ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
2104887 Ontario Inc. O/A Wicked Club Licensee
DECISION ON FINDINGS
Panel: Beryl Ford, Board Member Eleanor Meslin, Board Member
Decision Date: December 18, 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: Daniel Alakas, Representative 2104887 Ontario Inc., Licensee: Ron Marzel, Representative
Allegations
1A hearing into a Notice of Proposal number 16534 dated July 30, 2008 to suspend liquor licence number 44395 (the "Licence") issued to 2104887 Ontario Inc. operating as WICKED CLUB, 1032 Queen Street West, Toronto, Ontario, M6J 1H7 (the "premises" or "establishment") on the basis of an alleged violation of subsection 45(1) of the Liquor Licence Act ("LLA") was held on November 4, 2008 in the City of Toronto.
Decision
2After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the LLA. Reasons follow.
Preliminary Matters
3On consent of all parties, the Board ORDERED the exclusion of all witnesses
4Both parties agreed that the third floor of the establishment known as Wicked Club is an unlicensed area and not included on liquor licence number 44395 issued to 2104887 Ontario Inc.
5Counsel for the Licensee stated that the third floor of the establishment is used for sexual activities of members of a 'swingers club'.
6Registrar's representative, Mr. Alakas, stated the Registrar's position is that Inspectors were denied access to the third floor of the establishment for a routine inspection in accordance with the LLA.
Registrar's Evidence
7Inspector Amanda Higuera has been an Inspector with the Alcohol and Gaming Commission of Ontario ("AGCO") since May 2004.
8Inspector Higuera testified that she is familiar with the establishment known as Wicked Club. She attended the establishment on February 23rd, 2008. She entered the premises at 12:23 a.m. for a routine liquor licence inspection, accompanied by AGCO Inspectors Ka Ng and Rebecca Sargent, two members of the Toronto Fire Services ("TFS") and two police officers of the Toronto Police Services ("TPS").
9Finding the front door closed, Inspector Higuera proceeded to the side entrance, where two security staff were stationed at the door. After entering the first floor, she noted a dance floor.
10Inspector Higuera spoke to a female who identified herself as the Manager, Aurora Ben Zion, wife of the Licensee, Shlomo Ben Zion. Inspector Higuera asked the name of the premises on the ground floor and was told it was known as Vogue. She inquired as to where Wicked Club was located and was told by the Manager that it was on the second floor of the premises. Ms. Higuera stated that she inspected the first floor before moving to the second floor.
11She opened the door to the second floor staircase and saw 8 – 10 people coming down the stairs. She proceeded up the stairs followed by Inspector Ng, Inspector Sargent, the two police officers and the two officials from the TFS.
12At the top of the stairs, Inspector Higuera observed a male and female exiting what appeared to be a large walk in 'closet'. A sign said "No Alcohol beyond this point" on the outside of the 'closet'. She entered into the small area and moved aside a red curtain that was covering a winding stairway going up to another level.
13Inspector Higuera was about to go up the staircase when, Mr. Ben Zion (the "Licensee"), approached her and said "you can't go up there". He extended his arm in front of her across the stairs leading to the third floor.
14Ms. Higuera inquired of the Licensee if the next level was a continuation of the club, she was told "no", and that the third level was a private dwelling.
15Inspector Higuera asked to see the liquor licence to check the details. The Licensee and Inspector Higuera moved to the area near the bar where the Licence was located. The Licence identified the establishment as 1032 Queen Street West; she observed that the name "Wicked Club" was not on the Licence. There were also no details regarding a third floor on the Licence.
16She asked the Licensee about the difference in the name of the establishment to that on the Licence. She advised him that it was an infraction to carry on a business under a different name to that on the Licence.
17The Licensee told the Inspector that an application had been submitted to the AGCO for a name change on the premises.
18The Inspector and the Licensee continued their discussion of the third floor while they stood near the bar.
