LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: ROSS BAR & GRILL
1693 Jane Street
Toronto, Ontario
M9N 2S3
Licensee: Ross Bar & Grill Inc.
Licence Number: 22121
Notice of Proposal: To REVOKE a licence
Dated July 5, 2006
The Proposal alleges that contrary to subsection 45(2) of Ontario Regulation 719/90 (the “O. Reg.”) under the Liquor Licence Act (the “LLA”), 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: Alcohol & Gaming Commission of Ontario
90 Sheppard Avenue East, 3rd Floor
Toronto, Ontario
M2N 0A4
March 27, 2007
Presiding
Board Members: David C. Gavsie, Chair
Allan Higdon, Member
Counsel for the
Registrar: Phillip Morris
Counsels for the
Licensee: Joseph Irving
Lou Ciotoli
Attendance: Mandeep Man, Detective Constable, Toronto Police Services
Nadensan Raveendran, Licensee’s witness
Paul Matte, Detective Constable, Toronto Police Services
Exhibits: #1 – Invoice for Surveillance system dated September 18, 2006.
Preliminary Issues
A motion was made by Mr. Morris to exclude witnesses. The motion was granted.
Witness for the Registrar
Mandeep Man has been Detective Constable in the Toronto Police Services Drug Squad (East Sector) since 1999.
The witness stated he was present in the Ross Bar & Grill on November 28, 2005. He noted drug dealers and traffickers frequent the area. The front door of the premises is on Jane Street with large windows looking out on the street. There are apartments above the establishment. There have historically been two problem establishments in the area, the Ross Bar & Grill and the Jupiter Bar and Grill. The latter is now closed.
On November 28, 2005, the witness was working undercover and arrived at the subject premises at 7:10 pm with the intention of purchasing cocaine. The premises are small, approximately 30 – 40 feet long, and 15 – 20 feet wide. There is a service bar on the north side and on the south side are booths. There is a jukebox and a small T.V. On the night in question, approximately 20 people were in the bar. The clientele and staff appeared to be West Indian and all were males.
The witness watched T.V. and made eye contact with a man at the service bar. He was white, 5’ 6”, 140 lbs., with stubble on his face, brown eyes, and was wearing a black suit with blue jeans. The man appeared to the witness as a drug user since he was skinny, unkempt, and unshaven.
The witness approached the male and began a conversation at the service bar. The man said his name was Tony. The witness stated he requested some “food” (crack cocaine) and when asked how much, he was told “40”, which in street parlance signifies $40 worth of cocaine or .04 grams. The male said to wait and he walked over to a man in one of the booths. The male spoke in a normal conversational tone and did not attempt to hide his conversation. There were three people working behind the bar about 4’ – 5’ away. The witness stated that although staff could likely not hear any of this conversation due to T.V. and juke box noise he has no doubt staff were aware of a drug transaction taking place. One telling reason is that he was never asked to purchase alcohol. The man “Tony”, later identified as Yader Acevedo, did not order liquor either and made no effort to hide the drug transaction, which took place out in the open.
The witness handed over two $20 bills in full view. Yader went to the man in the booth and put the money on the table. The booth man (later identified as Lennox Powell) reached down the front of his pants and pulled out a small white and yellow rock-like object that was packed in plastic. Powell put the object, which was crack cocaine, on the table and took the money. Yader took the drugs and gave it to the witness, again with no attempt to hide the transaction. Yader told the witness he could take the crack cocaine downstairs to smoke. The witness was surprised he could smoke on the premises. He turned down the offer and said he would go somewhere else.
The witness exited the bar at 7:19 pm. A total of nine minutes had elapsed since his entrance. In all this time he was never approached by staff to purchase food or drink. The witness went to 31 Division after the conclusion of the transaction and turned the drug exhibit over to police. He wrote up his field notes and debriefed his team.
On cross-examination, the witness stated he had, and has had, no prior or subsequent involvement with Ross Bar & Grill. He did not know what the staff was doing while he conducted the drug transaction. At the time of his initial contact with Yader at the bar, the witness was talking in a normal tone. The transaction was quick.
