An Appeal from the Order of Monetary Penalty issued pursuant to the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c.26, Sched.
Between:
1853780 Ontario Inc. o/a Kee to Bala
Appellant
and
Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Avvy Go
APPEARANCES:
For the Appeliant: Jerry Levitan, Counsel
For the Respondent: Nicolle Pace, Paralegal
HEARD in Toronto on: March 26, 2019
REASONS FOR DECISION AND ORDER
1The appellant, 18537780 Ontario Inc. operating as Kee to Bala, is an establishment licensed under the Liquor Licence Act, R.S.O. 1990, c. L.19 (the Act) located in Bala, near Muskoka. It is housed in a historical building converted into a bar and concert hall. It opens on a seasonal basis between the months of May and October of each year on Mondays and on days when a concert is being held.
2On November 27, 2018, the Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 issued an Order of Monetary Penalty in the amount of $1,500 against the appellant with respect to an incident on June 16, 2018. The Registrar’s order was based on the allegation that the appellant permitted drunkenness on its premises, contrary to s. 45(1) of O. Reg 719/90 made pursuant to the Act.
3The appellant appeals that decision, including both the penalty and the alleged contravention, to the Tribunal.
4For reasons set out below, I find the Registrar has not proven the contravention on a balance of probabilities, and as such I will set aside the monetary penalty.
THE LAW
5Section 45(1) of Reg 719/90 states as follow:
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.
6The Registrar is required to prove a contravention on a balance of probabilities.
ISSUES
7The issue before me was whether the appellant permitted drunkenness on its premises. More specifically, the prohibition has two components, namely:
Drunkenness on the premises; and
Permitting that drunkenness1
8In determining whether the appellant permitted drunkenness on the premises, the Registrar requires proof that the licence holder knew or ought to have known that the patron was drunk while on its premises.2
9The Tribunal does not have the authority to vary the amount of monetary penalty.
Issue 1: Was there Drunkenness on the Premises
10I will first address the issue of whether there was drunkenness on the premises on the night in question on June 16, 2018.
11Having considered the testimony of the witnesses and the documentary evidence, and taking into account counsel’s submissions, I find on a balance of probabilities, that there was drunkenness on the premises on June 16, 2018.
12The Registrar called, as its witness, inspector Stephen Hetherington to testify at the hearing. Inspector Hetherington is an experienced inspector, with more than a decade of experience inspecting licence practices. He is also familiar with the establishment in question, as he has inspected the premises on numerous occasions and has a good relationship with the operator and staff of the establishment.
13The appellant called two witnesses. The first one, Mr. Mike Homewood, was the operator of the establishment. He was not at the establishment on the night in question and therefore did not offer any testimony that would assist me in determining whether there was drunkenness.
14The second witness called by the appellant was the manager, Mr. Wesley Hendriks. Essentially, Mr. Hendriks’ testimony was that he trusted the judgment of Inspector Hetherington when the latter told him the patron was intoxicated. He did not question or challenge the Inspector’s determination and instead, just acted on it immediately by removing the patron.
15As one of the appellant’s witnesses was not present on the day in question and the other was simply following Inspector Hetherington’s lead, the only relevant evidence I could consider in this regard was the evidence given by Inspector Hetherington. It was his evidence that the patron in question exhibited a number of signs which were indicia of intoxication: stumbling, slurred speech, swaying in an un-coordinated fashion, glassy eyes or eyes shut. His observations, also corroborated by his notes taken at the time and/or shortly after the incident, were largely uncontradicted, and his judgement was in fact accepted at the time by the appellant’s own witness.
16Inspector Hetherington gave a detailed account of what he observed on the day in question, starting from when he first arrived at the establishment at around 11:28 p.m. until he left at around 12:17 p.m. Inspector Hetherington attended at the establishment with a fellow inspector, Ryan Baird. The establishment was busy that night because there was a concert going on.
17The establishment has two bars on the main level. Inspector Hetherington first noticed the patron at the second bar on the far wall, where he and Inspector Baird observed a male patron leaning against the bar with his eyes apparently shut, while swaying his body in an un-coordinated fashion not in time with the music. After a few moments, the patron was observed by Inspector Hetherington as sitting down, folding his arms and putting his head down. Then a few moments later, the patron suddenly jerked awake and slowly and deliberately picked up a can of beer in front of him. After a minute or two, the patron began walking away from the bar. With a slow and awkward gait, he walked towards the unlicensed smoking area outside. Inspector Hetherington and Inspector Baird followed the patron – walking about 10 feet behind – and observed the patron staggering and stumbling. The patron exited the establishment towards the unlicensed smoking area where he passed by a security guard stationed at the door out on to the landing area and down a set of stairs.
