Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-05-25

FILE:

8708/LLA

CASE NAME:

8708 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.

1866398 Ontario Inc. o/a Mint Lounge & Karaoke

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Simon Dann, Member

APPEARANCES:

For the Appellant:

Pradeep Chand, Counsel

Murray Snider, Counsel

For the Respondent:

Joyce Taylor, Counsel

Heard in Toronto:

August 14, 21, 22, 2014

October 16, 22, 24, 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, dated March 7, 2014, to suspend the liquor sales licence (“the licence”) of 1866398 Ontario Inc. o/a Mint Lounge & Karaoke (the “Appellant/Licensee/Mint”), for a period of 14 days. An Amended Notice of Proposal was issued on April 17, 2014. A Notice of Proposal was also issued on June 20, 2014.The hearing scheduled to commence on August 14, 2014 was adjourned and set to continue on August 21, 2014. The hearing took place over 5 days, and at the close of the evidence, the parties were asked to provide written submissions, all of which were provided by November 28, 2014.

The Registrar then issued a Further Amended Notice of Proposal ("AP") on August 15, 2014 (Exhibit 3) which proposed a suspension of 30 days. This AP replaced the previous Notices of Proposal and cited contraventions of the Act and Regulations on November 23 and December 21, 2013, and January 19, March 23, May 7 and 10, 2014.

The allegations contained in the proposal are:

(a) contrary to subsection 45(2) of the Act, the licence holder failed to facilitate an inspection relevant to the licence.

(b) contrary to section 29 of Ontario Regulation 719/90 under the Act (the”OReg”), the licence holder failed to clear the signs of service and consumption in the licensed premises within 45 minutes after the end of the period during which liquor may be sold and served under licence.

(c) contrary to section 53 of the OReg, the licence holder failed to make available lists describing the varieties, amounts and prices of beverages:

(d) contrary to subsection 45(1) of the OReg, the licence holder permitted drunkenness to occur on the licenced premises or in the areas under the control of the licence holder.

(e) contrary to subsection 44(1) of the OReg, the licence holder failed to ensure that no unauthorized person was allowed to enter behind the bar of the licensed premises while liquor was being sold or served.

(f) contrary to subsection 25(1) of the OReg, A liquor was sold and served in the licensed premises outside of prescribed hours.

At the commencement of the hearing, the Tribunal issued an order for the exclusion of witnesses. The Registrar's counsel, Ms. Taylor, also confirmed the Registrar was not pursuing the allegation of sale and service outside of prescribed hours (s. 25 of the OReg).

In her opening statement, Ms. Taylor, stated the Appellant was first licensed in October 2013 and has been cited for infractions over 6 inspections. This is considered a large number of infractions for such a short period and it appears the licensee is ignoring their obligations and therefore, a suspension of 30 days is required as a "sharp reprimand".

The Appellant's counsel, Mr. Chand, stated the licensee has an unblemished record with no previous sanction and the penalty proposed is excessive and unduly harsh. Mr. Chand disagreed with the allegations and interpretations of the events upon which the allegations are based.

The Registrar called 12 witnesses; the Appellant chose to call no witnesses.

REGISTRAR'S EVIDENCE

While all the evidence and witness testimony presented was carefully considered, only a summary of the most relevant evidence from the inspections of November 23, December 21, 2013 and January 19, March 2, March 22 and May 10, 2014 is reviewed below.

There were two patron witnesses. The first, KL, is a 23 year old student who said he arrived at Mint with 3 friends on December 21, 2013, after dinner where he had 2 glasses of red wine and a few shots of vodka ("past 10 p.m.").

The evening was to celebrate a friend's birthday (identified as "S"). He remembered the police and AGCO inspectors arrived about one hour later. His group had ordered snacks with 1 or 2 pitchers of a green tea and vodka mix. He said that S was getting a bit tipsy and could not walk properly after starting to have drinks from the pitchers.

When the police arrived, S vomited and had to be helped to the bathroom where he continued to vomit. KL said he went to the bar for water and tried to help S back to the room. He did not remember what staff was doing, but thinks he told them he was fine. When KL and his friends wanted to take S home, the police said S was too intoxicated and they called an ambulance to take him to the hospital where S stayed overnight.

