LIQUOR LICENCE ACT, R.S.O. 1990

In the Matter of: PAMUKKALE CAFE

1675 St. Clair Avenue West

Toronto, Ontario

M6N 1H9

Licensee: Ali Kaya

Licence Number: 806936

Notice of Proposal: To REVOKE a licence

Dated July 26, 2006

The Proposal alleges that:

(a) Pursuant to section 6(2)(d) of the Liquor Licence Act (the “LLA”), the past/present conduct of the applicant (or if a corporation) or its officers or directors, or a shareholder who owns or controls 10% or more of its equity shares, or a person having beneficial interest in the business, or a person having responsibility for the management or operation of the business affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty;

(b) Contrary to subsection 45(1) of Ontario Regulation 719/90, (the O. Reg.”) under the LLA, the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder.

(c) Contrary to subsection 31(1)(b) of the O. Reg. under the LLA, the licence holder kept for sale liquor not purchased from a government store.

(d) Contrary to subsection 31(1)(c) of the O. Reg. under the LLA, the licence holder kept for sale liquor not purchased under the licence.

(e) Contrary to section 33(1) of the O. Reg. under the LLA, the licence holder permitted liquor other than liquor purchased by the licence holder under the licence from a government store to be brought onto the licensed premises or the liquor and food preparation area and storage areas.

Hearing: Alcohol & Gaming Commission of Ontario

90 Sheppard Avenue East, 3rd Floor

Toronto, Ontario

M2N 0A4

February 21, 2007

Presiding

Board Members: David C. Gavsie, Chair

Kirsti Hunt, Vice Chair

Counsel for the

Registrar: Bryna Kaplan

Counsel for the

Licensee: John Weisdorf

Attendance: Mr. Memduk Chimen, translator for Mr. Ali Kaya

Det. Cst. Rodney Damaso, Toronto Police Service

Det. Ron Thorne, Toronto Police Service

Cst. Ryan Mackenzie, Toronto Police Service

Cst. Paul Belanger, Toronto Police Service

Mr. Ali Kaya, licensee

Blaine Bray, witness

Exhibits: #1 - Statement of Mr. Blaine Bray taken by Cst. Ryan Mackenzie

#2 - Statement of Ms. Fushun Li taken by Cst. Paul Belanger

DECISION

The Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) held a hearing on February 21, 2007, pursuant to a Notice of Proposal dated July 26, 2006, to revoke the liquor licence issued to Ali Kaya operating as PAMUKKALE CAFÉ, 1675 St Clair Avenue West, Toronto, Ontario, M6N 1H6, licence number 806936.

Ms Bryna Kaplan appeared as Registrar’s counsel. Mr. John Weisdorf appeared as counsel for the Licensee.

Preliminary Matters

1. Mr. Memduk Chimen was sworn is as translator for Mr. Ali Kaya.

2. Mr. Weisdorf asked that the matter be adjourned so he could get the transcript of reasons for the trial in this matter held on January 29, 2007, which he had not been able to get because he had pneumonia and has just recently left his bed.

Ms. Kaplan opposed an adjournment because all the witnesses were in attendance and she was ready to proceed. The Registrar has a public interest concern about the licensee and the continuation of the licence because of the severity of the allegations. Time has already passed since the Notice of Proposal was issued in July 2006 but should the Board adjourn the matter, she asked that the hearing be rescheduled expeditiously and made peremptory on the licensee.

Mr. Weisdorf replied that the Licensee chose the first date proposed after the criminal matter. He has never heard of an adjournment not being granted if counsel was sick.

After considering the submissions made, the Board denied the motion to adjourn. Not having the transcript of the trial is not a reason to delay the hearing since there is a different burden of proof entirely in regulatory hearings. All the witnesses are present. If Mr. Weisdorf needs to take breaks during the hearing, he can ask for them. Of concern to the Board are the public safety allegations which should be heard immediately and not delayed.

