Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 6786/LLA
CASE NAME: 6786 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.
Joe Kool’s Restaurants Limited o/a Joe Kool’s Restaurant Applicant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Applicant: Michael Learner, Counsel
For the Respondent: Tamara Brooks, Counsel
Heard in London: November 9, 2012
DECISION AND ORDER
A hearing took place on November 9, 2012 before the Licence Appeal Tribunal (the “Tribunal”) arising out of a Notice of Proposal #17947 (the “NOP”) issued by the Registrar of Alcohol and Gaming (“AGCO”), under the Liquor Licence Act (the “Registrar” and the “Act” respectively.)
Preliminary Matters
Ms. Brooks, Counsel for the Registrar, advised that of the three original allegations cited in the NOP, only one issue remained for the Tribunal to hear. This is, that the license holder permitted drunkenness on the premises, contrary to subsection 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act.
Mr. Lerner, Counsel for the Applicant, stated that summonses had been successfully served on all witnesses except for one and that there may be a request for the Tribunal to order the witness to appear.
Witnesses for the [Registrar](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)
John Purvis has been an inspector with the AGCO since 2001. He was asked to provide his evidence regarding the incident of September 11, 2009 without reference to his notes
Mr. Purvis said he arrived at Joe Kool’s Restaurant (“Joe Kool’s”) at 1:00 am with Adam Richards, a Tobacco Enforcement Officer.
Joe Kool’s is located beside another bar, Jim Bobs, and there is a parking lot between the two establishments. He described walking through the parking lot to his car and noting a man walking by, staggering, and holding a beer. The man appeared to be intoxicated.
Mr. Purvis said he went into Joe Kool’s to speak with Rich Denomme, the manager, about the male in the parking lot. He said he knew Mr. Denomme from previous visits and they went into the bar interior together. They went through a narrow “transit” way between the patio and the bar, and he pointed out the person from the parking lot to Mr. Denomme.
When he went back through the transit way, he noticed a beverage glass with fresh ice in it. He also encountered a female looking for her drink which a staff member had taken from her.
When Mr. Purvis spoke with her, she said a staff member had taken the drink from her. While speaking with her, he noted her speech was slurred and that she was swaying. He pointed to the drink and asked if it was hers. She replied it was.
Mr. Purvis said that the area of the hallway/transit area where they were talking was not too big and she bumped into him. He said they spoke for about 5 minutes, describing her as “leaning against me”. She had a drink in her hand and was making her way into the main bar area.
Mr. Purvis then went to the patio and spoke to a staff member and Mr. Denomme about the male from the parking lot as well as the intoxicated female.
“Normally I would just say I saw an intoxicated woman” but they were then standing outside of the restaurant and the female patron could be seen clearly through the windows. Mr. Denomme went in to speak to the woman. When he came back out, Mr. Purvis said they spoke about infractions and other things for a while but he did not remember how long they spoke.
After Mr. Denomme left him, Mr. Purvis said he saw the female patron come out the front doors with car keys in her hand. He thought the woman was going to drive and he spoke with a staff member of his concern. The staff member went to ask her if she was going to drive and she said “no”. Mr. Purvis said he could hear what was said and the staff member also came back to him being satisfied with the patron’s reply.
Mr. Purvis and Mr. Richards then drove around to the back parking lot and waited to see if the female patron was going to drive. After seeing her get into her car, he stopped a passing marked police vehicle and asked the police officer to look into the female driver as he believed she was intoxicated.
He exchanged contact information with the police officer and later received a report from the London Police. Mr. Purvis said he did not remember the female’s name.
In cross-examination, Mr. Purvis said he could not remember when he made his notes about the incident and whether it was in the parking lot or after driving a short distance.
Regarding the female patron, he said “we bumped into each other” in the transit area between the bar and patio. This had been described as a narrow hallway.
He acknowledged no one else was present during the conversation and that it took “no more than 5 minutes”. Other than her saying that she was looking for her drink and that he had pointed to a drink on the ledge, he had no recollection of their conversation.