In cross-examination, KL confirmed that drinking had occurred at a friend's home prior to attending Mint. He could not remember how many shots he consumed at Mint. He could not recall how much alcohol S may have consumed. He stated that he did not realize how drunk S may have been until he started to vomit.

The other patron, YL, a 22 year old student was with KL that same night. He could not remember anything other than being at a friend's apartment for an hour where he had red wine to drink. He had no drinks at Mint and claimed to have been sober when he arrived. He thought S may also have been sober before arriving at Mint.

YL is not sure how long they were at Mint before police and inspectors arrived. After an hour, S said he was a bit dizzy and fell asleep on a couch for 10-15 minutes. YL said that when S woke, he started doing "drunk talk" and began to vomit when the police asked for identification.

YL said he was not sure what S had to drink because everyone was sharing and he could not remember if S was being supported by anyone. YL claimed he was sober all of the time but it was a long time ago and he did not remember.

Miran Fister ("Fister") has been a Toronto police officer for 26 years and was at Mint the nights of November 23rd and December 21st, 2013, as well as on January 19 and March 2, 2014. He made his notes during and right after the inspection visits. He has been to Mint at least 15 times since Mint opened and there have been no other charges.

Hovig Abkarian ("Abkarian") is a constable with Toronto Police Services and has been with the force for 6 years. He participated in the inspections of December 21, 2013 and January19, 2014.

Stephen Hetherington ("Hetherington") has been an AGCO inspector for about 8 years. He was present for the inspections at Mint on November 23, 2013, and January 19, 2014.

Ryan McAfee ("McAfee") is the AGCO manager of operations in the inspections and investigations branch and was present for the inspection of November 23, 2013.

Ka Ng ("Ng") is an AGCO inspector and was present at the inspections of December 21, 2013 and January 19 and May 10, 2014. Ng said he had been to Mint "maybe 5 times" before the inspection of December 21. On previous inspections, there had been a number of minor infractions such relating to the liquor menu and buying liquor off licence. These just went into the file record.

Kevin Georgopoulous ("Georgopoulous") is a Toronto police constable and has been with the force for 12 1/2 years. He was present at Mint for the inspections of November 23 and January 19. He said he had been at Mint on 5 previous occasions, but did not recall having found or observed any infractions.

Craig Brister (“Brister”) has been with the Toronto Police Services since 1999 and was a member of the inspection team which visited Mint on the night of March 22, 2014. He arrived at 2:15 am and said he did not find anything but noted the bartender appeared to be cleaning up. He confirmed he did not see the bartender serve and that staff had until 2:45 am to clear all signs of service.

Trevor Joseph (“Joseph”) is an AGCO inspector and arrived at 3:01am for the inspection of May 10, 2014.

Raman Sharma ("Sharma") is an inspector with the AGCO and was present for the inspection of March 22/ 23, 2014.

Azadeh Sadeghi ("Sadeghi") has been with the Toronto Police Services for 10 years and was present for the inspections of January 19 and March 2. Sadeghi said she has been to Mint many times for complaints not related to this matter and at last 3-4 times in the last 3 months.

November 23, 2013

Hetherington arrived at 3:13 a.m. and saw a male inside of Mint lock the door as he approached. He assumed it was a staff member as he believed the person was dressed in staff attire. He was unable to identify the person who locked the doors and never found that person.

Hetherington said he saw the male run away, down the hall, when he identified himself. He then placed his badge against the glass for identification, asking for entry from a female at the reception desk. He said that no one came for a couple of minutes.

Inside, Hetherington saw staff carrying glasses and bottles. In Room 1, he found cups which smelled of scotch and in Room 7, he found cups which had the smell of scotch and green tea. In Room 18, he saw 5 cups of beer.

When he advised the licensees, Kan Kan Yu and Kan Lee that they cannot lock the door to slow down an inspection, they denied locking the door. Hetherington advised they should have cleared all signs of service by 2:45 and it was then 3:13 a.m.

McAfee confirmed Hetherington's testimony of finding the front door locked and a man "presumably locking the door". He said it was not until after Hetherington had demanded the door be opened that the receptionist and another woman let them in.

