LIQUOR LICENCE ACT, R.S.O. 1990

In the Matter of: BIG ED’S TAP AND GRILL

132 Queen Street South

Hamilton, Ontario

L8P 3S2

Licensee: Edward John Dicker

Licence Number: 800041

Notice of Proposal: To REVOKE a licence

Dated March 12, 2007

The Proposal alleges that:

Contrary to subsection 45(2) of Ontario Regulation 719/90

under the Liquor Licence Act, the licence holder permitted a person to hold, offer for sale, sell, distribute or consume a narcotic as defined in the Controlled Drugs and Substances Act on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

Hearing: Hamilton Convention Centre

1Summers Lane

Hamilton, Ontario

March 26, 2007

Presiding

Board Members: David C. Gavsie, Chair

Alex McCauley, Board Member

Counsel for the

Registrar: Phillip Morris

Agent for the

Licensee: Robert Landry

Exhibits: #1 - Order of Interim Suspension

#2 - Authorization to contract out the sale and service of liquor

#3 - Copy Liquor Sales Licence

#4 - Page from contract clause 6(g) hi-lighted

#5 - Copy of Indemnity agreement

#6 - Book containing Big Ed’s future proposals

Attendance: Luc Dumont, Hamilton Police Service

Darren Swartz, Inspector AGCO

Gail Grice, for Licensee

Edward Dicker, Licensee

Robert Landry, for Licensee

A hearing of the Alcohol & Gaming Commission of Ontario (“AGCO”) was convened on March 26, 2007 at the Hamilton Convention Centre, 1 Summers Lane, Hamilton, pursuant to a Notice of Proposal dated March 12, 2007 to revoke a licence issued to Edward John Dicker for premises operating as Big Ed’s Tap and Grill, 132 Queen Street South, Hamilton, Ontario, L8P 3S2, licence number 800041;

Preliminary Matters

Edward John Dicker waived his right to legal counsel.

Evidence

Constable Luc Dumont stated that he is a member of the Hamilton Police Service. He has 7 years of active police service. Constable Dumont gave specific evidence surrounding events at Big Ed’s. These events took place March 1, 6^th^ and 7^th^ at the bar known as Big Ed’s Tap and Grill. At the time Constable Dumont was a member of the vice and drug unit of the police service, and he was working in an undercover capacity.

Constable Dumont first attended at Big Ed’s Feb. 27, 2007. This was in response to a direction from a supervisor in the unit that drug dealers had been observed on the premises. At 11:02 p.m. Constable Dumont, in company with Constable Jennifer Lafleur, attended at Big Ed’s in an undercover capacity. While in the establishment they primarily made observations. He saw a person playing pool that he knew as Tom whom he knew to be a crack cocaine dealer. He further identified a second male person on the premises that he knew to be a crack cocaine dealer. In addition the licensee’s son, Edward Dorion Dicker, also known as Ed Junior, was on the premises. Nothing really occurred that evening and both officers left the premises at 11:58 p.m.

Constable Dumont again attended the premises March 1, 2007 and he was again in the company of Constable Lafleur. Inside the premises there were about 20 persons including a known prostitute he recognized sitting at the bar. Ed Jr. was there as well working between the kitchen and the bar. Constable Dumont had a brief conversation with Ed Jr. about a specialty dish he cooked at the bar.

Constable Dumont went outside where some patrons had gathered to smoke. He engaged an older person in conversation. He described this person as a white male aged 60 to 70 with grey hair and wearing a baseball cap with a gold emblem on the front. He asked this person “where he could get a 40”, meaning 0.4 grams of crack cocaine. Initially the male person misunderstood thinking he wanted alcohol but this confusion was quickly cleared up. The male person directed Constable Dumont to the male person seated at the end of the bar wearing a red jacket. He advised that this person’s name was Dan. During this discussion the male person offering the information was looking through the window of the bar to a person sitting at the end of the bar. The male person offering the information was later identified as Ronald Stanley.

Constable Dumont re-entered the bar and at 9:52 p.m. approached Dan. He was seated at the end of the bar and was wearing a red jacket and a red toque.

Dan was seated with a known prostitute named Maureen and another male person. Constable Dumont, when he got closer, made eye contact with Dan, who nodded to him. When he was still 4 to 5 feet away, Constable Dumont asked Dan if he could “hook him up with a 40”. Dan called him closer, put an arm around him and said it would be no problem. Dumont repeated what he wanted. Dan reached into his pocket and pulled out a plastic bag. Inside was a clear plastic bag containing what appeared to be about 5 grams of marijuana. There was no effort by Dan to hide the substance and the bartender, a female named Michelle, could clearly see what was happening. Constable Dumont advised Dan that this was not what he wanted. Dan asked if powder would do and Constable Dumont answered yes. Dan then asked if he was a cop and Constable Dumont said no. They were at the bar speaking in normal conversational tones and there was no effort to be secretive.

