Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-03-03
FILE:
8401/LLA
CASE NAME:
8401 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
1647874 Ontario Inc. o/a Corner Pocket
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
DECISION AND ORDER
ADJUDICATOR:
Mary Ann Spencer, Member
APPEARANCES:
For the Applicant:
Ersio Amendola, Paralegal
For the Respondent:
Aviva Harari, Counsel
Heard in Toronto:
February 10, 2014
REASONS FOR DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act (the “Act”) issued a Notice of Proposal (the “Proposal”), dated September 25, 2013, which proposed to suspend a licence for fourteen days. 1647874 Ontario Inc. o/a Corner Pocket (the "Applicant" or “Corner Pocket”) appealed the Proposal to the Licence Appeal Tribunal (the “Tribunal”).
In summary, the grounds for the Proposal are as follows:
liquor was permitted to be sold or supplied to a person who was or appeared to be intoxicated;
the licence holder engaged in or permitted practices which tended to encourage patrons’ immoderate consumption of liquor; and
the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder.
On consent of the parties, the Tribunal ordered the exclusion of witnesses and the hearing proceeded.
EVIDENCE AND FACTS
The Registrar’s Evidence
The evidence of the Registrar comprised the testimony of Sergeant Rick Flynn and Constable Mark Brown, both of Durham Regional Police.
Sergeant Rick Flynn has been with Durham Regional Police for twenty one years and is a certified intoxilyzer technician. Sergeant Flynn testified that at 8:02 p.m. on May 11, 2013, he and his partner Constable Mark Brown were stopped in their patrol vehicle in the parking lot outside of the Corner Pocket. A motor vehicle pulled up and a male and a female emerged. The male had some difficulty exiting from the vehicle’s rear seat and used the roof of the car to hold himself up. Sergeant Flynn stated that the male appeared to be trying to keep his balance as he walked to the front door and entered the Corner Pocket.
Sergeant Flynn testified that the police officers did not enter the Applicant’s establishment at that time because they received another call. At 9:15 p.m., they drove by the establishment and through the window saw that the male who had exited the vehicle earlier was sitting at the bar. The police officers then entered the establishment and spoke to the male, who was identified as J.B.
Sergeant Flynn testified that J.B. was sitting on a bar stool with two tall cans of beer in front of him, one of them unopened. Sergeant Flynn stated “I was dealing with a clearly inebriated individual”. J.B. had difficulty holding up his head, was mumbling and there was a strong odor of alcohol. When asked for identification, he produced a brown wallet on a chain but dropped his cards on the floor. When Sergeant Flynn said that he appeared to have had “a lot to drink tonight”, J.B. responded “I know”. Sergeant Flynn stated that J.B.’s eyes were bloodshot and he had difficulty making eye contact.
Sergeant Flynn then spoke to staff member S.V. who produced her Smart Serve card. She told the officer that while at the establishment, J.B. had had four tall cans of beer and one shot. When Sergeant Flynn reminded her that she cannot serve an obviously inebriated individual, she agreed and apologized. Sergeant Flynn then spoke to the owner, Joe Saraco, who escorted J.B. from the premises and said he would drive him home.
Asked on cross-examination if the officers had gone to the Corner Pocket in response to a complaint that an individual was causing a disturbance, Sergeant Flynn stated they had not. He could not recall if loud music was playing when he entered the establishment.
Constable Mark Brown testified that at 8:02 p.m. on May 11, 2013, he also observed the male passenger of a vehicle using the vehicle to steady himself as he exited and then proceeded to enter the Corner Pocket. Constable Brown recorded the licence plate of the vehicle. On entering the establishment at 9:15 p.m., Constable Brown observed J.B., the same individual who had exited the vehicle. J.B. was standing at the bar drinking a tall beer. J.B. was co-operative but appeared to be intoxicated. He advised Constable Brown that he had had nine beers that evening. When he later walked out of the bar with owner Joe Saraco, he was unsteady on his feet.
On cross-examination, Constable Brown re-iterated that the officers entered the Corner Pocket at 9:15 p.m. and that J.B. was the individual the officers had seen exiting the vehicle at approximately 8:00 p.m. He testified that the officers had not been dispatched to the Corner Pocket but had decided to return to the bar to see if the individual they observed leaving the vehicle was being served. Constable Brown stated that loud music was playing.
