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-
1195927 Ontario Inc. o/a Quigley’s Pub & Bistro
Licensee
DECISION on findings
Panel: Dianne M. Axmith, Board Member S. Grace Kerr, Board Member
Decision Date: October 24, 2008
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 1495927 Ontario Inc., Licensee ) Jerry Levitan, Representative
Authorities
Le Café Thuy (Re), [1997] O.L.L.B.D. No. 187 New Latin Quarter (Re), [1999] O.A.G.C.D. No. 301 Forest City Forum Restaurant (Re), [1999] O.A.G.C.D. No. 95
Allegations
- A hearing into a Notice of Proposal number 15632 dated September 11, 2007 to suspend liquor licence number 20044 (the “Licence”), issued to 1495927 Ontario Inc., (the “Licensee”), operating as QUIGLEY’S PUB & BISTRO, 2232 Queen Street East, Toronto, Ontario, M4E 1E9, (the “establishment” or the “premises”), on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (“LLA”) and of section 29 of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on January 17 and May 5, 2008, in the City of Toronto.
Decision
- The Board FINDS that the Licensee violated section 29 of the O.Reg. The Board DISMISSES the alleged violations of subsections 45(1) and 45(2) of the LLA. Reasons follow.
Preliminary Matters
Licensee’s counsel agreed to quash the summons issued to Mr. Tom Mungham, Deputy Registrar of the Alcohol and Gaming Commission of Ontario (AGCO) and also not to call Mr. Mungham as a witness. The Board ordered the summons quashed.
A witness exclusion order was made on consent, excepting AGCO Inspector Jade Leadbetter, whom the Registrar’s counsel agreed would be called as her first witness and would not be recalled as a witness.
Registrar’s Evidence
Jade Leadbetter testified that she has been an Inspector with the AGCO since June 2004. She attended at the establishment for a routine inspection at approximately 3:55 a.m. on April 21, 2007, accompanied by AGCO Liquor Inspectors Fernando, Glenn and Strongman. All of the Inspectors were wearing plain clothes, not their AGCO uniforms. They left at 4:15 a.m. As she approached the front windows of the establishment, she noticed what she believed to be three to five patrons sitting in the back dining area. At least some were holding a pint glass. She also observed a female behind the bar who appeared to be cleaning her work station.
Ms. Leadbetter believes that Inspector Strongman tried but found the front door of the establishment locked. She and the other Inspectors began banging on the front window. The woman behind the bar looked up, turned towards the rear of the establishment and yelled “Cops. Cops.”, and then calmly returned to her duties. The persons seated at the rear stood up and moved slowly to the east side of the building with glasses in their hands. During this time, the Inspectors had their government-issued identification cards pressed against the glass of the front window and continued to knock on it.
Believing that the people inside were going to exit by way of the establishment’s side door, Inspector Leadbetter suggested to Inspector Fernando that they go there, which they did. They were there for about 15 seconds when they heard entry through the front door of the establishment being made, so they returned there and went in. She did not see anyone come out of the side door. From when the Inspectors arrived at the establishment until she entered it, about two minutes (in total) had passed.
Upon entering the establishment, Inspector Leadbetter noticed that Inspectors Glenn and Strongman were speaking with the staff. She immediately went to the back of the establishment and at this time realized that the people there were staff, not patrons.
One section of the establishment had chairs purposefully overturned on top of tables. There, Inspector Leadbetter observed a pint glass, which was three-quarters full with a substance she believed from her experience to be beer. It was “ice cold” to her touch. She took this glass to the main bar area and poured a sample, sealed as No. 53813. Exhibit 2 provides the results of the analysis of this substance: it was beer.
Inspector Leadbetter spoke with the owner, Ms. Helen Iliodromitis, who told her she thought the establishment was being robbed, which was why the door was not opened quicker. This did not make sense to the Inspector for several reasons: because of the bartender’s demeanour (that is, she continued with her duties); the people at the back moved slowly, taking the time to clear glasses; and, a female (i.e. the owner) came to allow the Inspectors entry when there were several males in attendance. She also felt that efforts could have been made to open the front door quicker. Inspector Leadbetter advised Ms. Iliodromitis of the infractions the AGCO Inspectors found.
In cross-examination, Inspector Leadbetter said that the distance between the front window where the Inspectors were standing and where the people were sitting was about 50 feet. Upon entering the establishment, she ascertained that the people sitting at the table were staff and not patrons; the bartender was at the bar, counting cash. She did not see anyone drink from the glass that was seized.
In the Inspector’s opinion, the Licensee should have opened the front door of the establishment in less than two minutes and that “normally” doors are opened immediately when identification is shown by AGCO Inspectors, although she agreed that Licensees have the right to verify who the Inspectors are. She acknowledged that the Licensee was at the back of the room when the Inspectors started banging on the door and that the Licensee said she thought she was being robbed.
In re-examination, Inspector Leadbetter said that the Inspectors’ AGCO badges were presented fully open to Ms. Iliodromitis.
Ms. Leadbetter was asked by the Board why she and Inspector Fernando did not remain at the side door. She indicated that, after 15 seconds at that door, the persons she saw move towards it would have already exited it by then.
Inspector Adam Strongman testified next. He has been an AGCO Liquor Inspector for about two years and five months and attended at the establishment with AGCO Inspectors Leadbetter, Fernando and Glenn on April 21, 2007. His evidence as to the purpose of the inspection and the time of arrival and departure corroborated that of Inspector Leadbetter. Looking through the front window of the establishment, Inspector Strongman saw lights on and people inside.
Specifically, Inspector Strongman described that there was someone behind the bar, who was facing the rear of the establishment and appeared to be doing an “end of the day close out”. She was picking up bottles; also, the cash register at the bar was open and she was counting cash. The group of individuals were in the rear of the establishment and were drinking from beer pint glasses. Although he could not see the colour of the substance, he assumed it was beer.
