Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8981/AGRPPA
CASE NAME: 8981 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, S.O. 1996, c. 26
Ryan G. Feehely o/a Ryan’s Rusty Nail Restaurant Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Jerry Switzer, Counsel
For the Respondent: Tamara Brooks, Counsel
Heard in Toronto: October 23, 2014
DECISION AND ORDER
BACKGROUND
This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of an Order of Monetary Penalty issued by the Registrar of Alcohol and Gaming, under the Alcohol and Gaming Regulation and Public Protection Act, 1996 (the “Registrar” and the “Act” respectively). The Order, dated July 9, 2014, imposed a $1,500 monetary penalty on Ryan G. Feehely o/a Ryan’s Rusty Nail Restaurant (the “Rusty Nail”) with respect to a contravention of subsection 45(1) of Ontario Regulation 719/90 (the “O. Reg.”), that 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.
REGISTRAR’S EVIDENCE
Stacy Guymer, who has been employed by the Alcohol and Gaming Commission as an inspector for twelve years, testified on behalf of the Registrar.
Inspector Guymer entered the Rusty Nail at 12:10 a.m. on April 11, 2014, to conduct a routine inspection. The layout of the restaurant is such that the entire area can be seen on entry. The lighting was adequate for her to see and while she could not recall whether or not music was playing, she stated the volume “wasn’t bad” and people were talking. The premises were busy but not so busy that she believed it was necessary to do a capacity count.
When she entered the establishment, Inspector Guymer immediately focused on a female patron, subsequently identified as C.P., who was standing at the bar talking with two other patrons. Bartender Brittany Arnett was behind the bar. Inspector Guymer estimated that she was approximately fifteen feet away from C.P. who she observed to be loud, with slurred speech. C.P. had a bottle of beer in each of her hands and was drinking from each bottle but was having difficulty bringing the bottles directly to her mouth. She was unsteady on her feet: when she went to sit on a chair, she almost fell off it. At one point, C.P. and another patron “started jumping on each other, like they were play fighting,” which Inspector Guymer described as inappropriate behaviour and something she had never witnessed adult women doing.
Inspector Guymer performed a general spot inspection while she was in the establishment. After she had been there approximately five minutes, owner Ryan Feehely entered the restaurant area from the kitchen door. On his way to where the Inspector was standing, he briefly spoke to C.P., “almost in passing”. Inspector Guymer estimated that she then spoke to Mr. Feehely for approximately five minutes; she told him that C.P. appeared to be intoxicated and should leave. Mr. Feehely made no comments about whether he believed C.P. was intoxicated, but asked her if he should call a cab. She told him that C.P. needed to get home safely. Inspector Guymer could not recall if Mr. Feehely offered any information on C.P.’s history or whether or not he knew her. The Inspector did not talk to the bartender or ask C.P. about her consumption. She left the establishment immediately after telling Mr. Feehely about C.P. because she was by herself and, for safety reasons, inspectors do not stay once a patron has been told he/she is believed to be intoxicated.
After speaking to Mr. Feehely, Inspector Guymer left the Rusty Nail at 12:35 a.m. and went to her car which was parked across the street from the establishment. She then spent approximately ten minutes in her car writing up her inspection notes. She observed C.P. walking down the alleyway with two males, one of whom she recognized as having been with C.P. at the bar. On the street, C.P. was yelling at one of the males and her speech was slurred. She was unsteady on her feet, leaning into and grabbing onto one of her companions. Inspector Guymer then observed C.P. enter a building across the street from the Rusty Nail.
On cross-examination, Inspector Guymer agreed that her inspection notes do not record that C.P. was unsteady on her feet. She clarified that she did not walk over to identify the bottles she observed in C.P.’s hands but testified that they had a Maple Leaf logo on them, which was then part of a brewery promotion. She also stated that she did not see C.P. purchase the beer and did not observe how much was in the bottles in C.P.’s hands. Asked if she could remember what type of overhead lighting the bar had, Inspector Guymer could not recall. Finally, asked if the play fighting she had described C.P. engaged in appeared to be objectionable to the other party, Inspector Guymer said it did not.