He cannot remember how long the conversation took or where she went after picking up the drink. Afterwards, he clearly saw her through the front window and suggested to Mr. Denomme that he deal with her.
When he saw her come out holding keys, he became concerned as he “believe[d] she was intoxicated”.
He thought she was with someone else when she came of Joe Kool’s, and started walking to the parking lot but does not recall exactly.
When asked about details contained in his ‘will say’ statement versus the notebook, Mr. Purvis said the will say is a long form and the notes are short form. He did not remember when he made his will say statement.
Adam Richards works for the Middlesex Health Unit and enforces Smoke-Free Ontario Act and regulations. He routinely conducts investigations at bars and restaurants and was with Mr. Purvis the night of September 11, 2009. He made his notes immediately after the visit to Joe Kool’s and last looked at them “this morning”, being the morning of the hearing. He also claimed to have a good knowledge of the Liquor Licence Act.
Mr. Richards gave his testimony without referring to his notes. He confirmed that he and Mr. Purvis went into Joe Kool’s after seeing a male drinking from a glass in the parking lot area.
They took the glass from the individual who then went back into Joe Kool’s and Mr. Purvis gave the glass to one of the staff in the establishment.
Mr. Richards said his attention was drawn to a female in an alcove area which he described as being about the size of a small closet and leading from the patio to the bar. She appeared to him to be showing signs of intoxication. Her voicewas loud and he noticed her stumbling as well as her glassy eyes and slurred speech.
There was no staff member on the patio. He spoke with he,r about a drink on a ledge, for “about a minute” and she then continued on into the establishment. He saw her stumble into Mr. Purvis in the alcove and then only saw her again when he was outside with Mr. Purvis when they saw her through the window.
Mr. Richards then saw her coming out of Joe Kool’s with another woman and holding car keys. She appeared very unsteady on her feet.
He confirmed that Mr. Purvis spoke to door staff about her driving and he remembers the woman was asked if she was intending to drive. She replied ‘no’ to the staff person who then told them (Purvis & Richards); he was satisfied with that.
Mr. Richards and Mr. Purvis then parked where they were able to see the same intoxicated woman walk to an SUV and get into the driver side.
A police vehicle which happened by was stopped and Mr. Richards said he last saw the intoxicated woman under arrest and in handcuffs.
In cross-examination, Mr. Richards confirmed that he did not see the woman fall to the floor or spill her drink as she made her way through the alcove.
When questioned about how they came to see the intoxicated patron in the parking lot, Mr. Richards said their car was originally in the front of the establishment and they repositioned to do their notes. He said he was clear about seeing the woman enter the driver side of the vehicle.
Jim MacLachlan is a Detective Constable and has been with the London Police Force (“LPF”) for seven years. His notes from the night at Joe Kool’s were typed up immediately after the incident and contained additional detail (over the handwritten notes) from his investigation. He said he had reviewed his notes ahead of the hearing and provided his testimony without referring to them.
On the night of September 11, 2009, he was driving on patrol, with another officer, in a marked cruiser and in the local neighbourhood.
He said he was stopped by Mr. Purvis who told him about a female not being in a state where she should be driving. He then drove the cruiser to behind the woman’s vehicle and blocked its exit. When he approached the driver, the vehicle headlights were on and the engine was running. The driver was putting on her seatbelt and as she saw him approach, she turned off the engine.
When DC MacLachlan asked her where she was coming from, she replied “Joe Kool’s” and that she was trying to assess whether she should be driving home or taking a cab.
He recalled her bloodshot eyes, slurred speech and that she had difficulty finding her licence documents. When she got out, he noticed that she was swaying and needed to steady herself on the vehicle.
DC MacLachlan said he looked at her footwear (which were flip flops in good condition) and the pavement (which he described as being even) to determine whether either could have been the cause of her swaying.
When asked about what she had to drink, she said she had two rum and diet cokes.