Inspector Strongman tried the front door to the establishment but found it locked. He proceeded to bang on the front window. At the same time, he had his flashlight out and his identification pressed against the glass. The person at the bar turned around and yelled, “The cops are here. The cops are here.” He said that her demeanour was calm, not fearful. The people at the rear of the establishment proceeded to rise from their seats, taking their glasses with them, and exited to the right and out of the Inspector’s point of view. They were moving at a normal pace.
While Inspectors Strongman and Glenn remained at the front of the establishment, Inspectors Leadbetter and Fernando went to its side door, to see if the people had exited onto the patio. Inspector Strongman saw a female (Ms. Iliodromitis) calmly walking towards the front door and, when she got there, she asked to see the identification again. After this was done, she opened the door. Inspector Strongman said the total time “a minute, a minute and 10 seconds approximately” passed between the start of the knocking and the opening of the door. The Inspector asked Ms. Iliodromitis why she had not opened the door immediately and was told that she thought they were being robbed. He thought her demeanour and that of the bartender as well as the actions of the people at the back were inconsistent with her explanation.
By the time the Inspector reached the dining area, the group of people who had exited from there had returned to their seats. He observed that they no longer had glasses and went to the area they disappeared into and found a small connecting area (a type of hallway) to a kitchen. He did not go into the kitchen.
Returning to the table where the staff members were seated, the Inspector asked where the beer was that they had been drinking. One staff person, named Gary, stated that they were not drinking beer but water and juice. The Inspector then asked where those glasses were and Gary became agitated and sarcastic, alleging that the Inspectors were involved in a ‘sting’ operation. Further, none of the staff wanted to identify themselves or their positions, or produce their SmartServe identification, which they may or may not have had on them. Ultimately, all staff present on the night in question were only verbally identified.
When Inspector Leadbetter told him about the half-pint she had found, he touched it for temperature and found it to be “very cold”.
Inspector Strongman had a brief conversation with the Licensee about the ‘obstruct inspection’ infraction and about the failure to clear the glasses.
In cross-examination, Inspector Strongman agreed that all four Inspectors were simultaneously banging on the front windows of the establishment. He said that the flashlights they were using were “small but intense”. While he disagreed that he was shouting during the inspection, some of the other inspectors were doing so.
He agreed that the person at the bar looked like she was taking inventory, that is, measuring the amounts in the bottles at the bar, rather than clearing signs of service.
Inspector Strongman admitted that, during the inspection, he raised his voice a few times but that he did so to be heard over Gary.
Inspector Strongman said that the dining area was about 50-60 feet from the front windows of the establishment. He acknowledged that he saw only one person taking a sip from a glass and that he was wrong twice in his examination-in-chief when he stated that “people” were drinking beer from pint glasses.
The Inspector said that the approximately 50 seconds it took Ms. Iliodromitis from the time he began knocking on the glass until she opened the door was “a bit too long”, but it is what was done in addition to the “time” issue that constitutes the obstruction of the inspection. Particularly, he objected to Gary’s argumentativeness, the staff’s refusal to answer questions, and their removal of glasses from the table upon the Inspectors’ arrival.
In response to questions from the Board, Inspector Strongman said that Ms. Iliodromitis identified herself as the Licensee as he and she worked their way back to where the staff members were seated. When Gary refused to answer the Inspector’s questions, he did not (re)pose them to the Licensee.
The Registrar’s next witness, AGCO Liquor Inspector Neline Fernando. She has been an Inspector for about one year and also attended at the establishment on the night in question. Her evidence as to the reasons for the inspection and the time of arrival and departure corroborated that of the two other Inspectors.
Looking through the front window of the establishment, Inspector Fernando saw a female behind the bar, who appeared to be counting cash. As well, about five people were sitting in the dining area; one of them, a female, had a pint glass. The Inspectors produced their badges, held them up to the front window, and began knocking on it in order to gain the attention of the people inside since the front door was locked.
The woman behind the bar turned calmly and looked in their direction, yelled, “Cops. Cops”, and returned to whatever she was doing. The people in the dining area got up and proceeded slowly to the right of the establishment. One female came from there towards the Inspectors at the window.
Inspector Fernando ran towards the patio area with Inspector Leadbetter, thinking the people they had observed were going to leave through the side door with their beverages. No one came out of the side door of the establishment and, when she heard one Inspector yell her name and say that they “were in”, she returned to the main door of the establishment, entered it, and proceeded to the upper dining area.
Inspector Leadbetter showed her the pint glass she had found which contained an amber fluid that resembled “beer” to Inspector Fernando. This Inspector remained in the dining area and engaged in a conversation with the people at the table while Inspector Leadbetter went to the bar area. A fellow named Gary told her that they were all employees, and that they were “hanging out, having a drink, and smoking pot”. Gary appeared agitated to Inspector Fernando: he was yelling at her, threw his hands up, and banged the table for emphasis. She found no evidence of marijuana consumption. There was a glass of water in front of one of the staff.
The Licensee told Gary twice to calm down and to be quiet; the other staff members were very complacent and did not say much according to Inspector Fernando.
Inspector Fernando estimated that one and one-half to two minutes passed between the time when the Inspectors first started knocking on the front window and the time she heard one of other Inspectors say that they had been “let in”. She felt that this was a long period of time. The Inspector heard the Licensee say that she thought she was being robbed and that this was why she did not open up the door.
Inspector Fernando did not think that the Licensee’s demeanour and other circumstances were consistent with the explanation given for the delay: her movements were calm and slow; she, a lone female, came to answer the door; the bartender continued to count the money; and, the police did not arrive during the inspection.
In cross-examination, Inspector Fernando explained that she thought that the Licensee should have called the police immediately upon thinking she was being robbed, and stayed put and not answered the door at all.
