Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2016-07-20

FILE: 10045/ AGRPPA

CASE NAME: 10045 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

Amy Min Li-Tatalovich o/a Five Star Cafe Appellant

-and-

Registrar of Alcohol and Gaming Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Patricia McQuaid, Vice-Chair

APPEARANCES:

For the Appellant: Frank Sondola, Counsel

For the Respondent: Rena Khan, Counsel

Heard in Hamilton: June 28, 2016

REASONS FOR DECISION AND ORDER

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 January 29, 2016, imposed a monetary penalty of $1,000 on Amy Min Li-Tatalovich o/a Five Star Cafe (“Ms. Li “ or “Five Star”) with respect to a contravention of section 45(1) of Ontario Regulation 719/90 (the “O. Reg.”) on May 29, 2015. Specifically, the issue in this appeal is whether the appellant permitted drunkenness on her premises.

EVIDENCE AND ANALYSIS

On May 29, 2015, Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Brian Sharpe attended at Five Star, together with five officers from the Hamilton Police Service, one of whom was Sgt. Paul Corrigan. Both individuals testified at the hearing. On their visit to Five Star, Inspector Sharpe was not wearing a uniform; the police were all in uniform. They were conducting spot compliance inspections of licensed establishment in the area and arrived at Five Star at approximately 10:16 p.m. The bar was not too busy that night. About 6-7 minutes after their arrival, Inspector Sharpe’s attention was drawn to a male, slouched over, sitting at a table. He did not see the male, later identified as MH, drinking any alcohol; nor did he recall seeing any alcoholic beverages on the table in front of him. Sgt Corrigan described the male as being slumped over with his head on his arms and with a half glass of beer in front of him. At one point in his testimony, he described MH as being asleep on his arms.

Inspector Sharpe stated that he approached MH and identified himself, which fact MH denied in his testimony. He asked MH for his identification. At this point, MH stood up. The police immediately intervened. Sgt. Corrigan testified that MH stood up in a fighting stance; he aggressively raised his arms with his fists clenched. The police officers restrained him and told him to sit and calm down, which he did. MH was cooperative at this point. Sgt. Corrigan stated that they moved the glass of beer that was in front of MH on the table because it could be used as a weapon. Yet he also stated that they did not perceive MH to be a threat; rather, they were just acting to protect MH and Inspector Sharpe to ensure that they did not get hurt.

Inspector Sharpe spoke to MH for about a minute. He stated that MH’s speech was slurred and his eyes were glassy. MH was unsteady on his feet as he stood up and he had slow motor skills. Inspector Sharpe described MH as looking slightly dishevelled, like he had too much to drink. In Inspector Sharpe’s words, MH “did not look like a normal person” who was drinking. He concluded that he was showing signs of intoxication. Sgt. Corrigan did not speak with MH, but was standing nearby when the inspector spoke to him. He indicated that MH’s words were slurred. He too concluded that MH was intoxicated – his aggressive behavior was indicative of that, plus he was in a bar with a beer in front of him.

The Tribunal notes the fact that Sgt. Corrigan made no notes of the inspection, other than recording the time of the inspection. He stated that he relied on Inspector Sharpe to makes notes as he was the person whose responsibility it was to detect and report any infractions of the Liquor Licence Act.

After his interaction with MH, Inspector Sharpe spoke to Ms. Li and indicated to her that he had identified the infraction of “permit drunkenness.” The bartender on duty did tell him that she had “cut MH off” but allowed him to stay in the premises to gather up his things, shortly before the inspector arrived. There was no dispute on the evidence that MH did consume a small pitcher of beer, approximately 30 ounces or the equivalent of approximately 2.5 bottles of beer. According to Inspector Sharpe, if the bartender cut him off, this meant that MH had too much to drink, to the point of intoxication, and the Appellant should no longer allow the patron to remain in the premises.

Inspector Sharpe had no recollection of either the bartender or Ms. Li stating that MH had any disabilities, that he could not manage the stairs to the washroom or that MH was very hard of hearing. However, he did state that regardless of whether he had a disability or not, he would have considered him to be intoxicated.

Four witnesses gave testimony on behalf of the Appellant. Ms. Li, MH, another patron EV, and Mirko Putignano, who is a manager at the Appellant’s premises. The latter two witnesses had no direct knowledge of what transpired between MH and the inspector and police officers. EV was at Five Star that night but left before the officers arrived. EV saw MH at the bar that evening, knew him as a patron, and knew of his physical problems and that he was very hard of hearing. Mr. Putignano was working on May 29, but he was primarily outside running the BBQ. He saw MH that evening, and interacted with a hug and a handshake as was usual. Mr. Putignano stated that MH has issues walking. He heard him yelling when talking to the police officers and noted that MH was upset when he left Five Star that night, shortly after the police officers departed.