19Inspector Higuera stated that Inspector Sargent and a fire official returned to the area where she was standing. She learned from Inspector Sargent that she had without permission gone to the third floor for an inspection with the official of the TFS and Inspector Ng.
20She asked Inspector Sargent what was on the third floor. She was told there were numerous beds, a shower stall and a large swing. There were no apparent signs of it being a private dwelling. The décor was dark in colour and mirrored the second floor of the club.
21Inspector Higuera asked the Licensee, why he had lied to her and told her it was a private dwelling. Why had he prevented her from going up the stairs for an inspection? He told her he did not want her to go up as it was rented to a person called Chris.
22Inspector Higuera inquired that if it was a private dwelling, why was there only a curtain separating the dwelling from the club, and no door or any way of securing access to the area. She found it unusual that a person would have to walk through the club to access the third floor, and also that there would be a sign outside of the curtained area saying "No alcohol beyond this point".
23Inspector Higuera advised the Licensee that he was violating the LLA by obstructing her entry to the third level for the purpose of an inspection. She informed him that she had been given information from another Inspector that the third floor appeared to be an extension of the club on the second floor.
24Inspector Higuera testified that the Licensee did admit to her at the end of their conversation that the third level was a continuation of the club, however, it was only available to members of Wicked Club. Chris lived there through the week and the club used it for private members of the 'swingers club' on weekends.
25Inspector Higuera departed the premises at 1:02 a.m.
26In cross-examination Inspector Higuera confirmed her evidence-in-chief.
27She was told by the Licensee that the third floor was used by members on weekends.
28She did not go to the third floor as she had sufficient information from her colleagues that the third floor was not a private dwelling but an extension of Wicked Club on the second floor.
29Inspector Higuera went up the stairs to the second level. The Licensee came from behind her and moved in front of her to prevent her going through the curtain by extending his arm across the curtained area to the third level and telling her she could not go up the stairs. He did not touch her. She was not aware, at the time, that he was the Licensee.
30Rebecca Sargent has been an Inspector with the AGCO since 2007. She is familiar with the establishment known as Wicked Club and attended the premises on February 23rd, 2008 at 12.23 a.m. The purpose of the visit was to conduct a routine inspection of the premises. She was accompanied by Inspector Higuera and Inspector Ng of the AGCO, two officials from the TFS and two police officers from the TPS.
31They were met at the door by Mrs. Aurora Ben Zion who identified herself as the Manager of the establishment. The group did a walk through inspection of the first floor and found no violations. Mrs. Ben Zion escorted the party to the second floor of the establishment. Inspector Higuera was in the front of the group as they went up to the second floor, Inspector Sargent was behind the group and last to go up the stairs.
32Inspector Sargent stopped on the top of the stairs for a few minutes to speak to one of the officers in their party. She observed Inspector Higuera talking to the Licensee, they stood close to an area that looked like a coat check area with a curtain, and they were about a metre from the curtain. She observed two people exit from that area.
33After conversing with the TFS Officer, she, Inspector Ng and the Officer turned to the left of the stairs to conduct an inspection of the second floor. Inspector Higuera was still with the Licensee at this time and did not go with them. Inspector Sargent had no idea what Inspector Higuera and the Licensee were discussing at that time.
34When Inspector Sargent, Inspector Ng and the Officer returned to the area of the coat check on the second floor, neither Inspector Higuera nor the Licensee were there. She and her party then looked into the coat check area, saw the stairs and proceeded up the stairs to the third floor.
35They observed that the décor of red and black on the third floor followed the same relaxed theme as the second floor. There were no tables or chairs on the third floor, only three beds and an enclosed shower stall against one wall. The area was quite dark. No patrons were seen on the third floor at the time of the inspection.
36On returning to the second floor, Inspector Sargent approached Inspector Higuera who was speaking to the Licensee near the bar. Inspector Higuera told her she had been obstructed by the Licensee from going to the third floor.