McAfee took a number of photographs that showed cups, glasses and pitchers on a table (Exhibits 5C and 5D). In Room 4, he found 6 patrons and cups that smelled of beer and liquor. In Room 7, he observed 4 plastic pitchers on the table and while two were empty, another one contained small amounts of fluid smelling of tea and liquor.

The inspection team concluded that obstruction and fail to clear signs of service were to be cited and they left at 3:42 a.m.

Georgopoulous said he saw rooms with jugs and plastic cups with evidence being "dumped out". He saw 8 people in Room 5 with 2 plastic jugs and one person said it was tea. Georgopoulous said he smelled the liquid and believed it to be scotch whiskey mixed with tea. In Room 7, he found people with 4 pitchers which he believed contained tea mixed with scotch whiskey. He did not taste or take any sample of the liquid in the jugs and cups so he cannot be 100% certain, but was sure they contained alcohol mixed with tea.

December 21, 2013

Fister arrived at 12:31 AM and found a female patron ("YS") who he considered to be intoxicated in the lounge area. In Room 13, he found 5 male patrons, 3 of whom he considered intoxicated; one of the 3 was sleeping on a couch but then woke and vomited while another one was yelling and singing.

Abkarian was with Fister in Room 13 and observed an intoxicated male patron ("Z") who he described as unconscious and having vomited on himself. When Abkarian tried to speak to Z, he found him completely incoherent with a very strong smell of alcohol on his breath. Two of Z's friends took him to the washroom to clean him up. When Abkarian went to the washroom, he observed Z was unable to stand on his own and “looked very sick [so] for his own safety we contacted the ambulance”.

Ng said he checked the liquor menu to see if a price discrepancy between posted prices of beer for weekdays ($5.59) and weekends ($7.59) had been corrected - the computer showed $5.59 as the everyday price. When he found it had not been corrected and asked about it, Chung Li, the owner, told him he had been too busy to change it.

In the lounge area, Ng also saw the female patron (YS) mentioned by Fister and stated he (Ng) was told by her friend that she had consumed almost a full pitcher of “Soho” which is a mixture of 7-up and alcohol. Ng obtained copies of receipts (Ex6 A) for what had been sold to the female patron (from Room 11) and saw a charge for a 750ml bottle of Soho.

Ng concluded that Mint was not too busy that night and therefore the 2 staff behind the bar should have been able to see the female patron and attended to her.

In the washroom, Ng saw a male patron standing with a drooped head, heavy eyelids, unsteady on his feet and beginning to vomit. He learned the patron was from Room 13 where he had observed vomit on the floor. Ng confirmed that an ambulance was called to take this patron to the hospital.

January 19. 2014

Hetherington arrived at 2:16 a.m. and observed one male patron ("QT") stumble and stagger into the table in the room. There was no staff dealing with QT. He noted QT's deterioration of fine motor skills and asked QT to step into the hall where he observed that QT's balance was unsteady, his breath smelled of vomit and his speech was slurred. QT said he arrived about 12:00 a.m. and consumed about 4 bottles of beer and 1 shot of liquor, which was enough for Hetherington to determine he was intoxicated.

Hetherington then observed a female behind the bar and she voluntarily stated she was not an employee, but had quit her job at Mint because she was returning to China.

In cross-examination, Hetherington said he had been at Mint 4 or 5 times and does not believe there was any occasion on which he attended when there were no infractions noted. On the night of November 23, the licensees denied all infractions and told him they did not observe any intoxicated patrons.

March 2, 2014

Fister found one patron sleeping in Room 17; he observed the patron wake, begin to vomit, go into the washroom and return, to fall asleep again. Another patron in the room advised Fister they had arrived 3 hours earlier and ordered 3 dozen beers

March 23, 2014

Ng arrived at 3:17am with Inspector Raman Sharma ("Sharma") and found 6 patrons with glasses and pitchers on a table in Room 2. He advised the owner this was a failure to clear signs of service.

Sharma said he saw 3 glasses with amber liquid and one jug half full in Room 1. He saw a male patron drinking and was told by the patron, that it was Johnny Walker Black Label. Sharma obtained 3 sales receipts (Exhibit 10) which showed the sale of the Johnny Walker Black Label and green tea.

In Room 16, Sharma saw a jug and 3 styrofoam cups containing traces of an amber liquid. One male patron in the room said it was vodka with pineapple and another patron said it was the Johnny Walker Black Label with green tea.