The Applicant’s Evidence
Joe Saraco has owned the Corner Pocket for nine years. In 2012, the Corner Pocket put in place a policy manual with respect to serving and monitoring patrons (Exhibit 3). Staff is required to read this policy and sign an acknowledgement that they have done so. Server S.V. had worked at the establishment for approximately three months before the May 11, 2013 incident and had signed the acknowledgement on March 20, 2013. Asked if the manual includes a policy with respect to serving individuals who are intoxicated when they enter the establishment, Mr. Saraco stated “I presume it is, but we ask them to leave”. To teach employees how to recognize the signs of intoxication, Mr. Saraco and his staff attend meetings held by the Durham Department of Health. He also holds meetings with his staff about “who is barred”.
Mr. Saraco is at the Corner Pocket each day. He leaves for lunch and dinner breaks, normally returning from the latter at approximately 8:00 p.m. On May 11, 2013, Mr. Saraco left the Corner Pocket at approximately 6:00 to 7:00 p.m. and returned at “around 8 or 10 past 8”. The police officers were present when he returned. He testified that he was at the establishment when J.B., who he has known for five to six years, arrived at approximately 5:00 p.m. He has not seen J.B. drunk at his establishment. Mr. Saraco testified that J.B. was “happy” that evening but was not showing signs of intoxication when Mr. Saraco returned from his dinner break. He indicated that J.B. “just mumbles anyway”. Asked why he drove him home, Mr. Saraco said he just did so.
The Corner Pocket maintains an incident log. The log for May 11, 2013, signed by S.V. (Exhibit 4), who was the only server working that evening, indicates that the police officers entered at “about 8:00 p.m.” and that since her shift began at 5:00 p.m., J.B. had been served three beers and had bought a round of shots for all but one customer. That customer had gone to the patio shortly before the police arrived. The log states that J.B. “didn’t show any signs of being drunk”.
Mr. Saraco noted that May 11, 2013 was a Saturday evening and that the bar holds karaoke nights on Saturdays. This starts at 9:00 p.m. and is loud.
On cross-examination, Mr. Saraco reiterated that he was present on May 11, 2013 when J.B. arrived at 4:00 to 4:30 p.m. There were approximately 12 to 15 patrons at that time and perhaps 20 patrons at 9:00 p.m. Asked what he meant when he described J.B. as being “happy”, he stated that J.B. is normally quiet and keeps to himself but on May 11, 2013, he was smiling and more talkative. Asked what types of things the policy manual contains, Mr. Saraco indicated it addresses the signs of intoxication but did not know what else and stated “I didn’t read it recently. I let the girls read it. I give it to them to read”. He does not test the staff on the content. Asked specifically about the first section of the policy which refers the reader to the BAC chart at the bar, Mr. Saraco stated he did not know what it was.
Witness J.B. is a “regular” at the Corner Pocket, attending two to three times a week. He testified that on May 11, 2013, he walked to the Corner Pocket and arrived at approximately 4:00 p.m. His girlfriend, K.S., arrived at approximately 6:30 p.m. Before the police arrived, he had five or six beers and two shots and had purchased a round of shots for all but one person with whom he had issues. J.B. testified that when the police officers arrived, they came straight to him and told him that they had received a report he was being aggressive. They asked for identification and he pulled out his black wallet. Asked if he was drunk that night, he stated “I was feeling okay”. Mr. Saraco was at the establishment when J.B. arrived but had left for his dinner break when the police entered. Mr. Saraco returned at approximately 8:00 to 8:10 p.m. and drove J.B. home at 8:30 p.m.
On cross-examination, J.B. stated that “maybe” he was “slightly drunk” and agreed that he would not have been able to drive. He stated that most evenings he would drink less but on May 11, 2013, he was celebrating both his mother’s birthday and Mother’s Day, although his mother was not with him. He paid his bill in cash.
Witness K.S. testified that she is a bartender who has her Smart Serve certification and works at the Corner Pocket. She described, J.B., her fiancé, as a social drinker. On the night of May 11, 2013, she was driven to the Corner Pocket by her mother and arrived at approximately 6:30 p.m. She testified that J.B. had about three beers and had purchased a round of shots in the period between her arrival and the police arrival at what she estimated to be 8:30 to 8:45 p.m.
When asked why J.B. left with the owner Joe Saraco after the police had arrived, K.S. stated because of the problems with the police and because Mr. Saraco offered to drive him. She said she saw Mr. Saraco just before the police came into the establishment.
K.S. testified that J.B. was “particularly happy” the evening of May 11, 2013, smiling and talkative. Asked if she was familiar with the establishment’s policy manual, she stated that she was because “we go through it every couple of months with Joe (Saraco)”. Asked where the BAC chart was kept, she indicated she did not know what that was.
