LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: MOUNTIES’ RESTAURANT 149 Dundas Street East Toronto, Ontario M5B 1E4
Licensee: Tariq Mahmood Mian Licence Number: 24687 Notice of Proposal: To SUSPEND a licence Dated July 6, 2006
Supplementary Notice of Proposal: To SUSPEND a licence Dated September 29, 2006
The Proposals allege that:
(a) contrary to subsection 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act (the “O. Reg”), 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.
(b) contrary to subsection 45(2) of the Liquor Licence Act (“LLA”), the licence holder failed to facilitate an inspection relevant to the licence.
(c) contrary to subsection 54(1)(a) of O. Reg., the licence holder failed to retain the record of the purchases of food and liquor for the licensed premises.
(d) contrary to subsection 54(1)(b) of O. Reg., the licence holder failed to retain records of the sale of food and liquor for the licensed premises.
Hearing: Alcohol & Gaming Commission of Ontario 90 Sheppard Ave. E., 3rd Floor Toronto, Ontario M2N 0A4 March 20, 2007
Presiding
Board Members: David C. Gavsie, Chair Brian J. Ford, Board Member
Appearances: Phillip Morris, for the Registrar Ed Blaha, for the Licensee
Attendance: Detective Constable Joseph Matys, Toronto Police Service Detective Constable Jim Jamison, Toronto Police Service Alexander Mavarilla, for the licensee Javeen Mian, for the licensee Tariq Mian, licensee
Exhibits: #1 - Notice of Proposal dated July 6, 2006 #2 - Supplementary Notice of Proposal dated September 29, 2006
The Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) held a hearing on March 20, 2007 pursuant to a Notice of Proposal dated July 6, 2006 and a Supplementary Notice of Proposal dated September 29, 2006 to suspend the liquor licence issued to Tariq Mahmood Mian operating as Mounties’ Restaurant, 149 Dundas St. E. Toronto, Ontario M5B 1E4, licence number 24687.
DECISION
Based on the evidence presented to the Board and facts as determined by the Board as hereinafter set out, the Board FINDS that there was a breach of subsection 45 (2) of the LLA.
Based on the evidence presented to the Board and facts as determined by the Board, the Board hereby dismisses the alleged breach of subsection 45 (1) of O. Reg.
Preliminary Matters
As a preliminary matter Registrar’s counsel, Mr. Phillip Morris, advised the Board that he would not be seeking a finding for failure to keep records of the purchases of liquor for the licensed premises contrary to subsection 54(1)(a) of the O.Reg and failure to keep records of the sale of liquor contrary to subsection 54(1)(b) of the O. Reg. Both allegations forming part of the Supplementary Notice of Proposal dated September 29, 2006 section 2 (a), paragraphs (c) and (d) were withdrawn by the Registrar.
Mr. Morris explained to the Board that the Licensee had brought the documents with him to the hearing and he did have a chance to review them. He noted, however, that they were only produced just prior to the hearing and not before.
Registrar’s Evidence
Joseph Matys, a nine year Detective Constable with the Toronto Police Services 51st Division, advised the Board that on December 29, 2005, he had been assisting in an undercover operation on another matter in the vicinity of Mounties’ Restaurant. He noted that he was in an undercover vehicle located across the street and approximately 150 metres west of the establishment.
He noted for the Board that Mounties’ is located in a two-storey building with a large plate glass window at the front. Once inside there is a long narrow bar, which runs north to south. The service bar is approximately sixteen feet long and has a number of stools in front of it. There are a number of small tables on the left side of the main bar area. On the left side is a set of stairs that lead down into the men’s and women’s washrooms. In the back of the bar area there is a set of doors, which lead into the kitchen. Once inside the kitchen you turn right and right again and go down a set of stairs, which leads to a solid steel door that leads to the liquor storage area and an office. The office is on the right. There is also another room on the right in the basement area and then the liquor storage area. He also noted that at the bottom of the stairs leading to the washroom there is also a door that leads into the storage and office area.
Det./Cst. Matys advised that at 5:08 pm he received information from Detective Constable Jamison that a male person had exited the New Moon bar, which is approximately thirty feet from Mounties on the same side of the street. This male person was stumbling and falling on the sidewalk. The male was then observed to enter Mounties’. Det./Cst. Matys, in response to a question, stated that he could not have prevented this male person from entering Mounties’.