DC. MacLachlan considered he “had grounds for arresting her for being impaired”. The female, who was identified as “DVC”, told him she had two drinks at Joe Kool’s and a beer at home. He also said he had a brief conversation with the passenger (“KV”) who told him their intention was to call a taxi.
DVC was taken to the station where toxicology tests showed her blood alcohol level to be about 160-170mg. While the over 80ml charge against DVC was later dismissed, she was found guilty on the charge of having care and control of a vehicle, and being intoxicated.
In cross-examination, DC MacLachlan confirmed DVC was not belligerent or abusive and her responses to questions were satisfactory.
Michael Anderson has been a Constable with the LPF for five and a half years and was working with DC. Maclachlan on the night of September 11, 2009. He made handwritten notes at the time and typed them right afterwards. He said he needed his notes for specifics but was otherwise able to rely on his independent recollection of the event.
PC Anderson said he had limited interaction with DVC as DC. MacLachlan made the arrest for being impaired.
He was standing behind DC. MacLachlan who spoke with the vehicle driver and acknowledged he did not hear “a whole lot of what was said”. He did say he saw the driver with red and glassy eyes.
PC Anderson made no observation regarding the passenger, but had noted the keys were in the ignition though the engine was not on.
While en route to the police station, DVC said that she had “a few ryes” that evening and PC Anderson added that while being “booked”, she seemed to be having trouble remembering her address.
Licensee’s Witnesses
“KV” was with two other friends, “KW” and “DVC”, on September 11, 2009 for a ‘girls night out’. She first picked up KW who had had a couple of drinks and they then went to DVC’s house. From there, KV drove DVC’s car and the three women arrived at Joe Kool’s around 9:30-10pm where they went to the bar.
KV said the evening out was a regular event for the three friends and their practice was to each buy a round of drinks. That night she had two drinks and only bought one round.
Since they are all smokers, she and DVC went out to the patio for a smoke. This meant they had to use the staircase and transit way to the patio. She saw DVC “chatting” with Mr. Purvis but could not hear the content of the exchange.
KV described DVC as “a loud, perky person” and that she was being “very flirty” in talking with Mr. Purvis.
After they finished their smoke on the patio, they went back in to the bar and KV said she was ready to go but just wanted to finish her drink. Their friend KW had left about an hour earlier.
When she was outside, DVC came up to her and appeared upset, saying that she had been asked to leave but did not know why.
KV said she thought DVC only had two drinks as they had each bought a round from the bar.
They were the standing out front talking about whether to drive the car or take a cab. They had used a “Keyz Please” program in the past but decided not to do so that evening.
KV said that DVC had the car keys and when they arrived at the car, she got in the passenger side while DVC got in the driver side. The key was turned to accessory power so they could open the windows while they had another smoke.
She explained that when the police officer approached she was trying to call Keyz Please for a ride instead of driving on their own.
In cross-examination, KV confirmed that DVC told her she had “some wine” before coming out to Joe Kool’s. They also only had two rounds instead of three because they wanted to leave. She said KW had left earlier, around midnight.
When asked about her drinks, KV said they always ask for tall glasses because “they last longer” that way and there is only a single shot with more pop.
She specifically remembered that night because they each had two drinks and she was adamant that it was only two drinks and no one else had bought DVC another drink.
KW has known DVC for about 8-9 years as their sons were in high school together. While they have not been close for about two years now, they previously used to see each other a few times a month. During the golfing season, they would start the evening with golf and then go to Joe Kool’s.
KW confirmed KV picked her up first and they then went to DVC’s house. Since DVC was having wine when KW and KV got there, KV drove to Joe Kool’s. They arrived there around 10:00pm.
It was not too crowded and they just stood around the bar. She had two drinks, typically they each buy one round. She left around mid-night when her pre-arranged ride arrived.
KW said they would normally get home by using Keyz Please and they have used that service many times. That night, she had coupons for Keyz Please, which she had won in a golf tournament, She gave them to DVC and KV.
