New Zone Inc. o/a Six Nites Karaoke Bar v. Registrar of Alcohol, Gaming and Racing, 2017 CanLII 144625

DECISION AND ORDER

Date: 2017-12-07

Appeal from Notice of Proposal of the Registrar of Alcohol, Gaming and Racing under section 15 of the Liquor Licence Act, R.S.O. 1990, c. L.19, to suspend a Liquor Licence.

Between:

New Zone Inc. o/a Six Nites Karaoke Bar Appellant

and

Registrar of Alcohol, Gaming and Racing Respondent

Adjudicator: Laurie Sanford, Vice-Chair

Appearances:

For the Appellant: Noel Gerry, Counsel

For the Respondent: Aviva Harari, Counsel

Place and date of hearing: Toronto, Ontario November 20, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1On February 4, 2017, inspectors for the Alcohol and Gaming Commission inspected the premises New Zone Inc. o/a Six Nites Karaoke Bar (“Six Nites”) and found a patron severely intoxicated. The Registrar of Alcohol, Gaming and Racing (the “Registrar”) alleges that Six Nites permitted drunkenness on its premises, contrary to the Liquor Licence Act (the “Act”) and its regulations. The Registrar proposes to suspend the liquor license of Six Nites for 14 days.

2Six Nites denies the allegation. The bar concedes that one of its patrons was intoxicated but submits that it was in the process of removing the patron within a reasonable period of time. Six Nites submits that the reason for any delay in removing the patron was so that he could be removed safely.

3For the reasons set out below, I find that Six Nites permitted drunkenness on its premises on February 4, 2017. Six Nites knew that the patron was intoxicated and, under the circumstances, the patron was not removed within a reasonable period of time nor was he removed safely.

4The parties asked for the opportunity to make submissions as to the sanction after the question of liability had been determined and a time table for these submissions, agreed to during the hearing, is set out below.

EVIDENCE

5Two inspectors of the Alcohol and Gaming Commission testified for the Registrar and the Store Manager testified for Six Nites. I found all witnesses to be credible. Their evidence was internally consistent, delivered in a straightforward manner and not successfully challenged on cross examination. The specific challenges to the testimony are dealt with below.

6The testimony of the two inspectors may be summarised as follows. They arrived at Six Nites at 3:13 on the morning of February 4, 2017. Six Nites is on the second floor of a building and when the inspectors arrived at the front door, it was locked. They went to the back of the building and found the back door locked as well. When they knocked, a man came to the top of the staircase. One inspector showed his identification and demanded entry. The man inside walked away and, in a few minutes, a female employee came down the stairs and let them in.

7The inspectors split up to do a routine inspection of the premises. Six Nites is a karaoke bar with multiple private rooms. The rooms are arranged in what is close to a circle. There is a hallway separating the exterior and interior rooms. One inspector saw two staff members walking down the hallway toward the bar. They were supporting a third man, later identified as Mr. MY, a patron of the bar. Mr. MY’s head hung down and his feet dragged on the floor. The inspector observed vomit stains on Mr. MY’s sweater and bile drooling from his mouth. The inspector directed the staff members to take Mr. MY into one of the private rooms, where they left him on a bench.

8One inspector attempted to speak to Mr. MY but he slumped forward and began to retch. By the time the second inspector arrived, there was a plate sized pool of vomit on the floor in front of Mr. MY. When one of his friends searched his pockets for identification, Mr. MY did not stir. One inspector testified that Mr. MY was not responsive. It appears from their testimony that he was unable to speak, to stand or to move on his own.

9The inspector spoke to Mr. MY’s friends. They told the inspector that they had been at Six Nites since between 11:30 p.m. and 11:45 p.m. They said that Mr. MY was not ill and had not mixed other drugs with alcohol. One friend, Ms. BL, advised that Mr. MY was one of a party of 13 who were in a private room and that he was celebrating his recent return from China. A review of the bar bill for the room used by the party showed that 30 bottles of light beer, a 750 ml bottle of whiskey and two pitchers of Soho, a lychee liquor, and juice were served to the party. One of Mr. MY’s friends told an inspector that he couldn’t tell how much Mr. MY had consumed but that it was “a lot”. According to that inspector, Ms. BL said that Mr. MY had been “in this state” for approximately an hour.