Det./Cst. Matys stated that at 5:12 pm he entered Mounties’ and spoke to Alex Maravilla, the bar manager. He identified himself and noted that the male person he had seen on the sidewalk was seated about halfway down the bar and drinking from a bottle of Molson Canadian beer. He also stated that he did not see anyone serve this person. Det./Cst. Matys said that Cst. Erin Carter, who was with him, spoke to the male and that he went to speak with the bar manager.
He told Mr. Maravilla that this person should not have been served. He did not recall what the response was. He also noted that he did not see anyone try to stop this person from drinking or ask him to leave.
Det./Cst. Matys asked Mr. Maravilla for the receipts of liquor purchased and that he wanted to gain access to the liquor storage area. He ran into the licence holder in the basement and was granted access to the liquor storage area and the receipts he requested. He also advised the liquor licence holder that he must have a person in charge, who has access to the liquor storage area, when he is not there. Det./Cst. Matys noted that 90 % of the time they are at the establishment they cannot gain access to the storage area.
On returning to the main bar area he was advised by Cst. Erin Carter that the male was served with a Provincial Offence Notice for public drunkenness and escorted out of the premises. As the male lived in the rooming house nearby he was allowed to go home.
Under cross-examination, Det./Cst. Matys admitted that he first observed the drunken male at 5:08 pm and that he himself entered the establishment at 5:12 pm and that the male was in the bar for a very short period of time, perhaps a minute or possibly two.
Det./Cst. Matys further testified that on May 8, 2006 he was working with Det./Cst. Jamison and at approximately 6:20 pm they attended Mounties’ to conduct a liquor inspection. When they entered the bar they noted that Alexander Maravilla was behind the bar. Mr. Maravilla was asked for receipts and access to the liquor storage area.
Det./Cst. Matys noted that his partner went downstairs to speak with a Javeed Mian, brother of the licensee and a manager of the establishment, and gain access to the storage area. Mr. Maravilla had told Det./Cst. Matys that Javeed Mian was downstairs and would give them access to the liquor storage area.
Det./Cst. Jamison returned and advised that Javeed Mian was not there and they did not have access to the liquor storage area. Mr. Maravilla advised that he would call Mr. Mian. Mr. Maravilla also gave the officer receipts from 2005 and not the 2006 receipts that were asked for. Det./Cst. Matys stated that he was never provided with the 2006 receipts.
During cross-examination, Det./Cst. Matys stated that he had cautioned Mr. Mian that the person left in charge of the bar needed to have a key to give the police access to the storage area when requested. He also stated that there have been several other occasions when they were not able to access the liquor storage area, due to the fact that the licensee or his brother were not on the premises. When asked by the Board, the officer noted that they have visited this particular establishment every 3-4 months over the past three years. He also stated that approximately ninety percent of the time they were denied access to the liquor storage area.
Det./Cst. Jim Jamison of 51 Division of the Toronto Police Service corroborated the evidence of Det./Cst. Matys regarding the male person exiting the New Moon and proceeding to and entering Mounties’. He noted that this male person appeared to be intoxicated as he was staggering when he walked. Det./Cst. Jamison did not enter Mounties’ on December 29, 2005.
Det./Cst. Jamison further informed the Board that he attended at Mounties’ on May 8, 2006 at 6:20 pm to serve a Provincial Offence Notice for an offence of permit drunkenness and to conduct a routine liquor inspection.
He noted that he spoke to the bartender, Mr. Alexander Maravilla, and advised him that he wished to see the owner. Mr. Maravilla told him that the owner’s brother Javeed was downstairs in the office. Det./Cst. Jamison went to the basement, however he found that the door leading to the area was locked. Det./Cst. Jamison returned to the bar area and again spoke with Mr. Maravilla who advised him he did not know where the owner or his brother were. Det./Cst. Jamison asked for liquor receipts and access to the beer storage area and was advised by the bartender that he did not have access as the owner and his brother were the only ones with keys to access the area and he did not have a key. Det./Cst. Jamison advised the Board that there were several occasions when he has not been granted access and that he has charged the licensee and cautioned him as well about the need for giving the police access on demand.
