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-
Leroy Adolphus Ashley O/A Jamrock Bar and Grill
Licensee
DECISION
Panel: Patricia McQuaid, Vice-Chair Alex McCauley, Board Member
Decision Date: September 26, 2008
Hearing Location: Hamilton, 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 ) Richard Kulis, Representative Leroy Adolphus Ashley, Licensee ) Mike Figol, Representative
Allegations
1A hearing into a Notice of Proposal (“NOP”) number 16343 dated May 27, 2008 to revoke a liquor licence and an Order dated May 27, 2008 to immediately suspend a liquor licence on an interim basis issued to Leroy Adolphus Ashley operating as JAMROCK BAR AND GRILL, 1429 Main Street East, Hamilton, Ontario, L8K 1C2 (the “Premises”), licence number 90129 (the “Licence”) on the basis of alleged violations of section 29 and subsections 31.1(1), 45(1) and 45(2) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on June 12, July 14, 16 and 17, 2008 in the City of Hamilton.
Decision
2After considering all the evidence and submissions the Board finds the Licensee violated section 29 and subsections 31.1(1), 45(1) and 45(2) of the O.Reg. Reasons follow.
Preliminary Matters
3As a preliminary matter and on consent of all parties, the Board ORDERED the exclusion of witnesses.
4Registrar’s representative, Joyce Taylor, was present and appeared on behalf of the Registrar on June 12, 2008. Thereafter, and for the remainder of the proceedings, Richard Kulis appeared as the Registrar’s representative.
5Because of the numerous dates of alleged violations cited in the NOP, the evidence will generally be summarized below on a date by date basis.
Evidence
6Mr. Leroy Ashley is the Licensee of the Jamrock Bar and Grill. In his evidence, Mr. Ashley provided some information about himself, which he wanted the Board to be aware of when making its decision. Mr. Ashley came to Canada from Jamaica in 1980, becoming a Canadian citizen five to six years later. He came to Canada feeling privileged to be here, having been taught by his mother to live as a decent and honest person. He found work almost immediately upon his arrival and worked for 23 years at a car parts factory in Waterloo. He has always made an honest living. Due to a number of considerations, he decided to leave his job, to start his own business. His dream, though he had no experience, was to own a bar.
7After looking around for a suitable premise, he found the Jamrock, entered into a lease for 5000 square feet (Exhibit 4) almost immediately upon seeing it. He sought assistance of a paralegal after the offer to lease was signed when issues arose regarding access to portions of the Premises which he believed was covered under the lease. For example, when he was initially shown the premises – he viewed two offices on the main level, a liquor dispenser, coolers and walk-in freezers in the basement. Subsequent to taking possession, access to the liquor dispenser, one of the offices and the compressor was cut off, and no reason was given to him. Further, walls were erected in the basement about a month after he took possession.
8These issues of access to the basement became particularly important in the context of the allegations arising from the May 23rd attendance at the Premises by police and inspectors which will be dealt with later in these reasons.
January 24, 2008
9Art Ristan has been an AGCO inspector for 20 years and is familiar with Jamrock, having attended there on January 24, 26 and May 23, 2008.
10He attended on January 24th as part of a multi-agency task force attendance. D/Sgt. Rick Davidson of the Ontario Provincial Police (“OPP”) was also part of the AGCO team attending. After entering the establishment, Mr. Ristan went behind the bar to inspect the bottles stored there. He noticed that many of the 1.75L bottles were filled to too high a level, with no visible airspace, an indication that the bottles had been refilled and had not been replaced. As well, some of the labels on the bottles were worn or peeling, possibly indicating the bottles had been there for some time. New bottles usually have about an inch of airspace at the top when purchased.
11Further, a bottle of Sambucca had crystallization running down the outside of the bottle. It was sticky on its outside, again, indications of refilling and spillage. He was pointing this out to D/Sgt. Davidson when Mr. Ashley approached. He told Mr. Ashley about his concern that bottles had been refilled. Mr. Ashley admitted that he refilled the bottles as a means of inventory control. D/Sgt. Davidson’s evidence corroborated that this admission was made by Mr. Ashley. Mr. Ristan advised Mr. Ashley that this was not permitted, drinks must be served from the bottle as received from the liquor store.
12He and D/Sgt. Davidson then followed Mr. Ashley downstairs to the liquor storage room. He did not observe whether the door at the top of the stairs was locked, but noted that the door to the liquor storage room in the basement was locked. It was unlocked by Mr. Ashley. He observed several “mickeys” in the room. Mr. Ashley indicated that he used them to refill the bottles upstairs and that they were purchased on licence. While Mr. Ristan understood the rationale behind Mr. Ashley’s attempt at inventory control and appreciated a licensee’s need for it, he did advise that refilling was not permitted and that this was a violation of subsection 31.1(1) of the O.Reg and that Mr. Ashley should only purchase bottles that he could serve from, as purchased. No other infractions were noted that evening. He did tell Mr. Ashley that he would be returning to review the liquor purchase receipts.
January 26, 2008
13Mr. Ristan returned on January 26, 2008, again as part of a joint forces operation with Hamilton Police Services. On this visit, he reviewed the receipts for alcohol purchases. He was able to confirm that purchases had been made on licence. However, as they were leaving, D/Sgt. Davidson informed him that a small amount of marijuana had been found in a baseball cap in Mr. Ashley’s office. The marijuana was turned over to D/Sgt. Cattle.