As it was then 3:31a.m., Sharma advised the owner that signs of service should have been cleared by that time and that this was an infraction.

May 10, 2014

Ng arrived at 3:01a.m. and found 9 patrons and numerous signs of service in Room 18. He saw a 2/3rds full bottle (750ml) of Black Label and 8 jugs with an amber liquid. One jug of liquid had foam on it and a patron said it was beer. After one patron told him foam cups on the table had a mix of Black Label with tea, he asked for a copy of the sales receipt for Room 18 (Exhibit 8). He left at 3:45am.

Joseph said he observed 2 female patrons and that signs of service had not been removed in Room 18. He referred to exhibit photos (9A, 9B) which showed a bottle of Johnny Walker Black Label scotch and 4 jugs and one styrofoam cup containing an amber liquid. He believed the jugs contained Coors beer but did not take a sample for testing purposes.

Registrar's Closing Submissions

Ms Taylor submitted there have been a large number of infractions in a short period of time, from October 18, 2013 to May 10, 2014 and asked that the following be found by the Tribunal.

• On November 23, 2013, the licensee’s staff failed to facilitate the liquor licence inspection when a person dressed as a staff member was seen locking the door and the licensee’s receptionist did not immediately come to the door in response to Hetherington’s identification of himself as an AGCO inspector and his loud knocking.

• There is uncontested evidence (over the various inspection dates) that the licensee permitted drunkenness and ought to have known that five (5) of its patrons were grossly, and in at least one case, dangerously drunk. The patrons were observed to be either vomiting, passing out, or unable to care for themselves. The licensee presented no evidence of having monitored consumption of liquor by any of these patrons or their behaviour despite the clear duty to do so.

On December 21, 2013, there were two drunken patrons in the establishment. Both Fister and Ng observed the first drunken patron, a young woman (YS), showing extreme signs of intoxication. Evidence of the drunkenness of another patron, SZ, who was later taken away by ambulance, was given by police, Ng and two patron witnesses.

• On January 19, 2014, there was a drunken patron, QT, found in Room 15 - the patron had already vomited and was observed to stagger, stumble, and show deteriorating motor skills.

• On March 2, 2014, inspectors found a drunken patron asleep who then woke and was observed to be unsteady on his feet, had glassy eyes and swayed as he tried to walk and then vomited on two occasions. A friend of that patron stated the group had been there for three hours and ordered three dozen beers. In Room 2, Sadeghi saw an intoxicated male in the ensuite washroom and a server emerging from the room who had to have seen the drunken patron in the room but did not take any steps to stop alcohol service or escort the drunken patron out of the premises.

• On December 21, 2013 and January 19, 2014, the licensee failed to meet the requirement to have menu lists accurately reflect the price of liquor in the establishment and on one occasion, the licensee stated he was too busy to change the prices.

• On January 19, 2014, a person who confirmed she was a former employee was found behind the bar - she had not worked at the establishment since November 2013.

• On three occasions (November 23, 2013 at approximately 3:14 a.m., March 23, 2014 at approximately 3:17 a.m. and May 10, 2014 at approximately 3:01 a.m.) the licensee failed to remove evidence of service and consumption of liquor, which should have occurred by 2:45 a.m.

Ms. Taylor submitted that the Licensee provided no evidence to contradict the evidence of the patrons, inspectors and police officers who have given evidence at this hearing and therefore, it is the Registrar’s position that findings should be made that Mint Lounge and Karaoke has breached s. 45(1) of the Liquor Licence Act, s. 45(1) of O.Reg. 719/90, s. 44(1) of O. Reg. 719/90, s. 53(d) of O. Reg. 719/90 and s. 29 of O. Reg. 719/90.

Appellant’s Closing Submissions

Mr. Chand submitted that the evidence has not shown the Appellant breached the Act or Regulations and therefore, the Registrar has not established on a balance of probabilities that the Licensee is responsible for contraventions of the Act. A summary of Mr. Chand's submissions is as follows.

Regarding the allegation of failing to facilitate an inspection:

It was submitted that on November 23, 2013, inspectors and police saw a person dressed as a staff member locking the door but never concluded in fact that the person who locked the door was a staff member. Within minutes, another individual came to the door to unlock it; Mr. Chand submitted the Registrar has not proved on a balance of probabilities that it was a staff member who locked the door.