Evidence of the Licensee
Mr. Alexander Mavarilla has worked at Mounties’ for the past four years as the bartender and person in charge when the owner and his brother, who is the manager, are not there.
Mr. Maravilla informed the Board that on December 29, 2005 a male person described as black and possibly Somalian came into the bar and sat at the bar. This person was there approximately one minute before the arrival of Det./Cst. Matys. Mr. Maravilla told the Board that he did not serve this individual as he was busy with other customers seated at tables near the end of the bar. As he turned to walk towards that man he noticed that he had a bottle of beer in his hand. He was walking towards this man when the police officer came into the bar. He was about to take the bottle from the man when the police officer spoke to him. In response to a question he advised the Board that he did not know how the man obtained the beer but that he did not serve him.
Mr. Maravilla noted that Det./Cst. Matys asked him why he had served this person who was apparently intoxicated and he replied that he had not served him. He also noted that Det./Cst. Matys asked to see the beer storage area.
Mr. Maravilla noted for the Board that on May 8, 2006, the officer came into the establishment and that Det./Cst. Jamison asked to see the beer storage area. He told Det./Cst. Jamison that his boss was in the office downstairs and would let him into the storage area. He stated the officer came back up to the bar stating he could not get into the storage area. He noted under cross-examination, that he thought Javeed Mian was in the kitchen and when he found that he was not, he offered to get a hold of him by phone. Mr. Maravilla also noted that the beer storage area is always locked and that he does not have a key. He stated that he has always been able to get a hold of Mr. Javeed Mian or the owner by phone and that they generally arrive in five to fifteen minutes.
Mr. Maravilla testified in cross-examination that he is in charge when the owner or his brother are not there but that he still cannot get a key. When asked, he said he did not know why. His shifts, he noted, were 3 nights a week and that he was there on the 5:00 pm to 11:00 pm shift. He also noted that most evenings he is on his own. He admitted that he deals with the police officer on most occasions and that on a lot of occasions he does not have access to the downstairs area. He also noted that on some occasions he has not been able to reach the licensee or his brother.
Javeen Mian is the manager of the bar and has been so for twenty-four years. He informed the Board that he is in the establishment most of the time. He stated that the storage area is under lock and key to prevent theft due to the nature of the area the bar is located in. Mr. Mian stated that if he is not in the bar he is most often nearby and can be at the bar within five to ten minutes.
Mr. Mian testified that he is the person in charge and that Mr. Maravilla is just the bartender. He stated that he has always cooperated with the police and even offered to give them a key to the storage area so that they could check the storage area any time they wished; they refused to take the key. He also admitted that he was in front of the AGCO Board in 1995 or 1996 for have an illegal bottle of liquor.
Mr. Tariq Mian is the owner and licensee of Mounties’ Restaurant. He advised the Board that he has been there for twenty four years and that on the night of December 29, 2005 he was downstairs in the office when he was approached by a police officer requesting to see the storage area. He showed the storage area to the officer and all was in order. He also informed the Board that he leases the property from his brother.
Mr. Mian, during his testimony in chief, said that he had been charged approximately ten years ago and that the charges were thrown out by the Board. Under cross –examination Mr. Mian was shown a decision of the Liquor Licence Board (exhibit #1), now the AGCO, which noted that he was charged under the LLA for storing liquor not bought under licence. The Board made a finding placing a warning on Mr. Tariq Mian’s licence. He agreed that this was what transpired and that it was not withdrawn.
Mr. Mian stated under cross-examination that he or his brother were at the establishment eighty percent of the time. He also stated that Mr. Maravilla is a bartender and not a manager.
Submissions
Submissions for the Registrar
Mr. Morris notes that with respect to permit drunkenness, the licensee agreed that the male person on December 29, 2005 was drunk. Police testified that he was drunk and that he went from one establishment to another and that the officers were not in a position to stop him from entering Mounties’.
Mr. Morris notes that Officer Matys noted the time of first seeing the individual was 5:08 pm and that further, Det./Cst. Matys entered the bar at 5:12pm. He also notes that when Det./Cst. Matys entered the bar he saw this male person sitting halfway down the bar and drinking from a bottle of beer.