14In his evidence, D/Sgt. Davidson described how he found the marijuana. He was leaning against a filing cabinet in Mr. Ashley’s office when he observed a baseball cap with a white napkin rolled into a small ball inside it and detected something green inside. He smelled it through the napkin, believed it to be marijuana so opened up the napkin to confirm. It was a ball the size of a quarter. He turned it over to D/Sgt. Cattle, leaving to his discretion regarding criminal charges. He did advise Mr. Ashley that this was an LLA infraction. Mr. Ashley responded to D/Sgt. Cattle that the hat was his, but the marijuana was not. D/Sgt. Cattle did not pursue charges regarding this marijuana.
15On cross-examination, D/Sgt. Davidson stated that he did not ask Mr. Ashley if anyone else wore the hat, or whose marijuana it was, if not his. He did state that a female was in the office at the time. She said she worked security. He had no knowledge of how many people might have had access to the office. Sgt. Davidson did state that he assumes that Mr. Ashley had complied with the direction not to refill bottles.
16D/Sgt. Davidson stated that in February he attended a meeting at Hamilton Police Service offices with Mr. Ashley. He did not know who requested the meeting. Police communicated concerns about the number of calls for service and noise issues at the establishment. As well, shell casings and shotgun pieces had been found in and outside the bar by Mr. Ashley. He had called police about this discovery and cooperated fully in the investigation. There was no suggestion that Mr. Ashley was implicated. D/Sgt. Davidson did suggest to Mr. Ashley that he might want to increase security as he did not seem to have control of the Premises. Mr. Ashley, he knew, did not have a lot of experience in running a bar and did seem genuine in his request for assistance in improving his operation.
17Nina Elliott was employed at Jamrock as “in-house” security. She had previous experience at a security company and testified that she was licensed to work as such. Through her training, her practice was to “flush” any marijuana seized from a “pat down” and to notify police if other drugs or weapons were discovered. Ms. Elliott stated that Crystal Fuller seized the “ball” of marijuana found by Sgt. Davidson on January 26, 2008. She had never seen Mr. Ashley with drugs. It was not clear, on her evidence, whether she was currently Smart Serve certified. She indicated she had a card, but it was not “updated”.
18Mr. Ashley’s evidence regarding Sgt. Davidson’s discovery of the marijuana on January 26, 2008 was that the marijuana had been seized by a bouncer, earlier that evening, from a regular customer. It was left in the office to show him, in the same way that lost items would be left in the office. In cross-examination at the hearing, he denied the hat was his.
February 22, 2008
19P.C. David Tsuchiea of the Hamilton Police Services testified that he attended at Jamrock on February 22nd at 2:17 a.m. in response to a noise complaint. Upon entering, he observed a male patron, identified as Jerry Domanski, seated at the bar area in view of the bartender, with his head on the bar. He then observed the bouncer go over to Mr. Domanski, shouting in his ear and patting him on the back to bring him to consciousness. Mr. Domanski did raise his head. P.C Tsuchiea approached Mr. Domanski, noticing a strong odour of alcohol and vomit emanating from his breath. Mr. Domanski had trouble comprehending questions and difficulty putting sentences together. His speech was slurred. He could not remember how much he had to drink, nor how long he had been there.
20P.C. Tsuchiea did ask Mr. Domanski where he lived, to which he responded the Gladstone, also in the east end of Hamilton. Mr. Domanski was escorted out and put in a cab.
21On cross-examination, P.C. Tsuchiea stated that he did not ask the bartender, the bouncer or Mr. Ashley whether Mr. Domanski had been served or how long he had been there. He had asked Mr. Ashley to turn the music down.
22In his evidence, Mr. Ashley stated that he did not remember seeing Mr. Domanski that night though asserted that he was not drunk. It was not a busy night, Mr. Domanski had been in the bar many times before and would drink only two “Blue”. He believes that Mr. Domanski has some kind of mental health problem.
23The second person P.C. Tsuchiea observed that evening was a female, Sylvia Hernandez Arroligo. Another officer first approached her as she was walking from the pool table area and asked her for identification as she looked young. She produced identification which confirmed she was of age. Ms. Arroligo was very agitated, shoving an officer. There was a strong odour of alcohol from her. After she shoved the police officer, they brought her into the police vehicle. The odour of alcohol filled the car. Ms. Arroligo was hysterical and irrational at this point. He did not ask her how long she had been at Jamrock, how much she had to drink, nor were those questions asked of the bartender. They did release Ms. Arroligo to the care of the bartender, Ms. Rodrigues, who said she was a friend of Ms. Arroligo.
24Mr. Ashley recalled Ms. Arroligo being in Jamrock on February 22, 2008. He was sitting beside her. She had one Smirnoff Ice and had been there only 30 – 45 minutes before the police arrived. Ms. Arroligo had been there before; he was told that she was the bartender’s sister. She does look young and was upset when she was asked for identification. She does not speak English very well. He has not seen her since that night.
March 13, 2008
25P.C. Tracy Bean of the Hamilton Police Services attended Jamrock on March 13, 2008, initially in response to her observations of a female, who appeared to be ill just outside the licensed Premises. This female was identified as Charlene (Weatherill) Vessey. The Board heard the evidence of Ms. Vessey and her fiancée, Mr. Chad Conn. In submissions, Mr. Kulis indicated that upon review of the evidence, the Registrar wished to withdraw the allegation of subsection 45(1) of the O.Reg regarding the incident involving Ms. Vessey. The Board accepts that withdrawal and therefore will not deal with this evidence in these reasons.
