1843258 Ontario Ltd. o/a Seneca Pub v. Registrar of Alcohol and Gaming, 2015 CanLII 9121

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-02-05

9069/AGRPPA

9069 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

1843258 Ontario Ltd. o/a Seneca Pub

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

D. Gregory Flude, Vice-Chair

For the Appellant:

Kuang Lu, Agent

For the Respondent:

Rena Khan, Counsel

Heard in Toronto:

January 9, 2015

1The Appellant, 1843258 Ontario Ltd. o/a Seneca Pub, appeals an Order of Monetary Penalty of the Registrar, # 1040, in the amount of $2,000.00 issued pursuant to the provisions of the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26 (the “Act”). The sole factual allegation against the Appellant is that, contrary to s.45(1) of O/Reg 719, it permitted an drunk person to be on the premises at approximately 2:00 a.m. on the morning of February 16, 2014. The Act directs the Tribunal to determine if, on a balance of probabilities, the Appellant permitted a drunk person on the premises as alleged. If the Tribunal finds that there was, it has no discretion to alter the amount of the monetary penalty.

2To succeed, the Registrar must establish two things: that there was a drunk person on the premises and that the Appellant knew or ought to have known that the person was drunk. On the evidence the Tribunal heard from both parties, the alleged intoxicated patron was sitting with his head down on the bar within a few feet of the bartender throughout the period when he was observed by Alcohol and Gaming Commission of Ontario (AGCO) inspectors. Notwithstanding conflicting evidence on lighting conditions at the bar, the Tribunal is satisfied that he was clearly visible to the bartender throughout the events in question.

3The Tribunal heard evidence from the two attending AGCO inspectors, the patron himself and the bartender. There is general agreement regarding the events of the evening but there are two areas of tension: the amount of alcohol the patron consumed and the presence or absence of signs of intoxication. The evidence of each witness was generally believable despite a tendency on the part of the bartender to attempt to protect her position that the patron was neither intoxicated nor asleep. The Tribunal has taken this tendency into account in assessing her credibility.

4The evidence discloses that the patron arrived at the bar at about 9:30 p.m. on the evening of February 15, 2014. He ordered a jug of beer and paid cash. It is the policy of the Appellant to permit patrons to buy jugs of beer but to serve them one pint at a time. There are three pints in a jug and the price of a jug of beer is slightly discounted from the price of three individual pints. While there is a conflict in the evidence on whether the patron, a regular at the bar, walked around the room talking to other patrons as he alleges or whether he sat at the bar all night as stated by the bartender, nothing turns on his particular activities until approximately 2:00 a.m. At some point during the evening, the patron ordered and paid for another jug of beer and by last call at 1:30 a.m., he was sitting at the bar. He believes that he drank one of the pints of beer from the second jug and was halfway into the second pint when, feeling very tired, he put his head down on the bar. He was not absolutely certain if he was drinking his second or third pint from the second jug at this time.

5The bartender explained the policy regarding selling jugs to patrons. She said that, with regulars, if they do not consume all three pints, they will receive a credit next time they are in. The credit system apparently works with sticky notes behind the bar. She did not produce a sticky note regarding this patron with respect to this particular evening or even testify that she recalled putting one behind the bar for his credit despite her recollection that the patron had only consumed one of three pints and was on his second at the end of the evening. The absence of this evidence suggests that the patron was drinking his sixth pint at the time of the inspection. Of interest was the bartender’s evidence that the patron’s rate of consumption was well within the Smart Serve limits, that is, five and a half pints over four and a half hours.

6Both inspectors entered the bar just prior to 2:00 a.m. One, Inspector Ng did a general survey of the bar and the second, Inspector Joseph, immediately noticed the patron with his head down on the bar. He caught Inspector Ng’s eye and they jointly observed the situation for a number of minutes. The bartender was busy serving drinks for last call and did not notice the patron for some time. Whether her attention was drawn to him because she noticed the inspectors observing him or whether she noticed on her own, she finally approached and shook him. The inspectors testified that it required vigorous shaking to wake the patron; the bartender stated that it took a couple of light prods because he was not asleep, only resting his eyes. The inspectors noted that the bartender did not remove the patron’s half-consumed pint of beer when she roused him.

7The inspectors then spoke to the patron and asked him how he felt. He answered: “Drunk and tired.” They noted heavy eyelids, slightly slurring speech and a stagger when he got off the stool. They concluded that these were signs of intoxication. The patron was cooperative with them and non-argumentative. He provided identification and left the bar. Inspector Ng then spoke to the bartender and asked her why she had not removed the patron’s unconsumed beer when she woke him up and offered him non-alcoholic refreshment. She stated that she had offered him water. There is a dispute on the evidence whether she acknowledged to Inspector Ng that he was drunk.

8Inspector Ng testified that he discussed the Smart Serve charts relating to alcohol consumption with the bartender. He did not produce those charts in his evidence or even testify to their content or applicability to the current facts. This leaves the Tribunal with only the bartender’s evidence that the patron’s consumption on the night in question was well under Smart Serve limits.

9On all of the evidence, the Tribunal cannot conclude that the patron was drunk. The Tribunal has no hesitation finding that he was sleeping at the bar. It is not an offence to sleep in bars as it is not unusual to get tired at 2:00 a.m. but it may be a sign of drunkenness. The difficulty for the Tribunal is that other symptoms of intoxication noted by the inspectors are also consistent of someone waking from sleep; heavy eyelids, slightly slurring speech and a stagger when getting off the stool. Given the commonality of symptoms, the Tribunal must put its main focus of the quantity of alcohol and the time period during which it was consumed. Throughout this analysis the Tribunal has assumed alcohol consumption at the higher end of a range from 90 ounces to 110 ounces of beer over a period of four and a half hours. The only evidence linking this rate of consumption to drunkenness comes from the bartender who testified it was well within Smart Serve limits.

10The Tribunal reads no more into the patron’s statement that he was drunk and tired than