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 of Ontario Registrar
-and-
Zucca Bar Inc. O/A The Zuccabar Licensee
DECISION ON FINDINGS
Panel: David Gavsie, Chair, AGCO Bruce Miller, Board Member
Decision Date: April 17, 2009
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 ) Dan Alakas, Representative Zucca Bar Inc., Licensee ) Jaime Stephenson, Representative
Allegations
1A hearing into Notice of Proposal number 16818 dated November 12, 2008 to suspend liquor licence number 809906 issued to Zucca Bar Inc. (the “Licensee”), operating as THE ZUCCABAR, 299 James Street North, Hamilton, Ontario, L8R 2L4, (the “establishment” or the “premises”), on the basis of alleged violations of subsection 45(2) of the Liquor Licence Act (“LLA”), and section 45.1 and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA was held on March 17, 2009, in the City of Hamilton.
Decision
2After considering all the evidence and submissions the Board DISMISSES the alleged violations of subsection 45(2) of the LLA and section 45.1 and subsection 45(1) of the O.Reg. Reasons for the decision follow.
Preliminary Matters
3The Board ordered that witnesses be excluded with the consent of both parties.
Registrar’s Evidence
4John Sabatini has been a Police Constable (“P.C.”) with the Hamilton Police Service since September 2003. P.C. Sabatini had made notes which he was allowed to refer to on consent to refresh his memory.
5On Thursday, June 12, 2008 he was working in uniform and was on bicycle patrol with P.C. Sarah MacGregor. They were northbound on Jane Street North near Barton Street at 10:45 p.m. when they heard a male yell out from across the street, “What the fuck are you looking at? Keep on cycling”.
6The yelling came from some patrons who were standing on the sidewalk right outside The Zuccabar. Both officers cycled over to the bar. There were two males yelling at them in front of the bar. A male known to P.C. Sabatini as Dwayne Smith told the officer he was ugly. He told the officer he owned the city and swore at him. Mr. Smith showed P.C. Sabatini a large amount of money from his pocket and stated he could pay off any cop.
7There were three people standing outside the bar and there were other people inside the bar. The bar had glass windows in the front which you can’t see through from the outside. There is a single door to the bar which was open. People were going in and out of the bar.
8The street was relatively quiet. There is a Shoppers Drug Mart on one side of The Zuccabar and there is a bank on the other side.
9P.C. MacGregor requested additional police units. P.C. Sabatini thought that Mr. Smith might become physical. Both officers tried to find out what Mr. Smith’s problem was.
10Five additional police officers showed up two minutes later. They included P.C.s Santos, Hutton, Spencer and Sorbara, and Sergeant Ross.
11Someone closed the front door of the bar. At no time did any staff from the bar come out to assist the officers.
12P.C. Hutton attempted to go into The Zuccabar. He wasn’t able to gain access. P.C. Sabatini was told about this and didn’t actually see it. He doesn’t know if the door was locked or if somebody tried to hold it shut.
13Mr. Smith’s parents and his girlfriend arrived. Mr. Smith’s mother talked to P.C. Sabatini. She told him that Mr. Smith had recently lost his brother and that an officer had told him that his deceased brother got what he deserved. This is why Mr. Smith was acting the way he was. P.C. Sabatini said he explained to the mother that he was not involved in the incident with Mr. Smith’s brother.
14P.C. Sabatini does not think he went into The Zuccabar. He believed that P.C. Hutton went into the bar. He had no interaction with staff. There was a single bartender on duty. He never saw any officers speak to any bar staff until Mr. Carlo Fazzari, one of the owners, showed up near the end of the incident and spoke to P.C. Spencer.
15On cross-examination P.C. Sabatini didn’t recall any specific past dealings with Mr. Smith. He had seen Mr. Smith at The Zuccabar before. The death of Mr. Smith’s brother was very untimely. He shot himself accidentally several weeks or months before this incident. P.C. Sabatini denied calling out to Mr. Smith about his brother and he didn’t hear anyone else yell something out. His only involvement in the death of Mr. Smith’s brother was that he guarded the scene after the event. He believed the Smith family lived across the street from where the shooting occurred.
