Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7124/LLA
CASE NAME: 7124 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
2130845 ONTARIO INC. OPERATING AS HEART AND CROWN IRISH PUB AND RESTAURANT (THE) Applicant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER
ADJUDICATOR: SHU-TAI CHENG, Vice-Chair
APPEARANCES:
For the Applicant: ROBERT DE TONI, Counsel
For the Respondent: PHILLIP MORRIS, Counsel
Heard in Toronto: May 28, 29, 30 and 31 and July 18, 19 and 20, 2012
REASONS FOR DECISION AND ORDER
BACKGROUND
The Applicant filed an appeal from the Notice of Proposal (the “Proposal”) issued by the Registrar on December 1, 2011 (as #18994) and amended and replaced on December 21, 2011 (as #19009), under the Liquor Licence Act, R.S.O. 1990 (the “Act”) to suspend the Applicant’s liquor licence and to add a condition to the licence.
The basis for the Proposal is that the Applicant contravened ss. 20(1) and 45(1) of the Ontario Regulation 719/90 (the “OReg”) under the Liquor Licence Act and ss. 29, 45(1) and (2) of the Liquor Licence Act. In particular: that on February 20, 2011, a violent altercation occurred between a patron of the premises and an employee whereby the patron was seriously injured as a result, and the group of patrons to which this patron was a party, had been served an excessive amount of liquor prior to this incident, and that on March 4, 2011, during the investigation by the AGCO, inspectors were obstructed in carrying out their inspection and the license holder failed to facilitate that inspection.
The Applicant filed a Notice of Appeal, dated December 9, 2011, denying the allegations in the Proposal.
Background
The Heart & Crown Group has been in existence in Ottawa for many years and operates several establishments. The Applicant’s witnesses gave testimony to the effect that it has in place policies regarding the responsible service of alcohol and that it is a socially responsible corporation having donated a substantial sum of money to charity.
The particular location in question, the Heart and Crown Irish Pub, has been open for five (5) years and operates from 8 am to 2 am, 7 days a week, catering to professionals and an age group of mostly 30 to 50 year olds.
On Sunday, February 20, 2011, a group consisting mostly of co-workers met after work to celebrate a birthday. The group met up at the Comedy Club for approximately 2 hours. According to DF, one of the patrons who testified, no one was showing signs of intoxication when the group of about 15 went to the Heart and Crown at around 10 p.m. The Tribunal heard evidence that about five people in the group did not drink alcohol at the Heart and Crown. Everyone was seated at a long table put together along the northwest wall of the establishment; part of that table is within the view of camera #1. The earliest invoice (Ex. 22) shows the first drinks being ordered just after 10:05 pm.
Mr. Munro is the general manager of the Applicant. He has had extensive experience in the restaurant industry and recently won an Ottawa executive award. There were two waitresses who served liquor to the table, Ashley Cone and LA who also tended the bar. The floor manager was Jamie Slack. The bouncers were SD and JK. Of the staff on duty, LA and SD were later fired and were not called as witnesses, nor was JK.
Jamie Slack stated that he was observing the tables as he walked around the bar during the course of the night. He never saw the group enter. On cross-examination, he admitted that it was not his responsibility to monitor service to the tables, and that he couldn’t say whether it was Ms. Cone, LA, or both who took all the orders, or if they both delivered drinks to the table, or if patrons from the table ordered drinks at the bar.
Alcohol consumption
During one hour and 5 minutes, staff served the group 49 x 1oz. shots (32.5 standard drinks), 1 x 16 oz beer (1.5 standard drinks), 2 x 20 oz. beer (3 standard drinks), 2 x 60 oz pitchers beer (10 standard drinks) or a total of 62 drinks (47 standard drinks). In addition, the patrons purchased 10 shots (6.5 standard drinks) at the bar (Ex. 22 and 24).
Assuming the receipts cover all the alcohol served to the table, the group of approximately 10-15 people which included 4-5 designated drivers, consumed 72 drinks (53.5 standard drinks) in an hour. Even assuming the group was consuming the drinks evenly, that would put each of them, other than the designated drivers, at or very close to the level of “legally intoxicated”, based on the Heart and Crown’s own charts (Ex. 15).