Evidence Adduced

Evidence that is not at issue is that Mr. Blaine Bray was invited by his girlfriend, Ms. Fushun Li for drinks at the Pamukkale Café on April 1, 2006. Ms. Li’s daughter worked as a waitress there and was working that night serving drinks. Mr. Bray arrived around 11 p.m. He and Ms. Li had some drinks at the establishment. Present also were 6 to 7 other patrons of Turkish descent and Mr. Ali Kaya, the owner, was speaking with them.

After those patrons left, Mr. Bray and Ms. Li paid their bill and were ready to leave. They asked Mr. Kaya to join them at an establishment across the street to have something to eat. From this point on, the evidence of Mr. Bray and Mr. Kaya differs.

Further undisputed evidence is that at 1:12 a.m. police officers in the area received a radio call about a man with a knife at 1677 St. Clair Ave. West. Det. Thorne and Det. Damaso were first on the scene, spoke with Mr. Bray and Ms. Li. When uniformed officers arrived, they went inside the establishment to speak to Mr. Kaya. Mr. Bray had made the call to police from outside the establishment.

Cst. Ryan Mackenzie took the statement of Mr. Bray (Exhibit #1). Cst. Paul Belanger took the statement of Ms. Li (Exhibit #2). Their statements were essentially that Mr. Kaya had ejected Mr. Bray from the premises while wielding a knife. Based on the allegations made, Mr. Kaya was arrested.

Regarding the evidence in dispute, Mr. Bray testified essentially that when his girlfriend asked Mr. Kaya to come across the street with them to have something to eat, Mr. Kaya became irate and started to yell at her, asking her if she thought that he had nothing better to do. Mr. Kaya wasn’t making sense and it was not logical why he was getting angry. He asked Mr. Kaya to stop yelling at his girlfriend. When Mr. Kaya asked why he should, Mr. Bray told him that he was her guardian. He was not confrontational but was trying to calm things down. His girlfriend was with him. The daughter was still in the bar.

Mr. Kaya became very upset, swore at him and told him to get out of there. Mr. Kaya grabbed a kitchen knife from behind the bar and came around the bar with the knife. Mr. Kaya grabbed Mr. Bray by the collar with his left hand and had the knife in his right hand. Mr. Bray put his hands up and backed out of the bar while Mr. Kaya was still holding him by the collar. When Mr. Bray was outside, Mr. Kaya closed the door. His girlfriend came out the door and a few minutes later the daughter came out.

Mr. Bray was shocked, surprised and scared by what happened. He called the police and four officers arrived. He gave a statement to a female uniformed officer. By this time the daughter had already left. He did not go back into the establishment with the police. He left when the police said he could go and he took his girlfriend home.

He had two beers in the establishment and none before he got there. He was not drunk. When asked about the police suggesting that he was drunk, he indicated that he could not answer for what the police may have thought. Mr. Kaya was behind the bar mostly speaking to his friends. He did not see Mr. Kaya drinking but he was not really watching him.

Det. Cst. Rodney Damaso spoke briefly with the complainant, Mr. Bray, who said that the owner chased him outside of the establishment with a butcher’s knife. The owner was a white male about 5’8” tall with short hair and of Turkish descent.

The officer and his partner, Det. Thorne, entered the premises and spoke with Ali Kaya who indicated that he had been cleaning up and wanted to get the patrons out. He was not armed with a knife. He denied using a knife. Mr. Kaya showed signs of impairment and when asked, said that he had consumed 5 to 6 beers. When he spoke, his English was accented and he slurred his words. He had trouble getting his driver’s licence out of his wallet. If he had been operating a motor vehicle, the officer would have arrested him for drunk driving.

Mr. Kaya was arrested and criminal charges laid because of the nature of the call and the allegations made. He was charged with weapons dangerous to public peace and assault with a weapon. Police located 4 knives in the kitchen area and one knife was seized. Mr. Kaya was taken to Toronto Police 12 Division and later released on a promise to appear and an undertaking.