Mr. Morris notes that the bartender was at the end of the bar, the police walk in and the bartender acts, trying to remove the bottle of beer from the drunken male. Based on this evidence, Mr. Morris feels that the Board can make a finding under subsection 45(1) of the LLA. There is only one probability that service was rendered to this drunken patron. How else could he have obtained the beer? No one was heard to say, “That is my beer”, which would have happened if he had taken it from someone.
With respect to the fail to facilitate under subsection 45(2) of the LLA, Mr. Morris notes that on most occasions when the police attend to Mounties’, the bartender is the only staff or management person who is there, and that this person does not have a key to the beer storage area of the bar. The police are making a reasonable request for access to the storage area and the request is not complied with as the bartender does not have access. The only excuse given is that staff can’t be trusted with the key, yet this particular bartender has been there two years and is left in charge when the owner or his brother are not around, which is quite often. Mr. Morris notes that this has been the situation on at least seven to ten occasions.
Mr. Morris also confirmed to the Board that the Registrar was not seeking a finding against the licence holder for failing to retain records of purchases of liquor and sales of liquor for the licensed premises.
Submissions for the Licensee
Mr. Blaha notes that there was less that two minutes between the time the officers saw the intoxicated person enter the bar and when they entered. He also notes that the bartender is at the end of the bar attending to other patrons when the man comes in. When the bartender notices the man and that he has a beer, he starts to walk over to him asking where he got the beer. At this same time the officers are coming into the bar. Mr. Blaha notes that the bartender was in the process of going to remove the bottle of beer when the police arrived.
With respect to the issue of failing to comply, Mr. Blaha notes that there is the law and the spirit of the law and that the owner of the bar was available within ten to fifteen minutes on most occasions and even offered to give a storage room key to the police.
Findings
Alleged breach of subsection 45(1) of the O. Reg.
The Board heard no evidence that the licensee permitted drunkenness in the premises. Officer Matys testified that the intoxicated man he had seen on the street was sitting at the bar drinking a beer. He admitted that he had not seen this individual being served. The bartender stated that he noticed the man sitting at the bar and that he was drinking a beer. At the time he was at the end of the bar, this is corroborated by Det./Cst. Matys. The bartender stated that he was walking towards this individual with the intention of removing the beer from him. He was also at the same time asking him where he got the beer when the officer entered the bar.
The Board also notes that the time period between the intoxicated male entering the bar and the police officer entering the bar is less than two minutes. The bartender also testified that he did not serve this individual and he does not know how he got the beer. He was in the process of taking action to remove the beer from this individual when the police officer came into the bar.
Therefore, the Board dismisses the allegation that the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licence premises or in the areas under the control of the licence-holder.
Alleged breach of subsection 45(2) of the LLA
The Board heard evidence from Det./Cst. Matys and Det./Cst. Jamison that they had been at the bar on several occasions and had not been able to inspect the beer storage area due to the fact that the bartender did not have a key to it and the licence holder was not available. They noted that it was necessary to check the storage area to ensure that there was not illegal liquor there. The officers also testified that they advised the licence holder that they required access when they were conducting an inspection.
The licence holder admitted that he was not always present but had offered to give the officers a key to the storage area so they could have access when they needed it. The officers explained that they could not accept the key for liability reasons and that a key should be left with the bartender.
Failure of the owner to leave a key with the person in responsibility for managing the bar when advised that they must have the premises available for inspection amounts, on a balance of probabilities, to failure to facilitate inspection.
Therefore the Board finds on the facts before it that the licence holder failed to facilitate an inspection relevant to the licence.
Having made the above finding, the Board invites written submissions on disposition from the respective parties. Registrar’s representative shall serve and file his written submissions in seven (7) days from the date of this decision. Licensee’s representative shall have seven (7) days thereafter to serve and file a written response. Registrar’s representative shall have an additional three (3) days to serve and file a reply, if any.
DATED IN TORONTO THIS 22nd DAY OF MAY 2007.
BRIAN J. FORD, BOARD MEMBER DAVID C. GAVSIE, CHAIR
BJF/mw