KW also testified about ordering drinks in a tall glass because they hold more pop, last longer and contain less alcohol. She said she has only seen DVC drink to excess on one occasion and that was on the occasion of a birthday party at DVC’s home.
Richard Denomme has worked at Joe Kool’s for ten years and been the manager for eight. He looks after the restaurant and well-being of customers. He has known Mr. Purvis for 2-3 years. That night, he first met Mr. Purvis outside of the restaurant.
Mr. Purvis told him about a male with a glass in the parking lot. When they did find the male out there, Mr. Denomme told Mr. Purvis that staff would deal with it.
When Joe Kool’s door man ‘Jacob’ approached the male patron and asked him to leave, he complied with the request, paid his bill and left.
Mr. Denomme said he was then told about the incident on the smoking patio. He also explained that because Joe Kool’s did not have a licence to allow drinking on the patio, a shelf was provided for patrons to leave their drinks inside before going out for a smoke.
He was told about DVC and described how he encountered her and had taken her out, deciding to ask her leave because he had seen her reach for Mr. Purvis’ face. He said she was upset about being asked to leave.
Mr. Denomme said he twice offered to provide DVC and her friend with a cab but they declined each offer.
He described excessive alcohol as being exhibited by slurred speech, glassy eyes and possible acts of violence. He said he did not conduct his own independent assessment of whether DVC had drunk to excess.
Mr. Denomme said they (DVC, KW and KV) usually come in around 11:00-11:30pm and have a designated driver.
In cross-examination, Mr. Denomme confirmed that patrons standing at the bar would be served directly by the bartender. He also said there were about 130-140 people at Joe Kool’s that night. There was also a retirement party of about 20-30 people.
[Registrar](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)’s Closing Submission
Ms. Brooks acknowledged the Registrar has the onus of proving on a balance of probabilities whether or not DVC was permitted to be drunk on the premises and submitted that it was more than probable that the licensee knew or ought to have known DVC was intoxicated.
Ms. Brooks submitted that the witnesses KV and KW confirmed they were there for 3-3 ½ hours and that DVC had been drinking before she left her home. They then started drinking at Joe Kool’s and the inspectors observed signs of intoxication when they arrived there at 1:00 am.
Mr. Purvis’ testimony is that DVC fell on him. Mr. Richards said DVC was leaning on Mr. Purvis as the two of them (Purvis and DVC) were talking in the alcove outside of the smoking area.
Mr. Purvis said that during their conversation, he observed DVC was swaying, her speech was slurred and that she had bloodshot eyes and alcohol on her breath. Mr. Richards confirmed that DVC showed signs of intoxication.
DC Maclachlan’s testimony confirmed the conclusion that DVC was intoxicated and impaired.
The evidence is that the bar was not overly crowded that night and with a full staff complement, there was “ample opportunity to observe DVC and assess” her condition.
Ms. Brooks further submitted the defence witnesses testified about the two rounds of drinks and KW’s testimony about DVC hanging on and being loud was consistent with Mr. Purvis’ evidence. Mr. Denomme just wanted DVC out of the bar.
Ms. Brooks submitted that KV’s testimony that DVC only had two drinks “is a bit of a red herring” because the reality was that DVC was already showing signs of intoxication. By 1:00am, DVC has at least had a third drink and since KV and DVC were not together all the time, KV relies on the general practices of the friends in her testimony.
The evidence of intoxication is supported by Mr. Denomme’s testimony that he took her outside because he “was worried by her behaviour and didn’t want her to interfere with a person in authority”.
In summary, Ms. Brooks submitted that given evidence that DVC was at the bar with two bartenders, someone should have given an alert to Mr. Denomme because DVC was there for a lengthy time and on a balance of probabilities, Joe Kool’s knew and ought to have known DVC to be drunk on the premises.
