Licence Appeal Tribunal
FILE: 10284/AGRPPA
CASE NAME: 10284 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
1817897 Ontario Inc. o/a Beta Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Alex McCauley, Member
APPEARANCES:
For the Appellant: J. Randall Barrs, Counsel
For the Respondent: Aviva Harari, Counsel
Heard in Kitchener: October 25, 2016
REASONS FOR 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 April 20, 2016 imposed a monetary penalty in the amount of $2000 on 1817897 Ontario Inc. o/a Beta, (the “Appellant”), with respect to a contravention of Section 45(1) of R.R.O. 1990, Reg. 719, under the Liquor Licence Act. The Registrar alleges that on January 9, 2016, an intoxicated male was permitted to be in the licensed premises.
For the reasons below, the Tribunal confirms the monetary penalty.
FACTS
At the hearing, the Appellant’s security video from the night in question was viewed. The video depicted the alleged intoxicated patron at different times and locations in the licensed premise between 1:08 a.m. and 2:18 a.m. when the patron left the licensed premise (Ex. #3). The Appellant submits that the video is proof of the sobriety of the patron in question.
Two Alcohol and Gaming Commission of Ontario (“AGCO”) liquor inspectors attended at the licenced premise in an undercover, “Pose as Patron” project. The Inspectors pose and act as patrons.
The Tribunal heard testimony from Inspector Ramon Sharma who attended at Beta that night in company with Inspector Brian Sharpe.
Inspector Sharma stated they wandered through the licensed premises conducting their inspection. He described the premises as being very noisy, making it very difficult for “normal” communication.
Inspector Sharma stated that he purchased a Molson Canadian beer from a female server. He consumed about a quarter of it. He later dumped that beer and purchased another, again consuming approximately a quarter of it.
At approximately 1:09 a.m., Inspector Sharma was approached by the male patron in question whom he identified from the video. The patron asked him if he knew where the “Star Bar” was. The Inspector noted that this person’s speech was slurred and he appeared unsteady on his feet. He repeatedly asked if they wanted a drink, which they declined.
When the patron was asked his name, he replied “Newfy”.
The patron pulled a bundle of cash from his pants pocket and in doing so, dropped a $20 bill on the floor. He retrieved it with some difficulty, almost falling over. The patron then purchased a drink from the female server, who was described as wearing a black top and having black hair, tied back in a bun. The patron purchased a double rum and coke from the server but did not drink it. He paid for the drink with a $20 bill. He picked up a $10 bill and left $5 in change on the bar. He had a short conversation with the server before going over to see another server, in a different area of the bar. He again asked the Inspectors if they wanted a drink and again they declined.
The patron then called to the Inspectors to watch him. He then attempted to make a paper airplane out of a $20 bill and toss it at this second server. It did not work; eventually the server took the bill and placed it on top of the bar. The patron spoke to this server for another six minutes or so. In that time, he placed another $20 bill on the bar, and then another $180 with no transaction being made; this money was left as a tip for the server. In all, he spoke with this server for 12 to 15 minutes. She served him a glass of water. The Inspector noted that during this time the patron needed to lean on the bar for stability. In addition, his pants were coming down exposing his rear end. He made no effort to fix his clothing.
The Inspectors were three to five feet from this patron and had a clear view of him.
Inspector Sharma saw the patron stumble out to the coat check area. He attempted to retrieve his jacket, but did not have the ticket, so he was not able to get it. Inspector Sharma said the patron was upset. He then went back to the bar area to find the female he had come in with, who apparently had his ticket.
The Inspectors asked their cover team outside to watch for this patron, because they were concerned for his safety. They then saw the patron with a female and saw him obtain his jacket. It was their impression that the patron and the female were together and would leave together. This was not the case.
The Inspectors left the licensed premise at 2:11 a.m. The patron exited alone at 2:18 a.m.
In cross examination, Inspector Sharma admitted that he did not know the patron and he therefore was not familiar with the patron’s normal demeanour, or gait, or the fact that he appeared overly friendly.
Inspector Sharma disagreed that the video showed the patron walking properly. In addition, the Inspector pointed out that the video showed very small clips, while they had been watching this patron steadily for some time.
Inspector Sharma further disagreed that the video illustrated fine motor skills on the part of this patron, when he was leaving the premises.
Inspector Brian Sharpe also gave evidence. He corroborated the evidence of Inspector Sharma, as it pertained to the allegedly intoxicated patron. They were together the whole time and left the premises together. He testified that they first encountered this patron at the long bar on the left side of the licensed premise.
He corroborated the evidence of Inspector Sharma as to the actions of this patron at the bar, when he was interacting with the female servers. He also noted that the patron was very unsteady; his clothing was dishevelled, with his pants falling down. The patron’s speech was slurred.
He observed the patron walk to the washroom area, swaying as he walked.
In cross-examination, Inspector Sharpe stated that in his opinion, the patron was swaying and stumbling about.
It was Inspector Sharpe’s opinion that the actions of this patron were not “normal”, and he appeared intoxicated. Inspector Sharpe stated that this patron appeared to be lost and confused when he was on the dance floor, apparently looking for the girl who had his coat check tag.
Inspector Sharpe stated that the video of the patron going to the coat check showed the patron appearing to walk normally in that interval. Inspector Sharpe noted that the video showing the patron outside the licensed premise depicted the patron as being unsteady on his feet.
