ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
B E T W E E N:
Registrar, Alcohol and Gaming Commission Ontario Registrar
-and-
352085 Ontario Limited O/A Golden Ring Bar and Grill Licensee
DECISION
Panel: David C. Gavsie, Chair Patricia McQuaid, Vice-Chair
Decision Date: November 15, 2007 Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free in Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Joyce Taylor, Representative 352085 Ontario Limited, Licensee ) Michele Khitab, Representative
Allegations
- A hearing into a Notice of Proposal dated October 18, 2007 to revoke a liquor licence and an Order dated October 18, 2007 to immediately suspend a liquor license on an interim basis to licence number 23860 operating as GOLDEN RING BAR AND GRILL, 326 Parliament Street Toronto, Ontario, M5A 2Z7 on the basis of alleged violation of clause 6(2)(d) of the Liquor Licence Act ("LLA") and subsection 45(2) Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on October 30 and November 2, 2007 in the City of Toronto.
Decision
- After considering all the evidence and submissions, the Board makes a FINDING pursuant to clause 6(2)(d) of the LLA and FINDS that the Licensee violated subsection 45(2) of the O.Reg. Reasons follow.
Preliminary Matters
An Order was made for the exclusion of witnesses.
At the commencement of the hearing, Ms. Khitab stated that she would not be calling any evidence on behalf of the licensee, which was confirmed at the close of the Registrar’s case.
Evidence
The Board heard evidence from seven officers with the Toronto Police Service, all of whom were involved, to a greater or lesser extent, with the investigation and attendance at the licensed premises on October 4, 2007. The officers were John Margetson, Jeff Wilson, Ian Gallagher, Angela Kahnt, Raj Patel, Kevin Cote and Paula Beaudry. Their evidence was, on the relevant points, consistent with each other, and uncontradicted. Each officer’s testimony will not, therefore, be recited in detail.
The following is the evidence, which was undisputed. On October 4, 2007, Sgt. Margetson, Detective Constables Wilson, Patel and Cote attended at the licensed premises. Previous to this, Detective Constable Wilson had requested that Officer Kahnt prepare a search warrant pursuant to the Controlled Drugs and Substance Act, (the “CDSA”) on the basis of information received from confidential sources regarding alleged drug trafficking at the premises. Prior to the receipt of the signed search warrant, the officers attended at the premises at approximately 8:00 p.m. Their attendance at that time was precipitated by confidential information received, to the effect that drug sales were occurring on the premises, and at a rapid rate. The officers secured the premises. Ms. Georgeopoulos, co-owner of the Licensee with her husband, was present behind the bar area. She was immediately placed under arrest for the possession of oxycodone (a Schedule 1 controlled substance) for the purposes of trafficking, after which she was transported to 51 Division.
The officers stayed at the scene awaiting delivery of the signed search warrant. A search was conducted after Officer Kahnt arrived with the search warrant. The following were found in the licensed premises:
A pill bottle, unlabelled, containing 25 white pills, with the marking “TEC” on one side of the pill. This bottle was laying on its side behind a utensil tray on the service bar counter. Mrs. Georgeopoulos did show this bottle to St. Margetson (Ex. 1(i)). Officer Wilson testified that he believed these pills to be percocet, based on the markings and reference to a Health Canada chart which is used as a tool to identify pills:
A smaller pill bottle, unlabelled, also found behind the utensil tray which contained 31 white pills with the marking “0636” on the pills. Officer Wilson testified to his belief that these were “endocet” pills:
A large orange opaque pill bottle found buried in the coffee bean machine and covered by coffee beans, containing 105 white pills. There was no label on the pill bottle, Ex. 1(k) Again, Officer Wilson testified that he believed these to be “endocet” pills:
Under the bar counter, on top of the dishwasher, wrapped in a piece of saran wrap inside an ashtray, 20 white pills. The pills had “N” marked on one side and “10” on the other. Officer Wilson believed these to be percocet (Ex. 1(m) and (n)):
An empty yellow pill bottle under the service bar (Ex. 1(o)); and
A small notepad (Ex. 2) which was located behind the service bar by the cash register. Sgt. Margetson testified that it appeared to be a debt list. First names and numbers appear on each page. On one page, there is a reference to four beer for $12. There were no dates on the various notations. Officer Margetson did acknowledge that its identification as a debt list is his interpretation, and it could possibly have been a record of “tabs” for the restaurant.
