Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2014-01-13

FILE: 8217/AGRPPA

CASE NAME: 8217 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

2316826 Ontario Inc. o/a Mimico Pub and Grill Applicant

-and-

Registrar of Alcohol and Gaming Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Patricia McQuaid, Vice-Chair

APPEARANCES:

For the Applicant: Randall Barrs, Counsel

For the Respondent: Phillip Morris, Counsel

Heard in Toronto: October 15 and December 17, 2013

DECISION AND ORDER

BACKGROUND

This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of Order of Monetary Penalty [#790 issued by the Registrar of Alcohol and Gaming, pursuant to section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, 1996 (the “Registrar” and the “Act” respectively.) The Order dated July 5, 2013 imposed a monetary penalty on Mimico Pub and Grill (the “Applicant”), with respect to alleged violations of section 45(1) of Regulation 719/90 under the Liquor Licence Act (the “Regulation”). Specifically, it is alleged that the Applicant permitted drunk and/or disorderly conduct with respect to three patrons on March 16, 2013. The Registrar seeks a monetary penalty of $1000.00 for each incident.

PRELIMINARY ISSUES

The hearing began on October 15, 2013. Counsel were asked if there were any preliminary matters to address, to which they responded that there were none. However, at the close of the Registrar’s case, and prior to Mr. Barr’s first witness, Mr. Morris raised the issue of the lack of disclosure by the Applicant of the names of its witnesses and their ‘will say’ statements. Mr. Barrs conceded that disclosure had not occurred and agreed, in the circumstances, that an adjournment might be appropriate. The adjournment was granted and the hearing re-commenced on December 17, 2013.

What was provided by way of disclosure was a “Joint Statement of Xinyue Tang and Chris Blanchad (sic)”, marked as Exhibit 1. It consisted of three paragraphs. The evidence of each witness was not differentiated. This, unfortunately, became an issue at the hearing, in particular through the cross examination of the witnesses. Though Mr. Morris suggested that the joint statement indicated an ‘intent to deceive’, the Tribunal drew no such inference. Rather, it may suggest an overly casual approach to disclosure obligations and which, was noted, can be disadvantageous to counsel’s own witnesses. Though the Tribunal could not conclude that the Registrar was in any degree prejudiced by this form of disclosure, it is an approach which can and should be avoided.

THE LAW

Section 45(1) of the Regulation provides:

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. R.R.O. 1990, Reg. 719, s. 45 (1); O. Reg. 230/03, s. 25.

EVIDENCE

AGCO Inspectors Clay Foley and Darryl Marwick attended at Mimico Pub and Grill on March 16, 2013, arriving at 2:15 a.m. While there is some dispute about the number of patrons present at that time; the inspectors say about 20; Ms Tang and Mr. Blanchard say less than 10, it is clear that the establishment was nowhere near its capacity. It was closing time. Ms Tang stated that she was, at this time, in the process of washing glasses and clearing signs of service. Alcohol service had ended.

Patron #1

The inspectors identified three patrons who they concluded were intoxicated. The first of these was “Steve” who was observed by Inspector Foley about one minute after their arrival. From a distance of 10-15 feet, Inspector Foley saw Steve seated at one end of the bar, drinking from a bottle of Labatt’s Blue. Steve caught his attention by the way he was seated; he was unsteady. Steve then stood up to leave. Inspector Foley followed him outside the bar and spoke to him. Steve told him that he was not driving nor was he on any medication. He had been at the pub for about an hour and had been drinking before his arrival there. Inspector Foley noted that Steve was swaying and unsteady on his feet. His eyes were watery, and his speech was slow and slightly slurred. Inspector Foley watched him as he stumbled across the parking lot.

The Inspector then went back inside and spoke to the manager, Chris Blanchard about Steve. Mr Blanchard confirmed that Steve had been at the pub for about an hour, was “ok” on his arrival and had consumed four beers. It was Inspector Foley’s evidence that Mr. Blanchard also confirmed that Steve was stumbling on his words.

The evidence from the Applicant’s two witnesses, Mr Blanchard and Xinyue Tang, a bartender, was consistent with that of the Inspector in that Steve had been at the pub for about an hour before the inspectors arrived, during which time he had 3 or 4 beers and that he left of his own accord. Where they disagree is in the description of Steve as slurring his speech and being unsteady on his feet.