16The bank next to The Zuccabar had an ATM machine so the door to the bank would have been accessible.
17Mr. Smith was upset and angry and people were trying to calm him down. He doesn’t know who was trying to calm him down and doesn’t know if staff from The Zuccabar were involved.
18He is not sure what P.C. Spencer said to Mr. Fazzari. It appeared to be a normal conversation.
19Sergeant Ross arrived at some point and told all the police officers to leave the area and to go down the street.
20In response to questions from the Board, P.C. Sabatini stated there is a public sidewalk in front of the bar which is about the width of two sidewalks. He estimated it to be about six to eight feet wide. The door was both open and closed during the incident. He wasn’t paying attention to it and it was open when he first arrived. There were three people at the start of the incident and at some point all three went into the bar.
21He did not see Mr. Smith come out of the bar when he first arrived but he strongly suspected that he had.
22Sarah MacGregor has been a Police Constable with the Hamilton Police Service since January 2005. She had made notes, and, on consent, was allowed to refer to her notes to refresh her memory.
23On June 12, 2008, at 10:45 p.m. she was in uniform and was on bicycle patrol with P.C. Sabatini. They were northbound on Jane Street when she heard yelling in front of The Zuccabar. There was one female and at least two males outside. She called out and asked what the yelling was about.
24One of the males called out and told her and P.C. Sabatini to “Fuck off” and said “Don’t you have anything better to do”. There was only one male yelling who she now knows as Mr. Dwayne Smith. She didn’t know the other male. They approached the three people.
25Mr. Smith pulled out a handful of money and asked how much do you want. He said he could pay off any cop in the city. She requested that additional police officers attend as she saw other people coming out of the bar.
26A female who she believes was Mr. Smith’s girlfriend asked why the police were bothering Mr. Smith. The female came from the inside of the bar.
27Mr. Smith was belligerent and fairly aggressive and the officers told him to calm down. She never saw any bar staff from The Zuccabar. Mr. Smith went in to the bar after they dealt with him.
28There is one entrance to The Zuccabar and the front windows are blacked out and you can’t see in. There were no other licensed establishments open in the immediate area.
29There were never more than six or seven people outside of The Zuccabar. The police officers who arrived included P.C. Hutton, his recruit P.C. Sorbara, P.C. Juliani and P.C. Santos.
30She remained outside. She saw P.C. Hutton go in the bar and she believed that after he went in that he later tried to re-enter. P.C. Hutton told her the door was locked. She did not see P.C. Hutton when he tried to re-enter the bar.
31A male and a female pulled up in a vehicle and went inside The Zuccabar. One of the police officers put a ticket on the vehicle as it was in a no stopping zone. The driver ripped up the ticket when he came back out and drove off at a high rate of speed.
32She did not know Mr. Smith prior to this date but was aware of the death of his brother. She was not involved in the investigation of the brother’s death.
33She had no dealings with any staff from The Zuccabar and does not recall seeing Mr. Fazzari arriving.
34On cross-examination she did not recall if the female she thought was Mr. Smith’s girlfriend was the same female who was initially outside the bar with him. She never went beyond the front door of the bar. There were no arrests made at any time.
35In response to a question from the Board she stated she saw P.C. Hutton go in the bar and then later P.C. Hutton told her he couldn’t get in when he tried to re-enter. She had no direct knowledge that the door was locked.
36Daniel Sorbara has been a Police Constable with the Hamilton Police Service since January 2008. He was riding in a car with his coach officer Constable Hutton on June 12, 2008 when they went to The Zuccabar in response to a request for additional officers.
37There were some people out front who were being argumentative with police officers. The officers were dealing with a male who he learned was Mr. Smith. It was a verbal argument and Mr. Smith was yelling at the police. He said that he owned the city and could tell the police what to do. He told the police to go away.