Alyssa Foster, one of the Appellant’s employees, gave evidence. She served the patron in question the rum and coke. He was not at her station long and went almost immediately to speak with the other server, Leanne Forler. Ms. Foster stated she noted nothing unusual about this patron. He did not drink the drink he ordered, and she ultimately dumped it. She noted the large amount of money on the bar in front of her colleague. She stated he appeared to be “hitting” on her colleague. She felt it was odd, that the patron put the large amount of cash on the bar in front of her colleague.
In her opinion, the patron was not intoxicated.
In cross-examination, she was not able to describe the patron. She admitted that his behavior was strange, leaving the large tip. In her opinion, he may have been approaching a level of intoxication.
Leanne Forler also gave evidence. She served the patron that night. She was the server on duty and to whom the patron left a large amount of money. She stated that she served the patron a glass of water. They chatted about hobbies and other interests. The patron showed her a bundle of cash and said he wanted to take her to dinner, or have her buy herself something nice. He gave her a tip.
In her opinion, he was not intoxicated or showing signs of intoxication.
In cross-examination she stated that the large tip was unusual and somewhat odd. She could not provide a description of this patron. She just served this patron water.
Ashley Ertel, the principal of the Appellant gave evidence. She reviewed the security video of that night involving this patron and in her opinion, this person was not intoxicated.
In cross-examination, she stated that Ms Foster indicated to her that it was her opinion that the patron may be reaching a level of intoxication and that is why she removed the rum drink. The servers were alerted by the large tip left by the patron.
Submissions
The Registrar submitted that this patron clearly was displaying signs of intoxication as noted by the Inspectors. The Inspectors kept close observation of this patron for over an hour. The video does not deliver a clear picture. In addition, some of the clips tend to corroborate the fact that this patron was in fact unsteady and swaying.
For their part, the servers found the actions of this patron unusual and were moved to remove the alcohol from him. In their words, they felt he was approaching the level of intoxication. There was interaction between the servers and the patron, but they took no steps to deal with him.
The Appellant submitted that the opinion of the Inspectors is subjective. There was no odour of alcohol on the breath of the patron. Further, the Inspectors had no previous knowledge of this patron regarding his ‘normal’ behavior.
The video shows at best the patron may have been approaching intoxication, but was not intoxicated. The video also shows the patron walking normally when he leaves the licensed premise to flag a cab.
Further, it was only the large tip that alerted the servers, none of his other actions. He did not, for example, cause any problems at the premises that night.
THE LAW
Subsection 14.1(2) of the Act allows the Registrar to impose monetary penalties set out in the schedule established by the Board of the AGCO. The Schedule of Monetary Penalties: Liquor Licence Act and its Regulations sets a monetary penalty in the amount of up to $10,000 for contravention of subsection 45(1) of the Regulation, which states:
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.
The Pursuant to subsection 14.1(7) of the Act, the Tribunal may confirm the monetary penalty or set it aside. The Tribunal may not vary the amount of the monetary penalty.
APPLICATION OF LAW TO FACTS
For a finding under subsection 45(1) of the Regulation, there is a two-part test. First, it must be established that the patron was drunk on the premises. Second, it must be established that the licensee knew or ought to have known that the patron was drunk, in the circumstances, and thereby permitted the drunkenness.
In this case, both Inspectors gave clear and convincing evidence about their observations of the patron in the licensed premise. They described him as unsteady, staggering and at times supporting himself on the bar. His speech was slurred. At times, he appeared lost and confused. His clothing was disheveled with his pants falling down exposing himself, yet he took no steps to correct this. They described his interaction with the female servers as strange and abnormal behavior.
The two servers admitted that this patron’s behavior, especially when it came to the large tip was not normal, and that he appeared to be approaching intoxication.
The Appellant relies on the video presented to show that this patron’s motor skills were fine. The Tribunal finds that the video has little persuasive value. It does not clearly depict activities in the bar area, which were described by the two Inspectors who were standing two feet away from the patron and at times talking to the patron. The clearest portion of the video is when the Inspectors leave and later, when the patron leaves. The patron is unsteady on his feet and swaying, as he steps back from the curb.
The Tribunal disagrees that the evidence of the Inspector’s was subjective and therefore, less reliable. The observations of the Inspectors are based on training and experience.
Based on the evidence, the Tribunal finds that the patron was drunk in the licensed premises.
The Appellant’s employees had ample time to identify this patron as being drunk. He was standing at the bar area, leaning on it for stability. The patron had interactions with both servers. He ordered a double rum and coke, but did not drink it. His speech was slurred in his interactions with the Inspectors and it is reasonable to infer that it was slurred when he spoke to the servers. He attempted to throw a paper airplane at the other server, made from a $20 bill. The servers’ statements that the patron was not intoxicated are not consistent with their observations that his actions were odd in relation to the tip proffered, and with the fact that one of them decided to remove his alcoholic drink.
In this case where the evidence of the servers differs from that of the Inspectors, the Tribunal prefers the evidence of the Inspectors, whose evidence is unbiased and independent.
The Tribunal concludes, based on the evidence that the servers failed to properly monitor the patron when he was readily observable by them. It was not only the large tip that should have alerted them to his condition; there were several other signs of intoxication as noted above. They knew or ought to have known from their interactions with him that he was drunk. When he did leave, he left on his own volition, though not after displaying some confusion in his efforts to retrieve his coat. The Tribunal therefore concludes that the requisite elements of s. 45(1) of the Regulation have been established.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal confirms the monetary penalty imposed pursuant to Order of Monetary Penalty # 1383 issued on April 20, 2016.
LICENCE APPEAL TRIBUNAL
Alex McCauley, Member
Released: November 10, 2016