Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2013-11-27
FILE: 8064/AGRPPA
CASE NAME: 8064 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
2074874 Versailles Convention Centre Applicant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: E. Alan Garbe, Vice-Chair
APPEARANCES:
For the Applicant: James S. G. MacDonald, Counsel
For the Respondent: Rena Khan, Counsel
Heard in Toronto October 4, 2013
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Alcohol and Gaming Regulation and Public Protection Act, 1996 (the “Act”) issued an order, dated April 16, 2013, imposing a monetary penalty against 2074874 Versailles Convention Centre (the “Applicant”).
It is the position of the Registrar that on January 18, 2013, the Applicant, as a licence holder, permitted drunkenness to occur on its premises and as a result levied a monetary penalty of $1,000.00.
It is the position of the Applicant that there is no credible evidence to prove that the individual in question was drunk on the Applicant’s premises and, in the event he was drunk, that there is no evidence to show that the Applicant permitted such drunkenness to occur on its premises.
EVIDENCE
On January 18, 2013, Inspector Jade Ledbetter, an inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”), since June 2004, attended at the Applicant’s licensed premises to conduct a routine compliance inspection accompanied by Inspectors Meline Fernando and Darryl Marwick.
They arrived at the Applicant’s premises at 11:55 pm on the date in question where an event called the Punjabi University formal was taking place. The officers entered through the main door, past the security and entered the lobby area where people were milling about. They entered the main hall through the center doors which were open and where a male security person was standing. Upon entering the hall they immediately observed an individual who appeared to have passed out seated by himself at a table located close to the doors. There was a female security person standing approximately 5 feet from where the passed out individual was seated. Cleaning staff were observed clearing tables a couple of tables away from where this individual was seated.
It was observed that people were passing by the table going in and out of the hall into the lobby. It was estimated that there were approximately 400 to 500 people in the hall. People were dancing at the front of the hall and others either seated at tables or standing about.
Inspector Ledbetter observed that the male person was slumped over with his head on the table and vomit on the table near his mouth. Efforts were made to try and wake up the individual and he had to be shaken several times before he woke up. When the individual woke up it was observed that his eyes were blurry and appeared unfocused.
The individual was asked to accompany the Inspectors into the lobby and it was observed that he was swaying as he stood up and that he staggered as he walked out of the hall into the lobby ahead of the officers. Once in the lobby, the individual moved to the wall, which he slumped against for support.
When in the lobby, it was observed that the individual had vomit on his head, shirt, pants and shoes. When the individual was asked to produce identification, he displayed poor motor skills in retrieving his wallet and was slow in extracting identification. The individual kept staggering forward causing Inspector Ledbetter to keep stepping back and at times was as close as one foot from the Inspector. The individual identified himself as PK.
Notwithstanding that PK gave off a strong odour of alcohol, he initially denied that he had been drinking. When it was pointed out to him that he was covered in vomit, PK denied that he was and when certain areas of vomit were pointed out to him he started to wipe it off while still denying that there was vomit. PK claimed that he had had too much to eat.
PK was, for reasons of safety, allowed to return to the hall and again was observed to be staggering as he made his way back to the same table, where he sat down put his head down and appeared to pass out.
Inspector Ledbetter did not observe any signs of PK otherwise being ill, on medicine or dehydrated.
When back in the hall, it was observed that on three separate occasions a security person walked by the table but did not approach the table where PK was seated with his head down. A fourth security officer entered the hall and immediately noticed PK, woke him up and escorted him out of the hall.
The officers spoke to OT who was identified as the owner/manager and advised him of the infraction.
It was acknowledged that there was no alcohol on the table where PK was seated nor was there any food on the table. The officers did not speak to anyone at the bar or any server with respect to the service of alcohol to PK.
As a result of PK’s condition, as observed by the Inspectors, they formed the opinion that PK was intoxicated.
PK, who gave evidence on behalf of the Applicant, stated that on January 18, 2013, he had left work at Toronto Hydro and met a group of friends who had two rooms at a hotel near the applicant’s premises where he had one beer and three vodka drinks. He was at the hotel for approximately one and a half hours and then walked to the Applicant’s location. When at the Applicant’s premises, PK danced, had some food but could not remember what he ate. He was not certain whether he had one or two drinks while in the Applicant’s facility. PK claimed that it was the drinks at the hotel combined with the dancing and the food that made him vomit and that he knew that if he threw up he would feel better as he had had similar experiences on other occasions. When speaking to the Inspector, PK initially denied that he had been sick because he was concerned about getting into trouble but then agreed he was not well.
THE LAW
The law applicable to this matter is section 45 (1) of Ontario Revised Regulation 719 made pursuant to the Liquor Licence Act which reads as follows:
45 (1) The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.
ANAYLSIS
There are two issues to be decided in this matter:
was a patron in fact drunk on the Applicant’s premises; and
did the Applicant permit such drunkenness.
The decision of the Court of Appeal in 1213963 Ontario Limited o/a Sin City Bar and Eatery v Registrar, Alcohol and Gaming Commission of Ontario 2009 ONCA 323 provides guidance with respect to the second issue. The Court found that permitting drunkenness on the premises requires proof that the licence holder knew or ought to have known that the patron was drunk while on its premises.
PK’s condition, as observed by the Inspectors immediately upon entering the hall, is more consistent with someone who is intoxicated rather than with a person experiencing an upset stomach from too much eating and dancing. PK had vomited and passed out, when awoken smelled of alcohol, had trouble focusing his eyes, staggered as he walked and needed a wall as support when interviewed by the Inspectors. When he returned to the table after the interview he put his head down and appeared passed out again which is inconsistent with his statement that he knew he would feel better if he threw up.
Based on the evidence adduced, the Tribunal finds that PK was drunk.
While the Inspectors were in the Applicant’s facility, they observed cleaning staff at nearby tables, a security person at the doors leading into the hall and security standing near the table where PK had his head down and three security personnel walked by PK’s table, without taking any action. It was only when a fourth security person arrived that PK was escorted from the facility.
The Tribunal finds that the Applicant knew or ought to have known that PK was intoxicated. Further, the Applicant took no steps to determine what PK’s condition was as he sat with his head on the table passed out.
ORDER
The Tribunal therefore confirms the imposition of the monetary penalty with respect to the January 18, 2013 incident.
LICENCE APPEAL TRIBUNAL
E. Alan Garbe, Vice-Chair
Released: November 27, 2013