38A pickup truck arrived and a male came over from it and talked to Mr. Smith. There were two females with Mr. Smith who he understood to be his mother and his girlfriend.
39Mr. Smith said he was going to go into the bar and lock the doors and police were not allowed in.
40P.C. Sorbara did not believe he interacted with staff while he was there.
41Mr. Smith’s girlfriend was outside when he arrived and she told the police officers to leave them alone. She eventually went into the bar with Mr. Smith.
42P.C. Juliani went to the pickup truck and put a parking ticket on it. A male went over to the vehicle and threw the ticket on the ground and drove away.
43At some point he saw an officer try unsuccessfully to open the door to The Zuccabar. He didn’t know who the officer was.
44On cross-examination he stated that P.C.’s Sabatini and MacGregor were in heated conversations with Mr. Smith.
45He does not know the name of Mr. Smith’s girlfriend.
46The most people outside The Zuccabar at any time would have been about 10 not including the police officers.
47He saw an officer try unsuccessfully to pull open the door to The Zuccabar. He didn’t know who the officer was. He didn’t know if the door pushed or pulled open.
48Francis Santos has been a Police Constable with the Hamilton Police Service since April 2006. P.C. Santos had made notes which, on consent, he was allowed to refer to. He went to The Zuccabar on June 12, 2008 at 10:47 p.m. in response to a request for additional officers.
49He saw P.C.s MacGregor and Sabatini talking to people on the sidewalk outside The Zuccabar. It was a verbal argument and he stood by to make sure that nothing escalated. Other police officers arrived and he saw P.C. Hutton argue with Mr. Smith.
50At one point Mr. Smith took money from his pocket and appeared to show it to the officers. P.C. Hutton told him later that Mr. Smith had said he could pay off any cop in the city.
51When he first arrived there were two people outside the bar. Mr. Smith was not there but he came out of the bar to speak to P.C. Hutton. Initially it looked like a cordial discussion but it escalated into an argument. At one point it looked like Mr. Smith tried to close the door on P.C. Hutton who was right at the door. They continued to argue. He didn’t know what was being said.
52Another male arrived in a pickup and went into The Zuccabar. P.C. Juliani issued a parking ticket to the vehicle. The male came out of the bar and sat in the vehicle. He threw the ticket out the window and drove off. P.C. Santos got in his police cruiser and stopped him. He believed the driver was Mr. Smith’s father.
53There was no cross-examination.
54In response to a question from the Board P.C. Santos said Mr. Smith attempted to close the door on P.C. Hutton. He was not sure if Mr. Smith’s hand was on the handle. The door was never completely closed.
Licensee’s Evidence
55Dwayne Smith Jr. was walking from the bank which is close to The Zuccabar on June 12, 2008. A police officer said something to the effect of how was his brother. His brother had just passed away a few weeks prior to this date. He didn’t know the officer’s name but had a previous “run in” with him. He started to swear at him and told the officer to keep riding.
56He went into The Zuccabar to use the phone to call his parents for a ride. The first time he went to The Zuccabar was to use the phone. He came back out and there were 10 to 15 more officers there. There was an altercation. People were arguing and yelling back and forth.
57When he went inside to use the phone some police officers came in with him. He never prevented them from coming in.
58His girlfriend, Jayme Cuvelier, and a male named Bruce were outside the bar. Ms Cuvelier was with him when he was coming from the bank. They met Bruce outside The Zuccabar.
59He had nothing to drink that day. He did not believe that his girlfriend was in The Zuccabar earlier that day.
60A police supervisor showed up and told all of the officers to leave.
61On cross-examination he stated that neither he nor Bruce work at The Zuccabar. There was a bartender named Ronnie working at The Zuccabar that night.
62He didn’t recall where the police were when they first asked how is your brother.
63No one from The Zuccabar was involved in what happened outside of the bar.