Responding to questions from the panel, the witness stated the drugs from the transaction were given to Health Canada for analysis and were confirmed as crack cocaine. The two men involved in the transaction were charged criminally. Yader Acevedo was found guilty of trafficking cocaine and in possession of the proceeds of crime. Lennox Powell has been charged with the same offences but there has been no disposition of the charges to date.
Witness for the Licensee
Nadensan Raveendran is the manager of the Ross Bar & Grill. His wife is the licensee. The witness worked at the premises on November 28, 2005. He stated he has no independent recollection of the events that day and did not see any drug transactions. The bar has a capacity of 37 people so he was busy with 20 clients (approximately). He has never had complaints about drug dealing in the bar. If he saw any drug people he would kick them out. He has since installed a video camera system to prevent any repetition of such an incident. The witness stated he has never permitted people to smoke crack cocaine in the basement. He was certainly not aware of any illegal activity on his premises.
On cross-examination, the witness stated that although his wife is the licensee she only works at lunch. She has no other involvement with the business. The bar is open seven days a week and he is there all the time. The witness said he was the only person working at the time of the alleged incident. The witness denied he had received any previous warnings about prostitutes and cocaine users on the premises.
At this point Licensee's Counsel objected to the cross-examination by Mr. Morris, saying he should have lead with this evidence. The witness was excused from the room in order for discussion to continue regarding the objections of counsel.
Mr. Morris stated his questioning was proper, as he had no warning the manager was going to talk about the drug history of the premises. Licensee's Counsel noted there was nothing in the disclosure documents about unsavoury antecedents. He should have been given notice of this material. Mr. Morris said the issue is whether the witness had previously been told by police of drug and prostitution problems, especially the incident when police removed two people from the premises. Statements have been made about police involvement that should be tested. The introduction of another witness for the Registrar would be appropriate. The panel ruled that Mr. Morris’s questioning was in order and the witness was invited back to the room.
In response to Mr. Morris, the witness said he had received no other complaints about his bar. He has seen a police officer and his partner numerous times and has had dealings with police both before and after the alleged incident. However, the police did not tell him there were problems with prostitutes or drugs before the November incident. The witness stated he is suspicious if two people go down to the washroom together or if they enter the bar and do not order beer. These are indicators that people might be selling drugs, which he would not permit.
The witness stated he installed a camera system on his premises. The invoice presented as Exhibit #1 for a surveillance system is dated September 18, 2006. This installation was subsequent to the Notice of Proposal dated July 5, 2006.
The manager stated the security man at the door of his premises has prior experience but he does not know if he is bonded or insured.
In response to a question from the panel, the witness said he had spoken to police before the November incident but the conversation was of a general nature about problems in the neighbourhood. There were no comments specific to his business.
The witness was excused.
A discussion took place prior to the entry of the next witness. Licensee's Counsel objected to the calling of the next witness, as the purpose of his testimony was to call into question the credibility of the manager’s testimony. Registrar's Counsel stated the purpose was not just to question the credibility of the manager but also to refute specific comments he had made about no prior police involvement with the establishment.
Counsel for the licensee did not request an adjournment to enable disclosure of the notes and provide time for review or to present evidence in reply.
The panel ruled the testimony was admissible, as the issue had been raised by the defendant and his counsel. However, the witness was to refrain from referring to any notes as none had been disclosed on these matters. The panel permitted the witness to testify.
Witness for the Registrar
Paul Matte is a Detective Constable with the Toronto Police Services who has been in 31 Division for the past six years in a plain-clothes capacity. He has been with the liquor and vice squad since October 2005. The witness first became involved with Ross Bar & Grill in 2001. At that time he discussed complaints about drugs and prostitutes on the premises with the manager. His main contact with the bar was in 2004 as a member of the police Community Response Unit when he was in the bar multiple times on a weekly basis. In fact, this bar and one other were the main focus of the police drug and prostitution enforcement efforts. There were numerous community complaints regarding drug use, trafficking, and prostitution in the basement – specifically the washroom – and at the rear of the building. The witness has arrested numerous persons in the establishment, including prostitutes and known drug dealers and traffickers who were on outstanding warrants. For instance, in the summer of 2004 he paid a visit to the premises and noticed a male suspect wanted for assaulting police. The witness then went down into the basement and smelled crack cocaine. The male was arrested, found to be in possession of crack, and taken handcuffed, through the bar, out the front door, and into a cruiser.
