Licence Tribunal / Tribunal d'appel en matière de permis
FILE: 7358/AGRPPA
CASE NAME: 7358 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
2146056 ONTARIO INC. O/A BABYFACE BAR CLUB LOUNGE Applicant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Applicants: Randall Barrs, Counsel
For the Respondent: Aviva Harari, Counsel
Heard in Toronto: September 13, 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 April 4, 2012, imposed a monetary penalty on 2146056 Ontario Inc. o/a Babyface Bar Club Lounge (“Babyface”) (the “Applicant”), with respect to contraventions of subsection 45(1) of Ontario Regulation 719/90.
As a preliminary matter, on request and consent of the parties, the Tribunal made an order for the exclusion of witnesses.
Opening Submissions
The Registrar’s Counsel, Ms. Harari, stated that on December 17, 2011, there was an intoxicated patron at Babyface. This was a violation of subsection 45(1) and the Registrar is seeking a monetary penalty of $4,000. The witnesses to be presented would be the patron, two AGCO inspectors and a police officer who was also on site that night.
Mr. Barrs, the Applicant’s Counsel, submitted that the state of the patron was not the issue. The establishment did not permit drunkenness and it was in the process of dealing with the patron when the AGCO inspectors intervened. Mr. Barrs stated the Applicant did not violate subsection 45(1).
Registrar’s Witnesses
TH was presented by the Registrar as a patron at Babyface on the night of December 17, 2011.
TH is 23 years old and has been to Babyface on two occasions. He does not personally remember that evening’s conversation with police. His memory of what happened is based on what his friend told him.
He said he arrived at 10:00pm with several school friends and that he was in a “buzzed state”. He acknowledged pre-drinking a “few shots” before going to Babyface.
TH recalls being asked for identification by security but does not recall the karaoke rooms because “I was drunk”. He claimed to have been in a booth most of the time where he had some shots though he has no recollection of time or how he got home. He clearly acknowledged being drunk and said that when he did drink it typically was to the point of being drunk. He had no memory of an ice cube thrown at him.
In cross-examination, TH said he had a low tolerance to alcohol and “sometimes [I] don’t know my limits”. He did not remember telling the AGCO inspectors that he drank about 2 inches of vodka.
Ka Ng is an inspector with the AGCO and he carried out the inspection of Babyface on the night of December 17, 2011. He was with another AGCO Inspector and two officers from the York Regional Police Force (“YRPF”). They arrived at 12:40am and left at 1:28am.
As he did a walk-through inspection, he was told about a patron lying on a couch and that another patron had thrown an ice cube at the one lying on the couch.
Inspector Ng could not immediately find the patron on the couch. The patron was eventually found and helped to walk by a friend. Inspector Ng considered him to be “definitely intoxicated” and spoke to the Babyface manager, Mr. Leung, saying that “once you see a patron is drunk you have to do something [and] check why he is lying on the sofa”.
In cross-examination, Inspector Ng acknowledged he had no idea whether the server had gone to the manager about the patron on the couch or whether Mr. Leung was preparing to investigate the situation to determine whether any actions were needed.
Inspector Ng said that once they found the patron they went into a karaoke room for their investigation and that the patron was standing most of time and seemed “annoyed”. Inspector Ng did not remember the patron saying he had two glasses of orange juice with vodka or that he illustrated two inches of vodka, using a glass which Mr. Leung brought in.
Amanda Farrell has been an inspector with the AGCO since April 2010. Her previous employment was as a park warden with the Ministry of Natural Resources and with the City of Barrie as a by-law officer.
She said that previous to the situation with TH, she had found an intoxicated female patron there and learned the manager had told that patron to finish and leave. There was no citation to Babyface for that patron.
Inspector Farrell subsequently learned of another patron who was reported by two YRP officers as being intoxicated. She did not speak with that patron as she was occupied with writing her notes.