Applicant’s Closing Submission
Counsel for the Applicant, Mr. Lerner, reviewed the allegation that the licensee committed an offence in permitting drunkenness and that for the licensee to have known, or ought to have known this, implies the licensee’s active acquiescence or passive participation.
Mr. Lerner submitted that DVC and KW, despite their earlier drinking, were acting responsibly by having the only non-drinker (KV) drive.
The witnesses explained they generally take a cab or use Keyz Please. The witness KW said she gave the other two a voucher for Keyz Please.
The witnesses testified they each had two drinks, one at 10:00pm and another one at 11:00pm. This quantity is perfectly reasonable over the stated time.
Mr. Lerner submitted the Registrar relies on the incident in the alcove which was described as a “moderately sized closet” and dimly lit where Mr. Purvis and DVC bump into each other as one is going in and the other out.
He argued that “Mr. Purvis wants us to believe DVC is draped all over him” but he acknowledges that DVC goes down stairs (as she leaves the alcove) and does not fall or spill her drink. Mr. Lerner further submitted there is no evidence of how DVC walked to the bar or how she stood there when Mr. Purvis and Mr. Richards watched her through the window.
Mr. Lerner submitted that DVC’s eyes were red due to her contacts and pointed to the inconsistency in Mr. Purvis’ testimony when he observed DVC to be drunk but he allowed her to take her drink.
When Mr. Purvis goes to speak with Mr. Denomme, it is about the male patron from the parking lot, not DVC. It is Mr. Denomme who later takes action to move DVC out of the establishment when he notes her behaviour towards Mr. Purvis.
Mr. Lerner submitted that there was an immediate response regarding the patron in the parking lot when Mr. Purvis went with a staff member who asked the patron to finish, pay his bill and leave.
There is no evidence the women were drinking a quantity which would be of concern.
Mr. Lerner pointed to the fact the women asked for drinks in tall glasses with lots of pop and the police officer confirmed he had a cooperative conversation with DVC. The term “drunk” was not used in his testimony.
Mr. Lerner also questioned why Mr. Purvis did not make any observations after his conversation with DVC in the alcove.
While Mr. Purvis described DVC as being loud, her friends both spoke of her personality describing her as loud and flirty.
Mr. Lerner submitted that as DVC was not obscene, profane, did not fall down and was not combative, there is only a case of impaired.
In closing, Mr. Lerner submitted there was insufficient evidence, on the balance of probabilities, that there was drunkenness and if that is found there is no evidence it was permitted.
In reply, Ms. Brooks submitted that the evidence for intoxication was supported by the police evidence which clearly found DVC impaired at her car. It is the responsibility of a licence holder to be constantly observing patrons.
Based on the evidence, the Registrar’s Counsel asked for the suspension order to be confirmed.
Analysis/Reasons
The Tribunal has carefully reviewed the evidence and the submissions of the parties regarding the allegation of a violation of s 45(1) of Ontario Regulation 719/90, under the Liquor Licence Act (permit drunkenness).
The evidence presented is found to generally have confirmed the police finding that DVC’s blood/alcohol level was 180mg and that she was found guilty of the charge of being impaired.
The Registrar’s Counsel in her opening statement, noted that the only issue for the Tribunal to consider is whether the licensee ought to have known or did knowingly permit DVC to be in a state of drunkenness while she was in Joe Kool’s.
The Tribunal does not find that to be the case and the issues to be considered are
whether the patron was drunk and whether the licensee permitted drunkenness, that is, whether the licensee or knewor ought to have known of the dunkenness.