The receipts showed 6 rounds of drinks: the first round ordered around 22:05 the second round at 22:25:11, the third round at 22:46:46 and the fourth round at 22:59:32. A fifth round was then ordered at the bar at 23:06:54 and the round of 4 drinks at 23:10:52.
Patrons took turns ordering trays of shots. Staff was unable to monitor who was drinking what at the table. The waitress would bring the round of shots to the table and put them on the table. The patrons would then pass them down the table and some of the patrons would get up to 3 shots from a tray.
One of the patrons, DF one of the designated drivers, remembered most of the group getting drunk quickly. They were getting louder. In her testimony, she testified that in her view, they should have been cut off earlier and not served such an excessive amount of alcohol. Another patron JSA remembered 10-11 members of the group (those not designated drivers) getting drunk. They were rowdy and loud.
In their testimony, CS and TB described splitting a joint before the Comedy Club and a 60 oz pitcher (2.5 standard drinks each) at the Comedy Club over 2 hours. They then split 2 more pitchers (5 standard drinks each) in less than an hour at the Heart and Crown. CS also had at least 2 shots because another person in their group, S, was too drunk to drink them. He admitted that he wasn’t sober.
TB testified that most of the people at the table, other than the designated drivers, were not sober: they slurred their speech, were a little louder, and over the limit to drive. He admitted he was drunk.
AS testified that he drank approximately 10 shots. The liquor was ordered by others and brought to the table by one of 2 servers. He remembered 5-6 rounds coming to the table and some patrons ordering individual drinks. He felt multiple people were intoxicated: loud, talking with their hands, unstable when getting up to go to the washroom. He felt intoxicated: unstable, flushed and loud.
TN stated that he consumed 1 beer in 1 hour at the Comedy Club and then drank 15 shots at the Heart and Crown in little more than an hour. At least 4-5 people were ordering rounds one after the other. He admitted to being pretty drunk. It was his birthday that the group was celebrating.
ME testified that he consumed a 60 oz pitcher of beer (5 standard drinks) at the Comedy Club in approximately 2 hours. He could walk straight but not drive when he entered the Heart and Crown. He admitted to being drunk at the Heart and Crown. He had 2-4 beers and at least 2 shots, maybe more, while at Heart and Crown. Trays of shots were being placed on the table and then shots were passed around. He had a hard time standing.
ME described seeing another in the group, S, so drunk that she became ill. JSA took her to the washroom. JSA stated that S was very intoxicated and struggled with walking. JSA, had her arm latched around her. They had to walk past the bar to get to the washroom and no staff member approached them. S threw up in the bathroom. A female staff member entered the bathroom and told them they had to leave.
DF testified that about one hour after their arrival, the manager came over and told them that they were cut off and would have to leave. Several of the patrons (CS, AS and TN) remembered a waitress cutting them off. TN stated that LA cut them off and said it was because she had served them 90 shots in 45 minutes. Fifteen to 20 minutes later, the bar manager told them to leave.
Ms Cone stated she and LA noticed that the patrons were ordering shots aggressively, and notified their manager, Jamie Slack, who then asked the patrons, politely, to leave..
Mr. Slack also testified that he told his staff, after they expressed to him that they were concerned about the patrons, that they could have one more round and that was it. He was then advised that 4 more shots were ordered. At that point in time, he advised the patrons that they had to leave.
DF testified that the drunken patrons were allowed to finish their drinks. JB, SB and TN, all of whom were intoxicated, went to the north end of the bar and were served more alcohol. They each ordered mixed drinks and JB also ordered shots, all from a female bartender. They were showing signs of intoxication: more excited, louder and having slurred speech. AS remembered a waitress bringing a tray of shots to the table 10 minutes after they were cut off by the waitress. He and TN consumed more shots at that point. TN was loud and slurring his speech a little bit. Then the manager told them to leave. The patrons described another round of drinks being ordered and a round arriving at the table, after they had been cut off.
