the statement will not be relied upon except as verification that S.C was on duty in some capacity at the Grand Night Club on March 4, 2012.

Claude Michel, Principal of the Licensee, Grand Night Club

Mr. Michel is the owner of the Grand Night Club. On March 4, 2012, he was at the Club and it was a smooth evening. He had a conversation with Liquor Inspector Darrel Sargeant. The Liquor Inspector drew his attention to B.G...It was after this that he found out about the disturbance on the dance floor.

Mr. Michel stated it was possible that on their way to the disturbance on the dance floor security persons passed B.G. and the female party assisting him. Most of the problems occur on the dance floor. The general rule of thumb is two signs of intoxication on a patron is cause to have that patron removed. Fights or fire are two matters that take precedence over intoxicated persons.

Patrons are made up of mostly a university and college crowd. There are four service bars in the Grand Night Club. When Mr. Michel observed B.G., he had his back to the bar and was bent over as though he were texting. The cup had two or three ounces of liquid in it from vomit. There was no evidence of spewing or mess from the vomiting incident.

Mr. Michel stated that loud music would have prevented anyone hearing someone vomiting.

Mr. Michel said that, face on. B.G. appeared intoxicated. The drinks were purchased for B.G.; his staff never served him directly.

The policy manual referred to was developed twenty five years ago and is mostly used to satisfy the insurance companies. In cross examination, he stated that the policy manual is on file with the AGCO but he is in the process of updating it.

Mr. Michel spoke to B.G. and to his female companion who said it was B.G.’s birthday. She was concerned about him. Mr. Michel stated that B.G. was intoxicated.

Registrar’s submissions

According to the Registrar, there is a single issue: whether there was a violation of subsection 45(1) of O. Reg. 719/90 LLA, permit drunkenness. There are two elements to be proven. The first issue is whether B.G.was intoxicated in the licensed premises and the second is did the licensee permit drunkenness. The test for the second element is did the licensee know or should he have known that the patron was intoxicated in the licensed premises.

B.G did not enter the licensed premises intoxicated. He came to the licensed premises between 11:00 and11:30 p. m. B.G. was observed at approximately 1:20 a.m. by the Liquor Inspector in whose opinion, he was intoxicated. By that time, B.G. had consumed between six and ten alcoholic beverages. B.G. testified he was as drunk as he had ever been. Within one hour he had consumed six to ten drinks when six alone would have been significant in that time span.

Inspector Sargeant observed B.G. and his female friend come up the ramp walk way. He observed them go to the bar. He observed B.G. hunched over at the bar and observed his female companion get him water. He observed them for ten to fifteen minutes. He saw B.G. vomit in a cup.

There are practices at the Grand to prevent intoxication. There were twelve to fifteen security persons on duty, five bartenders, and two bar backs. At least twenty persons were on duty the night B.G was intoxicated. There was testimony about an altercation taking place on the dance floor at the time B.G. was in the bar. The altercation took ten to fifteen minutes to deal with and involved three security persons leaving at least seventeen staff to deal with patrons.

Inspector Sargeant noticed B.G. within fifteen minutes of entering the bar, yet the intoxicated male was not noticed by staff. It is incredible that trained staff did not see B.G. There were many signs that should have attracted someone’s attention to him.

The Registrar submitted an authority supporting her position on the obligation of a licensee in preventing and not permitting intoxication: 2088675 Ontario Inc. o/a ZU-BAR, an appeal from a Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, to suspend a liquor licence. Pertinent sections are pages thirteen to nineteen. A second authority submitted was Superior Court of Justice – Ontario (Divisional Court) Re: Rejeanne’s Bar and Grill Ltd., o/a. Rejeanne’s Bar and Grill (Appellant).and The Registrar of the Alcohol and Gaming Commission of Ontario (Respondent). This authority at paragraph fourteen reinforces the fact that due diligence” is not a defence in matters before the Alcohol and Gaming Commission……..

Submission of the Applicant

In order to establish the offence under Section. 45(1) of O Reg 719/90, the establishment must permit drunkenness. The Applicant’s Club did not permit drunkenness. B.G. was a young inexperienced drinker who became drunk in the bar. The bartender had no need to take special notice of him. The fact that his female friend was rubbing his back was of no significance. The glass containing the vomit had only two to three ounces. of fluid in it. The bartender was busy with other customers. The employee observed in the area by Inspector Sargeant was new and had not received any training.