Inspector Fernando agreed that the Inspectors knocked forcefully, but did not think the persons inside the establishment were frightened by their knocking based on their demeanour, that is, that they were moving slowly.
The Licensee clearly identified herself to the Inspectors. She did not prevent them from checking anywhere in the establishment or refuse to answer any of their questions.
In re-examination, Inspector Fernando said she did not see the bartender trying to hide the money or get it away from the till.
In answer to questions from the Board, Inspector Fernando stated that she did not go into the kitchen area because she believed the other Inspectors had done so. She did not ask any questions of the Licensee or the staff because the other Inspectors had already done so.
In answer to questions arising from those of the Board, Inspector Fernando stated that she saw the other Inspectors go through a doorway but did not know where it led or where, specifically, they went. She thought it was important to go into the kitchen to see if there was evidence or signs of service there, but did not go to the kitchen herself, feeling there was no need as she presumed the other Inspectors had done so.
Amy Glenn, who has been a Liquor Inspector with the AGCO since 2002, was the Registrar’s next witness. Her evidence corroborated that of the other three Inspectors regarding the purpose of the inspection and the time of arrival and departure.
Inspector Glenn noticed a woman, who appeared to be taking cash off, working at the bar. She also noticed a group of about four people at the rear of the establishment, seated at a table with a bottle of Molson’s Export beer on it. While knocking on the front window, she had a flashlight and her AGCO-issued identification out and placed against the glass. She heard a female voice yell, “Police.”
At that time, she observed a male get up from the table and walk out of her sight to the right, but could not see clearly if he was carrying anything. A woman also got up from the table and proceeded at a regular walking pace to the front of the establishment. When the woman, Ms. Iliodromitis, answered the door, the Inspectors stopped knocking.
Inspector Glenn said that the Inspectors knocked for “a little longer than a minute”, which she considered a long period of time in her experience as she believed the people inside the establishment could see the Inspectors as well as their badges.
Once inside, Inspector Glenn proceeded to the rear area and removed the Molson’s beer bottle from the table and brought it to the bar area where Inspector Strongman was speaking with the Licensee. Inspector Leadbetter brought the pint glass she found to Inspector Glenn. She, in turn, smelled it and believed it smelled like beer. She also touched it and it felt cold to the touch. She observed Inspector Leadbetter proceed to the bar and take samples of the contents of the pint glass.
Inspector Glenn said that Inspectors Strongman and Leadbetter were conducting the questioning of the Licensee and so she held back and never had a direct conversation with the Licensee.
Inspector Glenn heard Inspector Strongman advise the Licensee of the alleged infractions and heard the Licensee say that she thought she was being robbed and therefore was slow to open the front door. Inspector Glenn felt this statement was not consistent with the demeanour of the persons in the establishment, that is:
- in their body language, the staff appeared calm
- when the Licensee opened the door, she did not seem scared
- no one seemed to have called 911
- no one attended the front door with the Licensee
- she saw no signs of alarm or distress in any of the persons present in the establishment, such as in the woman working at the bar who continued to do her duties
One male named Gary stood out in the Inspector’s mind. He seemed very argumentative and aggressive to the point that she recalled the Licence holder advising him to calm down and be quiet. Gary was not being aggressive towards anyone in particular; overall, he was upset that the Inspectors were in there and that an inspection was taking place.
In cross-examination, Inspector Glenn said that the establishment was not fully lit, but some lights were on. She did not actually see anyone drink from the Molson’s beer bottle. She did not know exactly where Inspector Leadbetter found the pint glass.
Inspector Glenn testified that she did not go into the kitchen area because she felt there already was evidence of ‘signs of service’, that is, the Molson’s beer bottle and the pint glass which Inspector Leadbetter found.
Inspector Glenn agreed that she and the other Inspectors were ‘banging’ on the glass, but said that she and the others were calling out “Liquor Enforcement” at the same time otherwise people might think they were being robbed.
In answer to questions from the Board, Inspector Glenn said that she took the Molson’s beer bottle from the rear table where she found it and sat it on the bar where the Licensee was talking with Inspector Strongman and Inspector Leadbetter was taking the sample. She did not know if Inspector Strongman saw it and she does not know if it came to the Licensee’s attention. This bottle was not seized as evidence, nor analyzed; it was empty.
Licensee’s Evidence
Helen Iliodromitis is the owner and operating manager of the establishment, which is a restaurant/bar. She and her husband have operated it since 2001.
Ms. Iliodromitis testified that she has never previously been charged with any LLA infractions.
On the night and at the time in question, Ms. Iliodromitis was sitting with four remaining staff (Gary, Kara, Rick and Alex) from that night in the dining area at the back of the establishment, which is about 60-75 feet from the front entrance. The other staff on duty that night had already left. The lights above the tables by the front window and those along the east wall of the establishment were turned off. Bright lights were on in the dining area and at the bar because the bartender was still doing her ‘cash out’.
Ms. Iliodromitis said that last call took place at 2:00 a.m., that all patrons had been sent out at 2:45 a.m. and that, then, she and her staff started “doing our duties”.
She also said that about a year previously, there had been a break-in at the establishment in which the police had become involved, and that just a few months before the night in question, there had been an attempted break-in there.
Ms. Iliodromitis said that this inspection took place on a Friday night, which is typically a very busy night for the establishment and, as a result, it was not unusual for the bartender to be doing the cash-out at that time.
At first when Ms. Iliodromitis heard the banging on the windows, she did not pay it much attention, saying that often drunk people are walking around at that time. The bartender may have said, “Cops” or “Police.” The banging was loud; it did not look like police to her. The AGCO has never before inspected like they did that night.
The dining area is elevated from the front area of the establishment by about three to five steps. She could not see who it was from the dining area, so she proceeded cautiously, looking at the window but not seeing any uniforms. When she arrived at the bottom part of the bar, she saw two people run around to the side of the establishment and said that at the time she thought for sure that she and her staff were going be robbed or hurt.
As she got closer to the front door, Ms. Iliodromitis said that she saw the AGCO Inspectors’ badges, said “it’s okay” and opened the door. According to Ms. Iliodromitis, the Inspectors came storming in and, in particular, Inspector Strongman was screaming, “This is who we are” to which the Licensee said “Okay. Just come in.”
The Inspectors then began doing a regular inspection although Ms. Iliodromitis did not know what they were looking for. She stayed beside the bar and answered their questions. Ms. Iliodromitis felt that she was being very co-operative with the Inspectors, as she had no reason not to be. None of the Inspectors was impeded in their duties.
Ms. Iliodromitis said that Inspector Strongman was screaming at her so much that Gary, who had initially remained in the dining area with the other staff, came over to where she was and started to defend her and to talk back to the Inspectors, saying “If you want to pick on somebody, pick on someone your own size”. She told Gary she could handle herself.
Ms. Iliodromitis said that she does not allow staff to drink alcohol after closing and that none were doing so at the time of the inspection. If, contrary to this rule, any staff person did so, Ms. Iliodromitis said that she would fire them because she values her liquor license and has a responsibility to herself and her staff to maintain it; “it’s how (she) makes her living”.
Ms. Iliodromitis testified that the staff was drinking pop and ice tea when the Inspectors arrived and that she was drinking water.
Ms. Iliodromitis stated that she was surprised when the Inspector brought the half-full pint glass of beer to her. While the staff always checks for such things, she said that sometimes “people leave beer in random places”.
In cross-examination, Ms. Iliodromitis said that her bartender that night, Debbie Lee Draper, had the best view of the window and that when she identified the persons at it as the police, Ms. Iliodromitis believed her and got up to go to the front door. She could not see the front window from where she was sitting, or who was at it. As she got closer to the door, Ms. Iliodromitis said that she decided it was not the police because “They don’t act that way. We know the police in 55 Division.”
Ms. Iliodromitis did not take Gary with her when she went to answer the door because she was/is the boss. She also did not think she had time to tell anyone to call the police nor did anyone call them.
According to Ms. Iliodromitis, it took approximately one minute for her to answer the door from the time the knocking on the window started. She said that she stopped and paused because the banging was so aggressive and loud.
The establishment did a large volume on the night in question, both inside and on its patio, resulting in greater clean-up being required. Generally, tables are cleared before chairs are lifted onto them. While staff should not put a chair on a table if a glass is still there, Ms. Iliodromitis admitted that it has happened on more than one occasion. She goes around and tries to check and accepts ultimate responsibility for whatever happens in her licensed establishment. Ms. Iliodromitis does not know where Inspector Leadbetter found the pint glass with beer in it.
Ms. Iliodromitis acknowledged that the bartender stayed at the bar counting her cash receipts after she called out.
Gary was told to be quiet because Ms. Iliodromitis did not want to tell the Inspector to be quiet. She said that both men were raising their voices; both were screaming.
Ms. Iliodromitis did not hear Inspector Strongman ask Gary for the glasses the staff had been drinking from. Ms. Iliodromitis does not know what her staff did with the glasses but, on her way towards the front door, she screamed at them to make sure the doors were closed and locked when she became uncertain that the persons knocking on the window were the police. She believes that the staff did not move until she yelled at them to do these things. Ms. Iliodromitis was not afraid the people at the front window were going to come in through there, but she was afraid they were going to break it from the banging.
Ms. Iliodromitis was about the same distance from the window as the bartender was when she realized that the four persons were not police officers; however, she did see something pressed against the window which she recognized as AGCO identification after she moved closer and was about level with the patio. When she saw two of the persons at the window run around to the side where the patio is located, she simply assumed that they were going to the side doors.
Ms. Iliodromitis denied that Gary raised his voice before Inspector Strongman did so and that Gary was defensive even before he raised his voice with the Inspector. She also denied that Inspector Strongman raised his voice to be heard over Gary.
Ms. Iliodromitis said that she cannot remember exactly what Inspector Strongman said, but recalled it was to the effect of “What’s going on? Who are these people?” She was not asked to get any of the glasses the staff had been using. She said that the Inspectors wanted her to admit that staff was drinking alcohol.
Ms. Iliodromitis has no idea who had been drinking the beer Inspector Leadbetter found.
Gary Byrne has been a bartender for 16 years and was present in the establishment on the night in question.
Mr. Byrne testified that, when the Inspectors arrived, about four to five staff members were sitting around in the back room of the establishment, waiting for the bartender to finish. He was not drinking alcohol, but did not know if any other staff member was.
Mr. Byrne heard someone banging on the front window and saw several people there. They seemed to be flashing their flashlights. He saw at least two of the people run to the side of the establishment. This made him think that it was being robbed so he ran to the side door to ensure it was locked.
At first there was lots of confusion. The people from the front came in screaming things like, “Where’s the liquor?” he said. Staff members were also screaming things like, “Lock the doors.” “Who are they?” and, “What’s going on?” Then, somebody mentioned that these were Liquor Inspectors and, Mr. Byrne testified, the staff calmed down. According to Mr. Byrne, it was “pandemonium” for at least two minutes.
Mr. Byrne had a direct conversation with at least two of the AGCO Inspectors while remaining in the dining area. He acknowledged that when one of the female Inspectors asked him if the staff had been partying, he facetiously told her, “Can’t you see it?” “We’re all smoking dope. Can’t you smell it?”
Noticing that the four Inspectors were yelling at Ms. Iliodromitis at the top of their voices, after a couple of minutes Mr. Byrne “went down to defend Helen”, alleging that the Inspectors were engaged in a “sting” and that the establishment had been “targeted”. Ms. Iliodromitis and the bartender calmed him down. He admitted that he was belligerent to the Inspector, that he was “in their face as much as (they were) in his”.
Mr. Byrne testified that he was not asked to show or bring the glasses to the Inspectors.
In cross-examination, Mr. Byrne said that he was alarmed because he did not recognize the people at the front window. He did not accompany Ms. Iliodromitis to the front door because he was locking the side door. Everyone at the table jumped up when the two Inspectors ran around to the side of the establishment. By the time it was determined that the people knocking on the front window were liquor inspectors, he, Kara and Alex were already running to the side door. The police were not called because seconds later he and the others found out that the people were liquor inspectors.
Mr. Byrne does not recall specifically what the bartender yelled when the knocking on the front window started.
Mr. Byrne said that when Ms. Iliodromitis got to about three to four steps’ distance from the bottom of the stairs, she yelled “It’s the cops. It’s the cops.” The previous three to four seconds had been pandemonium. He thought she was telling them that they were not getting robbed, so everyone would calm down.
Mr. Byrne did not know what Rick did, but he believes that Cara went to secure the other side door to the establishment. He did not take a glass with him and did not know if the others did.
When the Inspectors entered the establishment, they immediately went to the dining area. None of the Inspectors showed their identification to the staff sitting there, although Inspector Strongman produced his when Mr. Byrne asked for it.
Mr. Byrne said that it would be absolutely false for the Inspectors to say that they were not yelling; at least three of them were making that much noise. He did not speak to Inspector Strongman when the inspector was in the dining area but first spoke with him by the extended bar. Mr. Byrne raised his voice to the Inspector because the four Inspectors were yelling at Ms. Iliodromitis. After waiting two minutes, he felt that he had to intervene.
According to Mr. Byrne, staff is trained not to take the money in the event of a robbery when staff are present, which would be why Ms. Draper did not scoop up the cash at the till and run to the back of the establishment.
Mr. Byrne remembers one of the Inspectors asking about there being a “party”, but does not remember what he said when staff was asked what they were drinking. He does not recall anyone asking where the glasses were. These questions did not upset him; rather, what got him agitated was “four people running in and screaming and what got (him) very agitated was the screaming and yelling at (Ms. Iliodromitis)”. He felt she needed emotional as well as physical support. He did not believe he was being physically aggressive towards Inspector Strongman, but acknowledged being as verbally aggressive as the Inspectors were. He said that he had to be loud to be heard over the people yelling.
Mr. Byrne left the bar area at Ms. Iliodromitis’ request. He returned there later, as the Inspectors were about to leave.
The Inspectors were in the establishment for about 15 minutes.
Inspector Leadbetter brought the beer which she had found to the bar area. Mr. Byrne does not know where the beer that the Inspector found came from. According to him, at least two Inspectors searched the establishment.
Mr. Byrne recalls being asked to produce identification and believes he provided his Driver’s Licence.
In re-examination, Mr. Byrne said he knows the difference between police and liquor inspectors but it makes no difference to the outcome of an inspection.
Registrar’s Submissions
Regarding the contention that the Licensee failed to clear the signs of service by 2:45 on the night in question the Registrar submits the undisputed evidence is that a pint glass, filled between half and three-quarters full of beer (as confirmed by Exhibit 2) and cold to the touch, was found in the licensed area at 3:55 a.m. by Inspector Leadbetter. The Registrar argues that it is impossible this alcoholic beverage could have been removed from refrigeration two hours earlier, when the last drinks could have been legally served to patrons. The Registrar urges that this evidence supports the Inspectors’ observations that staff persons were drinking – and at least one was drinking liquor – when they looked through the front windows of the establishment.
The Registrar also submits that there was obstruction, failure to facilitate and destruction, and withholding, destroying, concealing or refusing to provide things relevant to an inspection by this Licensee. The Registrar contends that the bartender, Ms. Draper, should have come out from the bar and opened the front door. Instead, the Registrar argues, she was trying to warn the staff sitting in the dining area and behaving like patrons, by yelling, “Cops. Cops.” to them, prompting them to clear away any evidence of what they had been doing and what they had been drinking. Further, although Ms. Iliodromitis believed Ms. Draper, that the police were at the door, she did not instruct Ms. Draper to let them in. Instead, she made her way slowly towards the front of the establishment.
The Registrar argues that the delay of about one to two minutes in opening the door to the Inspectors obstructed the inspection because it made it impossible for the Inspectors to determine what the staff members had been drinking when they first observed them at the back of the establishment. The Registrar submits that one to two minutes is a long time to wait, and the Licensee did not deny it had taken a long time for her to open the door, but rationalized it instead (i.e. she thought they were being robbed). The Registrar suggests that this explanation is not credible and was inconsistent with her or her staff’s behaviour.
The Registrar submits that the Licensee also breached subsection 45(1) of the LLA by failing to produce the glasses the staff had been using. Also, the Registrar claims that Mr. Byrne’s yelling at Inspectors Strongman, Leadbetter and Fernando constituted a breach of subsection 45(2) of the LLA, in that facilitation of an inspection requires Licensee’s staff to ease the inspectors’ job.
As to witness credibility, the Registrar urges the Board to find that the Licensee’s witnesses were not credible when their testimony was inconsistent with that of the AGCO Inspectors. Numerous examples of such purported inconsistencies are set out in the Registrar’s written submissions. Thus, wherever Ms. Iliodromitis’ and Mr. Byrne’s evidence contradicts that of the Inspectors, the Registrar argues that the Board should prefer the Inspectors’ evidence.
The Registrar also asks the Board to draw a negative inference against the Licensee and the credibility of the Licensee’s version of events from the fact that the person who was listed by the Licensee to be a witness and was closest to the front windows when the Inspectors began to knock, Ms. Draper, was not called to give evidence at the hearing. The Registrar asks that an additional adverse inference be drawn in that the three other staff members, listed to be witnesses by the Licensee and present on the night in question, were not called upon.
The Registrar argues that the Inspectors’ evidence was consistent on all key issues; any minor inconsistencies resulted from them being in different places and having different vantage points, and from little differences in individual recall.
The Registrar suggests that, unlike the Inspectors, Ms. Iliodromitis and Mr. Byrne have a direct interest in the hearing’s outcome.
Whether Ms. Iliodromitis delayed for one or for 10 minutes, the Registrar submits that it is the fact of the delay that is relevant to whether a breach of section 45(1) of the LLA has occurred. For that contention, the Registrar relies on the case of Le Café Thuy.
The Registrar argues that section 45(2) of the LLA imposes a positive duty on Licensees to ensure that inspections go easily and smoothly (New Latin Quarter). Licensees are also responsible for their staff’s conduct. In support of these submissions, the Registrar notes that there was no evidence Ms. Iliodromitis has put into place any policies or procedures to ensure liquor inspections are facilitated or that either Ms. Iliodromitis, on behalf of, or Mr. Byrne himself have apologized to the Inspectors for Mr. Byrne’s behaviour on the night in question.
According to the Forest City Forum Restaurant decision, the Registrar submits, the term “facilitate” involves more than simply allowing an inspection to take place. In this case, Mr. Byrne’s behaviour made the Inspectors’ work more difficult and more stressful.
Licensee’s Submissions
According to Licensee’s counsel, the Licensee does not deny ‘failure to clear’, however, the Licensee’s evidence was that no alcohol was being consumed when the Inspectors arrived and that, as a matter of general policy, it was not allowed. Any evidence by the Inspectors that alcohol was being consumed is questionable, given the distance between the front window and the sitting area.
The staff did not act in a manner consistent with a conclusion that they were destroying evidence. Ms. Iliodromitis moved cautiously towards the front door to ascertain what was happening and who was there, and directed staff to go to the side because two of the individuals at the front of the establishment started running towards there.
The Licensee submits that any suggestion by the Registrar that Ms. Iliodromitis deliberately made her way to the front slowly so as to allow “the staff time to clear away any evidence of what they had been doing and what they had been drinking” is conjecture and not supported by the evidence; there is no objective evidence that the glass was deliberately hidden.
The Licensee argues that the evidence before the Board that Ms. Iliodromitis told her employee, Mr. Byrne, to stop coming to her defence and aid demonstrates her cooperation with the Inspectors rather than a ‘failure to facilitate’ or an ‘obstruction, as is alleged by the Registrar.
Further, the Licensee submits that there is no evidence that anyone refused to give anything to the Inspectors upon request or prevented any examination or area of inspection by them. As to the length of time it took Ms. Iliodromitis to open the door to the Inspectors, the Licensee argues that, in cross-examination, Inspector Strongman said it took her 35 seconds in actual time.
The Licensee urges that many factors could impact the Inspectors’ credibility, such as a desire to protect their image, ego, and professionalism or bias due to events, circumstances and personality. In other words, the Board should not conclude that the Inspectors’ evidence is more reliable because they do not have a “direct interest” in the outcome of the hearing. What’s more, the Licensee submits, the Inspectors’ evidence was inconsistent and contradictory while the Licensee’s was not. Further, Ms. Iliodromitis gave her evidence in a forthright manner.
Every case relied upon by the Registrar is distinguishable from the facts of this case.
Registrar’s Reply
The Registrar submits that the Inspectors had no reason to be untruthful in this case. Further, it argues that in matters of veracity, the Board need not find Ms. Iliodromitis lied in giving her evidence; rather, her credibility should be doubted based on the inconsistencies between her testimony and Mr. Byrne’s taken together with the physical evidence found by the Inspectors and the particulars relating to it (e.g. the fact that it was beer, it had been partially consumed, and it was cold to the touch at 3.55 a.m. some hour and ten minutes after patrons would have departed the establishment).
According to the Registrar, Exhibit 1A supports the “logical conclusion” that evidence was removed by staff members to the kitchen of the establishment (when the Inspectors saw them move to the side of the establishment) after they were advised that law enforcement officers (i.e. “cops”) had arrived. This conclusion is reinforced by staff’s refusal to retrieve the glasses they had been drinking from when Inspector Strongman asked them to do so, in the Registrar’s submission. He needed these glasses so that he could determine what was in them.
The Registrar says that, in cross-examination, Inspector Strongman said that it took 50 seconds before Ms. Iliodromitis started to approach the door and that it then took her another 15-20 seconds to walk to the door.
Analysis and Findings
- The Board must decide if the Licensee failed to clear the signs of service and consumption of liquor contrary to section 29 of the O. Reg. Further, it must determine whether the licence holder breached subsections 45(1) and 45(2) of the LLA. Specifically, the issues are whether the Licensee obstructed an inspection, withheld, destroyed, concealed and refused to produce items required for the inspection, or failed to facilitate the inspection.
Section 29
- The Licensee does not deny its failure to clear the one, half to three-quarters full, pint glass of beer. Based on this evidence and admission, the Board FINDS that it has breached section 29 of the O. Reg.
Subsections 45(1) and 45(2)
The Board does not find that the Licensee breached subsections 45(1) and 45(2) of the LLA. Reasons follow.
In coming to its conclusions the Board finds Ms. Iliodromitis’ and Mr. Byrne’s testimonies credible and, where their evidence differs from that of the Inspectors, it prefers theirs. Ms. Iliodromitis and Mr. Byrne delivered their evidence in a straightforward manner and without exaggeration. It was consistent in all material respects. The Board believes, as Ms. Iliodromitis said, she values her liquor license, feels a responsibility to herself and her staff to maintain it, and generally acts accordingly. That said, the Board also concludes that any inconsistencies in the Registrar’s evidence were not due to any attempt by the Inspectors to be untruthful; rather, they reflected what appeared to the Board generally to be the lack of organization and a meaningful plan with which this inspection took place. Furthermore, upon arrival at the establishment, the Inspectors appeared to have jumped to conclusions and, in turn, to have misinterpreted reasonable behaviour and responses by Ms. Iliodromitis and her staff. The Board now analyzes the specific, alleged infractions.