Mr. Chand argued the Registrar assumed the individuals alleged to have committed the obstruction were employees and representatives of the Appellant but presented no evidence to support that assumption.

Regarding the allegation of permitting drunkenness:

• For the December 21, 2013 inspection, Mr. Chand submitted the only indicia of drunkenness, for two patrons, is that of unsteadiness and the smell of liquor.
• He argued that contrary to the Registrar’s submissions that no staff member did anything to check on the drunken patron, the AGCO and police were only there for a limited period of time and cannot describe whether staff and/or representatives of the Appellant had made efforts to do so prior to their arrival.
• Mr. Chand submitted the Tribunal cannot make a finding the Appellant knew or ought to have known of the drunkenness on the premises because it heard no evidence regarding the intoxicated patrons interaction and level of contact with the Appellant’s staff and representatives.
• Regarding the alleged drunken patron on the premises, on January 19, 2014, Mr. Chand submitted that on a balance of probabilities, that patron may only have begun to exhibit signs of intoxication when the inspectors and police arrived.

It was Mr. Chand's submission that absent evidence from the Registrar of the interaction between patrons and staff, the Tribunal cannot make a finding the Appellant knew or ought to have known of the drunkenness on the premises.

• Regarding the March 2, 2014 inspection, Mr. Chand submitted the police made no effort to obtain correct identification from the patrons despite their assertions of ‘gross intoxication’ and repeated his submission as summarized above.

Regarding the allegation of failing to accurately list the price of liquor:

• Mr. Chand submitted the only omission was an incorrect cost for domestic beers on weekends and the legislation does not explicitly prescribe that a licensee would be guilty of a contravention of section 53 as a result of a mistake; he submitted that on the evenings in question, the drink menu was made available and therefore met the requirements as prescribed by section 53.

Regarding the allegation the licence holder failed to ensure that no unauthorized person was allowed to enter behind the bar of the licensed premises while liquor was being sold or served:

• Mr. Chand submitted the evidence does not demonstrate on a balance of probabilities that the Appellants contravened subsection 44(1); he argued the AGCO and police made no observations that the individual served any alcoholic or non-alcoholic drinks, consumed any alcoholic or non-alcoholic drinks while behind the bar. The only information they had was her name and that she was no longer working at Mint.

Regarding the allegation the licence holder failed to clear the signs of service and consumption within forty-five minutes after the end of the period during which liquor may be sold and served under the licence:

• Mr. Chand submitted that during the inspections of November 23, 2013, March 23 and May 10, 2014, police and or inspectors observed numerous signs of service and consumption of liquor but made no efforts to obtain samples of the liquid contents for analysis.

In closing, Mr. Chand submitted that the penalty/suspension requested by the Registrar pursuant to the NOP is tantamount to a very large fine and is outside the range of penalties that is reasonable in the circumstances. He asked that the Tribunal should not draw a negative or adverse inference from the fact that the Appellant has chosen not to lead any evidence at the hearing and that the Appellant has chosen not to say anything to inspectors and police officers.

Mr. Chand argued the evidence before the Tribunal does not support, on a balance of probabilities, findings that the Appellant has breached s. 45(1) of the LLA, ss. 45(1), 44(1), 53(d) and 29 of O. Reg. 719/90.

Registrar’s Reply Submissions

In reply, Ms Taylor sumitted as follows.

• The Appellant did not address the fact that the licensee’s receptionist, waited 1-1/2 to 3 minutes before opening the door and therefore did fail to facilitate this inspection, regardless of whether or not the person who locked the door was an employee.
• The licensee’s menu list did not set out the true purchase price as found on several inspections, thus breaching the regulation.
• A breach of s. 44 of the OReg occurs when an unauthorized person is behind the bar and has nothing to do with holding, selling or serving liquor. The person was not an employee, as was confirmed during the inspection.
• Section 29 of the OReg requires licensees to have the “evidence of liquor that has been served and consumed on the premises" removed and that evidence of liquor served and consumed includes empty shot glasses, pitchers that smell of whiskey and tea, and one-third full bottles of Johnny Walker Black whiskey, which were found during the inspections.