Based on the evidence of the witnesses, the relevant sequence of events are summarized as follows:
Mr. Purvis encounters DVC in a narrow alcove, transit way, between the patio and the bar; he describes DVC to be swaying, having glassy eyes and slurred speech; he says they spoke for about five minutes but he has no recollection of the conversation other than about the drink she says a staff member took from her; there is no evidence in Mr. Purvis’s testimony to indicate DVC was exhibiting any behaviour consistent with drunkenness before this moment that otherwise alerted inspector Purvis to her
Mr. Purvis says DVC is leaning against him but acknowledges the passageway is narrow (Mr. Richards described it as a small closet) and they could have bumped into each other; KV also described seeing DVC in conversation with Mr. Purvis, being “very flirty with Mr. Purvis” - if that type of behaviour is a part of DVC’s personalitVictoria: please ignore this cross out by me. Put it back in please
Mr. Purvis made no observation that DVC fell, stumbled or spilled her drink as she descended the few stairs to the patio;
Mr. Richards is not a liquor licence inspector; he encountered DVC and observed her manner of walking, her slurred speech and glassy eyes; he speaks with her for only about a minute about her drink; he also says he saw Mr. Purvis and DVC in conversation for only about a minute in contrast to Mr Purvis statement that he spoke to her for five minutes.
Mr. Purvis observes DVC exit Joe Kool’s with keys in hand and shortly after, he observes her getting in the driver’s door of an SUV; Mr. Richards states he sees DVC stumbling as she exits Joe Kool’s and also as she walks to her vehicle; Mr. Purvis’ observations do not include any reference to DVC’s manner of walking;
Mr. MacLachlan notes DVC is swaying and needs to steady herself on her vehicle but confirms that DVC was not belligerent, abusive and her replies to his questions were satisfactory ;
Mr. Denomme was informed of DVC and testified that after observing her reaching for Mr. Purvis’ face, he asked her to leave; his offer of taxi transportation was twice refused;
There is no testimony about any other kind of behaviour or conduct on the part of DVC which would have made her stand out and attract licensee staff attention during the three hours she spent in the establishment;
KV and KW were consistent in their testimony about (1) only having two mixed drinks in tall glasses allowing for more pop and, (2) staying around the bar and talking;
The best evidence before the Tribunal is that DVC had 2 drinks over a period of three hours. There is no evidence that she conducted herself in any way to attract the attention of the bartender(s); KV and KW testified that the three of them were seated and or standing at the bar;
KV’s description of DVC as a naturally “loud, perky person”, whose personality would likely have been known to the licensee’s employees as a regular, would go a ways to explain how DVC’s “loud” voice would not have attracted attention;
KV’s evidence was that she was ready to leave and was already outside when DVC came out upset at having been asked to leave - which makes it not unreasonable to infer that the two had reached their own decision that it was time to leave.
The principal question then is whether DVC was drunk and exhibited behaviour and conduct which should have been apparent to the licensee’s staff, or bartenders, to stop service and ask DVC to leave.
There is no evidence such behaviour or conduct occurred and therefore, the licensee could not have known whether DVC was drunk.
There is no evidence from any of the witnesses to show the licensee knew and did permit DVC to become intoxicated (according to Mr. Purvis’ observation that DVC was intoxicated) during her three hours in the establishment.
To the credit of the licensee, once DVC was pointed out to Mr. Denomme, including his stated observation of DVC reaching to touch Mr. Purvis, the licensee took immediate action and asked her to leave.
Regarding the allegation that subsection 45(1) of Regulation 719/90 was contravened and the Licensee “permitted drunkenness” on the premises, the Tribunal finds no evidence to that effect.
The issue of ought to have known is seen to bring with it difficulties of discernment, Even Mr. Purvis noted that his attention was first drawn to the glass on the ledge, not to DVC for signs of intoxication.
Therefore, and on the balance of probabilities, the Tribunal concludes there to be insufficient evidence to find a contravention of s.45(1) of the OReg.
Decision
For the reasons stated above, the Tribunal finds the Registrar to have failed to meet the onus on him to prove, on a balance of probabilities, the allegation made against the Applicant, Joe Kool’s Restaurants Limited, o/a Joe Kool’s Restaurant, Licence number 0024202.
ORDER
The Tribunal therefore directs the Registrar NOT to carry out the Notice of Proposal.
LICENCE APPEAL TRIBUNAL
Simon Dann, Presiding Member
Released: December 21, 2012