After this incident, the witness had a conversation with the manager and told the manager he had to get a handle on the drug problems in the bar. Police help was offered. The complaints about these premises have been long-standing from the community. Illegal behaviour was so blatant that mattresses were set out in the public alleyway behind the bar for the convenience of prostitutes.
In cross-examination, the witness stated he knows the manager of the premises but had never met the licensee before the hearing. The sole purpose of his visits to the bar was to check on drug use and prostitution. When the witness was a member of the Community Response Team he used to visit the bar in uniform two to three times a week and found the manager always present.
Licensee's Counsel stated he wanted to complete his cross-examination with the officer’s notes from the period prior to the alleged incident. Registrar's Counsel objected, saying such a process would unreasonably lengthen the hearing process.
The panel ruled that the introduction of the officer’s notes related to events prior to the alleged incident of November 2005 would unnecessarily broaden the scope of the hearing. The witness had testified without notes in order to keep the focus of the hearing on the allegation in the Notice of Proposal before the panel.
The panel asked the witness if the manager would have known of the arrests in his bar and the officer replied yes. At least three prostitutes, one drug dealer, and two drug addicts were arrested on the premises. There is no way the manager could not have known of these events as the culprits were arrested by uniformed police and marched out the front door in handcuffs.
SUBMISSIONS
For the Registrar
Mr. Morris, counsel for the Registrar, requested findings under subsection 45 (2) of Ontario Regulation 719/90 under the LLA.
Mr. Morris noted this is a case in which the licence holder has delegated all responsibility for the operation to her husband, the manager. However, they are both responsible for any infractions. The manager stated he has not seen anything illegal or untoward happening on the premises. Although he said police never warned him about illegal activity, the evidence does not support this.
Counsel stated that on November 28, 2005 an illegal incident took place on the premises that was absolutely blatant. An undercover police office entered the premise, initiated a conversation, was referred to a drug dealer, and bought drugs openly. It has been suggested that the manager was not aware of this incident. However, the drug deal took place out in the open with no attempt to hide the transaction. The drug dealers showed a high level of comfort in their actions, nothing was done surreptitiously. Money was placed on a table and drugs were produced. The police officer testified that a total of nine minutes elapsed between the time he entered the premises as a total stranger and the time he exited, having bought drugs. The fact that an illegal transaction took place in such a short period of time is clear evidence of the immunity the participants believed existed for their business on the premises. It is very telling that during this period of nine minutes, no attempt was made by the staff of this small establishment (capacity 37 people) to sell the undercover officer food or alcohol. The supposed business of the licensee does not appear to have been a priority.
The evidence clearly shows the manager was warned about drug activity on his premises prior to November 2005. Detective Constable Matte testified he spoke to the manager about drug and prostitution problems in his bar on a regular basis, particularly in the summer of 2004. Several people were arrested on the premises and marched out the front door in handcuffs in full view of the manager. The manager was either unwilling or unable to take any action prior to the November 2005 incident.
The installation of security cameras was too late to prevent the November 2005 incident. Exhibit #1 shows the cameras were installed almost a year later. The installation was two years after the arrests described by Detective Constable Matte. Such a delay does not indicate a responsible attitude by the licensee to the obligations of the LLA.
The manager testified a security man was at the front door. However, he does not know if the man was bonded or insured. This does not indicate a responsible, conscientious, and professional attitude to security arrangements for the premises.
Mr. Morris concluded by stating the manager “permitted” the sale or distribution of a controlled substance in that he was wilfully blind to illegal transactions taking place on the premises, thus offering drug dealers the opportunity to ply their trade.
For the Licensee
Licensee’s Counsel stated the hearing is about one alleged event that took place on a single day, November 28, 2005. Nothing in the evidence provided verification of conduct that could be considered within the definition of “permit.” The manager was in the premises at the time in question. He was busy as an estimated 20 customers were present. The undercover officer admitted that the conversation between him and the contact man for the drug purchase could not be heard because of background noise. The exchange was very quick, possibly three seconds. Apparently, the officer asked about “food” and when asked how much was told “40”. How would his client know this was a drug deal? Without access to some code the conversation appears innocent and harmless. The only hint of evidence pointing to “permitting” was the undercover police officer statement that the officer got the impression people behind the bar knew what was going on.