64He was not going to The Zuccabar that evening and was just out for a walk. He called for a ride because he thought that he would be stopped by the police if he left on his own.
65Carlos the owner arrived and tried to calm everything down.
66Registrar’s Representative entered Mr. Smith’s will-say statement as an exhibit (Ex. 1). Mr. Smith did not write the statement but related the events to counsel for the Licensee. On redirect he stated he didn’t see counsel write the statement but had read it and it was correct.
67In response to questions from the Board he said he was in front of the bank when the police first said something about his brother. The street is four lanes in total. The officers were across the street on their bicycles. He stated he had been in The Zuccabar a few hours before the incident but hadn’t had anything to drink.
68After he went into the bar there were a lot of police officers inside. He did not know if they were already there or if they followed him in.
69In response to a question from Registrar’s Representative he stated the first time staff from The Zuccabar became involved was when Carlos showed up.
70Jayme Lynn Kerrie May Cuvelier lives in Hamilton. On June 12, 2008 she went to the Bank of Montreal with her boyfriend Mr. Smith. The bank is one business down from The Zuccabar. Two officers on bikes came over. One was a male and he said something like “How’s your brother doing”. Her boyfriend “lost it” and she does not know exactly what Mr. Smith said. She was shocked by what the police said. She didn’t talk to the police but tried to calm Mr. Smith down.
71She went into the bar with Mr. Smith who was going to call his parents. Mr. Smith went back outside after a while but she stayed in the bar.
72No one prevented the police from entering the bar. One officer stepped into the doorway of the bar later on.
73The bartender Ron was trying to calm everyone down. There was no other bar staff on duty.
74She had not been to The Zuccabar that day prior to this incident. They had been coming from Mr. Smith’s parents’ residence when they went to the bank.
75On cross-examination she stated it was dark out when this happened. The officers made their comments when they came out of the bank. The officers came from across the street.
76She had been at her sister’s and had met up with Mr. Smith at his parents’ residence. She did not know where he had been before. She arrived at Mr. Smith’s parents’ home around 10:00 p.m.
77Registrar’s Representative entered Ms Cuvelier’s will-say statement as an exhibit (Ex. 2). She agreed it was her statement.
78Mr. Smith went outside The Zuccabar when his mother showed up. Ms Cuvelier did not go outside with him. She did not go outside until she left the area. She does not recall anything happening when she went back outside.
79She remembers an officer coming in the bar but he stayed at the door.
80On redirect she said she hadn’t seen her statement until today but it was identical to what she had said when the statement was taken.
81In response to questions from the Board she stated one police officer came in The Zuccabar and there may have been two behind him but they stayed near the doorway.
82She didn’t recall what time the incident occurred but it was dark out. There are street lights but she could not recall how bright it was.
83When she went into the bar she thinks Mr. Smith stayed with her until his parents arrived.
84She could see what was going on outside through the bar’s windows.
85She does not remember if she said anything to the police while she was outside.
86Bruce Joseph Pereira went to The Zuccabar on June 12, 2008 to speak to the owner who was not there. He saw Mr. Smith and Ms Cuvelier walk by outside around 9:30 p.m. to 10:30 p.m.
87He went to speak to them. Two police officers rode by and made an “ignorant” comment and started to harass them. One of the officers asked Mr. Smith how his brother was. Mr. Smith said something to the effect of “What are you saying you ugly fuck”.
88The police asked for his name and he wouldn’t give it. This all started in front of the bank. The officers were on their bikes. He could not recall what side of the street the officers came from. They called Mr. Smith a “lowlife”.
89Mr. Pereira is not employed at The Zuccabar but does help out on occasion.
90He did not go into The Zuccabar when Mr. Smith went inside to call his parents. He may have gone in at some point to use the washroom.
91The police supervisor arrived on the scene and told the officers to wrap it up and leave.
92He did not see anyone prevent any of the police officers from entering The Zuccabar.