Subsection 45(1)
Subsection 45(1) reads as follows: No person shall obstruct a person carrying out an inspection under this Act or withhold, destroy, conceal or refuse to provide any relevant information or thing required for the purpose of the inspection. The Webster’s Dictionary defines “obstruct” as: to hinder from passage, action, or operation. Whether an inspection has been obstructed must be assessed on a case-by-case basis.
The Registrar alleges that there are four possible bases in this case, either individually, or alternatively, collectively, upon which the Board may find that the Licensee has obstructed the inspection and thereby violated subsection 45(1) of the LLA: the timing in relation to the opening of the door; the staff’s actions in running to the side of the establishment, taking the evidence of the after-hours consumption of alcohol with them; the failure of Ms. Iliodromitis or her staff to produce the staff’s drinking glasses, when asked; and, the staff person, Mr. Byrne’s, belligerence towards the Inspectors, most particularly, Inspector Strongman.
First, the Board must consider the reasonableness of the length of time it took the Licensee to open the front door of the establishment to the Inspectors and determine whether its length constituted an obstruction of the inspection. The Inspectors’ evidence was inconsistent as to how long it took; their range was from one-to-two minutes in total for Ms. Iliodromitis to traverse the approximately 50-65 feet from where she was sitting in the dining area to the rear of the establishment and its front door. All of their times were estimations. Ms. Iliodromitis’ own estimate was that she took about one minute to travel that distance. Based on all of this evidence, the Board finds that Ms. Iliodromitis took at least one minute but no more than two minutes in total to open the door to the Inspectors. But, is this time reasonable and, if not, did it thereby obstruct the inspection?
The Board finds that the time taken by Ms. Iliodromitis was reasonable and, as such, it did not constitute an obstruction of the inspection. By way of general comment, the Board notes that there is not, nor should the Board hereby establish a defined or specific amount of time marking a dividing line between reasonable- and unreasonable-ness. Rather, the reasonableness of the length of time taken must always be placed in context, and decided on a case-by-case basis.
In this case, the Board finds as follows: that the Inspectors’ presence at the establishment first became known to its occupants by their loudly banging on its front window; that the Inspectors were not in uniform; that some of the Inspectors began shining their flashlights into the establishment; that it was 3:55 in the morning when they arrived; that from where Ms. Iliodromitis and her staff (except for the bartender) were sitting, they would not be able to clearly discern who was at the front window; that Ms. Iliodromitis saw two of the (then) unidentified persons break from the group and run around to the side of the establishment; and, that there had been an attempted robbery of the establishment within a few months of the inspection. In these circumstances, the Board accepts that Ms. Iliodromitis thought the establishment was being robbed; as a result, it was appropriate for her to proceed cautiously towards the door. Based on all of these factors, a one-to-two minute time period between arising from the table to opening the door is reasonable and does not constitute an obstruction of the inspection by this Licensee.
While the Inspectors’ evidence was inconsistent on exactly what the bartender (or “a woman”, as one Inspector testified) said while they were banging on the front window, seeking to gain entrance to the establishment, their evidence agreed inasmuch as what she called out referred to “cops” or law enforcement officers. Ms. Iliodromitis confirmed this general fact by testifying that Ms. Draper may have said “Cops,” or “Police”. Believing this to be true, Ms. Iliodromitis got up and started moving towards the door to open it. However, as the loud banging continued, she changed her mind since the police officers of 55 Division, whom she knows, had never before acted like that.
From the Board’s perspective, the important issue to decide is if there is anything negative to infer from Ms. Draper’s remarks. That night the Inspectors all concluded and the Registrar now urges the Board to determine that her comments were meant as a ‘warning’, to cause the occupants of the establishment to hide evidence of their misbehaviour. The Board thinks not.
Rather, it is completely plausible that Ms. Draper, who was closest to the window to see that badges of some kind were being pressed against it, thought (albeit incorrectly) that it was the police who were knocking, and called out to that effect. Ms. Draper was standing at the bar, or about midway between the dining area and the front window. Her back was to the window. The area between the bar and the front window was not fully lit at the time. Given all of these factors, Ms. Draper would not necessarily have been able to distinguish between police and AGCO badges when she quickly turned around and back in response to the knocking, and announced whom she thought was there. Besides, the Inspectors were not in uniform to aid in that distinction. Further, that Ms. Draper was operating under the assumption it was the police is consistent with her behaviour - she continued to cash out her till. Why would or should Ms. Draper be concerned if, as she obviously thought, it was the police trying to gain entry?
At the same time, it is convincing that Ms. Iliodromitis could have moved quickly from her initial belief for the reasons she gave. This conclusion is bolstered by her and Mr. Byrne’s testimony as to what they worried was about to happen when they saw two of the Inspectors break off from the group and run to the side of the establishment. This explanation is plausible, given the history of a recently-attempted robbery. The fact that the police were not called in those early minutes, that no one accompanied Ms. Iliodromitis to answer the front door, and that staff appeared calm to the Inspectors does not change the Board’s mind as to the plausibility of the Licensee’s concerns, for several reasons.