According to the receipts from the night in question (Exhibit #22), JB ordered those shots at 11:10 p.m. Upon finding that they were being kicked out, he asked if he could still have his drinks plus the fries he ordered and Mr. Slack said that he could. The last receipts for the table are then printed up at 11:12 p.m. The Heart & Crown’s contention is that there were no drinks ordered after they were told to leave.
Ms. Cone stated that people at the table were distributing the shots, that LA may have been serving the table also, that she didn’t record which seat was served what liquor, that she couldn’t remember how crowded the bar was or what patrons at other tables were ordering. She agreed that at times her back would be to the large table as she served the area to the west or northwest of the bar. She couldn’t say if any of the patrons went up to the bar to order, and she agreed that the service bar receipts would not show if the patrons served at the bar came from her table.
Mr. Slack testified that LA told him she was concerned that the group ordered a large amount of shots in a short time and was nearing the point of intoxication. He told her to let him know if things were getting out of hand and then he authorized one more round. In cross-examination, he said that did not cut them off or slow them down because they had already ordered the round. He then cut them off after Lisa told him that they had ordered 4 more shots. She didn’t say anything about 10 more shots being ordered at the bar. He said that at no time did Ashley Cone raise any concerns.
Ms. Cone stated that she got concerned about the speed at which the group was ordering shots. In cross-examination, she stated that, towards the end of the night, around the second to last round, some of the patrons were showing signs of intoxication She claimed they were not drunk until the end. However, she admitted that after that, they ordered at least the 10 Jager bombs from LA. She said that she informed Slack who then told the group it was time to leave.
Mr Munro, in his evidence, refused to accept that staff did anything wrong, but he admitted that in a properly run establishment, no one should be able to consume 10 shots in an hour.
Exit from Heart and Crown
When the group was asked to leave, everyone other than those looking after S in the washroom made their way outside quietly. Everyone was in a circle around the front door. There was no problem between the group and the staff, and the patrons testified to there being security at the door. The group was trying to sort out transportation. Mr. Slack agreed that the group left compliantly and quickly after being asked to leave.
DF then communicated with JSA by cellphone. JSA asked DF to come and get her keys and move her car closer to the door because S was in no state to walk far. No staff member stopped DF from walking in. She went to the washroom. S was in the stall and was very sick. DF got the keys, exited the establishment, got the car and parked 15’-20’ from the front door. JSA sent another text saying she needed help to get S out of the bathroom.
LA opened the door to the bar and started yelling at those standing outside. She told them S was sick in the bathroom and that they had to get her out. Members of the group then got angry and started yelling back. There was no problem between staff and the patrons outside until this point. DF remembers a male employee exiting the premises and angrily asking them to come inside and get their friend from the bathroom. He was slightly angry and didn’t direct his request to any person or persons.
Mr. Slack stated that he went outside to ask one of the female patrons to come back in and the other patrons started swearing at him. Mr. Slack then told them not to bother and went back in. In cross-examination, he agreed that of the 10-12 in the group outside, he didn’t know how many were drinking, who was a designated driver, how many were females, if the females had been drinking, what they were doing or the precise location of anyone. He couldn’t even be sure if anyone in the group realized that he only wanted a female to come in. He didn’t remember the exact words he used. He might simply have asked for “someone” to come in.
Mr. Slack testified that the males in the group who had previously left quietly now became belligerent. One of them started swearing at him, so he calmly told them they could no longer come in and get the girl out of the washroom. He did admit in cross-examination that he never told PC Meam, who arrived later, that he or any other staff member invited anyone back in. He also admitted telling Inspector Daniels on March 4, 2011 that the group left quietly.
Re-entry into Heart and Crown
DF asked AS to help JSA with S, however AS as well as CS, TN and ME went in. According to each of the four, there was no security at the door and no staff stopped their re-entry. In his testimony, Inspector Mark Daniels stated that he has been to the Heart and Crown 7-10 times; and every time, he had to pass security guards to re-enter.