18Inspector Hetherington testified that he did not see any interaction between the patron and the security guard. Inspector Hetherington also testified seeing the patron, leaning on a wall in the smoking area, light a cigarette and trying to squat when he lost balance and fell on his rear. Not seeing any reaction from the security guard, the inspector then called Wesley Hendriks, the manager, and the security guard to come to deal with the situation. Mr. Hendricks came in less than a minute and immediately decided to have the patron removed. The security guard then escorted the patron from the premises through the front foyer door. Inspector Hetherington followed behind to the main entrance when he saw Mr. Hendriks tell the patron that he was being removed because he was intoxicated. The Inspector said the patron replied, “you’re wrong, but I would go any way”. Inspector Hetherington testified that he observed the patron’s speech as very slurred. The Inspector also testified he did not have a chance to speak to the patron because the latter departed the premises rapidly with his friend.
19The Registrar also entered as evidence the notes taken by Inspector Hetherington about the event that evening. The inspector was cross-examined extensively by counsel for the appellant with regard to a number of aspects of his testimony, and the apparent inconsistencies between his testimony and his recorded notes.
20A key area of inconsistency is that the inspector did not put down in his notes that the patron fell on his rear when he attempted to squat. The inspector explained that the notes were just there to refresh his memory and that he remembered this fact because it really stood out.
21Under cross-examination, the inspector confirmed that he did not speak to the patron and did not know if he had any medical issues, or whether he spoke English as a second language. However, the inspector confirmed that he was of the view that the patron in question met a number of common indicia of intoxication, including glassy eyes, slurred speech, and stumbling, among others. Based on his observations, even before witnessing the patron fall, he was 90% sure the patron was intoxicated.
22Counsel for the appellant argued that the Registrar has not made out the case for the presence of drunkenness because the two inspectors had only observed the patron for a very brief time period, during which they did not see the patron fall or tumble. Counsel suggested that there could be other causes for the so-called signs of drunkenness, including medical issues. Counsel also challenged Inspector Hetherington’s credibility by arguing that the notes he took did not support his testimony.
23While I do find somewhat disconcerting that the testimony about the patron falling on his rear was not recorded in the inspector’s notes, I also find that even if the patron had not fallen, as Inspector Hetherington recalled on the stand, there was more than enough evidence before me to prove, on a balance of probabilities, that the patron in question was intoxicated.
24While counsel for the appellant tried to suggest that there could be other reasons to explain the signs exhibited by the patron such as some unknown medical conditions, in light of the absence of any of such evidence to support these suggestions, they amount to no more than speculations. The fact that the patron left immediately after being told he was removed because of his intoxication would suggest that more likely than not drunkenness, and not medical or other reasons, was the underlying cause for the patron’s behaviour that night.
25Counsel also challenged the Inspector’s testimony on the basis that he did not view the video of the night in question. But as Mr. Hendriks testified, he had watched the video and it only showed the patron at the bar area for a very brief moment. I find that the failure on the part of the Inspector to view the video tape does not detract from the veracity of his own observations of the patron, based on his years of experience as an inspector of licensed premises.
26In sum, I find that there was drunkenness on the premises and the first of the two components of the contravention has been made out.
Issue 2: Did the appellant permit drunkenness
Parties’ Evidence and Submission
27Turning now to the second component, namely, whether the appellant permitted drunkenness, I start again with the evidence given by Inspector Hetherington.
28The Inspector testified that from the time he entered the premises to the time he called on Mr. Hendriks, he did not observe any interaction between the patron and the staff of the premises. He testified that the patron was sitting at the end of the bar where there were no bartenders around. He confirmed that because there was a concert on that evening, the establishment was quite busy. The smoking area alone, as the inspector testified, had at least 40 people there. The Inspector also confirmed under cross-examination that he did not see anyone serving the patron in question and did not see any server around the patron at any point in time, including the time when he was sitting at the bar. The Inspector confirmed that he saw the servers were all at the other side of the bar and did not see any staff notice this patron when he was following him. In fact, the Inspector confirmed that he followed the patron because he wanted to see if anyone would notice the patron and if the security guard would “pick him up”.
29The inspector was asked by appellant’s counsel why he did not speak to any of the servers to see how many drinks they had served the patron, the inspector said he did not want to pull anyone for questioning on such a busy night. The inspector testified that he believed he had evidence about permitting drunkenness, but at the same time, he also agreed that the standard to apply in determining whether the establishment has permitted drunkenness is one of reasonableness, which is why he wanted the staff to conduct their own inspection before taking any action.
30When asked, the Inspector also replied that he himself did not want to alert any of the staff immediately after he concluded the patron was intoxicated. His reason for not doing so, the Inspector testified, was that he wanted the bar owners to be more self-regulating and to remove the patron before he “wrote anything up”.