When Inspector Farrell did encounter the patron, she observed that he was glassy-eyed, slurring his words, swaying side to side and that his motor skills were “delayed”. The patron was questioned and replied he had consumed approximately 2 inches of vodka. She did not have any other direct knowledge of that patron.
In cross-examination, Inspector Farrell agreed that Babyface manager Mr. Leung had taken the proper steps with regard to the female patron she had just encountered. She acknowledged being told about the patron on the couch, who appeared passed out, and that the officers said they saw ice cubes being thrown at that patron.
Inspector Farrell did not recall who brought the male patron into the karaoke room but she did recall he was able to reply to questions.
Constable Andy Pattenden has been with the YRPF for five years. He stated he was with two YRPF officers, one auxiliary police officer and two AGCO inspectors when he entered Babyface at approximately 12:40am. They were all in civilian clothes with a “neck badge” for identification. He said he was familiar with the manager, Mr. Leung.
Constable Pattenden’s testimony was that he typically goes from the front door, crosses the dance floor and then goes to the karaoke rooms. He did not notice anything initially as he was focused on going to the back rooms and the washrooms after which he said he did a review of the VIP areas for “3 to 5 minutes”.
He said a patron lying on one of the couches “caught my eye” and he described the patron as slouched on the couch with his feet on the ground. Constable Pattenden identified the patron as TH and said another patron threw some ice at TH without getting any reaction.
Constable Pattenden described seeing two bottles on the table with “far less than half” remaining in one. A server came to the table a few times, but did not make any attempts to stop service or talk to TH.
Constable Pattenden said that when a friend of TH’s came over to say he was okay, he asked the friend to bring TH to a quieter place, being a karaoke room. He said TH did not need to be carried, but had some assistance from a friend.
There were AGCO inspectors in the room. Constable Pattenden said he asked TH some questions but did not recall whether anyone else did.
Constable Pattenden’s testimony was that TH told him he arrived sober at 11:45pm and he had two shots of vodka and two large glasses of orange juice and vodka. He also described TH as having “some of the signs of someone under the influence of alcohol” with slurring words, eyelids half shut and bloodshot eyes.
Constable Pattenden said he questioned the server at TH’s table and she said she first thought TH was okay to keep serving but after seeing him swaying she thought he was drunk. TH was subsequently escorted out by security and friends.
Constable Pattenden said that Mr. Leung has always been cooperative and that “since enforcement started, infractions observed have gone down”.
Cross-examination revealed that Constable Pattenden’s notes were different from Inspector Ng’s report who said that an officer came into the karaoke room to tell him about observing a patron on a couch and that they could not find the patron when they went to look for him.
Constable Pattenden was emphatic about his own version of events and that he brought the patron (TH) into the karaoke room. He confirmed that TH walked into the karaoke room and “did respond to the questions asked”.
He also confirmed he did not see TH or anyone else at the table drinking. Constable Pattenden did not recall TH showing how much vodka he had or that Mr. Leung had gone out of the room for a glass so TH could illustrate how much he had to drink.
Applicant’s Witness:
Andrew Leung has been the manager of Babyface since it opened in November 2010. His previous experience working in licensed establishments includes 20 years of employment in downtown Toronto and Montreal. The clientele at Babyface is primarily Asian and security staff is posted at the entrance and several locations around the bar. The establishment’s licensed capacity is 280 inside and 97 on the patio.
The night of the inspection was not busy as there were less than 100 people and a staff count of six (6).
Mr. Leung confirmed there had been a previous situation that night where alcohol had been removed from a patron who had been asked to leave. When he then saw clients throwing ice cubes in a booth, he asked the server to check what was going on as that was not allowed behaviour.
Mr. Leung said the server returned to tell him the patrons were having fun and would stop what they were doing. He said he asked for the alcohol to be cleared.
Regarding the patron Mr. Leung described as slumped in a relaxed pose, the server told him the patrons there were okay.
At the same time as Mr. Leung saw the patron standing with help from a friend, he also saw the AGCO inspectors.
When describing the gathering in the karaoke room, Mr. Leung said everyone walked into the room at the same time.