The Applicant’s Representative advised the Tribunal that server S.V. was unable to attend the hearing due to a medical appointment. He provided a previously undisclosed affidavit dated February 4, 2014 (Exhibit 5) in which S.V. stated that the police arrived at approximately 8:00 p.m., just after J.B. had purchased a round of shots for all but one customer who had gone to the patio. The affidavit indicates that J.B. did not appear to be drunk or show any signs of intoxication.
THE LAW
The Act states:
- (1) The Registrar may issue a proposal to revoke or suspend a licence to sell liquor or refuse to renew such a licence for any ground under subsection 6 (2), (4) or (4.1) that would disentitle the licensee to a licence if the licensee were an applicant or if the licensee has contravened this Act, the regulations or a condition of the licence.
(29) No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.
R.R.O. 1990, Regulation 719 states:
(1) The holder of a licence to sell liquor shall not engage in or permit practices that may tend to encourage patrons’ immoderate consumption of liquor.
(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.
APPLICATION OF LAW TO FACTS
It is the responsibility of the Registrar to prove to the Tribunal, on a balance of probabilities, that the Applicant has breached the Act or the regulations under the Act.
In this case, there are conflicting accounts of what transpired at the Corner Pocket on the evening of May 11, 2013. The police witnesses both testified that from their cruiser parked outside the establishment, they initially observed patron J.B. arriving in a vehicle and entering the establishment at 8:02 p.m. They left the parking lot and returned later, entering the premises at 9:15 p.m. Their testimony was that J.B. appeared unsteady on his feet, requiring the support of the roof of the vehicle when he first arrived. When they later approached him on the premises, there was an open beer on the bar before him and he exhibited signs of intoxication. Sergeant Flynn stated that he spoke to server S.V. who agreed that J.B. was intoxicated and apologized.
The Applicant’s Representative suggested in his closing statement that a disgruntled patron was responsible for calling the police on May 11, 2013. Both police officers denied that they were dispatched to the establishment. Sergeant Flynn testified that the decision to enter the Corner Pocket at 9:15 p.m. was made when, driving by the establishment, he recognized J.B. as the individual who had appeared intoxicated earlier. Constable Brown testified that the officers had decided to check back later to see whether the man they had observed was being served. Mr. Amendola also stated that Sergeant Flynn was incorrect when he testified that the wallet J.B. pulled out on May 11, 2013 was brown. While J.B. did produce a black wallet when he testified at this hearing, and there were some other small inconsistencies between the officers’ testimony, such as whether J.B. was seated or standing at the bar and whether or not there were both open and unopened cans of beer before J.B., their testimony, particularly that of Sergeant Flynn, was consistent on the material facts.
Mr. Saraco initially testified that J.B. arrived at the establishment at 5:00 p.m. In cross-examination, he revised this to an arrival time of between 4:00 and 4:30 p.m. J.B. stated he arrived at 4:00 p.m. by foot. Mr. Saraco testified that on May 11, 2013, the police were present when he returned from a dinner break at approximately 8:00 p.m. J.B. stated the police arrived at 8:00 p.m. The establishment’s log and S.V.’s February 4, 2014 affidavit also both indicate the police arrived at approximately 8:00 p.m. However, K.S. testified that the police arrived at “around 8:30 or 8:45 p.m.”. Mr. Saraco stated J.B. was “happy” that evening. J.B. testified that he “maybe” was “slightly drunk” having had “five or six beers” and two shots since his arrival. In her affidavit, S.V. indicated that she served J.B. three beers and one shot after her shift began at 5:00 p.m. K.S. testified that J.B. had three beers between the time she arrived at 6:30 p.m. and the police arrival at 8:00 p.m.
In weighing the testimony of the witnesses, the Tribunal must assess their credibility. There is no evident reason or benefit that accrues to the police from fabricating or embellishing their testimony. Moreover, the testimony of the police officers was supported by notes taken contemporaneously. The testimony of the Applicant’s witnesses was less consistent with respect to the timing of the police arrival or the amount served to J.B. While Sergeant Flynn could not recall whether music was playing when he arrived, Constable Brown did recall that there was loud music while he was in the establishment, something that Mr. Saraco testified normally starts at 9:00 p.m. This observation supports the later time the police testified they arrived.