While at the scene, and when waiting for delivery of the search warrant, a male came to the door of the premises. At that point, Mrs. Georgeopoulos had been taken to 51 Division. Officers Margetson and Wilson observed a car pull up outside, the male got out of the car and came to the door. The female driver waited in the car. Detective Constable Wilson opened the door. Sgt. Margetson spoke to the male who was identified as Denver Jean. He told the officer that he was there to buy valium from “Mary”. He had been coming to the restaurant once or twice a month over the course of the past year to buy pills at a cost of $1 / pill. The officers sent him on his way.
Shortly thereafter, Mr. Georgeopoulos arrived at the premises with his son. Mr. Georgeopoulos was also placed under arrest and subsequently transported to the police station.
Each of Mr. and Mrs. Georgeopoulos were searched at 51 Division. PC Gallagher conducted the search of Mr. Georgeopoulos. No pills were found on his person, however $976 in various denominations of Canadian currency was seized from him (Ex. 1(v)). PC Gallagher did not ask him where the money came from. Because of his ill health, Mr. Georgeopoulos was released to his son, on an undertaking to comply with certain conditions.
PC Kahnt participated in the search of Mrs. Georgeopoulos. In her purse, inside the wallet, she found $116 in U.S. currency and $739 Canadian, again in various denominations (Ex. 1(q)). She also found four pill bottles in her purse, none of which were labelled. In one bottle, there were four Tylenol #3 pills. In a second, there were 28 pink pills, with, on one side, the marking “CDN” and on the other “20”.
Based on his experience and reference to the Health Canada chart, Officer Wilson concluded that these were oxycotin. In the third bottle, there were 11 white pills with “0636” markings. The fourth bottle contained 52 small blue pills identified as valium.
There is no certificate of analysis for any of the pills seized either at the licensed premises or in Mrs. Georgeopoulos’ possession. Sgt. Margetson stated there was insufficient time to have the pills processed by forensics prior to this hearing. Det. Constable Wilson acknowledged that the only way to identify the pills with absolute certainty is through forensic analysis.
PC Kahnt stated that she did ask Mrs. Georgeopoulos about the pills to which she responded that they were hers, for a bad leg. She did not have a prescription for the pills. Mrs. Georgeopoulos was kept in jail overnight. She was released on bail the next day on conditions, one of which was that she “not to be within 100 meters of the premises located at Golden Ring Restaurant” (See Ex. 3).
The charges against Mrs. Georgeopoulos were: two counts of the possession of oxycodone for the purposes of trafficking, possession of codeine for the purposes of trafficking, possession of valium for the purposes of trafficking and possession of the proceeds of crime in respect of the cash found on her person.
In terms of Mrs. Georgeopoulos’ involvement in the business, Officers Margetson and Wilson stated that she was behind the bar when they arrived on October 4th. They have seen her there on prior occasions although they were aware that she employs a couple of female waitresses. Mrs. Georgeopoulos was referred to by the witnesses as “Mary” or Maria. Officer Wilson stated, for example, that he had had contact with her previously and that “Mary and Chris” had run the bar for years. PC Cote stated that he knew “Mary” to be in charge of the place and that she is usually the person who can be found working there. He could not recall if there were other staff working on October 4th.
Upon cross-examination, Sgt. Margetson did state that Mrs. Georgeopoulos has no prior convictions. There were, however, prior charges laid against her in respect of a seizure of drugs at the premises on February 8, 2007. Those charges were disposed of without a trial.
During the course of their testimony, Officers Margetson and Cote also gave evidence regarding the physical state of the premises. In particular, that they observed mice running around the food preparation area and mice feces on the floor. City of Toronto Public Health was called in to inspect the premises. The premises were closed by the Public Health department, however, at the time of the hearing, the restaurant had re-opened for the service of food.
Reasons & Analysis
Ms. Khitab stated, in submissions, that the central issue before the Board is whether the pills seized were illegal drugs pursuant to the CDSA. She submits that without a certificate of analysis, there is no definitive answer; a determination cannot be made with certainty and hence the Registrar has failed to prove an essential element of the allegation pursuant to subsection 45(2) of the O.Reg.
Through cross-examination and in submissions, Ms. Khitab posed some possibilities in response to the conclusions which the Registrar wishes the Board to find. The pills may have been for Mr. Georgeopoulos’ personal use. The prescriptions may have been at home. The cash found could have been from the restaurant as a cash business. The notebook may have been a record of tabs at the restaurant. The evidence regarding Mr. Jean, she submits, should be given little weight as it is hearsay.