37No infractions were noted on either the second or third floor of the establishment. However, Inspector Sargent did tell the Licensee and Mrs. Ben Zion that the name on the door must match the name on the Licence. She advised the Licensee and Mrs. Ben Zion to contact the AGCO and also advised him that it was an infraction to obstruct an area for inspection.
38In cross-examination Inspector Sargent confirmed that she was in the premises for approximately 40 minutes and had inspected the second floor with a police officer, a fire services official and Inspector Ng. She did not recall Sgt. Heyerman being a part of that inspection. She indicated that Constable Burns said there had been "obstructing".
39Inspector Sargent stated that Inspector Higuera was at the front of the inspection party when they went up to the second floor, she was the last person in the group and a few seconds behind Inspector Higuera.
40Matthew Trudeau is a member of the Toronto Fire Services. He arrived at the establishment known as Wicked Club, at 132 Queen Street West in Toronto on February 23rd, 2008 for a routine inspection.
41He was accompanied by Keith Thompson of the TFS, two AGCO Inspectors and two police officers. They were met by Mrs. Ben Zion who escorted them to the second floor bar area. The Licensee joined them 5 – 10 minutes later.
42They asked questions of the Licensee with reference to the occupancy permit, exits and other routine inspection checks and about what was on the third floor.
43Mrs. Ben Zion made it quite clear that she did not want the party to go up to the third floor.
44Mrs. Ben Zion stood between the group and the stairway and said they could not go upstairs. It was obvious to the witness that they were not welcome to go to the third floor.
45Mr. Trudeau reminded Mrs. Ben Zion of the fire marshal rules and their entitlement to go to the third floor. To be sure she understood, he told her four times.
46They were the third group to tell Mr. and Mrs. Ben Zion of the legal rights of the Inspectors. The Ben Zions told them no alcohol was sold or served on the third floor and continued to try to prevent them going to the third floor by arguing with them.
47While he was standing in the closet-like area waiting for the other parties, the police officers walked past him and up the stairs to the third floor, and he followed. He saw the AGCO Inspectors on the stairs. He did not see them on the third floor.
48In cross-examination, Mr. Trudeau stated that although they were travelling together, they separated on the second floor and he did not see the AGCO Inspectors at all times.
49The group was never given permission to go to the third floor. They just proceeded to the third floor of their own accord.
Licensee's Evidence
50Shlomo Ben Zion is the Licensee of Wicked Club and was present on February 23rd, 2008.
51Mr. Ben Zion was on the main floor of the establishment when the Inspectors from the AGCO, members of the TFS and police officers arrived. Aurora Ben Zion, the Manager, was dealing with them. She took them to the second floor level called Wicked Club, and Mr. Ben Zion joined them 5 – 10 minutes later.
52He recognized the fire department officials because they were in uniform, the other members of the inspection party identified themselves to him as Inspectors from the AGCO and police officers. He felt intimidated by so many officials.
53When the Licensee arrived on the second floor, Mrs. Ben Zion, who had escorted the party to the second floor, was discussing the capacity of the establishment with the Inspectors and why the establishment had two different names.
54The first floor is known as Vogue Bar and the second floor known as Wicked Club. Mrs. Ben Zion told the Inspectors that a name change application had been faxed in to the AGCO but they did not know more paperwork was required.
55Mrs. Ben Zion was speaking to Inspector Higuera who was enquiring what was on the third floor. She told Inspector Higuera that through the week a resident lives on the third floor, and on the weekends it was used for members of the Wicked Club and that alcohol was not served or sold on the third floor.
56Inspector Higuera asked if she could go upstairs to the third floor. Mrs. Ben Zion said she would prefer if she did not because of the nature of the use of the third floor.
57Inspector Higuera was getting more aggressive and asked to speak to the Licensee. He was standing between the couches and the Inspector was near a white door that leads upstairs to the third floor and downstairs to the first floor and the street. The Licensee explained that this door has no access coming downstairs from the third floor to the second floor, the stairway leads down to the street.