While the Tribunal acknowledges that some inconsistency may arise because bar patrons or staff are less likely to take notes and therefore are relying on memory of events which took place nine months ago, the testimony of the witnesses was particularly inconsistent with respect to the alcohol policy. Mr. Saraco said he had not reviewed it since it was written some time in 2012. K.S., however, stated that she was familiar with the policy because Mr. Saraco goes over it with staff “every couple of months”. Neither Mr. Saraco nor K.S., however, knew what the BAC chart, referred to in the first point of the “House Alcohol Policy”, was or where the chart was kept which implies the policy is, at a minimum, not followed in detail.
Server S.V. provided a previously undisclosed affidavit and did not attend the hearing. While a bar log was entered into evidence with an entry for the evening in question signed by S.V., because S.V. was not present, she could not be questioned with respect to that log or to the events of that evening.
Because their testimony is consistent the Tribunal accepts the testimony of the police officers.
The first issue before the Tribunal is whether or not alcohol was served to an individual who appeared to be intoxicated. Sergeant Flynn, who is a certified intoxilyzer technician with significant experience, testified that when he approached J.B. he noted a strong smell of alcohol and J.B. had difficulty holding up his head, was mumbling, had bloodshot eyes and dropped cards from his wallet when producing his identification. Constable Brown also testified that J.B. appeared to be intoxicated and was unsteady on his feet when he left with Mr. Saraco. The Tribunal notes that the Corner Pocket’s house policy appends the AGCO’s “You and the Liquor Laws” document. This sets out the signs of intoxication including those noted by the police. Both officers testified that there was an open can of beer on the bar in front of J.B. Moreover, Sergeant Flynn testified that server S.V. agreed and apologized for serving J.B. who himself testified that he was “slightly drunk”. Both Mr. Saraco and K.S. noted that his behaviour that evening was uncharacteristic.
The Tribunal concludes that J.B. was showing signs of intoxication and was being served. It therefore finds that the Applicant breached section 29 of the Act.
The second issue to be addressed is whether or not the licence holder engaged in or permitted practices which tended to encourage patrons’ immoderate consumption of liquor contrary to subsection 20(1) of Regulation 719.
While the Tribunal has concluded that patron J.B. was intoxicated and was over served by S.V. on May 11, 2013, there is no specific evidence before it to indicate that the Corner Pocket had practices which encouraged immoderate consumption. For example, there was no evidence to suggest that there were price promotions or that patrons were running bar tabs. J.B. testified that he paid his bill in cash. The fact that one patron was found to be intoxicated in an establishment where there were approximately 20 patrons at 9:00 p.m. does not support that the licence holder’s practices tended to encourage immoderate consumption. The Tribunal therefore finds that the Applicant did not breach subsection 20(1) of Regulation 719.
The final issue to be addressed is whether or not the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder.
The Court of Appeal in 1213963 Ontario Limited (Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), 2009 ONCA 323 states:
In our view, permitting drunkenness on the premises requires proof that the licensee knew or ought to have known of the drunkenness on the premises. That determination, of course, must be made in all the circumstances and, in particular, in the context of the various obligations and duties placed on the licensee by the relevant legislation and regulations...
Sergeant Flynn testified that when he spoke to server S.V., she agreed that J.B. was intoxicated and she apologized for serving him. Constable Brown testified that J.B. told him he had consumed nine beers. While K.S. testified that J.B. had consumed “about three” beers and a shot after she arrived at 6:30 p.m., and S.V.’s affidavit states that J.B. “did not appear to be drunk or showed any signs of intoxication” and that she had served him three beers and one shot since 5:00 p.m., the Tribunal, for the reasons noted above, accepts the evidence of the police officers. While owner Joe Saraco testified he was not on the premises for the period of approximately one hour before the police arrived and concluded J.B. was intoxicated, server S.V., as the only person working during his absence, was responsible for the establishment. The police evidence indicates that S.V. was aware that J.B. was intoxicated. The Tribunal also notes that after the police questioned J.B., Mr. Saraco offered to drive him home, apparently with no protest. The Tribunal therefore finds that the licence holder did permit drunkenness on the premises in breach of subsection 45(1) of Regulation 719.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal finds the Applicant to be in breach of section 29 of the Act and subsection 45(1) of Regulation 719. The Tribunal finds the Applicant is not in breach of subsection 20(1) of Regulation 719.
The Tribunal requests submissions regarding sanction. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision and the Applicant’s representative shall have seven (7) days from receipt of the Registrar’s submissions 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
Mary Ann Spencer, Member
Released: March 3, 2014