APPELLANT’S EVIDENCE
The Appellant’s evidence comprised the testimony of seven witnesses.
Ryan Feehely is the owner of the Rusty Nail. He possesses his Smart Serve certificate and runs both the establishment and an associated catering business. The Rusty Nail has an indoor capacity of 40 comprised primarily of table seating. There is room for a small dance floor. The establishment runs seven days a week, opening early on weekend days when breakfast is offered. The Rusty Nail serves what he described as “pub grub” and has some special events such as dinners for community organizations, a dart league, and on Thursdays, an “open mike” night featuring local musicians.
Thursday April 10, 2014, was an “open mike” night. Consequently, the lighting level was low. The musicians bring their own instruments and amplification system. That evening, there were two people working at the Rusty Nail: Ms Arnett and a cook/dishwasher/busboy. Mr. Feehely described business as being slow with only ten people present when he arrived at the establishment.
Mr. Feehely lives a four to five minute walk from the Rusty Nail. When Inspector Guymer arrived to conduct her inspection, Mr. Feehely was at home. At 12:12 a.m., he received a text from Ms Arnett telling him the Inspector was present and he immediately walked to the establishment, arriving at approximately 12:17 a.m. He entered through its back door and then went through the kitchen to the restaurant area.
Mr. Feehely testified that he immediately went to speak to Inspector Guymer who told him that one of his patrons, C.P., was showing signs of intoxication. He has known C.P., who comes to the Rusty Nail once or twice a month, since attending the same high school with her approximately twenty years ago. After speaking to Inspector Guymer, and being told C.P. should leave, he immediately approached C.P., who was at the bar, and took one bottle of beer from her. He noted that there was an empty bottle near her on the bar. He asked her to leave the establishment and walked her and her companion to the door. He then went outside and talked to a cab driver, having told Inspector Guymer he could get a cab for C.P. However, C.P. and her companion walked across the road and entered another building and he dismissed the cab. He did not observe C.P. to be showing any signs of intoxication, testifying that she was walking normally.
On cross-examination, Mr. Feehely stated that he did not tell Inspector Guymer that he disagreed with her assessment that C.P. was showing signs of intoxication. He stated that he simply agreed to do as the Inspector had asked. He therefore approached C.P. and told her that he had to ask her to leave, telling her that the Inspector said she was drunk. He agreed that he should not have told C.P. this was the Inspector’s assessment.
Ms Arnett is currently a student; she worked for the Rusty Nail from August 2013 to April 2014. She possesses her Smart Serve certificate. Ms Arnett testified that April 10, 2014, was “jam night” with the music starting at nine and ending at midnight. It was not a busy night; she estimated she served approximately 16 people over the course of the evening. She could not recall whether there was dancing or at what times the band took its breaks.
Ms Arnett testified that C.P., whom she knows from her previous visits to the Rusty Nail, came into the establishment with her friend S. sometime after nine p.m., after the lights had dimmed for the band. She later modified this to estimate their arrival as ten p.m. She described both S. and C.P. as being in a happy mood. Ms Arnett served C.P. “either two or three” bottles of Coors or Molson Canadian, stating that S., who was buying, is not overly generous. Ms Arnett observed nothing unusual about C.P. who she described as always being “very lively”, stating “she would do outbursts but that’s just C.”.
Ms Arnett recognized Inspector Guymer when she entered the establishment and believes she called, rather than texted, Mr. Feehely who arrived within five minutes. After Mr. Feehely spoke to the Inspector, he advised Ms Arnett that he needed to get a ride home for C.P. Ms Arnett did not observe any signs of intoxication in C.P. She described C.P. as being in a happy mood, “just C.”. Asked by Ms Brooks if she knew C.P.’s personality to be “happy-go-lucky” even though she may have seen her as few as eight times, Ms Arnett, stated “yes.”
