Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-08-24
FILE:
9467/LLA
CASE NAME:
9467v. 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.
Babes Tavern Inc. o/a The Westfort
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
DECISION AND ORDER
ADJUDICATOR:
Alex McCauley, Member
APPEARANCES:
For the Appellant:
Christen Marrello, Counsel
For the Respondent:
Aviva Harari, Counsel
Heard in Thunder Bay:
August 13, 2015
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 11, 2015, which proposed to suspend the liquor licence for 30 days. Babes Tavern Inc. (the "Appellant" or “licensee”) appealed this Notice of Proposal to the Licence Appeal Tribunal.
FACTS
The Registrar alleges the licensee breached Subsection 45(1) of O. Reg. 719/90 by permitting an intoxicated person to remain in the licensed premise.
On November 6, 2014, Sgt. Raymond Twomey of the Ontario Provincial Police (OPP) and Andrew Romu, a liquor inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”), attended at the licenced premise to conduct an inspection. Sgt. Twomey, at the time, was assigned to the AGCO and was responsible for the management of the liquor enforcement unit in northwest Ontario. Andrew Romu has been a liquor inspector for 22 years.
Once inside the licensed premise, the two sat at a table facing the main bar. Inspector Romu went to the bar to speak with the manager and bartender, Jennifer VanderHooft. During this time, Sgt. Twomey noticed a patron at the bar. This patron was drinking from a bottle of beer and was looking at Sgt. Twomey with a glazed stare. The patron went to the washroom and was followed there by Sgt. Twomey. The patron, while in the washroom, was disoriented. He continued to stare blankly at the officer. The officer noted the patron’s eyes were glassy.
Upon trying to exit the washroom, the patron was clearly disoriented and instead of exiting out the washroom door he attempted to exit using the doors to the toilet stalls. The patron was finally able to exit the washroom. Based on his observations of this patron, Sgt. Twomey was of the opinion that the patron was intoxicated.
Sgt. Twomey advised his partner Inspector Romu of his observations. The inspector observed the patron and then advised the bartender that in his opinion this patron was intoxicated. The patron at the time was drinking from a Budweiser beer at the bar.
The bartender advised Inspector Romu that she was aware of this patron and that she had cut him off. She advised that someone was coming to take him home.
Sgt Twomey and Inspector Romu left the licensed premise after advising the bartender that they would be returning. They left and checked an adjacent premise and then returned to the Westfort. They were gone about 10 minutes.
Upon their return, they noted that the patron in question had not left the licensed premise but was in fact seated at a table with other patrons consuming from a glass that the officers believed to be an alcoholic mixed drink.
They advised the bartender Jennifer VanderHooft of their observations. The bartender’s response to the officers was that the patron must have been given the drink from one of the other patrons that he was seated with.
They also advised the bartender of her responsibility under the Act to ensure that intoxicated patrons were removed from the premises.
The bartender went over to the table and spoke to the people seated there. The intoxicated patron in question was observed to drink the contents of his glass.
They then advised Ms VanderHoolft that a report would be filed with the Registrar and then left the bar. Upon their departure, the intoxicated patron was still seated at the table.
The Tribunal also heard from Jennifer VanderHooft who was the manager and bartender on duty that night. Ms. VanderHooft has been the manager at the Westport for approximately 1 ½ years. She has approximately 15 years’ experience in the liquor service industry.
On the evening in question, she stated that she was aware of this particular patron and in fact had cut him off from any further service of alcoholic beverages before Inspector Romu and Sgt Twomey came. She had allowed him to remain at the bar because he was supposed to be assisted from the premises by friends.
When they arrived at the bar, she had gone to the back cooler with Inspector Romu to inspect the inventory. She stated that when she returned to the bar after about 5 minutes, there was a line-up of patrons waiting for drinks. She was on duty alone this night. It is her belief that was probably the reason that she lost track of the intoxicated patron.
This incident took place between approximately 10:45 p.m. to 11:30 p.m. The bar at the time was not overly busy; there were perhaps 16 to 18 patrons in total.
The Tribunal also heard from Michael Larizza who is one of the Appellant’s management team. His evidence primarily dealt with administrative issues in the licensed premise and he offered no testimony relevant to the events of November 6, 2014.
THE LAW
The Notice of Proposal alleges that there was a breach of subsection 45(1) of O. Reg. 719/90 under the Act, specifically, that the licence holder permitted drunkenness on the licensed premises.
APPLICATION OF LAW TO FACTS
The allegation by the Registrar was that there was an intoxicated patron in the premises and that patron was permitted to remain on the premises.
The bartender admits that she had cut the patron off and that he was to be served no further alcoholic beverages. Therefore, by inference, the Tribunal concludes that the bartender clearly felt that this patron had too much to drink and was intoxicated.
Even though this patron had been cut off, he was still observed by Sgt Twomey and Inspector Romu to be consuming from a bottle of beer at the bar. The submission by the Registrar was that the beer should have been removed from this patron as soon as he was cut off.
Sgt Twomey and Inspector Romu, after pointing out the patron to the bartender, advised that they were leaving but would be returning. They had already advised the bartender that in their opinion this patron was intoxicated and should be removed.
A short while later, they returned to find that the patron in fact had not been removed and instead had migrated to a table with other patrons and was sitting with a glass of what they assumed to be an alcoholic beverage. The fact that this was an alcoholic beverage was never disputed by the bartender when they again pointed this patron out to her. Her assumption was that the drink had been obtained for him by one of the other patrons.
The bartender’s explanation for losing track of this patron was that she was distracted because she had to serve other customers. However, at this point in the evening, after Inspector Romu had spoken to her about the patron and the requirement for him to leave, her attention should have been on the intoxicated patron. Furthermore, the establishment was not overly busy. The patron should have been removed and was not.
The Ontario Court of Appeal in the Sin City Bar and Eatery decision [2009] O.J. No. 1533 sets out the test for a finding that a breach of section 45(1) has taken place. The Court of Appeal established a two-part test: whether there was drunkenness on the premises and whether the licensee permitted that drunkenness. Permitting drunkenness requires proof that the licensee knew or ought to have known of the drunkenness on the premises.
Based on the evidence, the Tribunal finds that there was in fact drunkenness on the premises. This has been established by the observations of Sgt Twomey and Inspector Romu – the patron was very clearly disoriented and his eyes were glassy as he stared blankly – and through the action of the bartender who had taken steps to cut the patron off before the officers intervened. There is, therefore, no dispute on the evidence; the patron was drunk.
Ms. VanderHooft stated that she was allowing the patron to remain in the bar until friends could assist him. That concern for his safety and wellbeing, on its face, may be appropriate. However, the evidence is that the patron was allowed to continue to consume from his beer at the bar after being cut off, and further, was permitted to migrate to other areas in the bar and, approximately ten minutes later, was consuming alcoholic, clearly exacerbating his condition.
Based on that evidence, the Tribunal finds that the Appellant permitted drunkenness on the premises contrary to s. 45(1).
ORDER
For the reasons stated above, the Tribunal finds that Babes Tavern Inc, o/a The Westfort breached subsection 45(1) of O. Reg. 719/90 under the Act, by permitting drunkenness on the licenced premises.
In regard to sanction, the Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision and the Appellant 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 Appellant’s response. All submissions are to be filed with the Tribunal.
LICENCE APPEAL TRIBUNAL
Alex McCauley, Member
Released: August 24, 2015