58Nobody went upstairs to the third floor at that time. Inspector Higuera asked loudly "are you denying me access to upstairs?", and he said "I am afraid you are not going upstairs". The TFS official said "I am entitled to go upstairs and you can come with me", speaking to Inspector Higuera.
59Mr. Ben Zion said "if you say you have the right to go upstairs, why are you asking me?". The fire official and Inspector Higuera went through the white door upstairs to the third floor.
60After approximately five minutes, Inspector Higuera and the fire official came back down to the second floor through the curtained door area.
61Inspector Higuera told Mr. Ben Zion that everything appeared fine and she found no infractions, but warned him not to try to block her access to an area, and not to lie to her in the future that someone uses the area as a private residence.
62It was Mr. Ben Zion's opinion that the group of Inspectors and police were very nice with the exception of Inspector Higuera who was very aggressive, accused him of lying, when he did not. There was someone living upstairs.
63Mr. Ben Zion explained that his business is unique in that there is a 'swingers club' on the third floor and they sometimes have naked people in that area. They were not open on the third floor at the time of the inspection.
64Mr. Ben Zion said it was the first time that he had experienced this type of inspection and that he was confused regarding access. He stated that he never put himself in front of Inspector Higuera or raised his arm. Other Inspectors who had previously visited the premises had advised him to change the name of the establishment with the AGCO, which he did.
65In cross-examination Mr. Ben Zion confirmed that Mrs. Ben Zion attended the second floor while he was dealing with the first floor. He went to the second floor a short time later. Customers were curious to know what was going on. He was attempting to assure them it was just an inspection.
66Inspector Higuera was speaking with Mrs. Ben Zion between the couches and the bar, and not near the coat check. He stated that Inspector Higuera was not near the stairs. It was a fire official who opened the curtain and looked up the stairs.
67Mr. Ben Zion stated that the two people seen exiting the coat check area were on a tour of the club. It is common for prospective patrons to want a tour of the club before becoming members.
68Mr. Ben Zion denied he was talking to Inspector Higuera in the coat check area and told the Inspectors it was a private club on the third floor.
69Since there was no liquor licence for the third floor, Mr. Ben Zion did not think the inspectors had the right to investigate the third floor. They did not explain this to him before asking him for access.
70Mrs. Aurora Ben Zion is Manager of the establishment and was present at the establishment on February 23rd, 2008.
71Mrs. Ben Zion testified that a group of individuals who she thought to be police officers, fire department officers and AGCO Inspectors arrived at the establishment. After inspecting the first floor she escorted the party to the second floor of the establishment.
72While on the second floor, the blonde female, later identified as Inspector Higuera asked to go to the third floor. Mrs. Ben Zion told her it was residential, private, and that it was not a licensed area. The Inspector asked if she could go up to the third floor, Mrs. Ben Zion said she would prefer that she did not go upstairs because of the private nature of the club.
73The Licensee joined them and the Inspector asked him the same question, and he said he preferred if she did not go upstairs.
74The fire official, identified later as Matt Trudeau, said "I could take you up, I don't need permission". Mrs. Ben Zion opened the white door close to them and said "then why are you asking?" Both Mr. Trudeau and Inspector Higuera went up the stairs to the third floor. They returned to the second floor via the curtain door into the area described as a coat check room.
75Mrs. Ben Zion did not go with them she stayed on the second floor while the other Inspectors were doing an inspection in that area.
76Mrs. Ben Zion testified that a person known as Chris rents the third floor and stays there through the week using the area as his residence, while on weekends members use the space for their club activities associated with their Wicked Club membership.
77In cross-examination Mrs. Ben Zion confirmed that she had escorted the group of Inspectors to the second floor. She had asked for their identification. They identified themselves as three AGCO Inspectors, two TFS officials and three police officers of the TPS.
78Although she was not sure of the numbers, she recalls two females and one Asian male from the AGCO.
