Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 8080/LLA
CASE NAME: 8080 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
Summit Place (Thorold) Limited Applicant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Alex McCauley, Member
APPEARANCES:
For the Applicant: Josef Vargovic, Jr., Agent
For the Respondent: Joyce Taylor, Counsel
Heard in Hamilton: January 28, 2014
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, dated April 29, 2013, which proposed to suspend the liquor licence of Summit Place (Thorold) Limited (the "Applicant" or “Summit Place”) for 14 days. The Applicant appealed this Notice of Proposal to the Licence Appeal Tribunal (the “Tribunal”).
EVIDENCE
The Registrar’s Evidence
On January 26, 2013, Cst. Patrick Boal attended Summit Place in response to a call of an assault having occurred there. He arrived at the premises at approximately 1:47 a.m.
He noted on his arrival that there was nothing apparently out of order. He spoke at that time to three or four patrons who, in his opinion, were intoxicated. One of the patrons, described as being intoxicated, was a male, J.H. Cst. Boal described this individual as rambling in his speech, with slurred speech, red and bloodshot eyes and a strong odour of alcohol on his breath. This person was very unsteady on his feet and had to support himself on a table to keep from falling over. Cst. Boal later observed J.H. being served a mixed alcoholic drink. In Cst. Boal’s opinion, J.H. should not have been served any alcohol because of his state of intoxication.
Cst. Boal went into the washroom and located R.D., a male who was allegedly the victim of the assault. There were no apparent injuries on R.D. but he was severely intoxicated. He had difficulty speaking and was unable to stand; he had to sit on the floor while the officer questioned him. Cst. Boal was so concerned about the severe state of intoxication of R.D. that an ambulance was called and R.D. was escorted from the premises to the hospital.
R.D.’s fiancée was also at the establishment. She was attempting to assist R.D. Cst. Boal described her as very intoxicated but she was able to stand and walk. He later observed her in the parking lot of the establishment, being assisted to walk by two male persons. She was having difficulty standing and walking on her own.
While in the establishment, Cst. Boal observed 6 to 8 patrons and at least four of them were very intoxicated.
He spoke to Mr. Josef Vargovic, Jr., the bar manager. He told Cst. Boal that the intoxicated patrons had come into the establishment in that condition. Cst. Boal advised Mr. Vargovic, Jr. that they should never have been served alcohol.
Cst. Boal stated he was alone at the premises that night because, in his opinion, the situation did not warrant back-up.
Cst. Boal was never told by anyone in the bar that evening about any attempts by anyone to extort money from the bar, as alleged by the Applicant.
In cross-examination, he advised that no sobriety tests were given to any of the intoxicated patrons. He explained that this is not a step taken in establishing intoxication of persons in situations such as this.
He further stated in cross-examination that he never heard R.D.’s fiancée ask for money at the bar.
Brian Sharpe, a liquor inspector with the Alcohol and Gaming Commission (“AGCO”), gave evidence. After receiving Cst. Boal’s report, he contacted the Licensee. He spoke with Josef Vargovic, Sr., the principal of the Licensee, on January 31, 2013. Mr. Vargovic, Sr. stated that he wasn’t at the bar that night, but that his son was managing the bar. Mr. Vargovic, Sr. told him that his son had mentioned an incident of someone having trouble breathing at the bar on the night of the incident but nothing further. Inspector Sharpe stated that Mr. Vargovic, Sr. never mentioned any extortion attempt to him.
Inspector Sharpe received a letter on April 4, 2013 from the Licensee in which he disputed the police report and also made reference to an extortion attempt on the bar by R.D.’s fiancée.
The Applicant’s Evidence
N.O. gave evidence. She testified that on the night of January 26, 2013, she was working at Summit Place with her manager. She stated that two newcomers came in and went to play pool. She stated that shortly after, two males, one of whom was R.D., got into a scuffle at the pool table. Her manager quickly quelled the disturbance. She stated initially that she had met R.D. and his fiancée who were not regulars. R.D.’s fiancée asked N.O. about her job and how she could secure a position like that. After that conversation, R.D. and his fiancée went to play pool, and according to N.O., the friendliness ended.
N.O. observed the scuffle which was quelled by her manager. She stated that before the scuffle, the parties had been served two drinks. After the scuffle, N.O. was told that R.D. was not breathing. She checked on him and he was breathing.
After the scuffle, R.D.’s fiancée became a real “drama queen”. She yelled that she would sue the bar and wanted money for damages from the establishment. N.O. stated that the establishment has a zero tolerance policy on fighting so she advised them to leave. N.O. did not know who called the ambulance.
In cross-examination, N.O. stated that two police officers attended at the establishment that night. She said that R.D.’s fiancée was not rational and was yelling wildly at everyone. In her opinion, the woman had done this before. N.O. wasn’t sure if R.D.’s fiancée wanted money.
N.O. stated that she did not know how much R.D.’s fiancée had to drink before she came into the licensed premises, but she seemed fine.
Josef Vargovic, Jr., the manager on the night of the incident, gave evidence. He recalled R.D.’s parties attending the premises. They played pool and seemed nice. He observed the fiancée speaking to N.O. around 1:15 a.m. It was around this time that Mr. L. and another male came in. It was Mr. L. who subsequently got into the dispute with R.D. Mr. L. smashed his pool cue and R.D. dropped like a stone. At that time, the fiancée came up to him and whispered “Give me a thousand bucks and I will make this go away”. He refused. She then apparently told him she was calling the police, fire and EMS.