The LLA charges laid were:

1. permit drunkenness on licensed premises,

2. permit disorderly conduct on licensed premises,

3. permit illegal liquor on premises,

4. keep for sale liquor not purchased from a government store,

5. keep for sale liquor not purchased under licence.

Charges 1 and 2 related to Mr. Kaya and the two complainants who were intoxicated as well. The remaining charges related to a Smirnoff distilled Vodka in a 1.75 litre clear plastic bottle and partly consumed and re-corked green bottle of Australian Cabernet Shiraz with a label stating “Compliments of Super Choice Carpets.” Mr. Kaya had no receipts for them. The bottles were seized.

Mr. Kaya’s criminal trial was held on January 29, 2007. There was a finding of guilt and the judge accepted or ordered a peace bond but the officer didn’t know the terms. The judge made findings but because Mr. Kaya did not have a criminal record and this was his first criminal charge, he indicated that this would be a suitable sentence because he also faced an AGCO matter and the Provincial matter related to the LLA offenses.

Det. Ron Thorne testified that the male patron, Mr. Bray, had a strong smell of alcohol on his breath. He had slurred speech. His eyes were glossy and bloodshot and he was unsteady on his feet. The female had also been drinking but was nowhere as badly drunk as the male so he did not make observations of her.

Mr. Bray advised him that he had been drinking with the female, his girlfriend, at Pamukkale Café. While they were there, the owner of the club came over to them and began yelling at the female. Mr. Bray got angry over this and told him to stop yelling at her. The owner then began yelling at him. The owner went behind the bar, got a knife and chased him out with the knife.

While speaking to Mr. Kaya inside, Det. Thorne noted that Mr. Kaya also had been drinking and he admitted having 5 or 6 beers. He had a heavy smell of alcohol on him. His pupils were dilated and eyes glossy. He was somewhat unsteady on his feet. He had slurred speech through a thick accent. When asked about the allegations, he denied pulling a knife on the other man. They located 2 large and 2 small knives in the kitchen.

He asked Cst. Ryan Mackenzie to bring in Mr. Bray to identify the knife that was used but he could not do so. As far as he knew, no knife was identified or seized. The complainants were not charged. The female said she would take the male home.

On the shelves in the bar, the officer also found 2 bottles he believed to be illegal liquor. One was a plastic bottle of vodka which he believed was illegal in Ontario but later found it isn’t. The other was a 750 ml 7/8 full bottle of Australian Cabernet Shiraz with a label stating “Compliments of Super Choice Carpets.” Mr. Kaya could not produce receipts for the bottles which were both seized.

Mr. Ali Kaya, the Licensee, gave evidence through a translator. Before April 1, 2006, he had had no problems in the premises. The Chinese girl had worked for him for about 3 months before this date. He met the mother on one occasion when the daughter pointed her out while she walked by and he waved at her.

On April 1, 2006, he was sitting at a table watching the bar and to see that no harm was done to the waitress, the daughter, while she was serving the beers. He observed the male and female consume 5 or 6 beers between 10:30 p.m. to 12:30 p.m.

After his Turkish customers left about 12:30 a.m., he told the male and female that it was closing time and asked them to leave. He was tired and didn’t want to keep the premises open for only 2 customers. They said they were going to the restaurant across the street but he said he would not accompany them but would clean up and go home. They did not want to leave so he grabbed the male by his arm and escorted him to the door. He held the arm quite gently, opened the door and asked him please to leave because he was going to close the premises. He did not yell or scream at them but he politely told them to leave. They went outside and then he locked the door and started to clean up. They did not give him any trouble when they left.

On cross-examination, his explanation was different. He explained that they insisted that he go with them but he didn’t want to go because both of them were drunk. When asked how they got drunk, Mr. Kaya explained that when they arrived, they had already been drinking but they were not drunk. He did not serve them, the daughter served them 4 or 5 bottles of beer. He was not sitting next to them but the other customers told her not to serve them more. This was about 12 or 12:15 a.m. He told her to give them their bill, get them to pay it and then she could go home. He gave her her wages and she left by the back door around 12 or 12:15 a.m. The couple knew that she had left. He did not serve anything after she left.