93On cross-examination he stated they were first stopped by a taller male officer and a shorter male officer. He dealt with the taller one. He guessed the officers were about five feet away when they made the comment.
94He arrived at The Zuccabar about 15 to 20 minutes before he went out to see Mr. Smith. He didn’t know if any of the police officers entered The Zuccabar.
Registrar’s Submissions
95Mr. Smith and his girlfriend were, on the balance of probabilities, patrons of The Zuccabar on the evening in question. The police officers saw them in front of The Zuccabar. The incident occurred in front of the establishment.
96Representative for the Registrar then discussed each alleged violation.
Subsection 45(2) of the LLA
97This section requires a positive attitude to assist in an inspection. The Licensee through his employee failed to facilitate this.
98Both P.C.s Sabatini and MacGregor received information from P.C. Hutton that he was unable to get into The Zuccabar. There was evidence other individuals were coming in and going out from the establishment.
99P.C. Sorbara witnessed P.C. Hutton having difficulty entering the premises.
100The Licensee never took any steps to assist the police officers.
Subsection 45(1) of the O.Reg
101It was clear there was disorderly and quarrelsome conduct outside of the Zuccabar. There was yelling and swearing.
102The Board has consistently held the word “permit” as fail to prevent.
103There was some evidence patrons came out of The Zuccabar to calm Mr. Smith down.
104The behaviour outside and inside of the establishment is the responsibility of the Licensee.
Section 45.1 of the O.Reg
105The Licensee failed to ensure that reasonable measures were in place. There were no efforts to deter disorderly conduct throughout the incident.
106The evidence of the police officers was clear and consistent. All three officers had received some information from P.C. Hutton.
107P.C. Santos saw Mr. Smith close the door.
108Mr. Smith and Ms Cuvelier could not remember any details.
109Mr. Smith stated it was dark when he left The Zuccabar prior to the incident. However it does not get dark until 9:00 p.m. in June. This would make him a patron of The Zuccabar when the incident occurred.
110All three witnesses for the Licensee gave different accounts about how the police officer made the original remark and how this incident occurred.
111Two police officers riding their bicycles at night would be unable to identify Mr. Smith across the street and then ride over to make the alleged comment.
112The evidence of the Licensee’s witnesses was not credible and consistent.
113No one from the establishment testified to what actually occurred.
Conclusion
114The Licensee failed their obligations under the LLA in each of the three allegations.
Licensee’s Submissions
115One of the police officers spoke of there being four lanes on the street but there was no other evidence on this.
116P.C. Sorbara’s evidence was that he saw a police officer try and enter The Zuccabar but he couldn’t say who it was even though P.C. Hutton was his training officer.
117P.C. Hutton was never called to testify.
118P.C. Santos saw Mr. Smith showing his money. He says it was offered to P.C. Hutton. P.C. Santini said Mr. Smith offered money to him. P.C. MacGregor stated the money was offered to P.C. Santini.
119P.C. Santini gave the most complete evidence of the police officers although there was a discrepancy over how the whole incident started.
120There are some inconsistencies in the Licensee’s evidence on where the incident started. However their evidence is consistent that there was a comment made with regard to the death of Mr. Smith’s brother. The reaction to such a comment was not surprising.
121There is no evidence Mr. Smith or his girlfriend were patrons of The Zuccabar just prior to the incident starting.
122The two will-say statements introduced as evidence came as a result of interviews in counsel’s office. They are summaries and not word for word statements.
123There are as many minor inconsistencies in the Licensee’s evidence as there are in the police officers’ evidence. The biggest difference between both is how the whole incident started.
124Mr. Smith and his girlfriend were first seen by the police officers on the sidewalk. They can’t say where they came from. Mr. Pereira stated he came from The Zuccabar.
125There was evidence there was only one bartender in The Zuccabar. There was no evidence how many people were in the bar. There was evidence as many as seven to 10 came from the bar. The bartender couldn’t have left the inside if there were still patrons in the bar.