He stated two police officers attended. The older one did not stay long. Cst. Boal remained. Later Cst. Boal came to speak to him at the bar; he apparently was laughing about the situation. At this point, R.D.’s fiancée attended at the bar and asked him to pay her a thousand bucks. It was his opinion that the police officer heard this. He asked Cst. Boal what he was going to do about it. Cst. Boal allegedly took the woman aside and told her to leave.
He contended that the “J.H.” referred to by the police was in fact J.R., who had just come to the bar. He described this person as a mumbler. He stated that J.R. had recently injured his leg at work and that is why he appeared unstable in his walk.
In cross-examination, he was asked why he didn’t produce the video evidence he had alluded to in his Notice of Appeal (Exhibit #2). He stated that this evidence had been inadvertently destroyed.
He told his father, the principal of the Licensee, about the extortion attempt a day or so later, well before January 31, 2013.
He denied having said to Cst. Boal that he ought to have watched, “over service”.
THE LAW
The Registrar alleges violations of the following:
Section 29 of the Act:
- 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.
Section 45. (1) of R.R.O. 1990, Regulation 719:
- (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
After careful consideration of all of the evidence, the Tribunal concludes that the Applicant did permit liquor to be sold or supplied to a person who was or appeared to be intoxicated contrary to section 29 of the Act, and further that the Applicant permitted drunkenness or riotous, quarrelsome violent or disorderly conduct to occur on the licensed premises.
In reaching this decision, the Tribunal has considered the following:
The evidence of Cst. Patrick Boal was presented in a fair, clear and concise manner. His evidence was unimpeachable in the view of this Tribunal. Where Cst. Boal’s evidence is factually different than that of the Applicant’s witnesses, the Tribunal chooses to accept the evidence of Cst. Boal.
Cst. Boal’s reports and notes helped to create a factual recollection of the events of the night in question at the licensed premises.
Cst. Boal was clear in his descriptions of the patrons he encountered that night in the licensed premises. Several of the patrons were clearly showing symptoms of advanced levels of intoxication. He described the physical symptoms of these patrons: odour of alcohol on their breath, slurred speech, unsteady on their feet. The fiancée of R.D. was described as extremely intoxicated. The Tribunal accepts Cst. Boal’s evidence that the fiancée did not leave the licensed premises until sometime after he did given that he was writing his notes up in the police vehicle and observed her staggering around the parking lot, being assisted by two patrons. Evidence given by Josef Vargovic, Jr. that R.D.’s fiancée was asked to leave by Cst. Boal, and did leave, is simply not believable on the evidence.
Cst. Boal described J.H. as being very intoxicated to the point of not being able to stand unsupported, yet incredibly, while still on the premises, he observed J.H. being served a mixed alcoholic drink. This evidence was not disputed by the Applicant.
Cst. Boal was emphatic that no one at any time spoke to him about any attempt by a patron to extort monies from the establishment, nor did he hear anyone make such reference. Evidence by Josef Vargovic, Jr. to the contrary is not believable.
Cst. Boal described R.D. as being extremely intoxicated, to the point where he was not able to stand or speak coherently. Cst. Boal was sufficiently concerned that he had R.D. transported to the hospital by an EMS team. Cst. Boal cleared the call around 2:30 a.m.
The evidence of Josef Vargovic, Jr. was that R.D.’s parties came to the establishment around 1:00 a.m. In cross-examination, he stated he advised Cst. Boal that the parties were in good condition. He admitted to serving them a couple of drinks. N.O. described R.D.’s fiancée as seeming fine, not intoxicated, when she first came in. Yet, in less than one hour after arrival, R.D.’s parties were so intoxicated that one had to be dispatched to the hospital by an ambulance. The Licensee admits to serving them two drinks and asserts that they were fine.
Based on that evidence, the Tribunal finds it incredible to believe that R.D.’s parties were not displaying signs of intoxication when they arrived at the licensed premises. The timeline between their arrival and emergency intervention was too short for that level of intoxication to suddenly occur. The Tribunal concludes, on a balance of probabilities, that upon arrival at the licensed premises, R.D. and his fiancée were exhibiting signs of intoxication and should not have been permitted to remain on the licensed premises let alone be served alcohol.
The entire scenario suggested by the Applicant, through its witnesses, to attempt to convince the Tribunal that R.D.’s parties staged all of the events of that night to extort monies from the Applicant is not credible. There is not one shred of evidence to support this conjecture on the part of the Applicant. The timing of this claim further erodes its credibility. No one in authority hears of this claim of extortion until April 4, 2013, months from the time of the alleged occurrence. The police are never formally advised of this alleged event. The Tribunal finds that this allegation of extortion is a complete fabrication by the Applicant.
The Tribunal finds that the Applicant knowingly permitted intoxicated persons into the licensed premises and further supplied these intoxicated persons with liquor.
ORDER
After considering the evidence and submissions of the parties, the Tribunal finds, on a balance of probabilities, that the Applicant violated s. 29 of the Act and s. 45(1) of R.R.O. 1990, Regulation 719.
In light of that finding, the parties shall provide submissions as to sanction as follows:
a) The Registrar shall serve on the Applicant, and file with the Tribunal, written submissions within seven (7) days of this decision.
b) The Applicant shall have ten (10) days from receipt of the Registrar’s submissions to serve on the Registrar, and file with the Tribunal, a written response.
c) The Registrar may serve and file a written reply within three (3) days of receipt of the Applicant’s response.
LICENCE APPEAL TRIBUNAL
Alex McCauley, Member
Released: February 19, 2014