Mr. Slack told Inspector Daniels that the girls refused to come back in to get their girlfriend; then the four men came back in and he refused them entry. At the hearing, he admitted that despite this apparently potentially volatile situation, he couldn’t say where the two security guards were at the time and he didn’t call them over. Instead, he just entered and stood at the south side of the bar right below camera #14 and talked to LA. He then went to the back office.
CS testified that the manager and the bouncer did, however, confront him in the hallway. The manager told them to get out. He said to the manager that they had been asked to come back in and get S and that they would get her and then leave. The staff members didn’t listen and instead got rough. CS said he didn’t grab anyone. He believes he was kicked and then just dropped.
AS testified that a male server from another table told them to get out from the opposite (south) end of the hallway. A bouncer was with him. Someone swore at them to get the “f” out. The bar manager came into the north end of the hallway behind them and also, in profane terms, told them to leave. AS then held the washroom door open slightly and told JSA and S they needed to go. The bar manager bumped into his shoulder and AS turned to face him and then shoved the manager. He then heard a loud scream from behind him, turned and saw CS on the ground about 10’ away, screaming.
TN remembered the manager pointing at CS and saying that he didn’t like him and wanted him out. Then someone ran past him at CS and CS fell. Although he didn’t remember it at the hearing, he told Inspector Daniels soon after the incident that the bouncer tackled CS. JSA had a brief glance into the hallway. She saw CS going into the wall forcefully and falling to the ground. The bouncer was making a downward motion. She quickly closed the door. CS remembers being on the ground in serious pain and unable to stand. The manager and bouncer were yelling at him to get up. He couldn’t put weight on his ankle.
AS testified that he yelled “stop; someone is hurt”. CS was screaming “my leg, my leg”, and AS could see the ankle was cocked in a really bad position. The bar manager and male server were yelling to get CS out. Someone asked if they could keep CS inside and call for a paramedic. They were told no.
ME didn’t see how CS got hurt. However, when S came out of the bathroom, she didn’t walk straight or stand properly and grabbed onto his arm. He then saw CS on the ground in the seating area south of the hallway. He was in a lot of pain, moaning and groaning that it hurt. He couldn’t walk on his leg. He and AS picked up CS and carried him outside, setting him down on the ground.
DF then saw TN carried outside over the shoulder of a large bouncer. He was missing his shoe. She remembers another of their group (TR) exiting a truck and yelling at the bouncer, who ignored him and went inside. TR then slammed the front door and the glass broke.
Mr. Slack described the events differently. He stated that 5 patrons re-entered the premises with one of them waiting by the door. When Mr. Slack noticed the patrons, he asked them to leave as he felt he was entitled to do. The patrons swore at him and refused to leave. One patron, AS, said that they were not leaving without getting their friend, S, from the bathroom. Another of the patrons, CS, then grabbed Mr. Slack’s arm. The bouncer, SD, who had now joined Mr. Slack, pushed CS who then fell and suffered an unfortunate injury. Another patron, TN, lunged at them and SD picked him up and carried him outside.
Mr. Slack told CS’s friends to get him out of there. He said that he didn’t hear CS scream, that he had no contact with him before he left the premises, and that he merely walked by him and said get him out. He stated that he wouldn’t help because there was no way he would help a kid who had just helped break their window. He told Inspector Daniels that he did not refuse medical attention. He told him that CS was not carried out but thrown out.
Ms. Cone testified that she saw CS on the ground holding his leg just east of camera #14. She saw Mr. Slack, SD and another bouncer, JK, telling them to leave. They would have been picked up by camera #2 and camera #9. She didn’t put in her report that someone was hurt.
After everyone was back outside, the police arrived on the scene.
Neither SD nor JK were licensed as required by law. Several of their security staff were not licensed. Mr Munro explained that he was confused as to the need to licence them.
Mr Slack testified that, as an experienced bartender, he knew the significance of what had happened. He wrote a report that night and immediately called Mr. Landon, the general manager, who came in from home.