There was a fight on the dance floor. When Inspector Sargeant observed the five security persons standing and talking they must have been returning to their positions. If staff had observed B.G., he would have been removed. Bartenders were not able to deal with B.G. because he was not buying his own drinks.

Reply

There is a proactive obligation on staff to watch for intoxicated patrons. Six beverages in an hour should have come to someone’s attention.

THE LAW

Subsection 45 (1) of O. Reg. 719/90 under the LLA makes it an offence for the Licence holder of a licensed premises to permit drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the area under the control of the licence holder.

Under the terms of the Act, section 14.1, the Registrar has the authority to issue a monetary sanction. Section 14.1 (5) gives the authority for an Applicant to appeal the monetary sanction, and cause a hearing to be held. Under Section 14.1 (6) the tribunal can dismiss or confirm the penalty. There is no authority for the Tribunal to alter the monetary penalty.

ISSUES

There are two issues: was B.G. intoxicated in the licensed premises and, secondly, did the licensee permit the intoxication to occur?

APPLICATION OF LAW TO FACTS

It is clear from the evidence that B.G. was intoxicated in the licensed premises. This is supported in the unrefuted evidence of Liquor Inspector Darrel Sargeant and admitted by the licensee Claude Michel who stated in his evidence that B.G. was intoxicated and had become intoxicated in the licensed premises. In his evidence, B.G. states he was intoxicated, the most severely intoxicated he has ever been. He stated he had nothing to drink prior to attending the Grand Night Club. His evidence is believed. The Tribunal finds that B.G. was intoxicated in the Grand Night Club.

The second requirement as stipulated in the Sin City ONCA 323 2009 decision requires proof that the licensee, knew or ought to have known of the drunkenness on the premises. The evidence of the Liquor Inspector is that he had B.G. under observation for ten to fifteen minutes. The Inspector saw B.G. being assisted up the ramp to a stool on the bar. In the Inspector’s opinion, B.G. was intoxicated. The Inspector noted staff in close proximity but no one apparently noticed the intoxicated male. B.G. was sitting hunched over at the bar and was observed vomiting in a cup.

B.G.’s female companion had asked for and received a glass of water from the bartender. The bartender contends he never noticed B.G. and when he did notice him he thought he was hunched over texting. The licensee attempts to convince the Tribunal that there was a disturbance occurring on the dance floor at this time. This disturbance caused a distraction for staff so no one noticed the intoxicated male at the bar. The licensee contends that a fight or a disturbance takes precedence over intoxicated persons.

In all the evidence from the Applicant’s witnesses, they stated that all occurrences are reported to Claude Michel, the licensee. Yet in this case the report of the disturbance was delayed until well after the incident with B.G. was completed.

It is th e finding of the Tribunal that staff should have been aware of B.G.’s growing level of intoxication. The evidence indicates that he was not mildly intoxicated, he was severely intoxicated to the point he could not walk unassisted and became physically ill seated at the bar. B.G.’s unrefuted evidence was he was dancing on the dance floor. This begs the question as to why he was not observed by the trained security there. In addition B.G. stated he was a “social butterfly” all over the bar. Someone on staff ought to have noticed him and his growing level of intoxication.

It is the finding of the Tribunal that there was ample opportunity for staff of the Grand Night Club to notice the intoxicated male B.G.. The bartender on duty alone should have picked up on B.G.’s demeanor and the statement that he believed B.G. was texting is frankly not believable in the face of the evidence to the contrary.

The Tribunal finds that staff of the Grand Night Club knew or ought to have known that B.G. was intoxicated on the premises and the test as stipulated in the Sin City decision has been met.

ORDER

The Tribunal UPHOLDS the Order of Monetary Penalty number 550 issued to 1168075 Ontario Ltd. o/a The Grand Night Club 28 Elgin Street, Sudbury, Liqour Licence Number 30046

LICENCE APPEAL TRIBUNAL

Allex McCauley, Member

Released: August 3, 2012