MH testified about his health condition. He had an accident in 1995, and broke his back among other injuries. His elbow was shattered and was replaced, as a result of which he has spasms in his arm. He has never fully recovered from this accident and has not worked since. He had been a funeral director. In 2013, he slipped and broke his hip and was in hospital for 2-3 months. He has difficulty walking long distances and with stairs. He cannot stand for long. He generally uses a cane, though sometimes struggles without it, as he did on May 29^th. He walked the five blocks from his home to Five Star that night. He was not wearing his hearing aid that evening as he had run out of batteries. Without the hearing aid, he has trouble with word recognition.

MH stated that he had a small pitcher of beer at Five Star. He wanted another but was told no. He described the staff at Five Star as looking out for him. He was sitting at a table, moving with and listening to the music, which was loud. MH described being approached by Inspector Sharpe. He couldn’t really make out what he was saying. He himself speaks very loudly without his hearing aid. He recalled standing up abruptly. He was waving his arms, and the police came over and restrained him. They sat him down, at which point he gave them his identification. About five minutes after his exchange with the police and the inspector, he left Five Star, after he said goodbye to Ms. Li.

MH was a regular at Five Star for 3-4 years. Ms. Li described him as a lonely man. At Five Star they were attentive to him. They never served him more that 1-2 small pitchers because he was unsteady on his feet due to his back and hip issues. Ms. Li had video recordings of the night of May 29, which were viewed at the hearing. The time period viewed was from 10:14 p.m. to 10:32 p.m. The video shows MH sitting at a table. There are two bottles of beer on the table. There is no glass or pitcher in front of him. He is not drinking anything in this time frame. At approximately 10:23 p.m., another male joins him at the table and takes one of the beer bottles. MH is animated. But at no time was he slumped over, with his head on his arms.

At one point, MH stands up, but then appears to drop something on the floor. He leans over and picks it up. Registrar’s Counsel suggested that he appears to stagger at this point and almost bumps his head on the table. While perhaps a matter of interpretation, the Tribunal did not infer that from the video. When he sat down, he appeared to adeptly pull the chair underneath him, which suggests sureness of movement.

The video also showed the interaction with the police and the inspector. He was at this time, (and prior to this, apparently in response to the music), waving, or flailing, his arms about. There is no indication on the video of police moving anything off the table. And as previously noted, there was in fact no glass on the table. Finally, the video showed MH walking out of the premises. He did not appear to be staggering.

The Appellant intended to call the bartender to give evidence at the hearing. She did attend, but during the course of the morning, while waiting to give her evidence, she became very anxious and had a panic attack. That information was relayed to the Tribunal through Appellant’s Counsel. The Registrar’s Counsel, in her closing submissions, asked the Tribunal to draw an adverse inference from the Appellant’s failure to call this witness. The Tribunal declined to do so, having accepted Mr. Sondola’s advice to the Tribunal and noting that the witness was indeed present at the commencement of the hearing.

Both Inspector Sharpe in his evidence and Registrar’s Counsel in her submissions, suggested that the fact that the Appellant “cut off” MH suggests he was intoxicated. However, for the Tribunal to draw that conclusion belies the fact that a responsible licensee is obligated to monitor patrons’ consumption such that they are not served to the point of intoxication. Cutting a patron off is a means of doing that.

The allegation in the OMP is that the Appellant contravened s. 45(1) of the O. Reg., which states as follows:

45. (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

The law is well settled. The Registrar bears the burden of proof, and must establish on a balance of probabilities two components: that the patron was drunk and that the licensee permitted the drunkenness.

Some of MH’s actions – the swaying in his seat, the unsteady stance at times, the loud speech – might suggest, the “standard” indicia of drunkenness. However, the Tribunal must weigh those possible indicia in the context of the evidence in its entirety. Here, the Tribunal has had the benefit of viewing the video. The video evidence does not support the statements of Sgt. Corrigan regarding MH’s posture that drew his attention to him. Nor does it support the Registrar’s contention that he was staggering and unsteady on his feet. MH’s speech may have been loud and slurred. and he was waving his arms about. But the explanations given by him regarding his physical condition are reasonable in the circumstances – that is, both his deafness and lack of a hearing aid that night and the lingering effects of his surgeries. The Tribunal found MH’s evidence quite credible. Furthermore, his evidence was corroborated to a significant extent by the video evidence.

The Tribunal cannot conclude that the evidence, in its totality, is sufficient, on a balance of probabilities, to establish that MH was drunk on the night of May 29, 2015. The first element of s.45(1) has not been established. Therefore, the second component – the issue of whether the licensee permitted that drunkenness, need not be considered.

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 #1360 issued on January 29, 2016.

LICENCE APPEAL TRIBUNAL

________________________

Patricia McQuaid, Vice-Chair

Released: July 20, 2016