Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-11-03

FILE:

10171/AGRPPA

CASE NAME:

10171 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

Bingeman’s Inc. o/a Marshall Hall Tavern

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Alex McCauley, Member

APPEARANCES:

For the Appellant:

Thomas Brock, Counsel

Laura Doherty, Counsel

For the Respondent:

Joyce Taylor, Counsel

Heard in Kitchener:

October 4 and 5, 2016

DECISION AND ORDER

BACKGROUND

This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of Order of Monetary Penalty #1375 (the “OMP”) 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 OMP dated March 29, 2016 imposed a monetary penalty on Bingeman’s Inc. o/a Marshall Hall Tavern (the “Appellant”), with respect to contraventions of section 29 of the Liquor Licence Act (the “LLA”) and section 45(1) of Ontario Regulation 719/90 under the LLA (the “Regulation”). The OMP is in the amount of $8,000. There are four allegations of violations of s. 45(1) the Regulation, each with a monetary penalty of $1,000 and two allegations of violations of s. 29 of the LLA, each with a monetary penalty of $2,000.

For the reasons set out below, the Tribunal confirms the monetary penalty.

PRELIMINARY MATTERS

On consent of the parties, the OMP was amended to indicate the incident dates of October 17 and 18, 2015.

FACTS

The Registrar alleges that in the course of the evening of October 17 and 18, 2015, the Alcohol and Gaming Commission of Ontario (“AGCO”) Inspectors attended the Appellant’s premises and conducted an inspection. Through the course of their inspection, the Inspectors discovered four intoxicated patrons, two of whom were served liquor while in an intoxicated condition. The Registrar further alleges that the licensee permitted drunkenness.

Lorraine Simpson, a liquor inspector with the Alcohol and Gaming Commission of Ontario (”AGCO”) testified that on the evening of October 17, 2015 at approximately 10:30 p.m., she attended the licensed premises in the company of AGCO Inspector John Meissner, in order to conduct a routine compliance inspection. The capacity of the venue is 4,500 patrons.

There was a line-up at the main entrance and the venue appeared to be busy. She spoke briefly to Mr. Bingeman, a principal of the licensee. Paid security at the premises was being provided by TNT Security.

She and Inspector Meissner began a walk through. They noticed a female patron leaning on a railing by the entrance to a charity casino. The patron did not look well. She had her head down and was swaying on her feet. The patron appeared to be hiccupping. They observed this patron for a short period of time and concluded that the patron appeared to be intoxicated. During this time, she noticed a staff member by the casino area who was taking no action regarding the patron.

They approached this female patron (patron #1). She had the odour of alcohol on her breath. The patron stated that she consumed two beers at home before attending the venue and had consumed three since her arrival. She said she was waiting for friends who were currently in the smoking area.

There were security and staff in the area of the casino and by an ATM machine. All were within sight lines of this patron. At the request of the Inspectors, security attended and took charge of this patron.

The Inspectors continued their walk through and observed what they believed to be a second intoxicated female. This female was leaning against a male patron. She had her head on his chest and her face tucked into his sleeve. Inspector Simpson described this female patron (patron #2) as having sleepy eyes and slurred speech with an odour of alcohol on her breath. This patron admitted consuming two “Tall Boy” beers at the venue within a two hour period. There were several male patrons with her, all were co-operative. The Inspectors located security who attended in the area and the group of them was escorted out.

During their observation of this female patron, there was no staff or security observed in the area. At this point, shortly before midnight on October 17^th, Inspector Simpson concluded her shift and was driven to her vehicle by Inspector Meissner.

In cross-examination, Inspector Simpson advised she had not authored the Inspection report of that evening, nor had she read it. She also stated that when she first observed patron #1, she was about 18 feet away from her; there were a lot of patrons in the area but she had a clear view.

In regard to patron #2, she stated that she and Inspector Meissner initially observed her from 6 to 7 feet away. She was either sleeping or intoxicated. They observed this patron for approximately two minutes before approaching her. In re-examination, Inspector Simpson stated that patron #1 had admitted to being intoxicated.