The officer stated he found the dealers to be “comfortable” in their transactions, indicating they felt no threat. It would surely take longer than nine minutes – the total amount of time the officer was in the premises – to assess the behaviour of the bar patrons with any accuracy.
The manager testified he ejects undesirables. When he realized what the two drug dealers were up to he had them removed from the premises. A person was on duty as security at the front door.
Detective Constable Matte testified he had discussions with the manager about drug dealers and arrested people on the premises. But arresting people on outstanding warrants is no indication of illegal activity or conduct in the bar. Such people could be arrested anywhere. They were not apprehended for doing anything illegal on the premises.
No evidence was presented of incidents after November 2005. In addition, a new camera security system has been installed. This indicates the commitment of the licensee to operating in a responsible manner.
For the Registrar
Counsel for the licensee stated the conversation between the officer and the drug dealer was “coded and veiled.” This is not true – the drug transaction took place out in the open in full view. Money and drugs were placed on a table and exchanged. The officer was told he could smoke his crack cocaine downstairs – this is not a code. The actions of November 28, 2005, were blatant and obvious.
Despite repeated warnings from the police about drug activity, the undercover officer was in the bar for nine minutes, he spoke to people and business was transacted. Yet at no time was he asked to order food or drink by any of the staff. This is a clear indication that the licensee did not take the prior warnings of police seriously. Such behaviour constitutes reckless indifference to the responsibilities of a licensee under the LLA.
DECISION
The Board has been asked to order a revocation of the license of Ross Bar & Grill because the licensee “permitted a person to hold, offer for sale, sell, distribute, or consume…” an illegal drug or substance on November 28, 2005. No allegation regarding prior conduct is under consideration by the panel; the panel focused exclusively on the allegation contained in the Notice of Proposal dated July 6, 2006.
No evidence was presented to refute the allegation that a drug transaction took place in the bar on November 28, 2005. The Board therefore FINDS that a drug deal did take place on the premises as alleged. The issue is whether this act was “permitted” as defined by the LLA.
The licensee of any establishment runs the risk of illegal activity taking place on the premises. The safety of all premises relies very much on the judgement and professionalism of the licensee and staff to be constantly alert to illegal activity.
Detective Constable Mann testified he visited the premises on November 28, 2005, and purchased crack cocaine. Mann had never been in the premises before and was a complete stranger to staff and patrons, yet in the space of nine minutes he was able to enter the bar, solicit drugs, conduct a transaction, and leave. This clearly indicates to the Board that management was not sufficiently conscientious in ensuring no illegal activity took place in the bar. The officer also testified that during his time in the premises, no attempt was made to sell him food or liquor, the ostensible business of the licensee.
The manager did not know if his door security was bonded or insured – another telling indication of careless security arrangements.
The Board found the testimony of Detective Constable Mann to be entirely credible. None of the evidence presented was found to be inconsistent. It is clear to the Board that a drug transaction took place in the Ross Bar & Grill on November 28, 2005, and that the manager was insufficiently vigilant and had not taken effective action to prevent such behaviour. The Board considers such wilful disregard for the responsibilities of a licensee as required by the LLA to meet the standard of having “permitted a person to hold, offer for sale, sell, distribute, or consume a controlled drug or substance…”
The Board therefore FINDS for the Registrar and rules that the Ross Bar & Grill did contravene subsection 45(2) of Ontario Regulation 719/90 under the LLA.
Having made the above findings, the Board invites written submissions on disposition from the respective parties. The parties are asked to specifically consider the weight that may be given to the warnings of witness Matte in the absence of any allegation of a breach of subsection 6(2)(d) which states:
“…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.”
The submissions are to be provided to the Hearings Section of the Alcohol & Gaming Commission of Ontario, 90 Sheppard Avenue East, Suite 200, Toronto, Ontario, M2N 0A4, and fax: (416) 326-5566. Registrar’s counsel shall serve and file his 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 30th DAY OF April, 2007.
ALLAN HIGDON, BOARD MEMBER DAVID C. GAVSIE, CHAIR
AH/rb