Mr. Kaya did not know why the police were called and was shocked when he saw them. He speculated that perhaps it was because both the male and female were drunk. They said that he had drawn a knife on the male. He asked the police to go into the kitchen, look at the knives and show him which one he had used. The police had been told that he was drunk and he denied it and when asked, he told them that he had had 3 beers - one beer before the couple came in and very slowly another 2 bottles before closing. He did not tell the police that he had had 5 or 6 beers.

Mr. Kaya indicated that he does not drink when he is working. This night he was sitting with friends and they offered him one bottle so that is why he was drinking. He had had one beer before his friends came and when they ordered beers from the waitress, he asked her to bring him one too. Just before closing between 11 and 11:30 p.m., he had another beer. He indicated that he has his Smart Serve training and the waitress got hers before she started working for him.

Submissions

Illegal Liquor - Subsections 31(1)(b), 31(1)(c) and 33(1) of the O. Reg.

Registrar’s counsel submitted that the bottle with the label “Compliments of Super Choice Carpets” which was found in the premises on April 1, 2006, is clearly not sold at the liquor store. The bottle was kept for sale for it was kept with the other liquor for sale in the bar area. It had been opened and was no longer full. A finding can be made for that bottle under 31(1)(b) of the O. Reg.

A finding can also be made under subsection 31(1)(c) for if it was not bought in a government store it was not bought under licence.

The bottle was brought onto licensed premises in violation of subsection 33(1).

She asked for no finding regarding the bottle of vodka.

Permit Drunkenness – subsection 45(1) of the O. Reg.

Based on evidence of Det. Thorne and Det. Damaso, Mr. Bray and Mr. Kaya were intoxicated so a finding can be made under subsection 45(1) of the O. Reg. for drunkenness.

Disorderly, Quarrelsome and Violent Conduct – subsection 45(1) of the O. Reg.

The Licensee was charged criminally for possession of a weapon and assault with a weapon and found guilty of assault. A finding can be made under 45(1) for the assault itself for it took place on the premises.

The Board can go further and make a finding that the Licensee used a knife to evict Mr. Bray from the premises based on the circumstances. Two patrons asked the Licensee to join them across the street for something to eat. This turned into a violent assault. The Licensee testified that he gently escorted them out, albeit physically. Mr. Bray phoned police and reported an assault with a knife. There is absolutely no reason for Mr. Bray to report the assault if it did not happen. Counsel asked the Board to find the Mr. Bray’s evidence today is entirely consistent with the statement he made April 1, 2006, and credible. That statement was submitted for no ulterior purpose. He did not know the Licensee. He had no reason to make up the story of the knife. He was going across the street so he had somewhere to go.

Past Conduct - subsection 6(2)(d) of the LLA

Based on this incident of April 1, 2006, and the Licensee’s conduct, a finding can be made under 6(2)(d) of the LLA. His conduct does not make sense. He did not know these people and there is no history between them. They invited him to go with them after closing and he freaks out on them. The licensee ejects the patrons at knife point for no reason. There is no evidence that they were threatening him and no evidence that they would not have just left.

This incident is a public safety issue. This is a new licensee who has held a licence since October 2005. He is getting angry and using physical methods in removing patrons who are not threatening or displaying disorderly conduct.

The charges and the findings of guilt of the assault are reasonable ground for the belief that the Licensee will not operate the premises in accordance with the law and in the public interest. Section 6 of the LLA is a public interest and public safety entitlement to a licence. There is ample evidence for a finding under 6(2)(d) and at the very least an assault on a patron.

Counsel for the Licensee submitted that an assault can involve as little as touching someone. The Licensee admits that there was an assault in ejecting the patron.