As noted above, Steve is the first of the patrons about whom it is alleged that the Applicant, permitted drunkenness in violation of s.45 (1) of the Regulation. The law is well settled. The Registrar must establish, on a balance of probabilities, two components: that the patron was drunk and that the licensee permitted the drunkenness. Permitting drunkenness requires proof that the licensee knew or ought to have known of the drunkenness on the premise, a determination made in the context of all the circumstances and in the context of the various obligations and duties placed on a licensee by the relevant legislation and regulations. The Registrar bears the burden of proof.

Based on the evidence heard, the Tribunal cannot conclude that the Registrar has established the necessary components of the test. The inspectors arrived at 2:15 am, after the service of alcohol had ceased. It was closing time. Inspector Foley saw Steve a minute after his arrival, apparently swaying as he sat, mere minutes before Steve left. Inspector Marwick made no observations about Steve either at that point or when he walked out. His attention was, it seems, at no time drawn to Steve though in submissions Mr. Morris summarized the evidence to the effect that Steve staggered to the door, bumping into the doorframe as he left. This patron left on his own accord after being in the pub for about an hour. Inspector Foley’s more detailed observations of the individual, reinforcing his conclusion that he was drunk, occurred outside the bar. Even if the Tribunal could conclude, despite the paucity of evidence, that Steve was drunk, there is simply insufficient evidence on which it could, on a balance of probabilities conclude that the Applicant knew or ought to have known of that drunkenness.

Therefore, the Tribunal sets aside the monetary penalty with respect to the patron Steve.

Patron #2

The second patron in issue was identified as “Chris”. He was first observed by the inspectors as he stood in conversation with another male patron near the dance floor. The two males seemed unsteady on their feet. Chris then walked over to the bar area and sat down, and took a drink from a beer bottle. Chris was then observed to slump over, putting his head down, as if asleep. Inspector Foley saw Mr. Blanchard, who was standing behind the bar, reach over to grab the beer bottle to remove it, at which point Chris reacted, yelling at Mr. Blanchard and grabbing the bottle back. The Inspector stated that Chris challenged Mr. Blanchard’s authority and appeared to throw the bottle; it hit the floor. Inspector Marwick described this sequence of events slightly differently. He did note that Chris, as he walked to the bar area, did so with difficulty. He saw him take a drink from a beer bottle that was on the bar. After Chris’s head slumped, he saw Mr. Blanchard speak to Chris, at which point Chris became very aggressive, yelling at him and challenging him to a fight. Mr Blanchard then attempted to take the beer bottle from him whereupon Chris smashed the bottle down on the bar. Absent this aggressive act by Chris, it is not at all clear, on the Inspectors’ evidence that the Applicant would have been cited for a violation of s. 45(1).

Ms. Tang testified that Chris, who was a regular at the pub, arrived approximately 10 minutes before the inspectors’ arrival. She was cleaning up. Service of alcohol had ceased. According to Ms. Tang, he went directly to the bar. He took a bottle of beer that was on the bar and put it to his mouth. Mr. Blanchard grabbed it back and the bottle broke. Chris was then told to leave. Mr. Blanchard stated that Chris arrived after service of alcohol ended, and sat at the bar. Chris, he testified, had been drinking at another bar before coming to the pub. He was not served, and told to leave. He reacted angrily, ‘backhanding’ a bottle that was on the bar towards him. A couple of the regulars escorted Chris out of the bar.

In conversation with Mr. Blanchard before they left, the Inspectors testified that he told them that Chris came in with friends, that he had been drinking elsewhere and should not have been there. They described Mr. Blanchard as cooperative and their conversation as productive. They did not ask him specifically how long Chris had been at the bar, nor did Mr. Blanchard indicate to them that Chris had arrived just before them and had not been served. That, Mr. Morris, stated in submissions, would be a defence to the allegations made by the Registrar.