The Tribunal heard from Inspector Meissner who stated he had attended the venue with Inspector Simpson October 17, 2015, and returned later on his own. When he initially arrived with Inspector Simpson; he had a brief conversation with Mr. Bingeman, and the head of TNT security. There did not appear to be any issues.

He began the walk through the premises with Inspector Simpson. He corroborated her evidence with regard to patron #1. There were security and staff persons in the area, but none took any action with regard to this patron. The patron admitted to being drunk. In his description of her, he stated she had a low level of awareness, in addition to the other signs of intoxication mentioned. In his opinion, this patron was clearly intoxicated.

They continued their walk about and observed the second patron. In his observations of this patron, he stated that she was unsteady on her feet and appeared to be asleep against a male patron. They observed her for about two minutes. The area where she was is on the east side of the venue. This area has a food service area and a service bar which is manned by staff. No staff intervened with this patron. When they spoke to this patron, it was noted that she had a low level of awareness, tired, watery eyes and an odour of an alcoholic beverage on her breath. It was his opinion that she was intoxicated. The patron stated she had been at the venue for two hours and had consumed two “Tall Boy” beers.

Inspector Meissner briefly left the venue to drive Inspector Simpson to her car, and returned shortly after midnight, on October 18, 2015. He continued his inspection accompanied by Todd Schmidt, the head of TNT security.

They were walking in the area of the “Craft Bar” which was also the “Rickards Bar”, and they were about 20 feet from the service bar. The Inspector observed a male patron walk away from the service bar carrying three cans of Rickards beer which were “Tall Boys”. The individual was staggering and was unsteady on his feet. He had a tired expression and a low level of awareness. The Inspector identified himself to this patron (patron #3). The patron placed the beer on a table. The Inspector noted that two of the cans were full and ice cold; the third was half full and a little warmer. The Inspector’s opinion was that the two cold beers had just been purchased from the service bar.

Patron #3 admitted to being drunk, but stated, “I’m not being an asshole”. His speech was very slurred and he had an odour of alcohol on his breath. In Inspector Meissner’s opinion, this patron was intoxicated. Todd Schmidt told the patron he had to leave and the patron was escorted out by the paid duty police.

They then returned to the main entrance. A police officer, Constable Stover, was assigned to continue the walk through with Inspector Meissner.

In the area of the “Prosit” bar on the west wall, the Inspector noticed a male person standing in front of the bar. This person appeared to be unsteady on his feet. He was using his left arm against the bar to support himself; he seemed to be stumbling back from the bar.

He observed the bartender, later identified as Kayla Kreutzberg, pour two shots of whiskey and present one to the patron S (patron #4) and another to his companion at the bar, R. The Inspector was 10 feet from them. The two males went to toast with the drinks when the Inspector and the police officer stepped in. The men were directed to put the drinks on the bar. S was very belligerent; he had watery eyes and a strong odour of alcohol on his breath. Security was alerted and S was escorted out. He had to lean on the security staff for support. In the Inspector’s opinion, S was intoxicated. R had been drinking, but in the opinion of the Inspector, this person was not intoxicated.

In cross-examination, Inspector Meissner stated that staff and security should have reacted to patron #4 as his actions clearly were not normal. He stated he never saw patron #3 at the Rickards bar actually make a purchase, he saw him turn from the bar and walk away with the beer.

The Tribunal heard evidence from Mark Bingeman the President and principal shareholder of the Appellant. He has been in the hospitality industry for 15 years. The licensed premises in issue are part of a 170 acre site. His corporation has several divisions, all related to the hospitality industry. They employ 600-800 people, some seasonally.

On October 17 and 18 2015, they were celebrating Oktoberfest, a major cultural event in the Kitchener/Waterloo Region.

Mr. Bingeman stated they take many steps to ensure compliance with the law and regulations and for the overall safety of the patrons. They control access and egress to the facility. They employ security and off duty police officers. In addition, there are various levels of on-going training for staff, including bartenders and servers. They have a strict no tolerance policy for over-service, and rowdy and disruptive behaviour.

