Licence Appeal Tribunal
FILE: 10253/AGRPPA
CASE NAME: 10253 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
2429229 Ontario Inc. o/a Big Boss Club Appellant
-and-
Registrar of Alcohol Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Jacqueline Castel, Member
APPEARANCES:
For the Appellant: Noel Gerry, Counsel
For the Respondent: Rena Khan, Counsel
Heard in Toronto: October 14, 2016
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 May 16, 2016, imposed a monetary penalty on 2429229 Ontario Inc. (the “Appellant”), operating as Big Boss Club (“Big Boss” or the “Establishment”), based on an alleged contravention of subsection 45(1) of Ontario Regulation 719/90 (the “O. Reg.”) under the Liquor Licence Act. Specifically, the Appellant is alleged to have permitted drunkenness on the part of one patron on December 5, 2015. The Appellant does not dispute that there was one drunken patron in the Establishment on the date in question. However, the Appellant’s position is that it did not permit the drunkenness. For the reasons that follow, the Tribunal sets aside the monetary penalty.
FACTS
The Registrar called two witnesses, Alcohol and Gaming Commission of Ontario (“AGCO”) inspectors Andrew Hubbard and Josee McFadden. Inspectors Hubbard and McFadden attended Big Boss on December 5, 2015 at approximately 3 a.m. to conduct a routine inspection.
Inspector Hubbard testified that the Establishment has a large dance floor with a bar in the middle of the floor, and karaoke rooms on the perimeter.
Inspector Hubbard entered one of the private karaoke rooms, room 126, shortly after arriving. Patrons cannot see into room 126 from the dance floor. Once inside the room, he observed seven patrons seated on a sectional couch facing a television. Two of the patrons were lying down and appeared to be asleep.
Inspector Hubbard testified that he identified himself to the group and asked that the two sleeping patrons be woken up. One of the patrons woke up right away, but the other one was not responsive when his friends called his name and shook him. Inspector Hubbard noticed that there was a garbage can with vomit in it in front of the patron who was unresponsive. Inspector Hubbard was given the patron’s driver’s licence which indicated his name was “JM” and was 35 years of age.
Eventually JM’s friends succeeded in waking him up. Inspector Hubbard testified that his eyes were bloodshot, he was not able to make eye contact, and appeared very uncomfortable. Inspector Hubbard indicated that JM’s friends told him that JM had consumed about five alcoholic beverages throughout the night and that they arrived around 10 p.m. JM appeared to doze off again and Inspector Hubbard stated that he woke him up by yelling his name in a loud voice. Inspector Hubbard asked JM how much he had to drink, and JM responded that he had two drinks. Inspector Hubbard only observed tea on the table in the room. According to Inspector Hubbard, the room was well lit. The sound was on in the room, and it was necessary to pause the music to be able to hear.
Inspector McFadden entered the karaoke room a few minutes after Inspector Hubbard. She observed JM on the couch. According to her testimony, he had his head in another man’s lap and was lying down. She also testified to observing the garbage can with vomit between the couch and table. She stated that JM was eventually able to sit up after Inspector Hubbard called his name four times in a loud voice. Inspector McFadden noted that JM put his head in his hands and opened his eyes for a second and then closed them. Shortly afterwards, he lay back down on the couch.
Inspector Hubbard testified that he told JM he had to go home and told JM’s friends they had to drive him home. JM’s friends had difficulty getting JM to stand up and had to support him while walking to the exit. She noted that JM’s movements were slow and someone supported him as he walked to the door. She also stated that JM did not have the motor skills to zip up his jacket and one of his friends had to do it for him. Inspector McFadden testified that the lights were on in the room and that she could hear.
Inspector Hubbard and McFadden both testified that they observed JM get into the back seat of a SUV, which was parked right in front of the Establishment. They did not see where the vehicle came from or who was driving it.
Inspector Hubbard testified that he and Inspector McFadden spoke to the manager of the Establishment, Ms. Ting Ting Ruan. However, Inspector McFadden gave evidence that she was not present during Inspector Hubbard’s conversation with Ms. Ruan.
According to Inspector Hubbard, Ms. Ruan told them that she entered the room at 2:30 a.m. and told staff to clear the alcohol from the room. Ms. Ruan also told them that security entered the room and checked JM. Ms. Ruan also said that JM was not feeling well and was sleepy. Inspector Hubbard did not recall Ms. Ruan telling him that she had asked JM to leave and that they were waiting for a ride. According to Inspector Hubbard,