The Inspectors were consistent in their evidence that they saw Chris in another area of the bar, unsteady on his feet, before he went to the bar area. This may not be inconsistent with the Applicant’s witness’s testimony that he arrived shortly before them. There is no definitive evidence as to how long he was in the premises. That fact is significant for a finding of “permit” drunkenness and/or disorderly conduct as alleged by the Registrar. It was only when he sat down that anyone saw Chris with a bottle of beer. Whether that bottle was served to him earlier or whether he simply grabbed a bottle from the bar counter is not clear. What is consistent through all the witness’s testimony is that Chris reacted aggressively when Mr. Blanchard took the bottle from him. He reacted almost immediately. His conduct may be characterized as disorderly at that point. However, it cannot be said that the Applicant in this snapshot of time, knew or ought to have known of the disorderly conduct within the meaning of the Regulation.

The Tribunal therefore finds that the Registrar has failed to meet his burden with respect to the allegation of a breach of the Regulation regarding the patron Chris and sets aside the monetary penalty.

Patron #3

The third patron is identified as “Gord”. He was a regular and it appears from the evidence of Mr. Blanchard at the hearing and from the Inspectors’ evidence regarding comments made to them by Mr. Blanchard on the evening in question, he may have been a troublesome patron. The Tribunal heard evidence from Mr. Blanchard that Gord got out of jail shortly before the evening in question, and from Ms. Tang that he ‘did drugs’ however, the Tribunal places little weight and attaches little relevance to that evidence.

Inspector Marwick observed Gord as he was seated at the bar. Two females were sitting with him, one on each side. Within a minute or so, he watched as Gord tried to stand up, but he had difficulty standing. To Inspector Marwick, he was exhibiting signs of intoxication. Gord was having difficulty putting his coat on without the assistance of the two females. Inspector Marwick inferred that they were leaving. It was after all, well after 2 a.m. He approached the group. Gord smelled heavily of alcohol. He was not coherent, being unable to engage in conversation. One of the women told the Inspector that they would get Gord home safely, that he lived nearby and they would walk him home. Gord was unable to walk out of the pub unassisted. She also told him that they had been at the pub for about 2.5 hours and that Gord had had 6 beers.

Ms. Tang served Gord and his companions. She estimated that she served them about 5 beers in total, though the evidence from Mr. Blanchard was that only Gord drank beer; he bought another kind of drink to serve to Gord’s girlfriend specifically. However, whether Gord consumed 3, 4 or 6 beer is not itself determinative of the issue of drunkenness. She saw Gord leave. Her evidence was that he was able to do so without assistance. Mr. Blanchard described him as always ‘dopey’; “a conversation with him does not go very far”, and that he never walks straight, always seeming that he is disoriented. He recalled that Gord and his group left as soon as the Inspectors came in.

Inspector Foley’s evidence was that Mr. Blanchard, in their discussion before they left, told them that he always questioned both Gord and Chris regarding their sobriety, that they both had ‘tricks’ whereby they would hide their intoxication and made the comment that Gord ‘is going to get us tickets’. Mr. Blanchard at the hearing denied making any such comments.

Based, in particular, on the clear evidence given by Inspector Marwick, the Tribunal concludes that Gord was drunk. But again, the issue of ‘permit’ is more problematic on these facts. The Inspector was watching Gord closely. It was when he stood, to leave, that the signs of intoxication were apparent to him. The facts of this case raise the interesting question of ‘when’ the matter of ‘permit’ drunkenness’ can and should be assessed. Here, there is no evidence of the conduct or actions of the patron Gord in the pub prior to this point in time. The jurisprudence has developed in such a way that the simple fact of drunkenness in a licensed establishment is not sufficient for a finding of a violation of s. 45(1) of the Regulation. The inspectors arrived at the pub at the end of the night, the crowd had dissipated and clean-up had begun. It is a time when inspectors might more immediately make observations of drunkenness when any cumulative effects of drinking alcohol may become manifest, and when patrons are in any event, as were Steve and Gord, at the point of departure. The Registrar has failed to put before the Tribunal sufficient evidence of ‘permit drunkenness’ on these facts. Therefore, the Tribunal sets aside the monetary penalty with respect to this patron.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to set aside the Order of Monetary Penalty #790 issued on July 5, 2013.

LICENCE APPEAL TRIBUNAL

Patricia McQuaid, Vice-Chair

Released: January 13, 2014