Dan turned to the male on the right who he referred to as Kevin. He told Kevin he needed a 40. Kevin said he could “hook it up”. Kevin searched through his pockets finally locating the cocaine. Meanwhile Michelle the bartender approached Dan and advised he owed money. Dan extracted a wad of bills from his pocket in various denominations. Constable Dumont estimated Dan had 6 to 800 dollars in cash.

Kevin finally pulled a clear plastic baggy from his pants pocket. Dan asked Kevin if he wanted to make the sale and he said Dan could. Constable Dumont had asked for $50.00 worth. Dan took Constable Dumont to the men’s washroom. Dan asked Constable Dumont again if he was a cop and this time frisked him. Dan advised he would “eye-ball” the amount. He took a portion of the white powder from the plastic baggy he had received from Kevin. While this transaction was taking place the prostitute came into the washroom, she wanted to speak to Dan. Constable Dumont advised that Dan was busy. Kevin came in behind Maureen the prostitute and sent her out.

Dan offered the cocaine to Constable Dumont without any packaging. He declined taking it this way, so Dan wrapped it in foil from his cigarette pack. The exchange took place; the $50.00 for the cocaine.

Constable Dumont was invited to remain in the washroom with Dan and Kevin and do “a line” but declined.

In the bar Constable Dumont had a conversation with Ed Jr. about Dan as to whether he could be trusted. Ed Jr. stated “oh yeah of all the guys here you can trust him. He will do you right”.

While in the washroom with Kevin and Dan, Constable Dumont asked for phone numbers. He couldn’t remember Kevin’s but he remembered Dan’s and when he went out he gave it to Constable Lafleur. He got paper and pencil from Ed Jr. and wrote Dan’s number on it. Later he spoke to Dan in the bar and showed him the number to be sure. Dan confirmed it was his phone number.

That night, while in the bar, Constable Dumont had some food and a beer. He also met Ed senior, the licensee. He identified Ed senior at the hearing as the person he met in the bar that evening.

At 10:05 p.m. he and Constable Lafleur left the bar. The purchased drugs were turned over to Constable Nelson, the exhibit officer for the Hamilton Police Service.

On March 6, 2007, Constable Dumont entered Ed’s Tap and Grill Bar. He was alone and still working undercover. He saw Ed. Jr. when he entered the bar and they shook hands. At 9:08 p.m. he spoke with Ed Jr. and advised that he had lost Dan’s phone number. Ed Jr. provided a number which matched the number that Dumont already had.

There was a bartender that night, a female later identified as Tovah. He had noticed her in conversation with Ed Jr., and some other individuals. He described her actions as suspicious, and he further reported what he believed to be a drug deal that went down between a patron and Tovah.

Constable Dumont had a further conversation with Ed Jr. who had asked if he had been able to contact Dan. Constable Dumont said it was too bad but he hadn’t been able to contact him. Ed Jr. asked if he was looking for “white”, which Constable Dumont took to mean cocaine. Constable Dumont answered yes and Ed Jr. asked how much and Constable Dumont replied $100.00. Ed Jr. said he didn’t deal anymore, “he was staying out of shit”. Ed Jr. then went behind the bar and spoke with Tovah. Constable Dumont could not hear their conversation.

Constable Dumont went outside briefly. When he returned Tovah had been speaking to 2 black males, one of which he recalled from his February visit.

Tovah came from behind the bar and approached Constable Dumont and asked “if he was looking” meaning looking to buy drugs. He said yes and she asked how much and he replied $100.00. She said she could do $40.00 to which he agreed.

She told him she had seen Dan and that he was her guy too, meaning her drug supplier.

Constable Dumont passed 2 twenty dollar bills across the bar to Tovah and she slid a silver package across the bar under his left hand. She explained the packaging was to make access easier. He put the package in his left pants pocket and left the bar at 9:35 p.m. The drugs were turned over to Det. Constable Mellan of the Hamilton Police Service.

On March 7, Constable Dumont again attended at Big Ed’s Bar, again in an undercover capacity. He arrived at Big Ed’s at 7:35 p.m. There were approximately 12 patrons in the bar. Ed Jr. was working on a refrigerator in the kitchen. Neither Dan nor the bartender named Tovah were in the bar at this time. Inside the bar he recognized one of the patrons as being the elderly gentleman who had pointed out Dan to him when he first enquired about purchasing drugs.

He attempted to call Dan but there was no answer. He asked Michelle the bartender on duty what Tovah’s name was and she told him.