126There was no evidence why the patrons came out to calm down Mr. Smith. They could have been directed by staff of The Zuccabar.
127There is no evidence of any trouble inside the bar. There were no officers who testified they even went into The Zuccabar.
128There is evidence things appear to calm down when Mr. Smith went into The Zuccabar to call his parents.
129There is no direct evidence of P.C. Hutton attempting to go into the bar. There is no evidence that an attempt at inspection was ever made.
130Mr. Fazzari does arrive at the scene. There is no evidence he caused a problem and one officer testified he calmed the situation.
131It took a police supervisor to arrive and tell the officers to clear the scene. There was no evidence of any arrests.
132Based on the balance of probabilities none of the allegations have been made out.
Registrar’s Reply
133Mr. Smith gave evidence there were four lanes of traffic.
134The Licensee’s Representive is correct, P.C. Sorbara did not know the name of the police officer who couldn’t get in The Zuccabar.
135There is no relevance with regards to which officer Mr. Smith showed the money to. The relevance was the act itself.
136The credibility of the Licensee’s witnesses should be questioned because of their animosity towards the police, their connection to the Licensee and the inconsistencies in their statements.
137There is evidence Mr. Smith and his girlfriend came from the bar. They were just outside it when police came on the scene. Mr. Smith went inside the bar at one point and Mr. Pereira had been inside.
Analysis/Reasons/Findings
138The Board has carefully considered the evidence and the submissions presented.
139There is no dispute there was an altercation in front of or near The Zuccabar involving Mr. Smith and the police.
140There are inconsistencies as to how the incident started. However, it is not central to the issues before the Board.
141The Board will deal with each of the three alleged violations separately.
Subsection 45(2) of the LLA
142This subsection 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.”
143The only direct evidence that P.C. Hutton was prevented from entering The Zuccabar is from P.C. Santos who stated it appeared Mr. Smith tried to close the door on P.C. Hutton. The door never completely closed and he was unable to say whether Mr. Smith’s hand was on the handle.
144P.C.s Sabatini and MacGregor testified they received information from P.C. Hutton that he was unable to get into The Zuccabar but they did not witness it.
145There was evidence presented at the hearing that other individuals were coming in and going out from the establishment.
146P.C. MacGregor saw P.C. Hutton enter the bar. There was also evidence other police officers entered The Zuccabar.
147P.C. Sorbara said he witnessed a police officer having difficulty entering the premises. He did not know the identity of the officer. P.C. Sorbara’s training officer was P.C. Hutton. It seems clear he would have recognized P.C. Hutton if he was the officer.
148The vast majority of the evidence with regards to preventing a police officer from entering The Zuccabar concerned or emanated from P.C. Hutton. Unfortunately he did not attend at the hearing to testify. There was also no reason advanced as to why he did not appear to testify at the hearing.
149Given that the evidence was vague and contradictory, the Board finds that there is insufficient reliable evidence to conclude that the licence holder failed to facilitate an inspection relevant to the licence.
Subsection 45(1) of the O.Reg
150This subsection reads as follows:
“The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”
151For there to be a finding under subsection 45(1), two elements must be established:
a) the conduct referred to in the subsection must have occurred on the licence holder’s premises or in specified areas under its exclusive control, and
b) the licence holder must be shown to have permitted the conduct.
152It is clear from the evidence that there was a verbal altercation on the public sidewalk. However it is not clear whether it occurred in front of or one or two doors away from the front door of the premises. This altercation was between Mr. Smith, on the one hand, and P.C.s Sabatini and MacGregor on the other hand. This incident clearly did not take place in the licence holder’s premises or in a specified area under its exclusive control. The first element therefore has not been established.
153Furthermore, there was no evidence to suggest that Mr. Smith, although he was in the establishment earlier that day, came out of the establishment shortly before the time when the altercation started. Similarly there was no evidence to suggest Ms Cuvelier came from The Zuccabar immediately prior to the incident outside.