Witness C.P. testified that she arrived at the Rusty Nail with her friend S. at approximately eleven p.m. on April 10, 2014. She had met S. at home and consumed one beer before going to the establishment. She went to the establishment at S.’s invitation. While there, she consumed one and one half beers, testifying that the half beer was because Mr. Feehely took a bottle away from her before she had finished it. She estimated that S. had consumed approximately the same amount. C.P. stated that she was drinking from one bottle only. Asked by Ms Brooks to clarify that she did not recall having a bottle in each hand, C.P. replied it “didn’t happen.”
C.P. and S. were “just having a good time”, listening to the band and dancing. C.P. spent some of the time in the establishment sitting at a table but also talked to people at the bar. She was in a “great mood” when she arrived and described herself as a social person who interacts with everyone. She became aware of the Inspector’s presence only when Mr. Feehely asked her to leave. She left with her friend S. Outside the bar, she saw another friend J. but only she and S. went to another friend’s house across the street. This friend had seen them on the street and yelled from his apartment window asking them when they were coming in.
Asked by Ms Brooks if she was jumping around in the bar, C.P. replied that you do not stay in one spot when you’re dancing.
Witness S.K. is one of the four musicians who played at the Rusty Nail on April 10/11, 2014, arriving at 8:50 p.m.. He testified that he was able to remember the night because it was Ms Arnett’s last night working there. He is acquainted with C.P., having seen her at the establishment an estimated five to ten times. That evening, she requested the band play a song and he saw her dancing with a female friend in the small dance area in front of the band. He described her as a “bubbly girl, boisterous and somewhat loud.” Nothing about her behaviour stood out for him.
Witness K.P. is also one of the musicians who was playing at the Rusty Nail on April 10/11, 2014. He testified that he plays guitar and watches carefully to ensure people do not bump into him. He does not know C.P. He saw nothing unusual that evening and does not remember anyone being what he described as ‘obnoxious’.
Witness J.D. is also one of the musicians who played at the Rusty Nail on April 10/11, 2014. He testified that he recalls the night because it was Ms Arnett’s last day working at the establishment. He described it as a slow night with nothing out of the ordinary happening. He knows C.P. since they both live in the same small town. He saw her that evening and stated she was “pretty much the same”, describing her “like a firecracker mixed with a Mexican jumping bean” and “like a Jack Russell.” As a musician, he has played in a lot of establishments and knows when people are getting drunk but that evening he did not observe anyone doing so. He does not know how much alcohol C.P. was consuming. Asked if he saw her dancing, he responded: “kind of, sort of”, and then elaborated by saying that C.P. was “sort of dancing up to another female, J.”.
Witness G.M. lives across the street from the Rusty Nail. He has known C.P., who he considers to be a friend, for more than twenty years. On April 10, 2014, he went to the Rusty Nail at “probably 9:30 p.m.” to see the band. C.P. and her companion S. were there when he arrived. Because he did not have a lot of money, he ordered only one tallboy beer which he sipped. C.P. and S. also had beer. He asked them if they wanted to join him at his place. He finished his beer and left at approximately 11:00 to 11:30 p.m. He did not witness C.P. dancing.
G.M. had been waiting at home for approximately 20 minutes for C.P. and S. when he saw them standing outside. He saw a female friend drive up, get out of her car and hug C.P. He then yelled out of his window to ask C.P. and S. when they were joining him. He testified that C.P. and S. did not seem impaired when they came to his home. He stated that C.P. is boisterous and likes to be the centre of attention, describing her as the “same old C.”. He testified that he had two beers at home before he left for the Rusty Nail, one while he was there, and one while waiting for C.P. and S. but that these did not affect him.
SUBMISSIONS
Registrar’s Submissions
Inspector Guymer’s testimony was that C.P. was exhibiting signs of intoxication: her speech was slurred, she was unsteady on her feet, and she had difficulty drinking from beer bottles, which were in each of her hands. Ms Brooks submitted that the Tribunal witnessed C.P.’s normal speech not to be slurred during her testimony. She noted that Ms Arnett’s testimony that she served bottled beer to C.P. corroborated Inspector Guymer’s account. She also submitted that the play fighting described by the Inspector could be seen as a demonstration of uninhibited behaviour, consistent with excessive alcohol consumption. Finally, she noted that while other witnesses offered their opinions as to whether or not C.P. was drunk, those witnesses were at the Rusty Nail for purposes other than determining if a patron was drunk. Therefore, she submitted that the evidence shows there was a breach of section 45(1) of the O.Reg. and the Tribunal should confirm the monetary penalty.
Appellant’s Submissions
The evidence of C.P. was that the “double fisted” drinking never happened and that she drank one beer before going to the Rusty Nail and one and a half bottles of beer while there. Mr. Switzer submitted that C.P. is “not inhibited by protocols” and that the evidence of the witnesses was consistent in describing C.P. as boisterous. Furthermore, none of the witnesses described her as being drunk. He suggested that the “play fighting and jumping on another female patron” which Inspector Guymer described as inappropriate behaviour could have been C.P. dancing. He also submitted that there are some gaps or inconsistencies in Inspector Guymer’s account: she could not recall if there was music playing, she could not describe the lighting of the establishment, and her testimony about her time in the establishment does not correspond to the twenty five minute period her notes indicate she was present. Mr. Switzer submitted that the Appellant did not permit drunkenness and that he responded appropriately when told by Inspector Guymer that C.P. should leave.
ANALYSIS
The onus lies with the Registrar to prove, on a balance of probabilities, that there has been a contravention of section 45(1) of O.Reg. 719.
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…
Inspector Guymer testified that she concluded C.P. was intoxicated after entering the establishment at 12:10 a.m. and witnessing C.P. being loud with slurred speech; having difficulty drinking from the beer bottles, one of which was held in each of her hands; appearing unsteady on her feet; and, behaving inappropriately by “play fighting or jumping” on another female patron.
Ms Arnett testified that she served C.P. two to three beers after C.P. entered the establishment with her friend S., sometime after 9 p.m. when the lights dimmed for the band. C.P.’s testimony was consistent in terms of her consumption: she stated she had one and one half beers while at the establishment and one before she arrived. While C.P. testified that she arrived late, at approximately 11 p.m., witness G.M. stated he arrived “probably at 9:30 p.m.” and C.P. was already there. Ms Arnett testified that C.P. arrived sometime after 9:00 p.m., when the lights were dimmed, and then estimated it to be 10:00 p.m. While the disparity in these estimates can be attributed to the fact that the witnesses are recalling events that took place some six months earlier, the disparity makes it difficult to determine over what period of time C.P.’s consumption took place.
While the observations of Inspector Guymer are consistent with the signs of intoxication, there is some question as to whether all of the signs exhibited by C.P. were due to intoxication or were simply a function of her personality. C.P. described herself as a social person who was in a very happy mood when she arrived at the Rusty Nail. She attributed what Inspector Guymer described as “play fighting or jumping” to dancing. Witness J.D. testified that C.P. was “sort of dancing up to” female patron J.. Ms Arnett, S. K., and J.D. all testified that they were acquainted with C.P. to varying degrees and used words such as “boisterous”, “somewhat loud”, “like a firecracker crossed with a Mexican jumping bean”, “like a Jack Russell” to describe her. Witness G.M. stated “she likes to be the centre of attention” and described her as the “same old C.”. Similarly, Ms Arnett described her behaviour as “just C.” The Tribunal notes that C.P.’s demeanor while testifying at the Tribunal was very casual, something that Mr. Switzer described in his closing submission as “not inhibited by protocols.”