26P.C. Bean entered Jamrock at 2:40 a.m. with two other officers for follow-up investigation on the Vessey incident. There were between 10 – 12 patrons present. She spoke to a part-time bartender, Ashley Johnstone. Ms. Johnstone did not have her Smart Serve certification, stating that this was only her second shift and she was just being trained. Ms. Johnstone indicated a lack of awareness of the provisions of the LLA regarding the sale and service of alcohol. While speaking to her, Mr. Ashley approached. They discussed Ms. Vessey’s situation and in the context of that discussion went outside, re-entering the establishment at 2:53 a.m. At that time, she observed four bottles of beer on tables and shelves in the pool table area, directly beside the bar service area. Ms. Johnstone was alone behind the bar at this point. Mr. Ashley was helping the DJ pack up. She recognized the male patrons in the pool area as staff of a nearby Irish pub.
27On cross-examination, P.C. Bean stated that she made her observations from the bar area, though she did walk into the pool table area. She did see one of the patrons drink from the bottle. Staff did not collect the bottles at this time; the bartender was wiping down the bar area and seemed to be closing down for the night. There was only one bartender behind the bar at this point. P.C. Bean did not collect a bottle for evidence. She did not inquire when they bought the beer nor could she say whether or not it was ginger beer.
28Regarding this date, Mr. Ashley stated that they sell ginger beer at Jamrock. He remembers seeing people playing pool that evening and seeing the bartender serve them ginger beer. He does keep receipts. P.C. Bean did not speak to him about the allegation of “fail to clear” that evening. Because of the confusion between beer bottles and ginger beer bottles, they now clear all bottles at the same time, at 2:45 a.m.
May 23, 2008
29Ryan Torrie is a detective constable with Hamilton Police Services and attended Jamrock on May 23, 2008 as part of a multi-agency task force which was conducting checks on licensed establishments in the City of Hamilton. In attendance with him was D/Sgt. Cattle, D.C. Shawihat, both of the Hamilton Police vice team, various members of the City’s property standards, fire and health departments as well as AGCO inspector Art Ristan.
30They arrived at Jamrock at 9:55 p.m. Staff were present at the front door. He followed Mr. Ristan into the back office at the rear of the bar. D.C. Torrie described their movement through the Premises, in reference to Exhibit 1, which was a sketch, not to scale nor an accurate depiction of the premises. There were no patrons in the bar at this time. As Mr. Ristan was speaking to a female in the office, he saw Mr. Ashley, the Licensee, exiting the kitchen across a small hallway. Mr. Ristan advised that they were there to do an inspection. Mr. Ashley was cordial, offering no resistance.
31D.C. Torrie observed Mr. Ashley walk over to the bar area and retrieve a key ring, with several keys on it, from the bar. There was one bartender working at the bar. No one else was at the bar area.
32Mr. Ashley then walked past him, went to a doorway, entered through the doorway shutting the door behind him. D.C. Torrie then walked to the bar area, whereupon D/Sgt. Cattle asked where Mr. Ashley was. He explained to D/Sgt. Cattle that he saw Mr. Ashley go through the doorway. Though D.C. Torrie believed the door was locked, he did not actually see it opened with a key. At this point, Mr. Ashley returned to the bar area and sat down to speak to D/Sgt. Cattle.
33D/Sgt. Cattle told Mr. Ashley that they would have to go downstairs to continue the inspection. Mr. Ashley said he would have to call the property owner to get access. He placed a call and the property owner came almost immediately. Mr. Ashley took D/Sgt. Cattle to the door and opened it, without getting keys from the property owner. They all followed down the stairs.
34D.C. Torrie made several observations at the bottom of the stairs. He noted a giant furnace, a dirty cement floor, a musty smell and a pronounced odour of urine. Stale water had pooled on an area of parquet flooring. The building standards personnel checked for the source of the water. The washrooms were located. Toilets and urinals were leaking.
35The basement was a maze of rooms. They located two cooler rooms, each with old antique cooler doors and each with giant padlocks.
36Mr. Ashley opened the first of these for them with a key on the key ring. This cooler room was the size of a small bedroom. It looked like a dry space. No inventory was stored there. D/Sgt. Cattle and Mr. Ristan entered.
37D.C. Torrie went to the other cooler, which was also opened by Mr. Ashley, with a health department official. The room smelled of mould. He then saw D/Sgt. Cattle exit the other cooler carrying a black toolbox with a copper coloured lock on it, and an LCBO bag. D/Sgt. Cattle told him that he found a scale in the LCBO bag with dried flakes of a green leafy substance on it which appeared to be of the same consistency as marijuana. The toolbox was locked. D/Sgt. Cattle propped it open; an odour of marijuana could be detected. It was empty, though there were trace amounts of marijuana.
38Several minutes later D/Sgt. Cattle found a second locked toolbox. D.C. Torrie was not with him when it was found sitting out in the open, in the east corner of the basement. There appeared to be something in it. D/C Torrie was with D/Sgt. Cattle when he propped the toolbox open. He observed Ziploc baggies inside. D/Sgt. Cattle pulled out one of the bags, it contained a green leafy substance with the appearance and odour of marijuana. D/Sgt. Cattle then placed Mr. Ashley under arrest for possession of marijuana for the purposes of trafficking. They then returned upstairs to Mr. Ashley’s office.
