Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-11-12
FILE:
8158/LLA
CASE NAME:
8158 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
Portly Piper Inc. o/a The Portly Piper
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
E. Alan Garbe, Vice-Chair
APPEARANCES:
For the Applicant:
Noel Gerry, Counsel
For the Respondent:
Aviva R. Harari, Counsel
Heard in Toronto
October 2, 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 May 29, 2013, imposing monetary penalties against Portly Piper Inc. o/a The Portly Piper (the “Applicant”).
It is the position of the Registrar that on two occasions, December 20, 2012, and February 22, 2013, the Applicant, as a licence holder, permitted drunkenness to occur on its premises and as a result levied a monetary penalty for each occurrence of $1,000.00.
It is the position of the Applicant that there is insufficient evidence to prove that the individuals in question were drunk on the Applicant’s premises and, in the event they were drunk, that there is insufficient evidence to show that the Applicant permitted such drunkenness to occur on the premises.
EVIDENCE
On December 20, 2012, Inspection Ryan Baird, an inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”), with 9 ½ years experience who has worked in the Whitby area for 4 years, attended at the Applicant’s licensed premises on Bayley Street in Ajax accompanied by Police Constable William White, who has been with the Durham Regional Police for 7 years, to conduct a routine compliance inspection.
They arrived at the Applicant’s premises at 11:11 pm on the date in question and observed that the premises were fairly busy. The officers entered through the main door, crossed the main floor of the premises and stepped up to a raised area where the bar was located. From this location they observed a male individual sitting with a number of other persons at a table located in the south-east corner of the premises. The officers observed that there were 3 pitchers of beer on the table and a ¾ empty glass in front of the male individual, subsequently identified as CM. They observed CM, get up from the table, walk around the foyer of the main entrance and walk out the door to the patio, which was located west of the main door. CM was unsteady on his feet and, according to Inspector Baird, walked into a wall on his way to the patio. PC White did not notice CM bump into the wall. CM passed directly in front of the inspector at a distance of approximately 10 to 12 feet. Inspector Baird and PC White followed CM out onto the patio and observed CM having a cigarette and noted that his eyes were blurry and half closing and that when speaking to others on the patio his speech was slurred.
They observed CM return to the table, sit down, retrieve the glass from which he had been drinking, hold it for a few minutes, starring at the glass and then drink the balance of the contents of the glass. CM then poured another full glass from one of the pitchers on the table.
As a result of the observed conduct, Inspector Baird and PC White formed the opinion that CM was intoxicated.
They went to the table, identified themselves and asked to speak to CM outside the premises. When the officers interviewed CM outside they noted a strong smell of alcohol, slurred speech and glassy eyes. When CM was asked how long he had been in the Applicant’s premises, he stated that he had been there since 9:00 pm drinking beer, but was unsure what brand he was drinking but thought it might have been Guinness. CM identified himself with a health card which he had difficulty extracting from his wallet.
Inspector Baird advised the manager, who was outside observing the officers interviewing CM, of the infraction of permitting drunkenness. They left the Applicant’s premises at approximately 11:55 pm. The officers had observed CM for approximately 15 to 20 minutes.
SH, an employee of the Applicant who was serving the table where CM had been sitting was interviewed by Inspector Baird and PC White and stated that she had served 5 pitchers of beer, some snacks and one steak dinner to the table. SH had not spoken with CM. during the course of the evening.
SH who has worked as server in licenced establishments for approximately 9 years and was working as night manager and server on the night in question, had been in the area of the subject table 30 to 40 times or every 3 or 4 minutes between the time the party arrived at approximately 9:30 pm and when they left at approximately 11:30 pm. The number of persons at the table had been as many as 12 and over the course of the evening some people left leaving 8 patrons at the table. She had been the only server for this table. The gathering was apparently a Christmas party as one individual paid the bill for the evening. SH spoke to various persons at the table, all of whom were friendly, well behaved and none appeared to be intoxicated. At the time of the inspection, SH estimated there were 110 to 120 patrons in the Applicant’s premises with 10 staff working on the floor.
SH could not tell who was actually drinking or how much anyone at the table had to drink as the people were serving themselves from the pitchers. SH could not tell if CM had been eating any of the food delivered to the table.
After Inspector Baird and PC White left it was suggested to SH that CM had a speech impediment and that the group was looking after him.
On February 23, 20