Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2017-01-27
FILE:
10413/LLA
CASE NAME:
10413 v. Registrar of Alcohol, Gaming and Racing
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Suspend a Licence
8679002 Canada Ltd. o/a Area One
Appellant
-and-
Registrar of Alcohol, Gaming and Racing
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant:
Michael Ostroff, Paralegal
For the Respondent:
Rena Khan, Counsel
Heard in Toronto:
January 12, 2017
REASONS FOR DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act (the “Act”) issued a Notice of Proposal (the “Proposal”), dated April 21, 2016 which proposed to suspend the licence of 8679002 Canada Ltd. o/a Area One (the "Appellant” or “Area One”) for 30 days. The Appellant has appealed the Proposal to the Licence Appeal Tribunal (the “Tribunal”).
At the outset of the hearing, the Appellant’s representative, Mr. Ostroff, advised the Tribunal that the parties had reached an Agreed Statement of Facts (filed as Exhibit 3) with respect to some of the allegations in the Proposal, specifically, paragraphs 1,2, 3, 5(a) and 5(c). Therefore, the Appellant admits to the allegations of violations of s. 43 of R.R.O.1990, Reg. 719 (the “Regulation”) under the Act (overcrowding) on September 13 and 19, October 4, 10, and 17 and November 7, 2015, and January 31, 2016 as set out in the Proposal. In addition, the Appellant admits the allegation of a violation of s. 29 of the Regulation (failure to clear the signs of service and consumption of alcohol) on November 14, 2015.
Therefore, what remained in dispute were the allegations of violations of s. 45(1) of the Regulation on September 13, 2015 and January 31, 2016. On each of those dates, the Registrar alleges that the Appellant permitted drunkenness on its premises.
The relevant provisions of the Regulation as follows:
The licence holder shall ensure that evidence of liquor that has been served and consumed on the premises is removed within forty-five minutes after the end of the period during which liquor may be sold and served under the licence. R.R.O. 1990, Reg. 719, s. 29.
The licence holder shall ensure that the number of persons on the premises to which the licence applies, including employees of the licence holder, does not exceed the capacity of the licensed premises as stated on the licence. O. Reg. 346/93, s. 7.
(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. R.R.O. 1990, Reg. 719, s. 45 (1); O. Reg. 230/03, s. 25.
After carefully considering the evidence and submissions, the Tribunal finds that the Appellant contravened s. 45(1) on September 13, 2015. The Registrar has not established that the Appellant violated s. 45(1) on January 31, 2016.
EVIDENCE and ANALYSIS
September 13, 2015
On September 13, 2015, Alcohol and Gaming Commission of Ontario (“AGCO”) Inspectors Hubbard and McFadden attended Area One at approximately 12:45 a.m. for a liquor licence inspection. Both had been at the premises numerous times before. Area One is a karaoke establishment. When one enters, there is a bar and lounge area and then a long hallway with access to numerous karaoke rooms. Approximately five serving staff were present, as well as a uniformed security person at the front entrance to check patrons’ identification, a manager and Yi Yong Lu, the principal of the Appellant. After an initial walk through the establishment, Inspector Hubbard stopped at the door of Room 8. Looking through the window in the door, he observed 7-8 patrons in the room and a female patron on her knees with her head in a garbage can. The inspector entered the room, at which point the female patron made her way to the couch. Inspector Hubbard testified that the female sat with her head in her hands. Her eyes were shut. When he asked the patron (identified as SL) whether she was drunk, she responded that she was “a little drunk”. Her speech was slurred. Inspector McFadden, who had also entered the room at this point, asked SL to walk around the room. She took a few steps but was unsteady and asked to sit down and indicated that she was going to be sick. Inspector McFadden testified that SL’s eyes were glossy and blood shot and her eyelids were heavy; she was unable to maintain eye contact.
When the inspectors asked how much she had to drink, SL responded that she had three Coors Light. Inspector McFadden counted 14 bottles of Coors Light on the table, most of which were empty. The inspectors also observed a bottle of Grey Goose vodka on the table in the room. The inspectors spoke to the other patrons in the room and were told that they received the drinks at approximately 11:00 p.m. and that SL was “unable to hold her alcohol”.