There is ample evidence from Det. Thorne that the male and his girlfriend were drunk. Can the Board rely on anything that they said? The Board must find some evidence to satisfy it that, on a balance of probabilities, a weapon was used. As to why they went outside, called police and made a complaint, the Court of Appeal has stated that one does not know what goes through someone’s mind and therefore it is not acceptable to speculate on that. Counsel asked that the Board not find that a knife was used.

Regarding the allegation of intoxication, all the police officers were honest and straightforward in their evidence and the Licensee cannot argue that the officers’ conclusions were incorrect.

Licensee’s counsel made further submissions which related to sanction and which are not relevant at this stage of the proceedings.

In reply, Registrar’s counsel submitted, regarding the assault charge and the conditional discharge, that we don’t know whether the judge didn’t believe that a knife was involved. Based on the evidence of Det. Damaso, the judge’s decision was based on the Licensee having no criminal record, this being his first criminal charge and he was facing this AGCO matter and Provincial offences matter.

Decision

Illegal Liquor

Based on the credible evidence of Dets. Thorne and Damaso, a part bottle of Australian Cabernet Shiraz with a label “Compliments of Super Choice Carpets” was found in the premises. There was no sales receipt for this bottle. From the label it is evident that the bottle was not bought by the Licensee from a government store under licence.

Therefore, the Board makes a finding of a breach of subsection 33(1) of the O. Reg.

The Board finds that there is no direct evidence that liquor from this bottle was kept for sale or sold to patrons and it is not prepared merely, from its location and the fact that it was partly full, to conclude that the liquor was for sale.

Therefore, the Board makes no finding of a breach of subsections 31(1)(b) and 31(1)(c) of the O. Reg.

Permit Drunkenness

Based on the credible and straightforward evidence of Dets. Thorne and Damaso and the admission of the Licensee, the Licensee and Mr. Bray were drunk in the premises.

Therefore, the Board makes a finding of a breach of subsection 45(1) of the O. Reg. for permitting drunkenness in the licensed premises.

Permit disorderly, quarrelsome and violent conduct

It is admitted that the Licensee assaulted Mr. Bray when he physically ejected him from the premises.

Therefore, the Board makes a finding of a breach of subsection 45(1) of the O. Reg. for disorderly conduct.

However, whether Mr. Kaya used a knife is more problematic for the Board to determine. Mr. Bray in his evidence and statement to police and Ms. Li in her statement said that Mr. Kaya used a knife. Mr. Kaya denied using a knife. Therefore, the question whether a knife was used becomes a matter of credibility. Police evidence is that all three people involved were drunk, Mr. Bray, Mr. Kaya and Ms. Li, who according to Det. Thorne was intoxicated but not as badly as Mr. Bray. Given that the three were drunk at the time of the incident, the Board does not find their evidence very reliable regarding the use of a knife.

At the hearing, Mr. Bray was not completely forthright with the Board. Given his level of intoxication as described by the police, it is not credible that he had only the 2 beers he said he consumed that evening. Mr. Kaya was no more credible when he testified that he had 3 beers during the evening, given the police evidence.

Given each witness to the assault was drunk, there was no identification of the knife, and neither Mr. Bray nor Mr. Kaya were very forthright, the Board is not satisfied, on a balance of probabilities, that a knife was used.

Given the findings made above, the Board does not find, on a balance of probabilities, that there is sufficient evidence to make a past conduct finding under subsection 6(2)(d) of the LLA.

Having made the findings above, the Board invites written submission on disposition from the parties. Registrar’s counsel shall serve and file her written submissions in seven (7) days from the date of this decision. The Licensee shall have seven (7) days thereafter to serve and file a written response. Registrar’s counsel shall have an additional three (3) days to serve and file a reply if any.

DATED AT TORONTO THIS 4th DAY OF APRIL , 2007.

KIRSTI HUNT, VICE CHAIR DAVID C. GAVSIE, CHAIR

KH/rb