10Following the inspectors’ questions, Mr. MY’s friends and some members of Six Nite’s staff supported Mr. MY down the stairs. His feet dragged on the stair case. They sat him on a stair and placed a plastic bag over his head to catch the vomit. One of the inspectors advised Ms. BL to remove the plastic bag to avoid suffocation.

11An Uber taxi cab had been called but the driver refused to take Mr. MY because the driver felt he was too drunk. Ms. BL assured the inspectors that she would call another Uber and that she would be responsible for Mr. MY. With this assurance, the inspectors left at 3:35 a.m.

12Mr. Gerry, Counsel for Six Nites, challenged parts of the inspectors’ testimony. In particular he challenged the account of Ms. BL’s statement that Mr. MY had been “in this state” for approximately an hour. Mr. Gerry submitted that this was hearsay and the phrase “in this state” was too vague to be meaningful and the time of “approximately an hour” was also too vague. Mr. Gerry noted that there was no evidence as to the progression of Mr. MY’s intoxication.

13I do not find these objections persuasive. It is open to the Tribunal to accept hearsay evidence and Mr. Gerry was given an opportunity to cross-examine the inspectors about Ms. BL’s statement. The phrase “in this state” must be interpreted in the context of the events at the time of the statement. Mr. MY was in distress. He was not able to speak or to stand or to move. Ms. BL’s statement must be interpreted in light of this situation. It is reasonable to assume that when the phrase “in this state” was used, it meant in Mr. MY’s then current state. It would not be reasonable to interpret this phrase as meaning “in a state of light intoxication”. While “approximately an hour” is not a precise measure, it does have meaning. I conclude that Mr. MY had been in the state in which the inspectors found him since sometime between approximately 2:15 and 2:30 a.m. The inspectors arrived at 3:13 and left at 3:35 a.m. and it would have been between these times that Ms. BL made her statement.

14Mr. Jia Hui Liang, also known as John Liang, testified on behalf of Six Nites. He is the Store Manager for Six Nites and he is responsible for ensuring the patrons of the bar are served responsibly and drink responsibly. On the morning of February 4, 2017, he had a staff of seven on the premises. There was no one staff member assigned to serve Mr. MY’s party. Instead, when the room rang for service, whoever was free would take and fulfill the order. In addition to Mr. Liang, there was a night supervisor, whose role it was to patrol the rooms monitoring them for signs of drunkenness or other infractions of the Act. Mr. Liang testified that the frequency of these inspections varied depending on how busy things were; on the night in question, inspections were occurring about every 15 minutes.

15There had been security at the door inspecting identification until about 3:00 a.m. Additionally, Six Nites had cameras both inside and outside the establishment. Mr. Liang testified that the cameras permitted him to monitor the premises from the bar area, where he stayed. However, his testimony was that there was no film in the cameras so there is no record of the events of February 4^th.

16Mr. Liang said that around 2:40 a.m. or a little before, the night supervisor contacted him on a walky-talky to tell him that Mr. MY was vomiting. Mr. Liang told the night supervisor to “check out” the customer as he wanted to know what level of drunkenness was showing. Mr. Liang directed that all alcohol be removed from the room to ensure that no one else was drinking. His testimony was that he made sure that the night supervisor talked to Mr. MY’s friends to make sure the friends were arranging a safe way home for him. At around 2:55 a.m., after between approximately 15 to 20 minutes of Mr. MY’s vomiting, he was served tea and water. Mr. Liang said that he needed to make sure the Uber cab was at the front door before removing Mr. MY, who was sleepy by that time. The Uber arrived at 3:10 a.m. and the staff was in the process of carrying Mr. MY out when the inspectors arrived. According to Mr. Liang, the reason that Mr. MY was not removed immediately was that he was vomiting and needed to finish.