79She confirmed that Inspector Higuera and Matt Trudeau went to the third floor, up through the white door and returned via the curtained area as there is no re-entry from the third floor to the second floor via the white door. Mrs. Ben Zion remained on the second floor. Mrs. Ben Zion does not recall Inspector Higuera asking her for the Licence and does not recall any conversation about the Licence. She recalled Inspector Higuera telling her she could go up to the third floor if she wanted as it was part of a licensed establishment.
80Mrs. Ben Zion stated that only members who are on the second floor are allowed to use the third floor on the weekends. The third floor is used as a 'swingers club' for members only.
81Patricio Miguil Ocana has worked at the establishment for approximately one year. On the evening of February 23rd, 2008, he was working as security staff on the door of the premises.
82He observed seven people come "rushing" through the door, they showed their identification and went inside the premises, and they then went to the second floor of the establishment.
83Mr. Ocana saw Aurora Ben Zion speaking to police. He also saw a blonde female accompanied by a person in a fire department uniform come from the third floor.
84There was no cross-examination of this witness. Mr. Alakas had stated prior to the testimony of Mr. Ocana that he had not received notice or disclosure of Mr. Ocana's appearance as a witness, but did not object to Mr. Marzel's request for him to testify.
Registrar's Submissions
85Mr. Alakas submitted that the Licensee had violated subsection 45(1) of the LLA by obstructing an inspector. Obstruction is not limited to physical restraint, withholding, destroying, concealing or failing to provide relevant information.
86It was agreed in evidence by the Licensee that the third floor of the establishment, although unlicensed, is part of the premises. Therefore, it is subject to inspection.
87Mr. Alakas submitted that according to the evidence, Inspector Higuera was first up the stairs to the second floor. She clearly described the appearance and character of the doorway leading to the third floor as a coat check area with a curtain leading to the third floor.
88Mr. Alakas submitted that Inspector Higuera was obstructed from entering the third floor through the curtain to the stairway. She was physically blocked by the Licensee from entering the stairs to the third floor.
89The Licensee extended his arm to block the Inspector from entering the stairway. She was repeatedly told it was a private dwelling and she was not allowed to enter. Mr. Alakas submitted this was specifically to avoid an inspection.
90Whatever the reason to avoid the inspection, whether it was the delicate sensibilities of clients or liquor licence violations, the fact is, relevant information was concealed and withheld from the Inspector. Ultimately, there were no liquor violations on the third floor. It did not matter which Inspector went up the stairs.
91Nobody testified that they saw Inspector Higuera on the third floor.
92Inspector Higuera asked to check the Licence. She, along with the Licensee moved to the bar area to inspect the Licence.
93It is clear from the evidence that Inspector Higuera was in the vicinity of the coat check entrance to the third floor stairway.
94During that time Inspector Higuera and the Licensee were near the bar discussing the Licence. The evidence is consistent with that of Inspector Sargent, who testified that during this time, she, along with Matthew Trudeau of the Toronto Fire Services accessed the third floor for a routine inspection without permission of either the Licensee or other staff person. The fact that they gained access does not detract from the actions of the Licensee in obstructing. The Licensee by his own admission denied access to Inspector Higuera.
95Mr. Alakas submitted that the testimony of the Inspectors and the actions of the Licensee clearly make out the elements of obstruction under subsection 45(1) of the LLA.
Licensee's Submissions
96Mr. Marzel submitted that the Registrar does not make a case for a violation under subsection 45(1) of the LLA.
97No one saw the Licensee physically block or obstruct Inspector Higuera, by using his arm, from entering the staircase to the third floor.
98The evidence is not consistent that the Licensee was present when Inspector Higuera arrived on the second level and that he obstructed her.
99Inspector Higuera did not have notes that indicated she was physically obstructed by the Licensee.
100The Licensee testified that he was not aware of the rights of an inspection in an unlicensed area, but understands now that an area adjacent to a licensed area can be inspected by AGCO Inspectors under the LLA. This was not an obstruction. The Licensee did not know that he must allow an inspection in an area where alcohol is not sold or served.