39D.C. Torrie, once upstairs, went into the kitchen with the health inspector where he found a blue cooler, propped open, containing a small quantity of a green leafy substance which, again, had the odour and appearance of marijuana. D/Sgt. Cattle was notified and Mr. Ashley was charged with simple possession of marijuana with respect to this find.
40He then went into the office where Mr. Ashley was detained. D/Sgt. Cattle was present, D.C. Torrie took a key ring from Mr. Ashley. A small key on the ring opened both boxes. The second toolbox contained many bags of marijuana, weighed at the police station at 668 grams. Another small bag of marijuana was also found that evening by AGCO Inspector Art Ristan as he was coming up the stairs from the basement. This baggie was turned over to D/Sgt. Cattle. Mr. Ashley did advise police that a workman had been in the basement recently, and he was not a “good guy”. He did not know his name. He did not ask Mr. Ashley if the toolboxes were his.
41The criminal matters are still outstanding. Mr. Ashley was released that evening on a “promise to appear”.
42On cross-examination, Mr. Figol reviewed a series of photographs (Exhibit 2) with the witness. From this, the witness confirmed that he did not know how many doors lead to the basement from Jamrock. He was only aware of one door to the basement, the one that was locked and which D/Sgt. Cattle requested be opened. It was that door through which Mr. Ashley led them downstairs.
43Regarding the May 23rd attendance, Mr. Ristan stated he first spoke to Celeste Reid, a bartender who had been working at Jamrock for almost three months. She did not yet have her Smart Serve certification. There were no patrons present. Initially, he did not see Mr. Ashley in the Premises. He first observed him, about twenty-minutes after their arrival, coming from either the kitchen or the office.
44D/Sgt. Cattle asked him where the liquor storage areas were, to which he responded that they were in the basement, and, from previous inspections, he knew that Mr. Ashley would have to unlock the doors downstairs. D/Sgt. Cattle then went to find Mr. Ashley and they went downstairs through the door by the kitchen office area. He did not see Mr. Ashley open the door. The liquor storage room was opened by Mr. Ashley with a key. No one from the establishment, other than Mr. Ashley, was in the basement with them. In this room, they saw, close to the door, a black plastic toolbox with a padlock and an LCBO bag containing a small digital scale. D/Sgt. Cattle opened up the toolbox from the side. He told him that it had a heavy odour of marijuana and remnants of marijuana could be discerned on the weigh scale. D/Sgt. Cattle then gave these items to a police officer to hold for evidence.
45Mr. Ristan also inspected a walk-in beer cooler, also locked and opened by Mr. Ashley. All seemed in order. Other areas of the basement, which Mr. Ristan described as being cut up into many small portions, were visibly checked for liquor. Lighting was very poor. Mr. Ristan stated that he walked through what he believed to be the Licensee’s part of the basement.
46While in the basement, D/Sgt. Cattle found another black plastic toolbox also with a padlock. He did not know where, in the basement, the officer found the box.
47D/Sgt. Cattle did pry open the side of this toolbox and pulled out a plastic LCBO bag in which they saw a clear plastic bag containing what looked to be marijuana. Several other bags were in the toolbox as well. D/Sgt. Cattle then made the decision to arrest Mr. Ashley for possession and trafficking of marijuana. Mr. Ashley was, at all times, cooperative and never confrontational.
48They then proceeded back up the stairs. At the top of the stairs he found a clear plastic baggie. He picked it up; it appeared to contain marijuana. He then turned it over to one of the police officers, Nezreen Shawihat. She, too, testified, indicating that the baggie was found at the second stair from the top, in the stairway leading to the basement, the door for which was situated next to the kitchen. P.C. Shawihat stated that she did not know how this door came to be unlocked. The adjacent doorway (determined to be the landlord’s office) was unlocked by a male whom she understood to be the caretaker of the building. P.C. Shawihat confirmed that no charges were laid against Mr. Ashley regarding this baggie containing marijuana.
49Mr. Ristan stated that once upstairs, someone found a blue plastic cooler in the kitchen and police advised him that it contained remnants, and had a strong odour, of marijuana. It was otherwise empty.
50Mr. Ristan provided evidence regarding the layout and physical appearance of the basement which was of particular relevance to the allegations arising on May 23. As part of the initial inspection just prior to issuance of the liquor licence, Mr. Ristan attended with Exhibit 1. It was this document that was submitted with the application for licensing purposes. He noted that the licence when first issued included the basement area which was incorrect and he requested that the licence be re-issued deleting that area. At the first inspection, he did go to the basement with Mr. Ashley to inspect the liquor storage area. The lighting was poor. Mr. Ashley had keys. Mr. Ristan did recall seeing that most of the walls in the basement were particle board (as shown on Exhibit 6) although he did not recall the door shown in that photo nor was he sure whether the particle board was up when he first attended in February, 2007.
51Mr. Ristan recalled that they entered the basement by the stairs near the kitchen. He was aware of stairs to the basement from the back of the bar area although he has never used those stairs. He was also aware of a stairway by the front entrance to the units upstairs. He did not know if those stairs also went downstairs to the basement.
52Mr. Ristan knew that the west section of the building was not licensed, and the basement area under it was not part of the lease, the information having been provided by Mr. Ashley. His understanding was that Mr. Ashley had control of the basement area under the licensed areas. Mr. Ashley, on the initial inspection did not point out the areas that were specifically his, under the lease.
53D/Sgt. Jason Cattle described his involvement on May 23rd. When he first arrived with the task force, he did not see Mr. Ashley; Mr. Ashley appeared some minutes after their arrival. He asked him if he would unlock the two doors between the office and the kitchen (doors 17 and 18 on Exhibit 3). Mr. Ashley responded that he would have to call someone from upstairs to open the door as the door led to the outside.
54They waited a few minutes; a male came in and said he would have to go outside to unlock the door because it opened from the outside. D/Sgt. Cattle then pulled on door #17; at this time it was unlocked. It led to the basement. This door was not opened by the male who had come from upstairs. D/Sgt. Cattle had attended at the Premises before so had some familiarity with it. On the previous occasion, there were two doors to the cold storage rooms with padlocks on them. Mr. Ashley opened these for them with a key. In the first of these rooms he noticed a box on the floor which contained a black and gray digital scale. He picked it up; the scale had a strong pungent smell of marijuana. He also saw a black and orange plastic toolbox, with a small padlock on it. It too smelled of marijuana. The toolbox appeared to be empty.
55D/Sgt. Cattle asked Mr. Ashley why these items smelled of marijuana. He had no answer for him.
56After going into the other storage room, he walked around the corner, to a different room. He did not notice any recently constructed walls of particle board. There was no door to this area. The only doors that were locked were those to the cold storage rooms. The whole of the basement area was accessible from the upstairs bar area. In referring to Exhibit 3(b), D/Sgt. Cattle indicated that the “banquet area” was flooded; it was a large open area. The area marked “kitchen” may have been the area in which the second toolbox was found. When they entered the flooded area of the basement, he recalled Mr. Ashley stating that he had to get it fixed. At no time did Mr. Ashley object to him entering any area of the basement nor indicate that it was not his leased area. He appeared to have access to the whole of the basement.
57In this area, his attention was caught by another black and orange toolbox, the same kind as that found in the storage room, also with a padlock on it. The toolbox was on its side. It was not concealed in any way. He picked up the toolbox. It was heavy and smelled of marijuana.
58D/Sgt. Cattle then cracked open the side. There was a strong smell of marijuana. He reached his hand in and pulled out a plastic LCBO bag which in turn contained Ziploc bags of processed marijuana. At this point, he told Mr. Ashley what he had found and that he was arresting him for possession of marijuana for the purposes of trafficking. Mr. Ashley did respond, saying “it is not mine”.
59Mr. Ashley was searched; the search revealed two wallets, two cell phones and a large key ring with several keys. They went upstairs to the office and while there, D.C. Torrie came in to show him the blue cooler found in the kitchen which contained small amounts of marijuana residue, for which Mr. Ashley was advised that charges would be laid for simple possession of marijuana. D.C. Torrie took the large key ring from Mr. Ashley and, with one of its keys, opened the locks on both toolboxes. The second toolbox contained six Ziploc bags full of marijuana, later weighed at the police station. Again, Mr. Ashley responded that it was not his. Mr. Ashley was released from arrest at the bar, with a “promise to appear”.
60As noted through the evidence of Mr. Ristan and D/Sgt. Cattle, the issue of keys and access throughout the basement area was a significant one with respect to the May 23rd incident.
Before dealing with Mr. Ashley’s evidence on this issue and the events of May 23rd, the evidence of several of the licensee’s witnesses as it relates to the issue is summarized as follows.
61John Goral has been employed by Mr. Ashley part-time, since February 2007, doing odd jobs at the establishment, from cleaning and painting to running errands and working as occasional security at the Premises.
62Mr. Goral stated that the landlord gave only limited access to Mr. Ashley in the basement area. Walls were put up about a month after the bar opened for business. He had helped the landlord carry the wood into the basement for this construction. Mr. Ashley had no access to the area marked as “walk-in freezer” on Exhibit 5. In terms of doors to the basement, there was one behind the service bar, one near the kitchen and one in the front lobby area. Locks were non-existent or ineffective. He would gain access to the basement through the door at the bar area. There was a deadbolt on the door leading from the kitchen to the outside. The landlord would enter the Premises through a side door in the kitchen area. Only the landlord had a key to that door. Mr. Goral believed that there were four or five sets of keys used to open the master locks through the Premises and, that there were four locks – the DJ booth, kitchen and service bar, and one other. He did not think that the keys would give access to the basement through the door by the kitchen. However, the door at the back alley was unlocked and access to the basement was possible, although he had never seen anyone enter the basement from the back alley, nor had he ever found anyone in the basement who shouldn’t have been there.
63He had never seen the toolboxes as described from the May 23 incident in the basement nor had he seen signs of drugs. Mr. Ashley had no tolerance for drugs in the Premises. About five to six security would be hired on the Friday and Saturday nights, to work the front and side doors and check the washrooms.
64Celeste Reid started working at Jamrock on March 2, 2008. She was not Smart Serve trained, and at the time of the hearing had not yet completed a server training course. She received training for working at Jamrock from Mr. Ashley.
65Ms. Reid had only been down to the basement on one occasion prior to May 23, 2008 and on that occasion entered the basement through a door near the service bar.