31While the Inspector did write something up, he confirmed that he did not treat this as a serious incident and certainly did not expect the issue to come to the Tribunal. The Inspector also agreed with counsel’s suggestion that the staff at the appellant’s premises are generally very co-operative with his inspections.
32As noted above the appellant’s witness, Mr. Homewood, was not present on the night in question. His testimony largely focused on the operation, policies and practices of the establishment. I find Mr. Homewood’s testimony relevant to the extent that it provided me with an understanding of the standard practices and policies of the establishment with respect to addressing drunkenness on the premises.
33Mr. Homewood described the premises as being a barn, which was very large, and on a concert night, it could hold up to hundreds of people. To ensure compliance with the Act, all their staff are SMART Serve certified. The establishment also utilize a roaming team of two security guards who would roam around the premises for signs of intoxication. They also post signs at prominent locations warning patrons that they can be removed for drunkenness.
34Mr. Homewood testified that he had a good relationship with Inspector Hetherington, who would talk to Mr. Homewood about events that had happened. Their policy was to comply with whatever the Inspector asked them to do and never to question the Inspector’s judgment if the latter asked them to remove any patron.
35On this occasion, the Inspector spoke to Mr. Homewood two days later. Based on their conversation, Mr. Homewood was under the impression that the matter was dealt with. As per their practice, Mr. Homewood spoke with the staff about the incident as an educational opportunity on the following Monday, and treated the issue as being dealt with. He did not expect to receive the Notice of Incident four months later in a letter dated October 23, 2018, let alone the Order of Monetary Penalty.
36The appellant’s second witness, Mr. Hendriks, gave testimony regarding how he came to become aware of the patron who was intoxicated and the action he took once he was notified of the situation. Mr. Hendriks’ testimony was highly relevant as he confirmed the action taken by the establishment once it became aware there was intoxicated patron present.
37Mr. Hendriks testified that he was roaming that night to ensure things ran smoothly. He was first notified by the two inspectors at the front of the bar, who told him to go the smoking area to remove the patron who was squatting against the wall in the smoking area. When he arrived at the smoking area, the patron was leaning against the wall and he asked the security to remove the patron. As already noted, he removed the patron because he trusted the Inspector’s judgment and because they wanted to be co-operative.
38Mr. Hendriks also provided testimony about their staffing requirements. The bartenders, Mr. Hendriks explained, were required to stay behind the bar and not allowed to leave their post. The security guard posted at the door to the smoking area was to ensure patrons did not enter the unlicensed area with alcohol. Like Mr. Homewood, Mr. Hendriks confirmed there was a team of security guards roaming around the premises to monitor any signs of trouble. Finally, Mr. Hendriks testified that the staff were spoken to after the incident, but there was no suspension of any staff as a result, because they could not link the incident to anyone that was working that night.
39In its submission the Registrar submitted that the staff of the appellant should have, or ought to have, known that the patron was drunk, as the two Inspectors were able to spot the patron minutes after they walked in and followed the patron inside the premises and out to the smoking area. Relying on Sin City3, the Registrar submitted the employees permitted drunkenness when they failed to monitor drunkenness and failed to remove the patron before the Inspector intervened.
40Citing the Divisional Court’s decision in Tila Tequila,4 the Registrar submitted that it does not matter that the licensee has established policy and staff training that exceeds reasonable standard if on the particular occasion in issue an infraction was in fact committed.
41In response, the appellant submitted that the test is not as simple as showing someone is drunk - the premises must have permitted it. Referring also to Sin City, where the Court of Appeal adopted the reasoning of the Divisional Court when it found the Board of Alcohol and Gaming Commission of Ontario had erred in law by finding the establishment in question “permitted” drunkenness5, the appellant submitted the Registrar has not made out its case because first of all, they have not made out there was drunkenness and second, even if there were drunkenness, the appellant did not permit it as it removed the patron immediately upon being made aware of the situation.
42Counsel for the appellant referenced other cases where the Court and this Tribunal had found insufficient evidence of the operator having “permitted” drunkenness, and submitted that in this case, there was even less evidence of such conduct. Counsel pointed to the case of Royal Oak6, where the patron in question was found dead in an area near the establishment after being removed for intoxication, and the Tribunal concluded the appellant in that case did not permit drunkenness because the patron was removed, even though a lot of drinking was going on and the staff knew about the multiple drinks being served to the patron. In contrast, counsel submitted that there was no evidence in this case that the patron in question was being served at the appellant’s premises at all.
Analysis
43As I begin my analysis I look to the decision of the Court of Appeal in Sin City, in which the Court found the Board misinterpreted the word “permits” in the relevant regulation.7
44I note also that the Divisional Court in Sin City noted at para.14:
We are not satisfied that the evidence leads to a conclusion on the balance of probabilities that the staff of the Licensee knew or ought to have known that the patron was drunk. Taking into the considerable number of staff, all of whom had been trained to watch for signs of intoxication, it does not necessarily follow that a patron who was observed by the Inspector for 5 to 8 minutes would have come to the attention of the staff or should have come to the attention of the staff. The bar typically had loud music and was very noisy. A patron who was “talking loudly” to other patrons would not have been distinct. The other evidence of staggering, swaying and unable to walk a straight line is not sufficiently distinct to lead to the inference that the staff knew or should have known during that 5 to 8 minute interval that he was drunk. We do not agree with counsel for the respondent that it was open to the Board to conclude on that evidence that the Licensee “permitted” the patron to be on the premises.8
45The Court of Appeal disagreed with this part of the Divisional Court’s analysis and found that the case could have gone either way on the evidence.9 However, as noted above, the Court of Appeal took issue with the Board’s interpretation of the term “permits”.
46In my view, there was insufficient evidence in this case to support a finding that the staff “permitted” drunkenness. As Inspector Hetherington testified, during the time he observed the patron, he did not see any staff member serving him any drink or talking to the patron. The patron was sitting at the location of the bar where there were no bartenders around, and the only time the patron was observed by the Inspector as “passing by” a staff was when he exited the premises to the smoking area for a smoke. The Inspector confirmed he did not see the patron falling or tripping down the stairs. He also confirmed that it was a busy night. In fact, it was so busy that the Inspector himself had decided not to “pull away” any staff to ask them about their interaction with the patron.
47While I have found that the patron was intoxicated, there was no evidence he had conducted himself in a way that would draw attention to him by the staff in a busy bar where a concert was going on. The Inspector did not observe the patron speaking loudly or quarrelling with anyone. The only time the Inspector said the patron was being “stared at” by other patrons was in the smoking area where no alcohol was allowed. I further noted, this evidence also arose from the Inspector’s oral testimony about seeing the patron fall on his rear, an incident not recorded in the Inspector’s notes. But even if I accepted this part of the Inspector’s testimony, there was still nothing to suggest that the security guard who was guarding the door preventing patrons from leaving with their drinks, knew or ought to have known that among the 40 or so people in the smoking area, one patron might have been drunk. Moreover, it was the Inspector’s testimony that he decided at that point to call on the staff of the premises, thus leaving no time for the security guard to react, even if he ought to know by then he had a drunk patron on his hands, assuming the latter did fall on his rear.
48The fact that the Inspector himself did not consider the matter as serious, and that no staff was suspended because no one could be linked to the incident in question, were also factors I have considered. Taken together, these facts did not support a finding that the staff knew or ought to have known that the patron was intoxicated.
49Having made the decision not to obtain any evidence about how many drinks had been served to the patron at the establishment, or whether any of the staff had observed the patron being intoxicated within the very short time period during which the inspectors were on the scene, I find it difficult to accept the Registrar’s submission that it has thus made out the second element of the infraction based solely on the Inspector’s evidence about drunkenness.
50The evidence also clearly established that once alerted by the Inspector to the presence of an intoxicated patron, the staff took immediate steps to remove the patron, consistent with their policies and practices of not allowing intoxication on the premises and always co-operating with the Inspector’s instructions. While the presence of best practices would not be a defence if an infraction had been committed, the appellant’s practices and policies, combined with the swift action in fact taken once the issue came to their attention, suggest that it is more likely than not that their staff would have removed the patron had they known about the patron’s drunkenness.
51Ultimately, it is the Registrar’s burden to prove the appellant’s staff knew or ought to have known about the drunkenness in order to “permit” it. I find that the Registrar has failed to meet its burden in this regard.
ORDER
52The Tribunal grants the appeal and sets aside the monetary penalty.
LICENCE APPEAL TRIBUNAL
Avvy Go, Adjudicator
Released: April 24, 2019
Footnotes
- 1213963 Ontario Limited o/z Sin City and Eatery v Registrar, Alcohol and Gaming Commission of Ontario, 2009 ONCA 323, at para. 2 (Sin City)
- Sin City, supra, at para. 3
- Ibid
- 1443614 Ontario Inc. o/a Tila Tequila Bar and Registrar, Alcohol and Gaming Commission for Ontario 2011 ONSC 740 (January 31, 2011)
- Sin City, note 1 at para. 7
- 1146587 Ontario Ltd. o/a The Royal Oak and Registrar of Alcohol, Gaming and Racing, 2017 ONLAT LLA 10824
- Sin City, note 1 at para. 6
- 1313963 Ontario Limited operating as Sin City Bar and Eatery v. Registrar, Alcohol and Gaming Commission of Ontario, Court File No. 483/70 (May 2, 2008) (Div Court)
- Sin City, note 1 at para. 8