154With regard to the second element, in order for the licence holder to have permitted the conduct, there must be a link between the premises and the person or persons causing the conduct. There is no such link between Mr. Smith and Ms Cuvelier with the establishment. They were outside of it or a door or two away from it when the altercation started. After the altercation, there was evidence that they both went inside the establishment. Mr. Smith said he did so to make a telephone call to his parents who did show up relatively quickly. The Board has no reason to doubt this explanation.
155There was no evidence that Mr. Smith or Ms Cuvelier had been drinking in the establishment either just before or just after the altercation.
156Police made no arrests and issued no provincial offences tickets under the LLA as a result of the altercation. A parking ticket was issued for a car parked across the street, but that was all.
157Also, when the police supervisor arrived, he told the other officers to leave the immediate area.
158There was only one employee working in the premises during the altercation. The establishment has a capacity of 25 people. To say that the employee “permitted” the conduct to occur outside it is not a tenable argument given that the incident which took place had no connection with the establishment.
159For the above reasons there is insufficient evidence to conclude that that the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under exclusive control of the licence holder.
Section 45.1 of the O.Reg
160This section reads:
“The licence holder shall ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct on property adjacent to and in the vicinity of the premises and to minimize damage, nuisance or other harm to such property arising out of disorderly conduct engaged in by patrons of the licence holder or persons attempting or waiting to enter the premises or leaving the premises.”
161The source of the disorderly conduct was the altercation between Mr. Smith and the police officers.
162The only evidence to suggest that Mr. Smith came from The Zuccabar immediately before the incident is he was outside the premises when the incident began. Mr. Smith did testify he was there a few hours earlier in the evening but had left.
163There is no evidence Ms Cuvelier came from The Zuccabar immediately before the incident other than she was with Mr. Smith outside The Zuccabar when the incident began.
164Both Mr. Smith and Ms Cuvelier testified they were coming from the residence of Mr. Smith’s parents.
165There is no evidence either Mr. Smith or Ms Cuvelier were drinking alcoholic beverages on the night in question, or that they were patrons of the establishment shortly before or after the altercation, other than when they entered the establishment after the altercation so that Mr. Smith could make a telephone call to his parents.
166Mr. Pereira admitted he came from The Zuccabar but his presence was incidental and he was certainly not the focal point of the altercation.
167Ms Cuvelier testified there was only one staff member on duty at The Zuccabar and he was trying to calm people down inside the bar. The Board was given information that the capacity for the establishment was only 25 persons. It seems not unreasonable that there was only one staff member on duty and that the lone staff member would not abandon the supervision of the licensed premises to go outside.
168P.C. Sabatini testified that when Mr. Fazzari, one of the owners arrived, he spoke to P.C. Spencer. P.C. Sabatini did not hear the conversation but stated it was a normal conversation. There was some evidence Mr. Fazzari tried to calm the situation.
169There was no evidence of any arrests being made. There was no evidence of any charges being laid related to disorderly conduct. It was clear the police were present during the entire incident.
170There was evidence from both the Licensee’s witnesses and P.C. Sabatini, that when the police supervisor arrived he told the officers to leave the immediate area.
171For the above reasons there is insufficient evidence to conclude that the licence holder failed to ensure that reasonable measures were in place and reasonable efforts were made to deter disorderly conduct on property adjacent to and in the vicinity of the premises and to minimize danger, nuisance or other harm to such property arising out of disorderly conduct engaged in by patrons of the licence holder or persons attempting or waiting to enter the premises or leaving the premises.
Conclusion
172Therefore, for the reasons given, the Board DISMISSES the alleged violations of subsection 45(2) of the LLA, and section 45.1 and subsection 45(1) of the O.Reg made pursuant to the LLA.
DATED AT TORONTO THIS 17th DAY OF April , 2009
DAVID C. GAVSIE, CHAIR, AGCO BRUCE MILLER, BOARD MEMBER