66She was aware of three sets of keys, for the pool table, the cooler, the bar area and the cash register. One set is kept at the main bar area, one in the kitchen and Mr. Ashley has the other set. Ms. Reid stated that she was told by Mr. Ashley of the bar’s zero tolerance policy on drugs. She had never seen Mr. Ashley use or sell drugs.
67The zero tolerance policy was corroborated by Clara Musgrove who does the accounting for Mr. Ashley and helps out generally. Ms. Musgrove stated that initially, when Jamrock first opened, the whole of the basement was accessible. Approximately one month later, they were denied access to parts of the basement, leaving access to storage areas only. They usually gained access to the basement through the door behind the bar. Ms. Musgrove was aware of sets of master keys. She knew only that Mr. Ashley and the landlord each had a set.
68Mr. Ashley stated that he was in the office on May 23rd when told that a police officer and AGCO Inspector were looking for him. When he came out, D/Sgt. Cattle approached him and said that there were two locked doors by the kitchen and he wanted them opened. One of them led into an office. D/Sgt. Cattle wanted to know what was in the office. Mr. Ashley responded by saying that he did not have the key, but that he would call the caretaker who lived upstairs. This individual opened the door (#21) leading from the outside into the office, and from there, opened door #18 (numbered doors as shown on Exhibit 3). Mr. Ashley confirmed that door #17 led from the bar to the basement. They went down those stairs. He, however, would usually go to the basement through the door by the service bar. Once downstairs he opened the coolers. In the first one, the officer found a scale and a toolbox which he said smelled of marijuana. Mr. Ashley stated that he had seen this toolbox prior to this; he thought it had been there since he took over the lease. He did not know how it came to be there, never made any inquiries about it. He had picked it up before and concluded that nothing much was in it. There were a lot of things in the storage areas to which he did not pay much attention.
69Some minutes later, D/Sgt. Cattle approached him stating that he found another toolbox containing marijuana in an area in the lower east side of the basement. He told the officer that it was not his and he knew nothing about it. He also told the officer that the only part of the basement that was his, as per the lease, was that part shown on Exhibit 5 which is outlined in yellow. D/Sgt. Cattle never asked him who else had access to the basement or if there were other doors by which to access the basement.
70Mr. Ashley acknowledged in his evidence that a key from his key chain, which he had in his possession on May 23rd, opened both toolboxes. He explained that he had had problems with people stealing liquor from the bar. There were swing doors to the areas leading behind the service bar, the DJ booth and into the kitchen. The same key opened the locks on each of these doors. The bartender would also have a set of keys, needed to lock herself in, when working behind the bar. With theft problems, he put bigger doors on at the bar area and the kitchen. These had larger locks. Don Capon, testified, on behalf of the Licensee that he had installed gates at these locations, he thought three to four months previously. The lock on the toolboxes matched the smaller lock that remained on the DJ booth.
71Mr. Ashley stated that subsequent to May 23, he kicked open the door, identified as #21, which leads from the outside to an office. He found another set of keys in this office.
72In terms of the bar’s operations, he stated he has eight security cameras in the establishment. He employs security on Friday and Saturday nights after approximately 11:00 p.m. He works there seven days a week, from 11:00 a.m. until 2:00 a.m., sleeping on a mattress in the office when he can. He acknowledged his lack of knowledge about running a bar, but stated that he was looking for some education regarding it.
73On cross-examination, Mr. Ashley clarified that there were four sets of keys; three sets in the possession of him or his staff and the fourth being the set found in the office after May 23rd.
74There were six keys on each set; one for the front door; one for the padlock, one for the bigger lock, one, he thought, for the kitchen door, one for the cash register and another which he was unsure about. He stated that when Jamrock closes for the night, he locks the front door. All doors to the basement are supposed to be locked as well.
Reasons and Analysis
75Evidence was heard over four days. Much of the evidence focussed on May 23rd, the date on which the most serious allegations arose. The evidence from police and Mr. Ristan regarding that day in particular was balanced and fair. At no time did anyone suggest that Mr. Ashley was anything but cooperative. Both Mr. Ristan and D/Sgt. Davidson, who had more contact with Mr. Ashley, found him responsive to their concerns and issues found.
76As Mr. Kulis indicated in his submissions, there is no question that Mr. Ashley is earnest and sincere. There is also no question that he opened this establishment with no experience and little knowledge of what was involved in operating a licensed establishment. The Board was greatly surprised, as were, apparently, both counsel, to learn through the evidence that Mr. Ashley, as of July 17, 2008 did not have his Smart Serve certification, nor was he aware that it was required. It was not surprising then that his servers and/or bartenders were also without that training, but somewhat alarming that these employees were looking to Mr. Ashley for guidance.
77Without doubt, it is a licensee’s responsibility and obligation to educate himself on the requirements of the LLA and its regulations, but the Board notes that on liquor licence inspections, it might be expected that a basic level of information is conveyed, in particular, to an inexperienced licensee. It is not apparent that this occurred in this instance, though Mr. Ristan did in January, 2008 provide guidance to Mr. Ashley on the issue of refilling bottles to which Mr. Ashley responded positively. The Board notes, too, that it was Mr. Ashley who initiated a meeting with Hamilton Police Service, which D/Sgt. Davidson attended, to gain further guidance on the operation of the business. The Board accepts that Mr. Ashley is a hardworking individual, and that owning Jamrock may have been his dream, but as his dealings with his landlords suggest (see Exhibit 8), he was naïve and as the evidence suggests, ill-prepared to run a licensed establishment. However, the Board notes that his lack of competence is not a matter squarely before the Board.