Mr. Leung said that to assist the patron’s description of the amount of vodka he had in each glass with orange juice, he (Mr. Leung) went to get a glass from the bar so the patron (TH) could show the measure of what he had consumed.
Mr. Leung said his security tries to screen patrons who may have been pre-drinking. He also did not know TH had done any pre-drinking until his earlier appearance as a witness in this hearing.
He added that Babyface has a policy of offering a taxi ride home and asking a patron to leave their car in the lot when they believe a patron may have had too much to drink.
In cross-examination, Mr. Leung stated his security had not detected any sign of intoxication and therefore they had allowed the patron entry … “if he showed any sign he would not have been allowed in”.
Mr. Leung said the patron was only noticed when ice cubes were being thrown and the inspectors were present. He repeated that he had told the server to clear the table and instructed her to put the bottle “in back as half bottle was left [and] let’s see how it goes”.
Closing Submissions
The Registrar’s Counsel, Ms. Harari, pointed to TH’s testimony admitting that he was intoxicated and while he recalled entering the establishment, he remembered nothing else. He also admitted to pre-drinking and since he was allowed in, TH “obviously did not appear intoxicated at entry”.
The evidence of the inspectors was that TH was swaying, had slurred speech and droopy eyelids. Constable Pattenden also described TH’s slouched position on the couch and the lack of response to ice cubes being thrown at him. Ms. Harari submitted there should have been some reaction to the ice cubes.
The only evidence of TH not being intoxicated “is hearsay by Mr. Leung relating to the observation by [the server], ‘no they are ok’ [and] we have no idea what she did to satisfy herself that this person was not intoxicated”.
Ms. Harari also submitted there was no evidence to suggest that Mr. Leung told the inspectors that Babyface was dealing with the situation. Any actions Mr. Leung took were reactive, not pro-active steps to monitor intoxication.
She further submitted there was no evidence of on-going monitoring by staff or that there were any procedures in place to ensure patrons do not reach the level of intoxication.
In summation, Ms. Harari stated the totality of evidence is that intoxication was permitted by the licensee. Regarding witnesses’ recollection and the inconsistencies in some of the testimony, she also noted that the hearing was taking place nine months after the events of December 17, 2011, In addition, it was not a busy night so the person should not have been overlooked.
Ms. Harari asked for the order of monetary penalty to be confirmed.
The Applicant’s Counsel, Mr. Barrs, submitted that this was a borderline case of intoxication and if so it was sudden, as TH had testified he has a low tolerance for alcohol.
Mr. Barrs stated there is not even a “wiff” of a case of ‘permit’ in this matter as there is no evidence of TH having been over-served. On the evidence of Inspector Ng, TH was walking around. In addition, TH said even with pre-drinking, he looked good going in because security would have stopped him if he had been drunk. Mr. Barrs argued that absorption of alcohol is a “continuum” and maybe it started to affect TH during the questioning.
Mr. Barrs pointed to the differences in Constable Pattenden’s testimony with that of Inspector Ng about how TH was brought into the karaoke room. He submitted that Constable Pattenden’s evidence is “very problematic” in the face of Inspector Ng’s evidence that Constable Pattenden came to him and suggested checking out TH and they then went to look for TH.
Mr. Barrs submitted that when the ice cube throwing was observed, the server was instructed to take the bottle of alcohol away which she did and therefore the club was monitoring and dealing with the situation. He also noted that “everything is a matter of timing” because this event were happening close to the previous situation where another patron had been dealt with, just before the police and inspectors arrived.
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: (1) was TH intoxicated in the licensed premises and, (2) did the licensee permit the intoxication to occur?
Application of law to facts
In reviewing the evidence, most particularly the testimony of the patron TH, the Tribunal finds that there was drunkeness on the premises.
While the AGCO inspectors and police officer stated the patron TH was able to answer questions put to him in the karaoke room, the patron himself had no recollection of anything from that night except arriving in a “buzzed state” and being asked for identification. Beyond that, he said he had no recollection of time or how he got home.