He again attempted to call Dan, this time Dan answered and advised he would be at the bar shortly. Dan arrived at the bar and came over to Constable Dumont. Constable Dumont asked if Dan could “hook him up”. Dan replied he could give him marijuana. Dumont declined the marijuana, and Dan asked how much of the other he wanted. Constable Dumont stated $100.00 worth. This conversation was taking place at the bar in normal conversational tones. There was no attempt at hiding the discussion taking place. Dan said he would make a call. In the interim, Constable Dumont went outside where, during conversation, he met up with a male person named Justin. He advised Justin that Dan was trying to get him “hooked up”. Justin said he could make a call and get it “hooked up”.

Constable Dumont re-entered with Justin, he saw Dan and told Dan not to worry about his earlier request.

Inside the bar Justin asked Michelle for the use of the phone and for the phone number Ed last used. Constable Dumond took Ed to mean Ed. Jr. Michelle gave Justin the phone number and he made the call. When he got off the phone Justin advised someone would be coming and he told Michelle to get him if she called back. Meanwhile Constable Dumont took the phone and pressed the re-dial and noted the telephone number, it was 905-512-3909, assigned to a Kaittlin Casey.

At approximately 9:15 p.m. the phone rang. Michelle had a short conversation with the caller. She then went over and spoke to Justin. Justin then came over to Constable Dumont and stated “she’s coming”.

At 9:27 p.m. Tovah entered the bar with an unknown Asian male. At this time Ed. Jr. was seated at the bar with the male person who had helped with the refrigerator. They were drinking beer.

At approximately 9:28 p.m. Tovah went to the washroom. At 9:30 p.m. she walked to the end of the bar and spoke with Constable Dumont. She had two small packages in her left hand, the same packaging as in the deal on March 6, 2007. He asked her if she had $100.00 dollars worth, and she replied that she did. He took the money from his left jacket pocket. He fumbled the money, making the transaction obvious. He apologized, but she told him not to worry. She had given him 2 packs of cocaine one slightly larger than the other. During all of this transaction Ed Jr. was seated at the bar 3 to 4 seats away.

Constable Dumont asked Tovah for her phone number. Tovah wrote it out on a piece of paper supplied by Michelle. She wrote “T” and the number. The number had been the same as he had recorded from the bar phone after Justin’s call.

Constable Dumont left the bar and the police arrest team moved in and arrested the parties.

Constable Dumont returned to the police office and at 10:12 p.m. called the number he had for Dan. The call was answered by Detective Constable Mellan on the cell phone he had seized from Dan.

The arrested suspects were Daniel Thimpson, date of birth September 14, 1976, and Tovah Murphy, date of birth July 29, 1986.

The seized cocaine was turned over to Detective Constable Mellan at 1:40 a.m.

Constable Dumont stated in answer to questions from the panel, that in his opinion Ed Jr. was very aware that drugs were being trafficked in the establishment. He was not sure from his time there what knowledge Ed Senior had of the drug trafficking taking place in the premises.

There was no significant cross examination.

Darren Swartz AGCO Liquor Inspector

Mr. Swartz is an Inspector with the AGCO having served in that capacity for eight years.

He entered the bar Big Ed’s March 7, 2007 as the result of the police involvement. Upon entering there were approximately 11 patrons, 4 police officers and himself. Ed Jr., whom he recognized, was seated at the bar drinking a beer. Insp. Swartz asked to speak to Ed Jr. alone so they went to the kitchen area. Ed Jr. advised that the licensee was his father Ed Senior but that he worked the bar at night. Ed Jr. had identification on him as one Ed Dorion of 122 Queen St., Hamilton, Apt. 2.

Constable Ley of the Hamilton Police Service issued Ed Jr. two Provincial Offences tickets for permitting the use of narcotics on the premises and allowing unlawful persons to be on the premises.

Ed Jr. admitted that he was aware that some dealing was being done in the bar but it was just small amounts, and further, he was aware Tovah was dealing.

At 10:08 p.m. Ed Dicker senior came into the bar. He was dishevelled, upset and out of breath. He advised that his son ran the bar at night.

Ed Jr. advised that the bar was to be subject to an immediate interim suspension and that the Registrar would be seeking to revoke the liquor licence.

Licensee entered the following documents as exhibits:

Ex. #4 Excerpt from legal document. Clause 6(g) hi-lighted.

Ex. #5 Indemnity document.

Ex. #6 Big Ed’s policies for the future.

Gail Grice

Ms. Grice is a friend and a patron of Big Ed’s. In addition she does volunteer work to help out Ed Dicker. She described Ed Dicker as a man of good character. She stated that Ed Dicker is on the premises far more than the previous owner and that he has cleaned up the “riff-raff” that hung around.

Cross examination did not reveal significant new information.

Edward John Dicker

Edward John Dicker is the licensee. He is also referred to as Big Ed. He stated that when he took over the establishment he was obliged to take on the former employees and pointed to exhibits 4 and 5 to support this fact. Since the drug trafficking incidents he has instituted changes. He has fired his son. He has barred Dan and Tovah. He referred to Exhibit 6 as his new policy direction and as well a sample of his future employees. He has put new signage in place about the prohibition about drug use. In addition he is prepared to work closely with the AGCO to ensure he is fully compliant with all required regulations.