As counsel is aware, this is not a criminal proceeding. The standard of proof does not require absolute certainty, rather findings are made on the balance of probabilities. While the evidence regarding Mr. Denver maybe necessary, however, the SPPA does allow hearsay evidence before a tribunal such as this one.
The Board accepts the evidence of the police officers. Their evidence was consistent and corroborative. Though Mrs. Georgeopoulos indicated to PC Kahnt that the pills were hers, there was at no time any prescription or doctor’s note produced to support that assertion. While four Tylenol 3, alone, may well be for personal use to alleviate a sore leg and may therefore seem a credible answer, it is much less so when reviewed in the context of the sheer number of pills seized on October 4, 2007, a total of 276 pills. Further, the fact that a bottle containing 105 pills, believed to be endocet, an oxycodone, was found buried within the coffee beans does not suggest storage for personal use.
Though a certificate of analysis would have been helpful in order to establish that these pills were the controlled substances that the officers said they were, the totality of the evidence suggests, on the balance of probabilities, that these were controlled drugs. Sgt Margetson and PC Wilson were, the Board heard, experienced police officers. They were guided too, in their conclusions concerning the drugs found, by reference to the Health Canada chart. The number of pills, where they were found, and the evidence regarding Mr. Jean, viewed against the seizure of 52 valium pills on Ms. Georgeopoulos’ person, are supportive of their conclusions. This was not a situation where any plausible explanation was proffered to counter that conclusion.
The Board agrees with the submission of Ms. Taylor: the only logical conclusion, on the balance of probabilities is that the pills are what the police officers purport them to be. The Board therefore FINDS on a balance of probabilities that there was a violation of subsection 45(2) of the O.Reg.
The Registrar is also seeking a finding, pursuant to clause 6(2)(d) of the LLA that the Licensee, and in particular, Mrs. Georgeopoulos as 50% owner of the business, will not carry on the business in accordance with the law and with integrity and honesty. Mrs. Georgeopoulos was in the establishment when the police arrived on October 4, 2007. The evidence was that she was known to be the person running the establishment. Pills were found in large quantity in the staff area of the restaurant. A variety and quantity of pills (95) were found in her purse, with $855. Police sought a search warrant because of information that drugs were being sold from the licensed premises. The City of Toronto closed the premises following October 4th because of public health issues.
However, the evidence, in particular, that cited above and the Board’s finding of a violation of subsection 45(2) of the O.Reg., absent any explanation by the Licensee raises concerns about the integrity of the Licensee and the operation of this establishment. These concerns are serious ones which impact public confidence in the liquor licensing regime. For the reasons outlined above, the Board concludes that there are reasonable grounds to conclude from the conduct of the Licensee that the business will not be carried on in accordance with the law and with integrity and honesty and therefore, makes a FINDING pursuant to clause 6(2)(d) of the LLA.
In the course of her submissions, Ms. Taylor argued that this licence, in the circumstances, should be revoked. Ms. Khitab submitted that, the licence should be reinstated and at worse a suspension ordered with conditions on the licence, especially given that by November 1, 2007 the licence had been suspended for 16 days. The Board, in the interests of fairness, and having made these findings invites written submissions on penalty from the parties.
Conclusion
The Board, on November 2, 2007 ordered that the Interim Suspension of licence number 23860 remain in place until the Board rendered its decision. Given the findings, the Interim Suspension shall remain in place until the Board’s final decision on sanction is rendered. In the circumstances, and noting that a further hearing in respect of this licence is scheduled to commence on November 29, 2007, the Board will shorten the usual the time periods for the submissions.
Having made the above findings, the Board invites written submissions on disposition from the respective parties. Registrar’s Representative shall serve and file written submissions in five (5) days from the date of this decision. Licensee’s representative shall have three (3) days thereafter to serve and file a written response. Registrar’s representative shall have an additional one (1) day to serve and file a reply, if any. All submissions are to be filed with the Manager of Hearings, Alcohol and Gaming Commission at the address on the front page of this decision.
DATED AT TORONTO THIS 15th DAY OF NOVEMBER, 2007
PATRICIA MCQUAID, VICE-CHAIR DAVID C. GAVSIE, CHAIR
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