78In making its finding, the Board will deal with each of the dates in issue, in turn.
January 24, 2008
79The allegation arising from this date is of a violation of subsection 31.1(1) of the O.Reg. Mr. Ristan detected that bottles at the bar were being refilled. Mr. Ashley admitted to this practice, as a means of inventory control, and for no other purpose. Mr. Ristan, as confirmed through subsequent inspection and review of liquor purchase receipts provided, found that this was the case.
80The Board therefore makes a finding of a violation of subsection 31.1(1) of the O.Reg. Submissions from Mr. Figol that a warning would, in the normal course, be given for such a violation, are more appropriate when the Board requests submissions on sanction.
January 26, 2008
81It was on the return visit on January 26th, following up on the liquor purchase receipts to verify Mr. Ashley’s practice of refilling, that the marijuana was found in Mr. Ashley’s office. There is no dispute on the evidence that marijuana was found in a hat, on top of a cabinet in Mr. Ashley’s office. There is a dispute perhaps as to whether it was Mr. Ashley’s hat, however, if the Board accepts the evidence of the Licensee’s witnesses, in particular Ms. Elliott, establishing ownership of the hat is not critical. Ms. Elliott stated that the marijuana was seized from a patron that evening, by another employee, Ms. Fuller, and left in the office to show Mr. Ashley, this despite the stated practice to flush small amounts of marijuana seized. Unfortunately, D/Sgt. Davidson did not pursue this matter that evening, asking few questions of Mr. Ashley. He turned it over to D/Sgt. Cattle who did speak to Mr. Ashley about it. Mr. Ashley denied again, that it was his. Because of issues regarding access to the office, and in the criminal context, issues of reasonable doubt, D/Sgt. Cattle did not pursue this criminally.
82Due to the lack of inquiry by the AGCO inspector and police, the only evidence before the Board about how the marijuana came to be in the office is from Ms. Elliott and Mr. Ashley. Mr. Kulis submits that regardless, the marijuana found in Mr. Ashley’s office falls within the wording of subsection 45(2) of the O.Reg in that Mr. Ashley permitted “a person to hold…. a controlled drug or substance”. The Board concludes that to make such a finding based simply on the finding of the marijuana would be to ignore the word “permit”, which implies a certain knowledge (and which may include wilful blindness to facts or circumstance) of the “holding of the marijuana”. The only evidence before the Board is that the marijuana was seized from a patron which would suggest in fact there was a lapse of minutes or perhaps hours before it was disposed of, but the Board cannot conclude that this constituted the permitting of holding of marijuana. This is not a situation where the Board declines to accept the evidence of the Registrar’s witnesses. There was simply no evidence beyond the fact of the marijuana in the office, which is not disputed, put forward by the Registrar’s witnesses. To conclude that it was Mr. Ashley’s marijuana can only be speculative. Therefore, on a balance of probabilities, and given the wording of subsection 45(2) of the O.Reg the Board declines to find a violation of subsection 45(2) of the O.Reg occurred on January 26, 2008.
February 22, 2008
83The Registrar is seeking a finding of subsection 45(1) of the O.Reg regarding two patrons, Mr. Domanski and Ms. Arroligo.
84The evidence regarding Mr. Domanski, on the balance of probabilities supports a finding of a violation of subsection 45(1) of the O.Reg. P.C. Tsuchiea’s evidence was clear. This individual was seated at the bar, slumped over. He had to be prodded to consciousness. He was seated in view of the bartender. P.C. Tsuchiea noted a strong odour of alcohol and of vomit, slurred speech and difficulty communicating, all indicative of intoxication. On Mr. Ashley’s evidence, this was not a busy night, yet he did not observe Mr. Domanski. He could only state that Mr. Domanski usually only had two beers. He cannot state, therefore, that the man was not intoxicated, and the Board cannot, absent any evidence, speculate on whether Mr. Domanski’s alleged mental health issues had an effect on his appearances or demeanour.
85Regarding the issue of “permit” in subsection 45(1) of the O.Reg, it is clear on the evidence that Mr. Domanski had been in the Premises long enough to basically pass out. Neither Mr. Ashley nor the bartender paid him any attention until police arrived. Clearly, Mr. Domanski was permitted to be in the Premises in an intoxicated state.
86The Board therefore makes a finding of a violation of subsection 45(1) in regard to Mr. Domanski.
87P.C. Tsuchiea’s evidence is less compelling in terms of Ms. Arroligo She was first observed walking from the washroom, yet police attention was not drawn to her because of any unsteadiness or swaying on her feet, but by her youthful appearance. Absent the odour of alcohol, there were no other indicators of intoxication noted. She was agitated and later, P.C. Tsuchiea noted, hysterical in the police car, but the Board also heard evidence from Mr. Ashley, who did recall her presence, that she had not been there long, had one drink and her fluency in English was not good. The officer did not relate what, if any, questions were asked of her which may have heightened her agitation. In the face of some evidence from Mr. Ashley and the absence of clear evidence beyond the odour of alcohol and the patron’s agitation, the Board declines to find, on the balance of probabilities that Ms. Arroligo was intoxicated and that a violation of subsection 45(1) of the O.Reg occurred.
March 13, 2008
88The Board accepts the withdrawal of the allegation of subsection 45(1) of the O.Reg in respect of Ms. Vessey.