Inspector Guymer also highlighted that C.P. was yelling when she was on the street. However, both C.P. and G.M. testified that C.P. was shouting to G.M. who was at an upper window of his home. Inspector Guymer and Mr. Feehely both testified that they saw C.P. and S. enter a building across the street from the Rusty Nail, where G.M. testified he lives. Notwithstanding Inspector Guymer’s experience in assessing the signs of intoxication, the Tribunal cannot conclude whether C.P. was loud or, as Inspector Guymer described it, acting inappropriately, because she was intoxicated or because this is her normal behaviour.
Inspector Guymer also noted that C.P.’s speech was slurred. Ms Brooks submitted that C.P.’s speech was not slurred at the Tribunal. However, the Tribunal member twice had to ask C.P. to repeat herself while she was testifying in order to clearly hear and understand her.
Finally, Inspector Guymer testified that she observed C.P. drinking from two bottles, one in each hand, and having difficulty reaching her mouth. She was also unsteady on her feet, almost falling when she tried to sit down. C.P. denied the double-fisted drinking happened. In itself, double-fisted drinking is not a sign of intoxication. The Tribunal is left with the Inspector’s assessment of some difficulty with motor control and Mr. Feehely’s conflicting testimony that he observed C.P. having no difficulty with her ability to walk when she left.
Inspector Guymer did not approach either C.P. or Ms Arnett to discuss C.P.’s consumption during her inspection. The Tribunal notes that while Inspector Guymer testified that the Rusty Nail is small and she had a clear view of C.P., she also testified that she was fifteen feet from her and she could not remember the lighting which Ms Arnett testified had been dimmed at 9 p.m. Further, she could not recall whether music was playing although she said she could hear people talking. If music was playing, it would corroborate C.P.’s testimony that she was dancing. J.D. also testified that he witnessed C.P. “sort of” dancing by approaching another female.
The Tribunal notes there is inconsistency between the timing recorded in Inspector Guymer’s notes and her detailed testimony. Relying on her notes, Inspector Guymer testified she arrived at the establishment at 12:10 a.m. on April 11, 2014. This is consistent with the testimony of both Mr. Feehely and Ms Arnett with respect to when Ms Arnett notified Mr. Feehely of the Inspector’s arrival. However, the Inspector testified she was at the establishment for approximately five minutes before Mr. Feehely arrived, spoke to him for approximately five minutes and then, after he approached C.P., immediately left the establishment. Even extending this ten minute period to fifteen minutes leaves a ten minute gap given the Inspector’s testimony that she left the establishment at 12:35 a.m.
The Tribunal finds that there is insufficient evidence to conclude that C.P. was intoxicated. While the observations of Inspector Guymer appear to be consistent with the signs of intoxication, she did not speak to either C.P. or Ms Arnett about C.P.’s consumption level. Ms Arnett, the only employee who was present in the restaurant area until Mr. Feehely arrived shortly after the Inspector, testified that C.P. and her friend S. were “just being happy”, that she saw nothing unusual with C.P. and that her behaviour was “just C”. As noted above, other witnesses indicated C.P. has a loud, boisterous manner and what Inspector Guymer interpreted as play fighting could well have been dancing.
The Tribunal also notes that Mr. Feehely, who did admit that he did not argue with the Inspector about her conclusions with respect to C.P., took immediate action to comply with her request that C.P. be asked to leave and a means be found to get her home safely. Ms Brooks noted that Mr. Feehely inappropriately told C.P. that it was at the Inspector’s request that she was being asked to leave. While this may have been inappropriate, that he chose to ‘blame’ the Inspector reinforces his testimony that he observed no signs of intoxication.
The Tribunal finds that, on a balance of probabilities, the Registrar has not proven that C.P. was intoxicated. Therefore, it finds that there is no breach of section 45(1) of O.Reg. 719.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal orders that the monetary penalty of $1,500 imposed under the Order of Monetary Penalty dated July 9, 2014, with respect to a breach of section 45(1) of O.Reg. 719 be set aside.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: November 4, 2014