17Ms. Harari, Counsel for the Registrar challenged Mr. Liang’s testimony that the Uber arrived at 3:10 a.m. However, Mr. Liang testified that he had a camera that permitted him to see when taxis arrived. As well, one of the inspectors testified that she saw the discussion between the Uber driver and the party while she was there. I accept Mr. Liang’s testimony on this point.

18During closing submissions, both counsel made submissions that were speculative and not supported by the evidence. Ms. Harari submitted that Six Nites delayed dealing with Mr. MY until the inspectors arrived and tried to delay the inspectors’ entrance until they could move him. There is no evidence to support this theory. Ms. Harari had the opportunity to cross-examine Mr. Liang on this point and chose not to. Mr. Gerry suggested that there might have been three Uber cabs called that night, one of which arrived prior to 3:10 a.m. Again, there is no evidence to support this submission. I cautioned both counsel against engaging in this type of speculation. It is not helpful.

ISSUES AND ANALYSIS

A.1 Did Six Nites permit drunkenness on its premises?

19Subsection 45(1) of Ontario Regulation 719/90 to the Act provides that a licensee “shall not permit drunkenness” on the premises. The courts have interpreted this provision in a number of cases. One of the more recent is the Divisional Court decision in 2088675 Ontario Inc. o/a Zu Bar v. The Registrar of the Alcohol and Gaming Commission of Ontario, 2010 ONSC 5527. In that case, the court held that there was a two part test. First it must be demonstrated that the licensee knew or ought to have known that the person was drunk. Second, the licensee must have permitted drunkenness by failing, within a reasonable period of time, to cause the person to be removed safely from the premises. The Court noted that the establishment of the time during which the patron was intoxicated and on the premises is an essential component in applying the test.

20Six Nites concedes that it knew Mr. MY was drunk by 2:40 a.m. or a little earlier. The practice of rotating serving staff in the private rooms meant that the staff could not observe the changing behaviour of the patrons in the private rooms. This increased the chances of unnoticed intoxication. Ms. BL’s statement to the inspector suggests that he was in distress sometime before 2:40 a.m. When the staff of Six NItes became aware of Mr. MY’s condition, it was open to them to ask his friends how long Mr. MY had been so intoxicated. There is no evidence that they did. Such information would have been important in determining the appropriate response. Instead, Mr. Liang permitted Mr. MY to remain on the premises, vomiting, for 15 to 20 minutes before serving him tea and water. Obviously, Mr. MY was not able to retain the fluid and continued to vomit for some time after the inspectors arrived. Mr. MY was close to being insensate. He was unable to speak, stand or move. He was unable to retain fluids. He was not responsive to the search of his body for identification. When the inspectors questioned Ms. BL, she said he had been in that state for approximately an hour.

21In the circumstances of this case, the appropriate response would have been to call an ambulance. It would have been reasonable to make that call at 2:40 a.m. when Six Nites became aware of the situation. This was not a case of a patron showing a mild or even moderate degree of intoxication. By 2:40 a.m., Mr. MY was showing clear signs of distress. His relief should not have been left up to his friends. Nor should Six Nites have relied on the good will of an Uber driver to see that Mr. MY was driven home safely, particularly given that the first Uber driver refused to take him.

22The purpose of the Act is to protect the public safety. In this case, public safety includes the safety of Mr. MY. There is no evidence that anyone on the staff had medical training or could otherwise determine that Mr. MY was not in need of medical attention. In the circumstances of this case, carrying Mr. MY down the stairs and leaving him sitting, in the care of Ms. BL, with no certain way home does not constitute a safe removal. I find that Six Nites permitted drunkenness on their premises by not removing Mr. MY within a reasonable period of time and by not removing him safely.

A.2 What is the appropriate sanction?

23The parties have requested an opportunity to make written submissions as to the appropriate sanction. They have agreed on a timetable for these submissions. Accordingly, I order the following.

ORDER

24By December 20, 2017, the Registrar may make written submissions as to the appropriate sanction in this case.

25By December 21, 2017, Six Nites may make written submissions as to the appropriate sanction in this case.