CS’s injuries were very serious and required screws and plates and months of physiotherapy. He was out of work for months. In describing the events after they got CS outside, the patrons testified about a lack of cooperation from staff. DF stated that she asked the bouncer to call an ambulance. He refused. She asked him for something to support CS’s leg. He refused. She asked him if CS could wait inside. He refused. She then called 911. At the time they helped carry CS out at the insistence of bar staff, AS and ME described themselves as intoxicated.
PC Meam arrived at 11:53 pm. His partner told him CS was intoxicated. He felt the group was intoxicated, especially the two he talked to, TN and AS. They smelled of alcohol and had slurred speech. Constable Meam did not identify in his report any specific patron as being intoxicated when he came to investigate on February 20th. He made a general comment only.
AGCO Investigation
Prior to the night in question, Inspector Mark Daniels was already concerned about the Heart and Crown. He had received police reports dealing with possible over-service and excessive use of force against patrons, in particular by SD. On Dec. 3, 2010, he met with Steve Landon, the General Manager. He suggested that staff have a “hands off” policy towards patrons. If there was a potential for violence, staff should retreat and call the police. They should de-escalate the situation.
Inspector Daniels also testified that bars have camera systems to protect themselves and to assist the AGCO and police in investigating matters. Those bars that have cameras usually have a data retention system that keeps recordings for 25-30 days.
Inspector Daniels received a copy of Const. Meam’s report dated Feb. 21, 2011(Ex. 8). He commenced an AGCO investigation. He interviewed TN on March 4, 2011. Inspector Daniels knew that the Heart and Crown had cameras. He immediately went to the Heart and Crown to request the video for the night of Feb. 20, 2011.
Inspector Daniels testified that he spoke to Jamie Slack who happened to be the manager on duty. Mr. Slack was cooperative and answered some questions about the incident. Inspector Daniels then asked for the video from when the patrons came in until they left. Mr. Slack brought Inspector Daniels to the video room. Inspector Daniels sat down and saw a number of screens. Mr. Slack asked him if he wanted to see the video at that time.
At that point, Marty Pineault interrupted and said that the matter wouldn’t be resolved that night, that they weren’t going to going to say anything more, and that they would produce the video the next week. Inspector Daniels asked how long they kept the video. Mr Pineault said months and months. Mr Slack wrote down on a piece of paper the information Inspector Daniels wanted. At that point in the investigation, Inspector Daniels was satisfied he would get the video.
Neither Mr. Slack nor Mr. Pineault knew how to operate the video system. Mr Slack testified that he had a good relationship with Inspector Daniels. He admitted that he might have brought Inspector Daniels to the video room.
The next day, Inspector Daniels interviewed TB and AS, the latter in the evening. AS said the video would back up his story. Inspector Daniels became concerned about the divergence between the stories of the patrons and the bar staff, the use force by staff given the severity of the injury to CS, and the alleged failure of staff to assist the injured patron. He realized the potential significance of the video and was concerned he would not get it. He called DC Lester Nichols of the OPP at home and they decided to attend the Heart and Crown.
On Saturday, March 5, 2011 at 22:55 pm, DC Nichols and Inspector Daniels re-attended the Heart and Crown. They spoke to Marty Pineault. Mr. Slack was not present. Mr. Pineault no longer seemed willing to cooperate. He told them that he was instructed by senior management (Mr. Munro, Mr. Satouroff, and Mr. Landon) not to give them a copy of the video or any information. If the AGCO wanted anything, they were to call the General Manager the following week.
Inspector Daniels then asked if he could view the video. Mr Pineault refused. Inspector Daniels then advised that he would be laying a charge of obstruction and failure to facilitate an investigation. Mr. Pineault then asked him to wait while he called senior management. Mr. Pineault returned after a few minutes and said Alex Munro (VP Operations), Alex Satouroff (Director of Operations) and Steve Landon (General Manager) would be coming to meet with them. DC Nichols and Inspector Daniels left and returned at 11:30 pm.to meet with the three senior management as well as Mr Pineault and Mr. Slack.