The inspectors then left the room to speak with Mr. Lu and the manager, advising them of their concerns about the patron SL. They asked Mr. Lu and the manager to come into Room 8 with them. When they re-entered, SL was on the couch and appeared to be sleeping, with the garbage can near her head. The inspectors told Mr. Lu that SL could not stay at the establishment to which, according to Inspector Hubbard, Mr. Lu responded that they would call her a taxi.
The inspectors also requested a sales receipt for Room 8. This receipt was initiated at 11:29 p.m. and showed that 24 beers were ordered for the room at that time. It did not reflect a purchase of a bottle of Grey Goose. There was a suggestion in Mr. Lu’s evidence that the bottle may have been brought in by the patrons themselves; however, there was no dispute that there was, in fact, a bottle on the table in Room 8. There was no evidence as to whether SL consumed any of the vodka.
With respect to service to the karaoke rooms, there is a buzzer in each of the rooms which is used by the patrons to request service. Any one of the servers can deliver alcohol to the rooms. Mr. Lu testified that he and his manager circulate through the rooms every 25-30 minutes to visually check on patrons. Based on the evidence heard, there appears to be no procedure in place by which the amount of alcohol being served to a room is monitored on a continual basis, other than this visual inspection every 25-30 minutes. Mr. Lu stated that he remembered the patron SL and described her as “almost drunk”. He had called a taxi for her before the inspectors arrived. When questioned about the signs of intoxication, Mr. Lu responded that if someone is almost drunk, their eyes are red and heavy looking. If they are drunk, they cannot walk straight and cannot talk clearly. He recalled speaking to SL before the inspectors arrived and she told him that she was going to be sick. He gave her some “honey water” and called a taxi for her, because she was “almost drunk”. Mr. Lu was adamant in his testimony that he told Inspector Hubbard that he had already called a taxi, and remembered, only in cross-examination, that he did so 10 minutes before they arrived.
The inspectors left Area One at 1:57 a.m. They could not recall whether SL was still there when they left, though Inspector Hubbard testified that during one of their conversations with Mr. Lu and the manager, the manager left them because he stated he had to assist SL into the taxi.
The law with respect to s. 45(1) of the Regulation is well settled, as set out in the Court of Appeal decision in 1213963 Ontario Limited (Sin City) v. Ontario (Alcohol and Gaming Commission of Ontario, 2009 ONCA 323. The Registrar must establish, on a balance of probabilities, two components: that the patron was drunk and that the licensee permitted that drunkenness. Permitting drunkenness requires proof that the licensee knew or ought to have known of the drunkenness on the premises, a determination to be made in the context of all the circumstances and the various obligations and duties placed on a licensee by the relevant legislation and regulations.
Having regard to the first issue, whether SL was drunk, the Tribunal concludes that she was. Inspector Hubbard’s attention was drawn to her when he first looked into Room 8 through the window. SL appeared to be vomiting into a garbage can. When they entered the room and started talking to SL, the inspectors observed that her eyes were red and glossy, her speech was slurred and she was unsteady on her feet. She was clearly ill. Mr. Lu agreed that SL’s eyes were red, describing her as almost drunk. Yet, the signs of drunkenness as described by him – the inability to walk straight or talk clearly – were exactly what the inspectors observed. The evidence supports the conclusion that SL was drunk.
The second part of the test is whether the Appellant permitted the drunkenness; that is, whether the Appellant knew or ought to have known that the patron was drunk. Based on the evidence, the Tribunal finds that the Appellant did permit the drunkenness. The patrons in Room 8 were served 24 beers sometime between 11:00 and 11:30 p.m. Shortly after 12:45 a.m., the inspectors noted that SL was showing signs of intoxication, to the point where she was vomiting into a garbage can. Though Mr. Lu recalled on cross-examination that he called a taxi for her, because she was “almost drunk”, 10 minutes before the inspectors arrived, he offered no specifics in his evidence about when or how often during that evening he had been in Room 8, or whether he had entered the room or merely looked through the window though in approximately one and a half hours, 24 beers and a bottle of Grey Goose were served and/or consumed in Room 8. Mr. Lu seemed most concerned about whether the Grey Goose bottle was provided by his establishment, which gives rise to the question as to why, if he had been checking the room, he would not have removed it in those circumstances. Further, the fact that Mr. Lu suddenly remembered during his cross examination and about 16 months after the incident, that he had called the taxi 10 minutes before the inspectors arrived does not seem credible.