He stated he recalled having a discussion with Inspector Meissner regarding the last two patrons but not the first two. Persons asked to leave are entered on a notice at the exit, an ejection sheet. He stated they had ejected 50 persons that night. No sheet or note was placed into evidence.

Todd Schmidt, owner and manager of TNT Security, testified. His company was contracted by the Appellant, on the night in question.

He stated he has two levels of security; one level is licenced by the Province and takes care of matters requiring enforcement, such as liquor violations, trespassing etc. The other level works with event staff checking tickets, etc. On the night in question, he had 42 staff on duty, 36 licenced and 6 event staff.

He accompanied Inspector Meissner on his walk through after midnight on October 18, 2015. He recalled the incident with the patron carrying the three cans of Rickards beer. When he first observed this patron, he was 10 to 12 feet from him. The patron was 15 to 20 feet from the service bar. In his opinion, the patron was intoxicated and if encountered, would have been removed.

Kayla Kreutzberg gave evidence. She was the bartender on duty that served the two shots to patrons, S and R. She admitted to serving them two shots of scotch whiskey. She stated she only engaged one patron, R, in conversation. She asked if he was driving home. He had replied no and that he had to work in the morning. She stated he had been drinking, but in her opinion was not intoxicated. She could not recall the condition of R’s friend; she did not speak to him.

In cross-examination, it was suggested she pushed the shots across the bar towards the two patrons. She replied no, she pushed them towards the purchaser, R.

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 (the “Schedule”) sets a monetary penalty of up to $15,000 for contravention of section 29 of the LLA, which states:

No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.

The Schedule 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: Sin City Bar and Eatery v. Ontario (Alcohol and Gaming Commission), 2009 ONCA 323.

The Tribunal will first deal with patron #1, found by the railing in the area of the charity casino.

Both Inspectors Simpson and Meissner observed this female. In their evidence, they described her as not looking well. She was slumped over and hiccupping. They reported that there was staff and security in the area, but no one was paying attention to this patron. The Inspectors stated they had a clear sight line to this patron even though the premise was busy. The Inspectors noted that she had an odour of alcohol on her breath; she had sleepy eyes and a low level of awareness. The patron had admitted consuming two beers at home and three since attending the venue. It was the opinion of both Inspectors that this patron was drunk.

Based on the evidence, the Tribunal is satisfied that patron #1 was drunk.

The second issue is whether the Appellant “permitted” drunkenness, that is, whether the Appellant “knew or ought to have known” that the patron was drunk. The Tribunal concludes that the Appellant did “permit” based on the evidence.

Based on the evidence of the Inspectors, patron #1 was in some form of distress. Staff and security were in the area but no one took any notice of her. She was easily observed by the Inspectors and staff in the area should have picked up on her as well.

The Tribunal finds that staff failed in their duty to monitor this patron. She was permitted to become intoxicated and remain on the premises in this condition. The Tribunal therefore, concludes that the requisite elements of s. 45(1) of the Regulation have been established and a violation occurred with respect to patron #1.

The Inspectors continued their inspection and observed patron #2. This was a female patron standing with her head against the chest of a male patron. According to the Inspector’s evidence in their opinion, this patron was either intoxicated or sleeping. The area where she was observed is a high traffic area where there was a food service area, and service bars. This was an area where there was a large amount of staff dealing with patrons.

The Inspectors approached this female. She was described as having heavy, watery eyes, a low level of awareness and an odor of alcohol on her breath. She was unsteady on her feet. She stated she had been at the venue for two hours and in that time had consumed two “Tall Boy” cans of beer. She agreed with the Inspectors that she was intoxicated. The Inspectors in their evidence stated they observed this patron for several minutes before approaching her and in that time, the patron was never approached by staff or security. Security was summoned to the scene and the patron was escorted out.

The Tribunal therefore concludes, based on the evidence that the requisite elements of s. 45(1) of the Regulation have been established and a violation occurred with respect to patron #2.

Inspector Simpson left the venue and Inspector Meissner continued the inspection alone. He was accompanied by Todd Schmidt.