Mr. Munro immediately went into a tirade. He was volatile, argumentative, accusative, swearing at Inspector Daniels, questioning his authority to conduct an investigation, attacking the AGCO and its processes as biased, and accusing Inspector Daniels of harassing him. He threatened to file a complaint of harassment but never did. According to DC Nichols, Mr. Munro was very aggressive, belligerent, confrontational, way over the top. DC Nichols was concerned about officer safety.
Mr. Satouroff questioned the AGCO’s right to ask for the video. Mr. Munro then said that the video was erased and no longer available and gave them an opportunity to confirm that what they were saying was true. Inspector Daniels and Constable Nichols refused Heart and Crown’s offer. Mr. Munro also offered to produce receipts for the night in question.
Inspector Daniels asked Mr. Munro to forward to him an email explaining the intricacies of the video system: how long it worked, how long it was kept, how it was erased, whether erased information could be retrieved. Mr. Munro promised to do so. He did send Inspector Daniels an email. It berated the AGCO in the same manner as Mr. Munro had at the bar, but provided no information about the video system.
Inspector Daniels then stopped his investigation. He didn’t like the way Heart & Crown had treated him. From March 5th on, he had no further contact with the Heart & Crown or any of their employees. The police continued with their own investigation, but only in relation to what happened to CS. The Heart & Crown participated in the investigation, and, at the conclusion of that investigation, no charges were laid.
In his evidence, Mr. Landon stated that he came in on the night of February 20th, and viewed the video. He gave his description of what he viewed on the tape to the Tribunal and he prepared an incident report that night (Exhibit #26). Mr. Landon testified that after Mr. Slack asked the people to leave, they left a couple of minutes later. No mention is made of any additional drinks being served.
He did speak to SD and Mr. Slack that night. He knew there had been a violent incident, someone had been injured, and that SD was in the thick of it. He knew that the video would not catch what happened in the back hallway. Yet he still looked at it. He did this because he knew the seriousness of the situation. He admitted that he knew that how the patrons entered, how they left, and the question of over-service were all in play. He also knew that there were numerous cameras which would cover many of these issues (Ex. 27).
Mr Landon admitted that the video showed the 4 men entering virtually unimpeded. They walked by SD towards the north end of the bar and he did not react. He only went to the south end of the bar a minute later.
Mr. Landon sent the incident reports to Mr. Munro and Mr. Satouroff. Mr. Munro testified that he didn’t look at them because of family issues that he was dealing with. He did state that he never told staff that all inquiries had to go through him. Mr. Pineault claims that even on March 4th, he did not know that the incident of Feb. 20, 2011 involved a seriously injured patron and required police and ambulance involvement which the Tribunal finds odd given that he was JS’s immediate boss. His claim that he can only look at live cameras and never tried to look at the video simply is not credible. Mr Landon testified that Mr. Pineault did know how to use the system. Given his answers to Inspector Daniels, he might have been more familiar with the system than he let on.
The Tribunal notes that it found most of the witnesses to be credible. However, Mr. Pineault was hostile and difficult, and his answers on cross-examination were often sarcastic or unresponsive. Where Mr. Pineault’s evidence was inconsistent with that of another witness, the other witness’ testimony is preferred.
FINDINGS AND CONCLUSIONS
This Tribunal finds the following facts.
The evidence is quite clear, and essentially undisputed, that the patrons were served an excessive amount of alcohol in a short period of time. 72 drinks were served to 10 patrons in 65 minutes, Further, there seemed to be little or no monitoring of the group in terms of the amount or rate of consumption. There was no evidence put before the Tribunal regarding any procedures instituted by management for staff to follow for the responsible sale and service of alcohol; manuals and written documentation were entered as evidence but not a procedure to be and, in fact, followed by staff. When action was finally taken to cut the patrons off, because they were, at a minimum, showing signs of intoxication, they were served, and consumed, more alcohol. There is no evidence regarding any procedures in place for communication among staff to ensure service would not continue.