Analysis and Reasons

While the allegations in this matter appear straight-forward, and there is substantial evidence presented by the Registrar's witnesses, the Tribunal is also confronted with the fact the Appellant presented no evidence or witnesses to refute or even attempt to suggest that events may not have been exactly as a witness stated it to be.

Mr. Chand asked the Tribunal not to draw a negative or adverse inference from the fact that the Appellant has chosen to not lead any evidence at the hearing and that the Appellant had chosen not to say anything to inspectors and police.

At this hearing, the Tribunal did hear a great deal of evidence from the witnesses, albeit all called by the Registrar. The law is clear: the Tribunal is required to weigh that evidence, on a balance of probabilities and is entitled to make findings of fact on the evidence put before it:

Rejeanne’s Bar and Grill Ltd. (c.o.b. Rejeanne’s Bar and Grill) v. Ontario (Alcohol and Gaming Commission, Registrar) [2009] O.J. No. 3176).

The issues and findings are as follows.

Failure to facilitate an inspection - s.45(2) Liquor Licence Act

The evidence presented by the witnesses (Hetherington, McAfee) was that on November 23, 2013, as the inspection team arrived at approximately 3:17 a.m. and approached the establishment's front door, an individual behind the door (on the inside) was observed to lock the door and then reportedly run down the hall.

Hetherington assumed the individual to be a member of Mint's staff because the person was dressed in the same kind of attire worn by staff. He then placed his badge against the glass door to get the attention of a receptionist and to have her come and open the door. He acknowledged this was done in a couple of minutes. The individual who allegedly locked the front door was never found.

Ms. Taylor's submission was that after the person locked the front door and while leaving, he appeared to give instructions of some kind to staff. She submitted that it took 1-1/2 to 3 minutes for the receptionist and another person to come and open the door. Mr. Chand submitted that on a balance of probabilities, it was not proven that a staff member locked the door on the inspection team.

In determining the issue, the Tribunal has evidence before it that someone did lock the door as Inspector Hetherington approached it. The person appeared to Hetherington to be a member of Mint staff and he immediately left the scene. The receptionist took a couple of minutes to come to the door. It is a reasonable inference, based on the facts, that the person who locked the door was Mint staff. This was not the first time that an AGCO representative had attended for a liquor licence inspection. The Appellant and its staff were aware of their obligation to make the premises accessible for inspection. They did not make it easy on this occasion, by delaying entry.

Therefore, and on a balance of probabilities, the Tribunal finds that there was a failure to facilitate the inspection, on the part of the licensee.

Failure to clear the signs of service - s.29 O.Reg 719/90

On November 23, 2013, the evidence of Hetherington, McAfee and Georgopoulous was that after their arrival at 3:13 a.m. and their entry to the premises, they each observed signs of service and consumption in the form of staff carrying glasses and bottles, cups and pitchers, either empty with the odour of alcohol or still containing liquid believed to be scotch whiskey mixed with tea.

On March 23, 2014, the inspection team arrived at approximately 3:17 a.m. and the evidence of Ng and Sharma was that they observed patrons with glasses and bottles in front of them in one room and similar evidence in another room, including a patron drinking. Sharma testified to seeing a jug with an amber liquid and styrofoam cups with traces of the same.

On May 10, 2014, AGCO inspectors testified they arrived at approximately 3:01 a.m. and found numerous signs of service, including a 2/3rds full bottle of Johnny Walker Black Label, as well as jugs and cups with an amber liquid believed to be Coors beer. Photographic evidence (Exhibit 9A, 9B) and a copy of a sales receipt (Exhibit 8) were presented in support of their testimony.

It is true that the inspectors did not take liquid samples for testing. The Tribunal accepts that the inspectors and police have had sufficient experience with alcoholic beverages to determine whether a liquid is alcohol or not. Furthermore, lab testing to establish that the liquids found were alcohol is not an essential component for a finding under s. 29. The section states: ‘…evidence of liquor that has been served and consumed on the premises is removed within forty-five minutes…”

Mr Chand submits that the liquids found in the glasses or jugs may not have been alcohol. That argument fails. At a minimum, it fails to address the bottle of Johnny Walker Black Label which was observed in the room. The evidence is not of one glass on one occasion, but of many glasses, pitchers, and jugs containing a liquid which by smell or appearance was more likely than not, alcohol. On several dates, patrons were still in the rooms where glasses, pitchers or bottles were found. In each instance, the observations also occur after 3:00 a.m.. This is not a matter of just a couple of minutes past 2:45 a.m. but approximately a quarter to a half hour beyond the time at which clearance should have been completed.