As they were walking through the establishment, Inspector Meissner noticed a male (patron # 3) turn away from the Rickards service bar in the south west corner of the venue. The patron was carrying three “Tall Boy” beers. He was staggering and unsteady on his feet; he had a tired expression on his face. They approached this patron and he was directed to put the cans of beer on the table. Inspector Meissner noted that two of the cans were full and ice cold, and the third can was half full and a little warmer than the other two. Inspector Meissner concluded that the two beers had just been purchased from the service bar he had observed the patron walking away from, though he did not see the sale take place.

In speaking with patron #3, Inspector Meissner noted that his speech was slurred and there was a strong odour of alcohol on his breath. The patron agreed with the Inspector that he was drunk, but pointed out that he was not being an “asshole”. The patron was removed from the venue.

Based on the unrefuted evidence of the Inspector, and indeed the acknowledgement by Mr. Schmidt that the patron was intoxicated, the Tribunal is satisfied that this patron was indeed drunk in the licensed premise. Furthermore, Mr. Schmidt sated that if encountered, the patron would have been removed. The evidence is that the patron was first observed by the Inspector and Mr. Schmidt when walking away from the bar area with three beers. The Tribunal infers from the evidence that he had indeed encountered staff. Yet, he was not only permitted to remain on the premises, but served more alcohol. The Tribunal also infers from the evidence that the cold beer being carried by this intoxicated patron had just been purchased by him, at the service bar he was observed walking away from.

Considering the level of intoxication being displayed by this patron when stopped by Inspector Meissner and Todd Schmidt, his condition ought to have been obvious to the serving bartender and he should not have been served. Based on the evidence, the Tribunal finds that the requisite elements of s. 45(1) of the Regulation have been met and a violation occurred with respect to patron #3. Furthermore, the licensee breached s. 29 of the LLA by permitting the sale or supply to a person who was or appeared to be intoxicated.

Inspector Meissner continued his inspection, this time accompanied by Constable Stover of the Kitchener/Waterloo Regional Police. In the area of the Prosit Bar, Inspector Meissner noticed two males at the bar. The one male who first drew his attention appeared intoxicated. He was swaying and had to support himself with his arm against the bar in order to stay upright.

The Inspector observed the bartender pour two shots of what was later identified as scotch whiskey. She pushed one toward this male (S or patron #4) and the other to his companion. The Inspector was approximately twenty feet from the bar. The two men appeared about to toast when the Inspector and Constable Stover approached them. Constable Stover directed the men to put the drinks on the bar. Patron #4 was very unsteady on his feet. He had an odour of an alcoholic beverage on his breath. He was very belligerent when dealing with the Inspector. His companion, R; had been drinking but did not appear to be intoxicated.

The Inspector’s evidence regarding patron #4 was unrefuted and supports a finding that the patron was drunk.

The bartender Kayla Kreutzberg, stated in her evidence, that she did not interact with S, but only with R and that she pushed the shots toward R.

The Tribunal, where there is a conflict between the evidence of Inspector Meissner and Ms. Kreutzberg, prefers the evidence of Inspector Meissner. However, whether she ‘pushed’ the two shots to one or both of the patrons are not determinative. Both patrons were at the bar, and about to toast each other with the shots, as observed by the Inspector. Her possible inattention to the patrons does not excuse her failure to make note of the fact that patron #4 was drunk and thereby take action to have him removed from the premises, and ensure that patron #4 was not supplied with alcohol. Patron #4 was not only permitted to remain on the premises, but was also served with alcohol. The Tribunal accepts the evidence of Inspector Meissner that the two shots were pushed to both patrons.

Even if the Tribunal were to believe the evidence of Ms. Kreutzberg, this still does not excuse her inattention or inaction in ensuring that Patron S was not served or did not consume liquor in his intoxicated condition.

Based on the evidence, the Tribunal finds that the requisite elements of s. 45(1) of the Regulation have been met. Furthermore, the Appellant breached s. 29 of the LLA by permitting the sale or supply to patron #4, who was or appeared to be intoxicated.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal confirms the monetary penalties imposed pursuant to Order of Monetary Penalty # 1375 issued on March 29, 2016.

LICENCE APPEAL TRIBUNAL

_________________________

Alex McCauley, Member

Released: November 3, 2016