Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9468/AGRPPA
CASE NAME: 9468 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
2382104 Ontario Inc. o/a Chicken Coupe Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Patricia L. Cassidy, Vice-Chair
APPEARANCES:
For the Appellant: Victor Cho, Agent
For the Respondent: Tamara Brooks, Counsel
Heard in Elliot Lake: July 6, 2015
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 May 29, 2015 imposed a monetary penalty on 2382104 Ontario Inc. o/a Chicken Coupe (the “Appellant”), with respect to a contravention of section 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act.
FACTS
The Appellant holds licence no. 25511 under the Liquor Licence Act (“the Act”).
The Registrar determined the Appellant contravened the Act by permitting drunkenness in its establishment. Specifically, it is alleged that on December 7, 2014, at approximately 1:38 a.m., there was a drunken male patron in the licensed establishment. Consequently, the Registrar ordered the Appellant to pay a monetary penalty in the amount of $750.00, pursuant to section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act. The Appellant denied there was a drunken male patron in its establishment as alleged and commenced this appeal.
THE EVIDENCE
The uncontroverted evidence is that, in the early morning hours of December 7, 2014, James Moore was the only employee working as security at the Appellant’s business where there were about 30 patrons. One female patron arrived at the premises drunk, was identified by Mr. Moore, a cab was called and she was escorted out without being served. There was also another incident involving an argument between two female patrons which had to be addressed by Mr. Moore at the same time that he was asked to deal with the patron who is the subject of the order under appeal.
Michael Collins, an inspector with the Alcohol and Gaming Commission of Ontario since December 2005 stated he is employed with the Sault Ste. Marie enforcement district which includes the districts of Sault Ste. Marie and Algoma. He arrived at the Appellant’s business at 1:38 a.m. on December 7, 2014 for a routine compliance inspection and was greeted at the door by Jim Moore, who was working security for the establishment.
The witness stated that at 1:45 a.m. he observed a male patron seated at the service bar, about 20 feet away from where he was standing. The patron stood, moved away from the bar, and was observed to be staggering. He observed him bump into chairs and sway when he stopped walking. He then observed the man leaning heavily on the service bar top. He also observed Mr. Moore and Mr. Cho, who was working behind the bar, speak with the man.
The witness stated he pointed the patron out to Mr. Moore at 1:47 a.m. and asked him to assess the individual. The patron was then escorted out by Mr. Moore under the guise of going out to smoke a cigarette. Mr. Moore returned inside and the male patron was observed smoking a cigarette at the open door of a taxicab which, presumably, he was leaving in. At 1:55 a.m., however, the patron returned. The witness again pointed the patron out to Mr. Moore and Mr. Moore approached the man again and removed him for the second time.
The witness stated he observed the man in question today, prior to the hearing, and did not observe him to be having any difficulty standing or walking, nor was he slurring his speech.
James Moore was affirmed and stated he had been dealing with another situation involving a female patron when Inspector Collins approached him and pointed out the male patron in question. Mr. Moore said the patron was known to him and that he had been badly injured in a snow mobile accident; they had actually met while they both were patients in hospital in Toronto. He acknowledged the individual might have appeared drunk but he did not think he was. He stated the patron was not drunk when he arrived, but described him as tipsy when he asked him to leave. Given that it was late and it had been a busy night, he did ask the patron to leave since he might have appeared drunk to the inspector. He stated he asked the patron if he wanted to go out for a cigarette, explaining he does that to get patrons out without a confrontation and, once they are outside, he doesn’t allow them back in.
The witness stated he thought the patron had gotten into a cab and left, but while he was dealing with an argument between two other patrons, Inspector Collins approached and pointed out the male had returned. At the time, the witness didn’t know why the patron had returned but learned the next day that he had come back to retrieve his coat which contained his keys, his tablet and other belongings, all of which were behind the bar. In any event, the witness escorted him out a second time and stated he doesn’t know how the patron got home without his things. His understanding is that the patron was at the establishment to order food to bring home and he was having a beer while he waited for the food. He stated that when the patron arrived, he was not drunk but when he departed, he would describe him as tipsy, not drunk.
SC was affirmed and stated he was the male patron in question. He stated he returned to the bar after being asked to leave by Mr. Moore in order to retrieve his coat, cell phone, tablet and house keys. He stated he got into the cab when he was first escorted out, took it to the end of the building and then got out and entered the premises through the patio door to grab his things and leave but, instead, he was grabbed a second time and put out again by Mr. Moore.
THE LAW
Subsection 45(1) of Ontario Regulation 719/90 under the Act provides:
- (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.
Under sections 14.1(1) and (2) of the Alcohol and Gaming Regulation and Public Protection Act, 1996 S.O. 1996 c.26 (“the Act”), the Alcohol and Gaming Commission of Ontario (“the Commission”) may impose monetary penalties against licence holders in respect of contraventions of various legislative provisions, including s. 45(1) of the Regulation. An appeal from such an imposition lies to the Tribunal. Under s. 14.1(7) of the Act, the Tribunal’s powers on appeal are limited to confirming the monetary penalty or setting it aside.
APPLICATION OF LAW TO FACTS
Counsel for the Registrar correctly asserts the Registrar must, on a balance of probabilities, establish the licence holder knew or ought to have known the patron was drunk but permitted him to remain on the premises.
It is not disputed that the male patron might have appeared drunk but the evidence of Mr. Moore is that the individual is known to him, that on December 7, 2014 SC was still recovering from serious injuries he received in a snow mobile accident and that his injuries were consistent with him not being able to bear much weight on a severely injured foot. There is no evidence that Inspector Collins spoke with the patron or that he overheard him speaking and heard him slur his words. All of his evidence was that the patron was seen to lean heavily on the bar, that he staggered and that he bumped into chairs when attempting to walk away from the bar.
The evidence is that immediately prior to being asked to assess SC, Mr. Moore had observed a drunk female enter the premises and immediately called her a cab and escorted her out of the premises when the cab arrived. She was not served. Also, there was an argument between two other patrons which Mr. Moore defused. When asked to assess SC, given what else was going on, Mr. Moore simply asked SC to leave the premises and escorted him out to a cab. SC took the cab just to the end of building where he got out, re-entered the building to obtain his belongings including his coat, his house keys and his cell phone, but was once again escorted out before he could retrieve them.
The evidence falls short of establishing that the Appellant permitted drunkenness in its premises. The requisite elements for a finding of a violation under s. 45(1) of the Regulation, in respect of patron SC, are not present on these facts, namely, that there was drunkenness on the premises and that the licensee permitted that drunkenness. Indeed, the overwhelming evidence is that the Appellant strived to ensure compliance with the Act by not permitting “...drunkenness or riotous, or quarrelsome, violent or disorderly conduct to occur on the premises...” The evidence is that both Mr. Cho and Mr. Moore knew the inspector was present and they had already removed one patron from the premises and Mr. Moore also dealt with an argument between two other patrons.
The evidence of Inspector Collins that he had observed SC immediately prior to the hearing of this appeal and noted he did not have any issues with regard to walking or slurring his speech is not helpful. There was no evidence SC had slurred speech on December 7, 2014 and the observed difficulties he had walking seven months ago, on December 7, 2014 are consistent with the injuries he had at the time.
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 dated May 29, 2015.
LICENCE APPEAL TRIBUNAL
Patricia L. Cassidy Vice-Chair
Released: August 5, 2015