Therefore, and on a balance of probabilities, the Tribunal finds the Appellant failed to clear the signs of service by 2:45 a.m, in violation of s. 29 of the OReg.

Failure to accurately set out purchase price for liquor - s.53 O.Reg. 719/90

The evidence of Inspector Ng is that on both December 21, 2013 and January 19, 2014, he found discrepancies in posted prices for beer on weekdays versus weekends ($2.00 more on weekends). Ng's testimony was that on the first occasion, the owner, Chung Li, said he was too busy to make the change.

Through cross-examination, Ng acknowledged the discrepancy was a minor infraction and that he did not have any specific notes or photographic evidence to show the discrepancy. He said he was concerned that weekday and weekend pricing were not the same.

Mr. Chand submitted that while the correction was not made, a drink menu was available, therefore meeting the requirements of s.53.

In considering the evidence and submissions, the Tribunal firstly recognizes that there is no evidence that a list meeting the requirements of s.53 of OReg 719/90 was not available at the time of the inspections. There is also no evidence to show what patrons were being charged on weekdays and or on weekends - whether pricing was consistent or not.

Therefore, and in the absence of any material evidence to the contrary, the Tribunal can only conclude that the specific requirements, as prescribed in s.53, OReg 719/90 were met and, on a balance of probabilities, the Tribunal finds the Appellant did not breach s.53, OReg 719/90.

Permitted drunkenness - ss 45(1) OReg 719/90

It is well established that there are two components required for a finding under s. 45(1): drunkenness on the premises, and permitting that drunkenness. The Courts have stated that permitting drunkenness on the premises requires proof that the licensee knew or ought to have known of the drunkenness on the premises. That determination must be made in all the circumstances and in the context of the various obligations and duties placed on a licensee by the Act and its regulations.

On December 21, 2013, the evidence of the inspection team is found to be conclusive that the male patron "Z" was intoxicated, particularly as it was undisputed that he was ultimately taken to hospital for his own safety. Z was at one point unconscious, and in such a physical state that his drunkenness ought to have been obvious to anyone who observed him.

The evidence, that is, the testimony regarding a female patron (YS) in the lounge area, or Fister's observation that he considered 3 of 5 male patrons in Room 13 to be intoxicated (other than the male patron Z who is understood to be one of the 3), is found to be insufficient to conclude that the Appellant breached s. 45 (1).

Regarding the male described to be intoxicated, the only evidence before the Tribunal is that the individual was sitting on the floor singing and yelling, in a karaoke bar. There is no other evidence to support a finding that the person was drunk. In the absence of such evidence, the Tribunal finds it is unable to conclude, on a balance of probabilities, that this patron was drunk, therefore the first component required for s.45(1) has not been met.

In her submissions, Ms. Taylor references Zucca Bar Inc. (c.o.b. The Zuccabar), [2009] O.A.G.C.D. No. 107, para. 83 ("Zucca") which refers to the expectation that "The licensee is required to regulate beverage alcohol service to ensure that customers do not become intoxicated." In this instance, the Tribunal is of the view that it is the totality of physical condition and behaviour, combined with the amount of alcohol consumed which point towards intoxication.

Regarding the female patron, YS, the evidence is that she was sleeping on a sofa with a male patron holding or supporting her so that, in Ng's view, she would not slide down. Ng said he also noted her heavy eyelids, poor motor skills and that she had to be helped by the male patron from the lounge area to a couch in Room 11. There is sufficient evidence, including Ng’s testimony that he was told that YS had consumed almost a full pitcher of Soho by herself and that he did obtain a printout of a sales receipt to YS (Ex 6A) to support a conclusion that she was drunk.