By all accounts, whether the staff, the police or the patrons themselves, several in the group were intoxicated, some like S, to the point of being ill. Therefore, on the evidence, the Tribunal finds that some of the patrons were intoxicated, which intoxication the Applicant knew, or ought to have known of, a breach of s.45(1) of the OReg (permit drunkenness).
In respect of service of these patrons, at least 4 of them became drunk while at the establishment, staff noticed signs of intoxication in some of these patrons, and the manager was alerted; yet, patrons were permitted to order and consume drinks thereafter. By virtue of the evidence regarding the sale and service of alcohol to some of those same patrons, after the group had been cut-off, a finding of a violation of s.29 of the Act (service to an intoxicated person) can also be made.
The Tribunal heard evidence from the patrons and from Ms. Cone as to the quantity of alcohol served, as stated previously, in a short period of time; by the Applicant’s own records, approximately 72 drinks in about one hour to a group of ten or so who were actually drinking. And again, there was no evidence from the applicant regarding any practice in place to prevent that level and rate of consumption. The Tribunal therefore concludes that there has been a violation of s. 20(1) of the OReg, (permit immoderate consumption).
As to inviting or permitting drunken patrons to re-enter the establishment, these patrons were asked to leave the establishment and did so without incident. Thereafter, they were asked to re-enter in order to remove one of their friends from the washroom. While the Licensee takes the position that the request did not include male members of the group and that it was retracted, four drunken patrons were permitted to re-enter, were not stopped on entry and walked in plain view of staff to the back hallway before staff intervened. In the result, the Licensee permitted drunkenness on their premises, and disorderly and violent behaviour ensued.
In summary, the Licensee breached s. 20(1) of Ont. Reg. 719/90 (engaging in or permitting practices that may tend to encourage patrons’ immoderate consumption of liquor), s. 29 of the Act (selling or supply liquor, or permitting liquor to be sold or supplied, to any person who is or appears to be intoxicated) and s. 45(1) of Ont. Reg. 719/90 (permit drunkenness).
After inviting or permitting their re-entry, staff stopped drunk patrons in a narrow hallway and engaged in conduct that escalated rather than de-escalated the situation. This resulted in a violent and unnecessary confrontation, and staff attempted to control patrons by the use of unreasonable force, including pushing and/or kicking, then required a seriously injured patron to leave the establishment and wait for medical assistance outside. The situation was further exacerbated by the Applicant’s refusal to call police or an ambulance or to render any kind of assistance. Thus, the Licensee breached s. 45(1) of Ont. Reg. 719/90 (permit violent or disorderly conduct).
Regarding the allegation of a breach of sections 45(1) and (2) of the Act, the Tribunal heard that Mr. Slack was initially cooperative with Inspector Daniels with whom he seemed to have a good working relationship. It was only as days passed and senior management became more involved, and by inference more concerned about the possible ramifications of the incident, that cooperation seemed to disappear. It is incumbent upon licensees to facilitate inspections by AGCO inspectors and police. If ‘facilitate’ is defined to mean “make easier” and “less difficult’, on the evidence of Inspector Daniels and DC Nichols, which was not contested, such did not occur on these facts. While it appears that the Applicant did cooperate with the police investigation, the same level of engagement was absent vis-à-vis the AGCO, a breach of s. 45(2) of the Act.
By failing to retain and to provide the AGCO images taken from cameras in the establishment at the time of the incident, to the extent of aggressively questioning the AGCO’s right to access the video, the Licensee also breached s. 45(1) of the Act (obstruct a person carrying out an inspection or withhold, destroy, conceal or refuse to provide any relevant information or thing required for the purpose of an inspection).
CONCLUSION
The Tribunal having made findings of the violations of the Act and the OReg as noted above, requires submissions on sanction, including the request for a condition on the liquor licence, from the parties.
Therefore, the Registrar’s representative shall serve and file written submission within seven (7) days of the date of this decision and the Applicant’s representative shall have seven (7) days thereafter to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the Applicant’s response. All submissions are to be filed with the Tribunal.
LICENCE APPEAL TRIBUNAL
Shu-Tai Cheng, Vice-Chair
RELEASED: January 04, 2013