Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-09-18

FILE:

8079/LLA

CASE NAME:

8079 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

1815360 Ontario Inc. (o/a Soho Restaurant & Bar)

Applicant

-And-

Registrar of Alcohol and Gaming

Respondent

DECISION AND ORDER

ADJUDICATOR:

Jacqueline Castel, Member

APPEARANCES:

For the Applicant:

No one appeared

For the Respondent:

Tamara Brooks

Heard in Toronto:

September 16, 2013

DECISION AND ORDER

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, dated April 18, 2012, which proposed to suspend liquor licence 800336 for 14 days on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg.”). 1815360 Ontario Inc., o/a Soho Restaurant & Bar (the "Applicant") appealed this Notice of Proposal to the Licence Appeal Tribunal.

DECISION

The Tribunal found at the hearing that the Applicant contravened subsection 45(1) of the O.Reg. Reasons follow.

PRELIMINARY MATTERS

The hearing commenced at 10 a.m. after the staff of the Tribunal made several unsuccessful attempts to contact the Applicant. Ms Brooks requested that the hearing proceed ex parte on the grounds that the Applicant received advance notice of today’s hearing, and although there are some reasons to believe the Applicant may no longer be in business, the Applicant has not surrendered its licence to the Alcohol and Gaming Commission of Ontario. Based on these grounds, the Tribunal agreed to proceed ex parte.

EVIDENCE

Detective Constable (“D.C.”) Miran Fister of the Toronto Police Services attended Soho Restaurant & Bar (the “establishment”) on December 9, 2012 at approximately 1:10 a.m. His partner, D.C. Georopoulos, who attended the establishment shortly before he did, informed him that there were two intoxicated patrons in the premises. D.C. Fister interviewed the manager of the establishment, Mr. Jaepil Ko, regarding one of the two patrons. D.C. Fister did not witness the alleged intoxicated patrons himself as his role was to speak to the manager.

D.C. Fister testified that Mr. Ko told him that a private birthday party was taking place in one of the closed rooms. There were twelve or thirteen patrons in attendance, and they were drinking beer and Soju, a Korean spirit. Mr. Ko also told him that the patron, who was celebrating his birthday (patron #1), would be intoxicated if he had any more to drink. When he asked Mr. Ko if he or his staff had cut patron #1 off beverage alcohol service, Mr. Ko responded in the negative. According to D.C. Fister, Mr. Ko stated that his employees did not tell him patron #1 had been drinking too much. He found this out later.

Police Constable (“P.C.”) Prashanan Indiran of the Toronto Police Services attended the establishment with D.C. Georopoulos on December 9, 2012 at approximately 1 a.m. On entering, he observed a male, approximately 5”7 and wearing dark pants and a white shirt, who was stumbling, as he walked towards the washroom. His gait was unsteady and he was having difficulty walking straight. P.C. Indiran identified himself to the male (patron #1). Patron #1 said it was his birthday and that he had been partying. Patron #1’s speech was very slurred. Patron #1 then stated that he needed to use the bathroom. P.C. Georopoulos met further with patron #1 after he exited the bathroom.

P.C. Indiran noticed another intoxicated male at the top of the stairs and approached this patron (patron #2). Patron #2 was being held up by a friend and could not stand without support. P.C. Indiran observed the male stumbling. When P.C. Indiran spoke to patron #2, he also noticed that his speech was slurred. He asked the male for identification and the male produced a valid Ontario Driver’s Licence. Patron #2 advised that he had consumed two bottles of Soju at the premises, and that he arrived at the premises at about 10 p.m. Patron #2’s friend, who P.C. Indiran also identified, readily admitted to P.C. Indiran that patron #2 was drunk.

P.C. Georopoulos did not testify at the hearing because he was out of the country.

SUBMISSIONS

Ms Brooks submitted that the police officers provided clear evidence that the two patrons were intoxicated, and she asked the Tribunal to make a finding under subsection 45 (1) of the O.Reg.

REASONS

For a finding under subsection 45(1) there is a two part test. First it must be established on the facts that there was drunkenness in the licensed establishment or adjacent areas under the Licensee’s exclusive control. Second, it must be established that the Licensee permitted drunkenness.

The Tribunal found Constables Fister and Indiran to be credible witnesses who provided

clear and consistent evidence which was uncontested.

Based on the uncontested evidence of Constable Indiran, who observed the two patrons in question, and his description of their behaviour and demeanour, the tribunal is satisfied that they were drunk. Given the blatant signs of intoxication exhibited by patrons #1 and #2, and given that P.C. Indiran observed the two patrons shortly after entering the establishment, the Tribunal is also satisfied that the Applicant or his staff ought reasonably to have known that the two patrons were drunk, if they had been complying with their obligations under the LLA.

Accordingly, for the above reasons, the Tribunal finds that, on a balance of probabilities, the Applicant contravened subsection 45(1) of the O.Reg. on December 12, 2012, in respect of two patrons.

ORDER

The Tribunal pursuant to the authority vested in it by section 23(11) of the Liquor Licence Act, directs the Registrar to carry out the proposal to suspend the licence of the Applicant for 14 days.

LICENCE APPEAL TRIBUNAL

Jacqueline Castel, Member

Released: September 18, 2013