However, on the second component, whether the Appellant knew or ought to have known of that drunkenness, Ng testified that the premises was not that busy and therefore staff should have seen her and attended to her. But there is no evidence regarding how long YS was sitting in the lounge area or what Ng observed about what was happening around her or in the vicinity at that time. The Tribunal, on these facts, needs more than a bald assertion from the witness, to support a finding of s.45(1) in respect of this patron.

On January 19, 2014, Hetherington's evidence is that a male patron ("QT") was found with signs of deteriorating motor skills, slurred speech, and whose breath smelled of vomit.

The witness testified that when the patron told him he had consumed 4 beers and 1 shot of liquor, he confirmed that QT was not ill or on medication. Hetherington then concluded QT was intoxicated and got him going home in a taxi with his sober girlfriend.

The Tribunal accepts Hetherington's observations of the patron's physical condition and on a balance of probabilities, finds the patron QT was intoxicated.

On March 2, 2014, the inspection team arrived at approximately 2:15 a.m. and the evidence is that Fister observed a sleeping patron who then woke, began to vomit and after visiting the washroom, returned and went back to sleep. Sadeghi also testified that she observed this patron's vomiting and condition from a different vantage point.

Fister's testimony is that another patron in the room told him that he and the sleeping patron had arrived 3 hours earlier and ordered 3 dozen beers.

Based on the evidence of the patron's physical condition and, on a balance of probabilities, the Tribunal concludes that this patron was intoxicated.

In each of the cited occasions, December 21, 2013 and January 19 and March 2, 2014, the Tribunal finds patrons could only have become that intoxicated, exhibiting the clear and obvious signs of intoxication, to the point of being physically ill, over some period of time, long enough for establishment staff to have observed these patrons during the course of their service rounds and therefore ought to have seen the developing intoxication of the three specific patrons.

In the context of these particular facts, specifically a karoake bar with numerous rooms, it is not unreasonable to consider that for good business practice, Mint servers would be trained to make frequent checks on patrons in efforts to comply with the obligations under the Act and its regulations, but also to serve patrons throughout the evening.

While it may not always be possible to observe the condition of an individual patron in an environment with shoulder-to-shoulder crowds, or hundreds of patrons in a single large room, Mint staff only have a limited number of patrons in a number of separate rooms to monitor and here the patrons were drunk to the point of vomiting, something which is difficult to overlook.

There is no evidence to suggest that beyond the sale and service of alcohol beverages, the licensee or its staff was working with any monitoring and control procedures to continually check on whether any patron was becoming intoxicated.

In summary and considering the evidence of the conditions of three patrons (Z, QT, and a patron of March 2nd), the Tribunal finds that on a balance of probabilities, the Appellant did permit drunkenness to occur on three separate occasions.

Permitting an unauthorized person behind the service bar - ss. 44(1) O. Reg. 719/90

During the January 19, 2014 inspection, Hetherington, Ng, and Sadeghi testified they observed a person behind the bar who they confirmed was not an employee or authorized to be behind the service bar. Ng testified the person confirmed to him that she was a former employee and had not worked at Mint since the previous November. The Appellant's counsel argued there was no evidence the person served or consumed drinks of any kind while behind the bar. That, however, is not required for a violation of s. 44 which states; ‘The licence holder shall ensure that no person enters behind the bar at the premises to which the licence applies.’ It is the fact of the person, here the former employee, being behind the bar that support the finding of a violation of s. 44. Whether she did or did not serve alcohol, is immaterial, despite the fact that she may have had familiarity with doing so given her past employment at Mint.

Therefore, the Tribunal finds the licensee did permit an unauthorized person behind the bar during the hours that liquor was being sold and served.

Decision

For the reasons stated above, the Tribunal finds that 11866398 Ontario Inc. o/a Mint Lounge & Karaoke,, to be in breach of sub-section 45(2) of the Act, section 29 of OReg 719/90, s 45(1), of OReg 719/90 (in respect of the 3 patrons as described above) and subsection 44(1) of OReg 719/90, but not in breach of section 53 of OReg 719/90.

In regard to sanction, the Registrar’s representative shall serve and file written submission within seven (7) days of the date of this decision and the Licensee’s representative shall have seven (7) days 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 Licensee’s response. All submissions are to be filed with the Tribunal.

LICENCE APPEAL TRIBUNAL

________________________

Simon Dann, Presiding Member

Released: May 25, 2015