Regarding the former argument, the Board concludes that Ms. Iliodromitis and her staff soon after determined that the establishment was not being robbed; as such, there was no need. With respect to the second assertion, staff members dispersed to ensure the side doors were secure, also in the belief that the establishment was about to be robbed. The Board accepts Mr. Byrne’s testimony in this regard. Also, Mr. Byrne spoke of the initial minutes of “pandemonium” amongst the staff, which again, the Board believes was founded in their belief that a robbery was about to occur. However, as soon as it was determined and the staff understood that a liquor inspection, and not a robbery, was taking place, the staff calmed down. This is only logical. If the staff had been trying to hide evidence, as is the allegation, one would have expected the staff’s agitation to continue. Therefore and for all of these reasons, the Board concludes that, by moving to the side doors, staff did not intend to obstruct the inspection by removing evidence of the consumption of alcohol after-hours, as is alleged.
There is conflicting evidence as to whether staff removed drinking glasses from the dining table and took them with them when they moved towards the side door. Inspector Strongman testified that he saw staff pick up and take glasses from the table with them; none of the other Inspectors mentioned this in giving their evidence. In fact, Inspector Fernando testified that she saw a water glass on the dining table when she was in that area. Mr. Byrne denied having removed his glass, and did not know if the others had. In the face of this contradictory evidence, and the Board having indicated that it prefers the Licensee’s evidence to that of the Inspectors wherever it conflicts, the Board is unable to conclude on the balance of probabilities that staff removed glasses from the table once the Inspectors arrived at the establishment.
The Board has also considered the Registrar’s suggestion that Ms. Iliodromitis (or her staff) obstructed the investigation by failing to produce the staff’s drinking glasses when asked by the Inspectors. Again, the evidence is conflicting on the issue: only Inspector Strongman testified that he asked where the glasses containing the beer had been put and that, in response, Mr. Byrne sarcastically alleged a “sting” operation; none of the other Inspectors gave evidence that they asked that question of staff; Mr. Byrne testified that that he was not asked to show or bring the glasses to the Inspectors. Once again, favouring the Licensee’s evidence over that of the Inspectors and facing the inconsistent evidence on this matter, the Board is unable to conclude on the balance of probabilities that the Licensee or staff failed to produce their drinking glasses for the Inspectors, when asked.
Furthermore, the Registrar submits that the staff person, Mr. Byrne’s, belligerence towards the Inspectors, most particularly, Inspector Strongman is behaviour warranting a finding that the Licensee has breached subsection 45(1) of the LLA. Both Mr. Byrne and Ms. Iliodromitis admit that Mr. Byrne was argumentative with Inspector Strongman. They differ, however, in their explanations for his manners. According to the Inspectors, the behaviour was uncooperative and constitutes obstruction; the Licensee argues that he was trying to protect Ms. Iliodromitis from the Inspectors’ verbal aggression towards her and that he responded immediately after the second time she told him to be quiet.
The Board finds that, for at least a portion of the inspection, there was yelling by Inspector Strongman (and possibly other of the Inspectors) at Ms. Iliodromitis and belligerence by Mr. Byrne towards the Inspector. It cannot, on the evidence, and need not conclude who was yelling the loudest. Ideally, Mr. Byrne would not try to become involved, but the Board believes that his stated concerns were reasonably held. However, Ms. Iliodromitis quickly and on her own initiative judged her staff person’s behaviour as inappropriate, and immediately acted to, and did in fact, bring it under control.
Further, the evidence is clear that Mr. Byrne’s limited episode of a flaring temper did not in any way preclude the Inspectors from completing their inspection, freely moving about the entire establishment, collecting evidence as they saw fit, and having their questions answered by the owner of the establishment. Thus, in the context of this case, Mr. Byrne’s belligerent behaviour did not constitute an obstruction of the inspection.
Individually, none of the foregoing factors constitute obstruction; neither is it or would it be reasonable to conclude that they do so collectively.
Subsection 45(2)
Finally, the Board must consider whether the Licensee failed to facilitate the inspection, even if it did not obstruct it. Subsection 45(2) reads as follows: It is a condition of each licence and permit issued under this Act that the licensee or permit holder facilitate an inspection relevant to the licence or permit. Again, the evidentiary test is one of a ‘balance of probabilities’.
The Webster’s Dictionary defines the word “facilitate” as: to make easier, thus connoting some inherent positive obligations upon Licensees under subsection 45(2). What exactly would be required, again, will vary by case, depending on the timing and purpose of the inspection, amongst other things. In this case, the inspectors, who were in the area generally, but were not specifically targeting this establishment, were prompted by concerns that it had failed to clear the signs of service within 45 minutes of closing time. As such, the obligations which fell upon this Licensee to facilitate this inspection were: to open the door to the inspectors, to provide the inspectors access to the entire establishment, to answer the inspectors’ reasonable questions, for the person-in-charge to identify themselves, and to allow samples to be taken of any beverages found by the inspectors in licensed areas of the premises and which the inspectors believed to be alcoholic.
None of these factors were breached in this case. The Board has concluded (above) that the Licensee opened the door within a reasonable period of time. There is no evidence that the Inspectors were not given full access to all areas in the establishment. There is no allegation that Ms. Iliodromitis did not answer their questions. She immediately identified herself as the owner and person in charge. Inspector Leadbetter was able to take a sample of the partially full glass of beer she found.
Therefore, on the facts of this case, the Board does not find that the Licensee breached subsection 45(2) of the LLA.
Conclusion
Based on the evidence and for all of the reasons described above, the Board FINDS that the Licensee violated section 29 of the O. Reg on April 21, 2007. The Board DISMISSES the allegations that it violated subsections 45(1) and 45(2) of the LLA on that same date.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within twenty-one (21) days of the date of this decision. The Licensee’s representative shall have fourteen (14) days to serve a file a written response. Registrar’s representative may serve and file any reply within ten (10) 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 Rule of Practice.
DATED AT TORONTO THIS 24th DAY OF October , 2008
S. GRACE KERR, BOARD MEMBER DIANNE M. AXMITH, BOARD MEMBER
SGK/sm