As his testimony was not disputed, it appears the patron evolved from a “buzzed state” to an intoxicated state sometime that night but at a time which was not established.
On the second issue of whether the intoxication was permitted, the evidence, on balance of probabilities and on Mr. Leung’s testimony, suggests the licensee would have dealt with the patron or was about to do so.
As established in the Sin City ONCA 323 2009 decision, there is a requirement for proof that the licensee knew or ought to have known of the drunkenness on the premises.
There is no evidence about any behaviour, other than the ice cube thrown, from which the Tribunal can infer TH was intoxicated before action was taken, and at the moment the AGCO inspectors and police officers appeared.
There is also no evidence to indicate TH acted in a manner that would have attracted the licensee’s attention before or coincident to the moment when the inspectors and police officers arrived.
In the absence of evidence to suggest TH publicly exhibited drunken behaviour, it is not unreasonable to consider that the licensee would not have observed, or known, that TH was intoxicated.
Other evidence relied on in finding, on a balance of probabilities, that the licensee would have dealt with TH includes the testimony of Inspector Farrell who had just previously dealt with an intoxicated female patron. That patron told Inspector Farrell she had been asked to finish up and leave and therefore the licensee was not cited for this intoxicated patron. The licensee was seen as proactive in dealing with the patron. There was no evidence presented to suggest anything to the contrary.
There is also the discrepancy of testimony between Inspector Ng and Constable Pattenden, which the Tribunal cannot disregard despite the Registrar’s Counsel inferring it might be due to the length of time (nine months) since the events of December 17, 2011.
Inspector Ng said he was told about the patron (TH) by Constable Pattenden and then he could not immediately find TH in the location he was told TH would be found. Inspector Ng then located TH, who was taken to the karaoke room.
The sequence of events was told differently by Constable Pattenden who testified he brought TH into the karaoke room after noticing the slouched position of TH, and then seeing the ice thrown at TH, who was unresponsive.
While these are different versions of how TH came into the karaoke room, and are seen to be linked to the issue of when TH would have been seen to be intoxicated, the testimonies of Inspector Ng, Constable Pattenden and Inspector Farrell are agreed on the fact that TH answered questions put to him … even though TH himself has no recollection of having been in the karaoke room with anyone.
Constable Pattenden also said he asked TH some questions but he did not recall whether anyone else did. Inspector Farrell said she did not recall who brought TH into the karaoke room but she did recall that TH was able to reply to questions put to him.
Finally, the Tribunal notes the relevant testimony of …
(i) Inspector Ng who acknowledged he had no idea whether the server had gone to Mr. Leung about TH’s condition or whether Mr. Leung was preparing to deal with the situation - he did recall advising Mr. Leung to investigate why a patron was lying on a couch and that this required appropriate action;
(ii) Inspector Farrell confirmed an intoxicated patron had been appropriately dealt with by Mr. Leung and there was no citation to Babyface for that patron;
(iii) Constable Pattenden stated that Babyface’s manager, Mr. Leung, had always been cooperative and that “since enforcement started infractions observed to have gone down”; and
(iv) Mr. Leung said that after the prior situation where alcohol had been removed and the patron asked to leave, a server had been sent to first check on an ice cube throwing situation and then was told to remove alcohol from the table just as the inspectors and police officers appeared.
Considering the evidence, the Tribunal concludes that events occurred in a sequence which, on a balance of probabilities, did not allow the licensee a timely and reasonable opportunity to deal with TH in the same and complete manner in which another intoxicated patron had just previously been dealt with. There is insufficient evidence for the Tribunal to conclude that the Applicant ‘permitted’ drunkenness to occur.
Decision
For the reasons given, above, the Tribunal dismisses the allegation of a violation of s. 45(1) of the OReg and sets aside the order of monetary penalty dated April 4, 2012.
LICENCE APPEAL TRIBUNAL
Simon Dann, Member
Released: October 23, 2012