Based on the evidence, the more likely conclusion is that a taxi was not called until the inspectors pointed out SL, the drunk patron, to Mr. Lu. No action had been taken by the Appellant to have her leave prior to this. The Appellant knew or ought to have known that SL was drunk and she was permitted to remain in the premises.
The Tribunal therefore, finds that the requisite elements of s. 45(1) of the Regulation have been satisfied and a violation occurred on September 13, 2015.
January 31, 2016
AGCO Inspector Hetherington and OPP Sgt. Bennett gave evidence regarding their attendance at Area One on January 31, 2016. They attended with several other inspectors, including Inspector McFadden, though she did not give evidence on this occurrence. Neither Inspector Hetherington nor Sgt. Bennett had been to the establishment before. They arrived at approximately 2:09 a.m. Inspector Hetherington observed a female patron walking in the hallway toward him. He described her as clinging to a male by the arm. He asked her for identification. She went into a karaoke room to get her purse. She appeared to stagger as she walked. It took her several attempts to get her identification out of her wallet, which suggested to the inspector that her fine motor skills were impaired. As she stood speaking to him, she was weaving to and fro. Her speech was slurred and she had difficulty remembering details such as her age and when she arrived at the establishment. She did tell the inspector that she had consumed “six to eight cups of Chivas” and that she had voluntarily stopped drinking about an hour before.
Both Inspector Hetherington and Sgt. Bennett made note of the fact that she told them that she arrived at 10 p.m., though they also testified that she had difficulty recalling this detail; however, when they checked the sales receipt for the room she had been in, it indicated that the tab was opened at 12:10 a.m. Sgt Bennett testified that the female left Area One shortly after their interaction with her. Inspector Hetherington stated that he spoke to Mr. Lu that evening about the patron. Mr. Lu, however, stated in his testimony that he had no recollection of being there on January 31st.
Based on the evidence, and having regard to the two elements required for a finding of a violation of s. 45(1), the Tribunal concludes that the patron was drunk. The inspector’s testimony regarding the signs of intoxication observed supports that conclusion. However, the simple fact of drunkenness in a licensed establishment is not sufficient for a finding of a violation of s. 45(1). The inspectors and Sgt. Bennett arrived at Area One after 2 a.m. Though the Appellant’s representative submitted that the female patron was on her way out (and given the time that is plausible), the fact that she had to go back to the karaoke room to get her purse suggests that she may not have been. Though according to Sgt. Bennett, she did leave shortly thereafter.
The evidence regarding the patron is based on a brief interaction. Inspector Hetherington and Sgt. Bennett did not question her male companion though they testified that he appeared to be sober. They did not question any of the servers or Mr. Lu (or the manager if it was in fact not Mr. Lu that they were speaking to) about their interaction with the patron. There was no evidence of an inspection of the room in which she had been drinking. She was simply observed walking, albeit unsteadily, in the hallway at about 2:09 a.m. There is insufficient evidence to support a finding that the Appellant knew or ought to have known that the patron was drunk. Therefore, the Tribunal dismisses this allegation.
ORDER
Pursuant to the authority vested in it under the Act, the Tribunal finds that the Appellant to be in breach of s. 45(1) of the Regulation on September 13, 2015. Further, based on the Agreed Statement of Facts, the Tribunal finds violations of s. 43 on September 13 and 19, October 4, 10, and 17 and November 7, 2015, and January 31, 2016, and a violation of s. 29 on November 14, 2015.
The Tribunal requests written submissions from the parties regarding sanction. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision and the Appellant’s representative shall have seven (7) days from receipt of the Registrar’s submissions to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the Appellant’s response.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: January 27, 2017