89The remaining allegation on this date is a violation of section 29 of the O.Reg, the “fail to clear” allegation. P.C. Bean’s focus that evening was Ms. Vessey and possible infractions in respect to her presence at the establishment. Somewhat ancillary to that, she observed, at 2:53 a.m. four bottles, of what she believed to be beer, that had not been cleared.
90There is no question that further investigation, for example, identification of the label on the bottles, or discussion with Mr. Ashley or the bartender about the incident would have been helpful. Mr. Ashley asserts ginger beer was served. However, the Board notes that he did not serve them, though he asserts a very specific recollection. Ms. Johnstone was at this time alone behind the bar. Ms. Johnstone did not testify. This evening was only her second shift. She was not Smart Serve trained and in P.C. Bean’s assessment had little knowledge of what was or was not permitted under the LLA. Based on the foregoing, the Board concludes that it is quite probable that Ms. Johnstone was not aware of the requirement to clear signs of service by 2:45 a.m.
91On a balance of probabilities, the Board finds a violation of section 29 of the O.Reg. The Board prefers the evidence of P.C Bean on this point. The definitive assertion of Mr. Ashley in these circumstances, when he was not serving and when his recollection of specific details on other occasions is minimal is not compelling, especially when on his own evidence, his attention was not drawn to this situation and therefore he would have had no apparent reason to take particular note of what these patrons were consuming.
May 23, 2008
92As indicated above, there was much evidence led touching on the issue of what parts of the basement were for use by the Licensee and who had keys to the basement. From the evidence, however, certain facts are clear. Police, with Mr. Ashley, entered the basement through the door by the kitchen. This was not the door opened by the caretaker. On the previous occasion when police and Mr. Ristan attended, that was the door by which they gained entry to the basement, not by the door behind the service bar area. This latter fact was not disputed by Mr. Ashley. Once in the basement, the only doors which required unlocking were those to the liquor coolers. Otherwise, police and inspectors seemed to have unimpeded access through the basement.
93The Board accepts that walls of particle board may have been erected, however, these were not a barrier to movement throughout the basement area as shown on Exhibit 3.
94Mr. Ashley, with his keys, opened the coolers and there is no issue that these were within his control. In one of those coolers, a toolbox and scale were found, with traces of marijuana. Mr. Ashley stated that he had noticed and handled the toolbox but had no knowledge of it and in over a year, had not tried to determine whose it was or tried to open it, though he had a key that did open it. He did not indicate whether he had ever noticed the scale inside the cooler room. Mr. Goral, however, who had worked at the Premises since it had opened, had never seen this toolbox.
95Then, the second, virtually identical toolbox is found, apparently not within the highlighted area of Exhibit 5, but not in an area behind a locked door. The exact location was unclear. After Mr. Ashley was placed under arrest, both toolboxes were opened, by a key on Mr. Ashley’s key chain. This toolbox contained a significant amount of marijuana. Mr. Figol is correct in his submissions that there is no evidence to suggest that drugs were being actively sold at Jamrock. D/Sgt. Cattle was clear on that. However, for a finding to be made under subsection 45(2) of the O.Reg, such evidence is not necessary, and to that end, conjecture by Mr. Figol as to what a drug dealer might do, is irrelevant. The Board does not decide an issue on the basis of possibilities, and many possible scenarios were raised in submissions, but on the balance of probabilities.
96The Board notes, for example, that though the Licensee’s witnesses spoke to the possibility that the tenants upstairs might be able to enter the basement or that the landlord could enter the bar or go down to the basement at any time, there was no evidence that anyone saw any such person in the basement, except for the occasion, on Mr. Goral’s evidence, when he assisted someone in taking materials down to build the partition walls. There was no evidence from any representative of the landlord regarding their use of the basement or attempts to limit the Licensee’s access to it, other than that contained in Exhibit 8. That exhibit suggests limited or no access to the area of the basement in which the compressors were located, and the small office (entered through door #18), both of which were confirmed through the Licensee’s witnesses. While a fourth set of keys was found in the second office, there is no evidence of their use by the landlord. Access to the basement was, on the evidence, exercised by Mr. Ashley or his employees. Mr. Ashley never indicated on May 23 or any prior occasion that the areas of the basement entered on May 23 were outside his domain as Licensee.
97Unlike the incident of January 26, 2008 there was no reasonably probable alternative explanation proffered for the presence of the marijuana. The facts before the Board stretch beyond the coincidental. Almost identical toolboxes were located, each with identical padlocks opened by the same key from Mr. Ashley’s key ring, one in the cooler, also opened by Mr. Ashley and one in another area of the basement.
98A scale was also found in the cooler. These items revealed both residue of marijuana and significant amounts. A cooler was also found in the kitchen containing a small amount of marijuana. The licensee did not dispute that the cooler was his.
99The Board can only conclude, on these various facts, that it is more probable than not that the Licensee did “permit a person to hold” the marijuana found on May 23, 2008 contrary to subsection 45(2) of the O.Reg.
Conclusion
100For the reasons given, the Board finds the Licensee violated section 29 and subsections 31.1(1), 45(1) and 45(2) of the O.Reg.
101The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file his/her written response. Registrar’s representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 26th DAY OF SEPTEMBER, 2008.
PATRICIA MCQUAID, VICE-CHAIR ALEX MCCAULEY, BOARD MEMBER
PM/cp