Cross Examination

It was revealed that the proposed new procedures, document Ex. #6, were written up by the cook. Ed Dicker stated he told him what to put in it.

In cross examination it was clear that Ed Dicker did not know who the dealers were, even though this information had been relayed to him in disclosure. It was clear through cross examination that Mr. Dicker really had no sense of the requirements to operate a licensed establishment. He stated at one point that, if not for his son, he would never have contemplated running a bar. He stated “the last thing I wanted to do was run a bar”. He had purchased the bar at his son’s insistence with money he, Ed Senior, had received in an inheritance.

He admitted to having heard of people talk of the use of drugs in the bar.

In response to questions from the Board, Mr. Dicker said that he wants to recover his money from the bar and sell it. He also stated that he could not control his son. His son still lives with him.

Robert Landry

Robert Landry is a friend of Ed Dicker and has known him for 10 years. He describes Ed Dicker as a good person who doesn’t know a lot about running a bar. He further stated that Ed Dicker’s son, Ed Jr., had a lot of influence over his father. He stated he had run a bar himself before, but got out of it. He stated he was prepared in the future to help Ed Dicker when he could.

Mr. Landry currently is an R.V. repair person who has his own business.

In cross examination, he stated he was a patron at the bar with the previous owner when it was called Nimmies. His wife was in charge of karaoke there for four years and he went with her. He stated that during that time period he never witnessed any drug deals at Nimmi’s.

He stated he knew Dan from Big Ed’s but did not know he was a drug dealer.

He stated he knew Ed. Jr. took drugs but did not know what kind and that he had told Ed senior that Ed Jr. was using drugs.

Submissions

Registrar’s Counsel Mr. Morris

Mr. Morris asks for findings under 45(2) of Ontario Regulation 719/90 under the Liquor Licence Act, that the licence holder permitted a person to hold offer for sale, sell distribute or consume a controlled drug or substance as defined in the controlled drug and substance act on the premises or adjacent areas under the exclusive control of the licence holder. Mr. Morris contends there was very open dealing going on continually in the licensed premises. The dealing was done openly with no attempt of subterfuge. Ed Junior admitted knowledge that drug dealing was going on.

Ed Dicker senior, the licensee, was aware that drug dealing had been happening. Mr. Morris contends that anyone with an ounce of energy or ability knew what was going on in the bar.

Mr. Morris points out that the future of the bar under Ed Dicker’s management does not bode well. He has no idea how to run a bar and his future prospective employees have no experience in running a bar. Mr. Dicker’s interest in the bar is to recover his investment, beyond that he has no interest in the bar.

Mr. Morris alluded to Mr. Dicker’s son, Ed Junior, who still resides with him as being a person of negative influence upon Ed Dicker senior. There is no evidence as well that the prospective employees suggested by Mr. Dicker in his document are, in fact, committed to the position.

Mr. Morris asks that the liquor licence for Big Ed’s Bar be revoked. Failure to do so will see the situation revert back to where it was before.

Licensee’s Agent Mr. Landry

Mr. Landry, in submissions for the licensee, asks for another opportunity. He maintains that today the bar is better than when owned by the previous owner. He remarked that when Ed Dicker is there zero violence is tolerated.

He maintained that the situation is not as grim as was painted by Registrar’s Counsel.

Decision and Order

This case is about saving an investment versus a duty to ensure safety of the public and the integrity of the regulator of all Ontario liquor licenses.

Mr. Dicker let his son, Ed Dorion, be in charge of the bar. Nothing that the Board heard gives the Board any reason to believe that the management of the bar will change with new staff and the proposals for change introduced by Mr. Dicker in Exhibit #6.

It is the view of the Board that the Licensee not only had a responsibility to know but that he ought to have known what was occurring in the Premises on a daily basis. The Board is satisfied that the Licensee had some inkling of the events regarding the dealing of narcotics, but he was willfully blind to these blatant transactions that were taking place under the noses of everyone in the Premises.

It was of concern to the Board would he be able to keep his son or his son’s influence out of the licensed premises in the future.

Accordingly, the Board FINDS that there has been a violation of subsection 45(2) of Ontario Regulation 719/90 as alleged in the Notice of Proposal.

Further, the Board is also satisfied that the Licensee has no management competency to safely operate a licensed establishment.

As a result, the Board hereby ORDERS the revocation of the liquor licence of Edward John Dicker operating as Big Ed's Tap and Grill, 132 Queen Street South, Hamilton, licence no. 0800041 effective immediately.

DATED AT TORONTO THIS 13^th^ DAY OF APRIL 2007.

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