Reply
101In reply submissions, Mr. Alakas submitted that obstruction can take place in many ways, verbal obstruction and/or constrictive obstruction. It does not matter if it is stated that an Inspector "cannot, will not, or prefer not". It was a deliberate attempt to prevent an inspection on the third floor.
102The Licensee engaged in conduct specifically prohibited by the LLA.
Reasons and Findings
103The Board has carefully considered the evidence of all parties. It is clear to the Board that the Licensee did not want the Inspectors to enter the third floor of the establishment for a routine inspection.
104It became abundantly clear through the evidence of the Licensee and his witnesses that the third floor is used for activities that involve sexual activities of members of a 'swingers club' and that this club operates as part of the establishment known as Wicked Club.
105The third floor of the establishment is unlicensed. There was evidence that a sign was posted that stated "No alcohol allowed beyond this point". There is no evidence to suggest that liquor licence violations had taken place or were taking place on the third floor during the time of the inspection.
106However, from the evidence presented, it appears to the Board that an AGCO Inspector was prevented from entering the third level by the Licensee. Both AGCO Inspectors testified that Inspector Higuera was standing near the curtained area at one point in time talking to the Licensee. Inspector Sargent was clear that she saw Inspector Higuera speaking to the Licensee near the curtained area when she, herself, was standing at the top of the stairs.
107The Licensee claims that he was not near the curtained area with Inspector Higuera, but was instead standing close to the bar. The Board does not accept this evidence. The Board finds Inspector Higuera's evidence to be more reliable and consistent with the evidence heard throughout the hearing.
108The Board heard conflicting evidence about which AGCO Inspector actually went to the third floor. A witness for the Licensee claims to have watched Inspector Higuera go through a white door and up the stairs to the third floor with a fire official. She also claims to have seen her come back to the second level through the curtained stairs.
109Inspector Sargent testified that she was the Inspector who went to the third floor with a fire official and found no violations.
110Inspector Higuera testified that she did not go to the third floor.
111The Licensee and club manager both claimed that they were not aware that Inspectors were allowed to inspect areas that are not licensed to sell or serve alcohol. They claimed that they did not want the Inspectors entering the third level of the premises because of the nature of their business. It would be embarrassing for all involved to be confronted with nudity when club members were present on the third floor, although at the time of the inspection, no clients were found on the third floor.
112The Board heard testimony that when the Licensee was told that the law allowed Inspectors and police to inspect all areas within the premises, they relented and allowed the Inspectors access to the third floor.
113The Licensee did attempt to prevent an AGCO Inspector from entering the third floor to conduct an inspection. Whether this was verbally or by physically obstructing is immaterial. Both he and his Manager were forthright in their evidence that they did not want the Inspectors on the third floor.
114The Board finds the evidence of the Inspectors to be credible as it is unlikely that Inspector Higuera would testify that she did not enter the third floor, if in fact she did. Inspector Sargent testified she and a fire official had visited the third floor. This is consistent with Mrs. Ben Zion testifying she had witnessed a female inspector and fire official climb the stairs to the third floor. Whether this is a case of mistaken identity is irrelevant. Both liquor Inspectors are female and one of them was on the third floor.
115After analyzing and considering the evidence presented, the Board finds that the Licensee did prevent an Inspector entry to an unlicensed area by verbally stating that he did not want her to go to the third floor. He admitted that the area was used on weekends for a 'swingers club' which is the reason for his objections to an inspection. The Board accepts the Licensee's evidence that he was under the assumption that only licensed areas of the premises were mandatory for LLA inspections.
116However, it is vitally important that a Licensee understands clearly his role and responsibilities under the LLA. It is evident to the Board that this Licensee did not.
Conclusion
117For the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the LLA.
118The Board invites written submissions on penalty from the respective parties. The Registrar's representative shall serve and file her written submissions within ten (10) days of the date of this decision. The Licensee's representative shall have ten (10) days to serve and file his written response. Registrar's representative may serve and file any reply within five (5) 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 18th DAY OF DECEMBER, 2008.
BERYL FORD, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER