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-
1646886 Ontario Inc. operating as Island Mix Restaurant & Lounge Licensee
DECISION ON FINDINGS
Panel: Jacqueline Castel, Board Member Alex McCauley, Board Member
Decision Date: March 26, 2010
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 1646886 Ontario Inc., Licensee ) Randall Barrs, Representative
Authorities
Birchmount Restaurant v. Ontario (Liquor License Board), [1998] O.J. No. 1367
R. v. Graat, 1982 CanLII 33 (SCC), [1982] S.C.J. No. 102
Allegations
1A hearing into Notice of Proposal number 17446 dated August 14, 2009 to suspend liquor licence number 203683 (the "licence"), issued to 1646886 Ontario Inc. (the "Licensee"), operating as ISLAND MIX RESTAURANT & LOUNGE, 1050 Brock Road, Units 14 and 15, Pickering, Ontario, L1W 3X4, (the "establishment" or the "premises"), on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (the "LLA") and sections 29 and 52 and subsection 45(1) of Ontario Regulation 719/90 (the "O.Reg."), made pursuant to the LLA, was held on December 14, 2009 in the City of Toronto.
Decision
2The Board FINDS the Licensee contravened sections 29 and 52 of the O.Reg. and DISMISSES the allegation of violations of subsections 45(1) and 45(2) of the LLA and subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
3The Board ORDERED the exclusion of witness on consent of the parties.
Registrar's Evidence
4Chris Tassone is an inspector with the Alcohol and Gaming Commission of Ontario ("AGCO") and has been so employed for the past two years.
5Inspector Tassone is familiar with Island Mix Restaurant and attended there in an official capacity January 3, 2009 in company of fellow Inspector Helen Giorgoudakis. They arrived at 3:02 a.m.
6Upon arrival in the parking lot of the licensed premises, the Inspector noticed that the lights in the restaurant were on and an illuminated sign saying "open" was in the window, there were also several vehicles in the parking lot. The witness approached the front door and found it to be locked. He and Inspector Giorgoudakis then went down the west side of the premises where they found an open door, propped open by a broom. They entered and found themselves in the kitchen area. Several women were there and appeared to be staff. The Inspectors identified themselves and asked to speak to a person in charge. The women did not acknowledge that any of them was in charge. At that point one of the women broke away from the group and was walking rapidly to the restaurant area. Inspector Tassone followed and when the female entered the restaurant she began waving her arms to the patrons in a fashion indicating to stop what they were doing. No one took notice.
7In the bar area, Inspector Tassone noted several patrons, some seated and some standing at the bar. He counted 15 Heineken beer bottles on the bar, some with liquid in them. In addition, he observed some of the patrons consuming from these bottles of beer. He also noticed two Heineken beer bottles with liquid in them at the far end of the bar by the pool table. He noted patrons playing pool.
8Inspector Tassone described the service bar as emanating out from the kitchen area and extending about 15 feet into the restaurant.
9The employee he had followed into the bar identified herself originally with a driver's licence as Reyann Devon Bobb-Robinson. She initially could not find her "smart card", but was able to present it later. She subsequently identified herself as the manager.
10Her response, when asked by the witness if she was aware of the time requirement to clear signs of service was, "Her staff were not serving, so it was alright." Ms Bobb-Robinson was asked where the liquor licence was. She stated it had fallen down. She went to the kitchen area and retrieved the licence from behind the bar. The licence was in a glass-less frame that had no hanger on the back.
11Ms Bobb-Robinson was advised of the infractions noted. As well she was advised that she had failed to facilitate an inspection and further, her actions in attempting to warn patrons was deemed an obstruction to the inspection. She was further advised of the public safety concern of having the front door locked when patrons were inside.
12Ms Bobb-Robinson advised that the owner, Kevin Yusef, had left the premises at approximately 11:15 p.m., and that she would advise him of the inspection and the results of the inspection.
13The witness advised Mr. Yusef of the inspection and results within two weeks of the inspection.
14In cross-examination, Inspector Tassone said it was possible that there were two other doors in the licensed premises, each equipped with push bar handles for quick exit.
15When asked if in fact the liquor licence was sitting on the shelf with the liquor bottles, the witness responded that it was not in clear view.
16Inspector Tassone stated he was sure that at least eight patrons were drinking from bottles of Heineken beer.
17In cross-examination, the witness stated that he may have advised Mr. Yusef on a previous visit that the location of the liquor licence was too high.
18Helen Giorgoudakis has been employed as an AGCO Inspector for approximately one year.
19Inspector Giorgoudakis is familiar with Island Mix Restaurant and attended there in an official capacity on January 3, 2009 with Inspector Tassone. The witness is able to corroborate the evidence of Inspector Tassone with regards to their arrival time and the conditions encountered upon arrival.
20Inspector Giorgoudakis stated they asked the females in the kitchen who was in charge and they all shrugged.
21She corroborated Inspector Tassone's evidence regarding the initial reaction of Ms Bobb-Robinson.
22Inspector Giorgoudakis stated there were at least 20 patrons in the establishment. She corroborated the evidence of Inspector Tassone regarding the bottles of Heineken beer on the bar and the fact that some patrons were consuming from these bottles.
23Inspector Giorgoudakis had to direct Ms. Bobb-Robinson to have staff start clearing the signs of service because patrons were still consuming while the Inspectors were there.
24They left the premises at 3:16 a.m.
25In cross-examination, the witness stated that she confirmed the times she used by checking her Blackberry device.
26She confirmed in cross-examination that patrons were consuming from the bottles of Heineken beer and that she didn't know what the liquid was but presumed it to be beer.
27Inspector Giorgoudakis was adamant that she saw the Heineken beer bottles by the pool table and did not collaborate on this point with her partner.
28Bob Soffie is a member of the Durham Regional Police Service and has served for 20 years.
29Constable Soffie, who was an acting Sergeant ("A/Sgt."), is familiar with Island Mix Restaurant and attended there in an official capacity with other officers on January 4, 2009 at approximately 2:40 a.m.
30At approximately 2:30 a.m., the witness, was dispatched to a trouble call at the licensed premises. There was a report of a disturbance in the parking lot and combatants were armed with baseball bats and steel bars. Upon arrival, police did not encounter a disturbance or armed subjects.
31A/Sgt. Soffie approached the front door of the licensed premises and found it to be locked. He checked the side doors and they were locked as well. He could hear loud music inside. He returned to the front door and banged on the door. Two minutes later the door was opened by Glenford Edwards, the doorman. A/Sgt. Soffie pointed out his concerns about the locked door to Mr. Edwards. He asked Mr. Edwards to get the person in charge. Mr. Edwards went to the kitchen area and returned a short time later with a male person, Kemel Yusef, who claimed to be the owner.
32A/Sgt. Soffie asked Mr. Yusef to step outside. He noted that Mr. Yusef's eyes were red, his speech was slurred and he had an odour of some alcoholic beverage on his breath. Mr. Yusef stated he had a couple of beers. The witness felt Mr. Yusef was intoxicated.
33A/Sgt. Soffie explained the reason for the police presence. Mr. Yusef stated he had no knowledge of any weapons. The witness cautioned Mr. Yuesef about the danger of locking the front door. Mr. Yusef stated that was their practice after 2:00 a.m. and patrons exited via one of the two side doors.
34A/Sgt. Soffie advised Mr. Yusef that he was concerned about the person being in charge in an intoxicated condition. Mr. Yusef stated he wasn't in charge and had a manager, Ms Bobb-Robinson. Mr. Edwards went and got Ms Bobb-Robinson and she came out to meet with the witness. She was advised by the witness about his concerns regarding the locked front door.
35A/Sgt. Soffie stated that Mr. Yusef was not cooperative with him. He had to raise his voice to Mr. Yusef and tell him to "Shut up and listen."
36Mr. Yusef did not respond to the witness when he alleged Mr. Yusef was intoxicated.
37Mr. Yusef had re-entered the restaurant and the witness followed him in. The witness wished to make observations. The witness stated he noticed at least 10 patrons in his view who he described as being intoxicated. Indicia of intoxication were yelling, unsteady on their feet; some were close enough that he could detect slurred speech.
38A/Sgt. Soffie stated there was between 100 and 120 patrons in the licensed premises and the music was on and loud.
39He could not identify what staff were doing at the time and only knew of the three staff he had met.
40In cross-examination, A/Sgt. Soffie denied that the original call was bogus, stating that persons had seen the combatants leave prior to the police arriving. He stated there was no disorderly behaviour inside the premises.
41A/Sgt. Soffie denied that he was in an aggravated mood prior to gaining access to the premises.
42A/Sgt. Soffie admitted he had no prior knowledge of Mr. Yusef.
43A/Sgt. Soffie denied using abusive language when speaking to Mr. Yusef.
44A/Sgt. Soffie agreed that Mr. Yusef was properly responsive to the Constable's queries.
45A/Sgt. Soffie denied being insulting to Mr. Yusef in front of his employees.
46He stated he had come up with the 10 person intoxicated number by doing a head count. They were busy that night and he was unable to carry on a more detailed investigation.
47In re-direct, A/Sgt. Soffie stated that Mr. Yusef did not raise his voice or use abusive language.
48In response to questions from the Board, A/Sgt. Soffie stated that he did not advise staff of the 10 alleged patrons, nor did he make notes in relation to the 10 alleged intoxicated patrons.
Licensee's Evidence
49Amil Kevin Yusef is one of the three owners of Island Mix Restaurant, along with Sunil Hariesh Harricharan and Aslim Kemel Yusef.
50The premises in question are located in a strip plaza. There are at least 20 units and general parking all around.
51The witness' main occupation is operating the restaurant.
52The restaurant has been open since 2005 and has been subject to many inspections by the AGCO. He has not been charged and his experiences with the AGCO have been generally positive.
53Mr. Yusef stated that his brother, Kemel Yusef, does not have a drinking problem and was traumatized by his encounter with A/Sgt. Soffie on the night in question.
54Mr. Yusef described the restaurant culture as being a Caribbean restaurant that has copied styles from restaurants such as Milestones. The emphasis is on the service of food as opposed to the party theme.
55Party nights are generally Saturdays after 10:00 p.m. On those nights, they employ five to six qualified security personnel. Thursday nights they will have three security and Friday nights they have an additional two door staff.
56The premises are 3,700 square feet and has a licensed occupancy of 180 patrons. They have two pool tables.
57The restaurant employs 15 full time staff for a total staff of as many as 30 to 35 persons.
58Regarding the front door, it has been their practice to lock the front door at 2:00 a.m. to deter anyone from entering. Patrons leaving do so via the side entrances and once they leave they cannot re-enter. Since the incident with the AGCO, they keep the front door unlocked and post a door person there.
59The problem with the "open" sign being illuminated was that it was broken and they were unable to shut it off.
60On the night of January 2/3, 2009, he was working and had come on duty at 7:00 p.m. and left the premises at 2:15 a.m.
61He stated he responded to the AGCO concerns in writing.
62On the night in question, when he left, alcohol was no longer being dispensed.
63He received a report on the January 3, 2009 incident from Ms Bobb-Robinson Saturday morning.
64The witness stated that the liquor licence was formerly located above the kitchen door. At the request of Mr. Tassone, he had taken the licence down. On the night in question, it was located on the shelf behind the bar where the liquor bottles are. You have to go into the kitchen to get behind the bar and that is why Ms Bobb-Robinson had gone into the kitchen on her way to retrieve the licence.
65In cross-examination, Ms Taylor recounted times that the licensed premises had received warnings. The witness stated on some of these, he didn't recall the incidents and on others he never took these as formal warnings. The witness adamantly denied ever having been charged with any offences pertaining to the licensed establishment.
66The witness stated that on the night in question, he advised Ms Bobb-Robinson at 11:00 or 11:20 p.m. that he was going to be leaving early. He left at 2:00 a.m. but didn't say anything to Ms Bobb-Robinson.
67The witness admitted to having no personal knowledge of the events of the following night involving his brother. The witness stated that his brother would have been made aware of the situation with the locked front door from the previous evening.
68In re-direct, the witness stated he had never received a warning letter from the AGCO.
69Kemel Yusef, is part owner of the licensed premises. His full-time employment is with the Bank of Nova Scotia where he is a fraud analyst. He works at the licensed premises intermittently and generally he is responsible for event coordination at the restaurant.
70The witness arrived at the restaurant at 7:00 p.m. on January 3, 2009 and left to do some deliveries and returned at 9:00 p.m. and remained at the restaurant until closing. He stated that it was a quiet night, nothing eventful. Ms Bobb-Robinson was the on-duty manager.
71The bar closed at 2:00 a.m. and his brother-in-law and a friend came to get him and they bought him a beer.
72At 2:20 a.m., he was summoned to speak to the police. The officer was not pleased and was upset about the front door being locked. He explained to the officer why the door was locked, and the officer swore at him saying, "I should've broken the fucking door down." The witness stated that the officer was very abusive in his language toward him, demeaning him in front of his staff, Mr. Edwards. He accused him of being drunk. The witness stated he felt like a child and has never been verbally abused in that fashion.
73The witness stated that the officer did not appreciate him asking why they (the police) were there.
74The witness went back into the establishment to get his coat as it was cold outside. He returned outside and the police were gone.
75When the witness spoke with the police officer, Mr. Edwards, his security person, was there as well.
76In cross-examination, the witness stated he did not make a formal complaint about the officer's conduct.
77He stated that Ms Bobb-Robinson was summoned outside to speak to the officer. At that point he went in to get his jacket from the kitchen area. When he returned, he saw Ms Bobb-Robinson coming back in but he did not see the police officer enter the licensed premises.
78In cross-examination, the "will-state" of the witness was entered as Exhibit #2. The statement made no reference to the police officer swearing at the witness.
79The witness denied being drunk as alleged by the police officer.
80Glenford Edwards is a licensed security officer with Triumph Security. He has worked for this company for two years. He has 10 years experience in the security business.
81On the night in question, he had come on duty at 9:30 p.m. He was head security and was posted at the front door. He locked the front door at 2:00 a.m. He opened the door at 2:20 a.m. in response to a knock from the police. He noted four or five police vehicles and several police officers mingling about. A/Sgt. Soffie was at the door. A/Sgt. Soffie was upset that the door was locked and wanted to see the person in charge.
82The witness went back in and encountered Mr. Yusef and Ms Bobb-Robinson. Mr. Yusef went out to see the officer. The witness described the officer as being very abusive to Mr. Yusef asking about the state he was in as a manager.
83The witness, as directed, went back and brought Ms Bobb-Robinson, the manager, outside. When he arrived with her back to where Mr. Yusef and the officer were, he heard the officer swearing at Mr. Yusef. Mr. Yusef was denying he was drunk. Mr. Yusef was only wearing a t-shirt and was shivering from the cold.
84The witness stated that in his opinion, Mr. Yusef was not intoxicated nor was he showing any signs of intoxication.
85The witness, when asked to express exactly what the officer said to Mr. Yusef, he recalled the officer saying, "If you are the owner, how can you act like a fuckin' idiot?" The witness attempted to intervene and was told "I'm a fuckin' cop, you will speak when I say."
86The witness stated he has never faced a situation such as this with the police. Generally they are cooperative.
87In cross-examination, the witness was sure the officer only knocked once on the door. The witness was positioned between the outside door and the door leading into the club.
88The witness was sure the officer arrived at 2:20 a.m. not 2:40 a.m.
89The witness stated he had spoken to both Ms Bobb-Robinson and Mr. Yusef when asked to go get the person in charge.
90Originally the officer and Mr. Yusef were speaking between the two doors but the officer asked him to step outside so they could avoid the noise. It was outside where the discussion took place about Mr. Yusef having consumed liquor. Mr. Yusef stated to the officer he had one beer.
91The witness was examined regarding his "will-state" (Exhibit #3). There was no indication in the statement from the witness that Mr. Yusef wasn't drunk.
92In re-examination, the witness stated there was never a question in his mind that night that Mr. Yusef was not drunk.
93Devon Reyann Bobb-Robinson, in regard to the incident of January 3, 2009, stated she was in the kitchen when the Inspectors arrived. They asked for the owner and she took them to the restaurant and it was at this point that she realized that Mr. Yusef had left. She then told them she was the manager. She stated in the restaurant there were two people playing pool, one security person and four or five patrons, none of whom were drinking. She got staff members to assist and she started to clear bottles some of which had a little liquid still in them.
94The witness denied obstructing anyone.
95On January 4, 2009, she recalled being summoned to speak to the police officer. She stated she spoke to him between the doors. She described the police officer as appearing very angry. He told her about why they were there and explained about the problems with the locked door. She explained why they had locked the door.
96In cross-examination, the witness was asked about her "will-state" (Exhibit #4). There was nothing in the statement that indicated the police officer was irate.
97The witness stated she did not hear the police officer tell Mr. Yusef he had too much to drink.
98With regards to the incident of January 3, 2009 she knew Kevin Yusef had left and she was the person in charge. She knew this when the Inspectors arrived.
99The witness stated she had been disciplined over the incident of January 3, 2009.
Registrar's Submissions
100In her written submissions, Ms Taylor submitted the following:
It is the Registrar's position that the allegations, as set out in the Notice of Proposal, have been proven on a balance of probabilities.
January 3, 2009
On January 3, 2009, liquor inspectors Chris Tassone and Helen Gioroudakis visited the establishment at 3:02 a.m. The lights were on and there were numerous cars in the parking lot. The "open" sign in the front window was on, but the front door was locked.
The inspectors proceeded around the side of the establishment and found a second door, which led into the kitchen, propped open with a broom. When they entered, they identified themselves as liquor inspectors to the approximately five or six women in the kitchen and asked to speak to the owner or manager. At this point, no one responded, including Ms Bobb-Robinson who later admitted to being in charge of the establishment that night. Instead, Ms Bobb-Robinson rushed out of the kitchen and tried to signal to the patrons who were continuing to drink in the establishment that they should get rid of their liquor. By taking these actions, Ms Bobb-Robinson failed to facilitate the inspection and attempted to obstruct the inspection, thereby breaching subsections 45(1) and section 45(2) of the LLA.
The defence position that Ms Bobb-Robinson was only attempting to determine whether the owner, Kevin Yusef, was still present should be rejected. In cross-examination, Ms Bobb-Robinson admitted that when the inspectors arrived she was already aware that Mr. Yusef had left at least an hour, if not an hour and a half earlier. Mr. Yusef's claim that he left without advising Ms. Bobb-Robinson of the time when he left, and without advising her that she was now the person in charge of the establishment for the balance of the evening, is at best indicative of very irresponsible management practices by the Licensee (if not a breach of section 45.2 of the O.Reg.), and at worst is simply not credible.
When the inspectors entered the licensed area of the premises, they found that patrons were still drinking from bottles of Heineken beer. There were approximately 20 patrons still in the bar, at least 15 Heineken beer bottles with beer in them in the licensed area, and approximately eight patrons were still consuming from those bottles. This was a clear breach of section 29 of the O.Reg., as it was now well past 2:45 a.m., the time at which all of those bottles of beer – signs of the service and consumption of liquor – should have been cleared.
The inspectors then looked for the liquor licence. It was not posted in a conspicuous place. When Inspector Tassone asked Ms Bobb-Robinson where the licence was, she said it had fallen down and as a result it was currently in the kitchen. Ms Bobb-Robinson then proceeded to retrieve the licence from the kitchen. When she produced it from the back of the kitchen, the licence did not have any glass in the frame and there was no hanger for the licence on the back of the frame. This was a breach of section 52 of the O.Reg. which requires that the licence be posted in a conspicuous location in the premises to which the licence applies.
At the hearing, Ms Bobb-Robinson claimed that she retrieved the liquor licence from behind the bar area where it was displayed. This is not credible, as Inspector Tassone did not see Ms Bobb-Robinson emerge from the kitchen area to the bar area in order to allegedly retrieve the licence. Furthermore, if the licence was located where Ms Bobb-Robinson claimed it was, then one would expect her have drawn its location to Inspector Tassone's attention when she did go behind the bar to retrieve it – i.e. "see the licence is right here" but she did not do so. She also did not advise Inspector Tassone that she thought he was mistaken when he advised her of the infraction of failing to post the licence. Therefore, it is the Registrar's position that this statement by Ms Bobb-Robinson is similarly not credible.
After reviewing the liquor licence retrieved from the kitchen, the inspectors expressed their concerns about the front door being locked while patrons were inside, advised Ms Bobb-Robinson of the infractions that they had observed and left the premises.
January 4, 2009
At approximately 2:38 a.m. on January 4, 2009, A/Sgt. Soffie of the Durham Regional Police Service, who was in the acting position of patrol sergeant that night, received a call that people armed with baseball bats and steel bars were at the Island Mix. He was only a short distance from the establishment and arrived there at 2:40 a.m. where he found several people in the parking lot. These people told him that the armed people had left before he arrived.
A/Sgt. Soffie proceeded to the front door to investigate further. The front door was locked, despite the events of the previous evening. The lights in the establishment were still flashing and he could hear loud music from his position outside the establishment. A/Sgt. Soffie went to the side door but there was no handle on the door and the door was locked. He returned to the front door and banged for approximately two minutes until the doorman, Glenford Edwards, finally opened the door. Mr. Edwards had no explanation for why the door was locked with patrons still inside the premises. A/Sgt. Soffie asked to see the person in charge. Mr. Edwards left A/Sgt. Soffie at the front door and went to the back kitchen area, returning a couple of minutes later with Kemel Yusef (brother of Kevin Yusef) one of the owners of the establishment.
Mr. Kemel Yusef was the owner present in the establishment on January 4, 2009. He was there to oversee the staff members and he was aware of the problems from the previous evening. He was supervising Ms Bobb-Robinson who was again managing the establishment, as had been the case the night before.
When Mr. Kemel Yusef stepped outside to speak with A/Sgt. Soffie, as it was still too loud inside the establishment, Mr. Yusef had slurred speech, his eyes were bloodshot and his breath had the odour of alcohol. At first, Mr. Yusef refused to listen to A/Sgt. Soffie, arguing that there was no one with a weapon present, so that A/Sgt. Soffie had to raise his voice over Mr. Yusef to tell him to shut up and listen, at which point Mr. Yusef did quiet down and start to listen. A/Sgt. Soffie asked Mr. Kemel Yusef how much he had to drink that night, to which Mr. Yusef replied, a couple of beers, although it was clear to A/Sgt. Soffie that he had consumed considerably more then that. A/Sgt. Soffie expressed his concerns that Mr. Yusef was intoxicated and particularly that he was intoxicated while running his own licensed establishment. This is a breach of subsection 45(1) of the O.Reg.
A/Sgt. Soffie also advised Mr. Yusef that having the front doors locked with a deadbolt while patrons are inside is not safe. If there was a problem inside, neither police nor other emergency personnel would be able to get in to assist.
In response to A/Sgt. Soffie's concerns about Mr. Yusef's intoxication while in charge of the establishment, Mr. Yusef told A/Sgt. Soffie that he had a manager who was in charge and that he was not in charge. He did not dispute being intoxicated. A/Sgt. Soffie then asked, again, to speak to the person in charge, and Glenford Edwards went to get Ms Bobb-Robinson. A/Sgt. Soffie expressed his concerns again to Ms Bobb-Robinson, in Mr. Yusef's presence. A/Sgt. Soffie returned inside the premises, where he saw that many people were still drinking, glasses and beer bottles in hand. A/Sgt. Soffie saw approximately 10 intoxicated patrons inside the establishment. Some of them were yelling with slurred speech and several were unsteady on their feet with bloodshot eyes. The presence of these patrons, under circumstances when the Licensee ought to have known they were drunk, were further breaches of subsection 45(1) of the O.Reg.
A/Sgt. Soffie moved around the establishment and saw that the party was still going on. No one was leaving; no one was trying to clear the signs of service and consumption. A/Sgt. Soffie would have liked to have remained to continue his liquor inspection, but he was short-staffed that night and could not stay to make further observations, with other calls already waiting for police service. A/Sgt. Soffie advised Mr. Yusef that he would be submitting a report to the local liquor inspector and then left the establishment.
Mr. Kevin Yusef's evidence respecting what took place on both nights should be completely disregarded. He admitted that he was not present at the establishment for either inspection and therefore had no idea what took place when the liquor inspectors visited or what happened between his brother and A/Sgt. Soffie that night. It is the Registrar's position that the fact that Mr. Kevin Yusef is willing to make categorical statements under oath about what took place at the establishment when A/Sgt. Soffie attended, when he has no personal knowledge of the events, should be taken into account in evaluating the credibility and reliability of his other assertions during the course of this hearing.
A/Sgt. Soffie's evidence was clear and measured. He testified that he was not angry and he did not use foul language with Mr. Yusef. He did express concerns about Mr. Yusef being drunk in his own bar, but that was based on his observations of Mr. Yusef's condition.
Mr. Kemel Yusef's account of what took place was, in part, a complaint against A/Sgt. Soffie and his alleged conduct that night and in part, a complaint that he was accused of being intoxicated in his establishment in front of his staff. However, Mr. Yusef did not bring any complaint against A/Sgt. Soffie to the attention of the Durham Regional Police Service and, even more telling, none of these allegations respecting A/Sgt. Soffie appeared in Mr. Yusef's summary of evidence. The fact that Mr. Yusef was accused of being drunk in his bar in front of his staff, when he had slurred speech, bloodshot eyes and a strong odour of alcohol on his breath, was a result of his own conduct, and not something that should be blamed on A/Sgt. Soffie.
Ms Bobb-Robinson's evidence respecting the January 4, 2009 incident is also problematic. There is nothing in her witness statement respecting the January 4, 2009 inspection about A/Sgt. Soffie's alleged anger towards either Mr. Kemel Yusef or herself. It should be noted that Ms Bobb-Robinson was apparently put in charge of the establishment by the Licensee again on January 4, 2009, despite the Licensee's full awareness of the problems that took place the night before.
Mr. Edwards works regularly at the establishment. This is his part-time employment, through Triumph Security. Mr. Edwards admitted that Mr. Kemel Yusef was slurring his words while speaking with A/Sgt. Soffie, but attributes it to Mr. Yusef being cold, not intoxicated. This attribution is not credible- there is a clear difference between chattering through cold and slurring through intoxication. Mr. Edwards claims to have stepped in when A/Sgt. Soffie was allegedly abusive towards Mr. Yusef, however no other witnesses recalled this taking place. Mr. Edwards claimed that A/Sgt. Soffie's alleged berating of Mr. Yusef had nothing to do with the establishment, however that contradicts not only A/Sgt. Soffie's evidence but that of Mr. Yusef and Ms Bobb-Robinson, both who testified that A/Sgt. Soffie was expressing his concerns about Mr. Yusef operating the establishment while intoxicated and the safety of having the front door locked with a dead bolt. Mr. Edwards claimed that Mr. Yusef was not present to oversee the operation of the establishment that night, but this is contradicted by his own conduct in fetching Mr. Yusef when asked for the person in charge, and by Ms Bobb-Robinson, who confirmed that Mr. Yusef was present to oversee the operation that night and oversee her conduct.
Therefore, given the many contradictions between Mr. Edwards' evidence and that of the other witnesses, it is the Registrar's position that A/Sgt. Soffie's evidence should be preferred. Furthermore, given the problems with Mr. Kemel Yusef's evidence and Ms Bobb-Robinson's evidence, as addressed above, it is the Registrar's position that where there is any conflict between their evidence and the evidence of A/Sgt. Soffie, Inspector Tassone or Inspector Giorgoudakis, the evidence of Cst. Soffie and the inspectors should be preferred.
Summary
Therefore, it is the Registrar's position that the infractions alleged in the Notice of Proposal have been proven on a balance of probabilities, and the Registrar is seeking findings that the Licensee breached section 29 of the O.Reg. by failing to clear the sings of service and consumption of liquor on January 3, 2009, breached subsections 45(1) and 45(2) of the LLA by failing to facilitate and obstructing an inspection on January 3, 2009 and breached subsection 45(1) of the O.Reg. by permitting the drunkenness of not only the patrons in the establishment, but also one of the owners overseeing the operation that night.
Licensee's Submissions
101In his written submissions, Mr. Barrs submitted the following:
It is the Licence holder's position that the only allegations proven is a technical failure to clear on January 3rd, 2009.
January 3, 2009:
On January 3, 2009, at approximately 3:02 a.m., Island Mix was closed for business. The cash was being counted and accounts reconciled in the kitchen by Ms Bobb-Robinson and two staff.
The front door was locked as no patrons are allowed in after 2:00 a.m. as there is no service. In this area of the city the decision had been made that security and safety requires that the door be locked. Patrons were let out the side doors. Ms. Bobb-Robinson was surprised by the inspectors who snuck in the back door. Ms. Bobb-Robinson was asked, who was in charge and she went out to see if Mr. Kevin Yusef was there. She was followed into the bar where two "cousins" were playing pool, and four or five friends were standing around talking with some staff. Some signs of service had not been cleared and Ms Bobb-Robinson told the staff to clean up. This was a technical violation and worthy of a warning.
The Board was not presented with any bottles, glasses, or cups that were supposedly in plain view. The evidence of the inspectors was exaggerated. This establishment is a long time licensee (with large food sales) and clean history, yet much is made of the fact that the licence had fallen. The licence was produced – still in a frame but as usual, this was not enough.
To add insult to injury, we have an allegation of obstructing an inspection. The inspectors were not obstructed in any way and Ms Bobb-Robinson, a long time Manager simply did not know that her employer had left or that the "open sign" was defective. The reasons the inspectors do not know how many were "consuming" is because as Ms. Bobb-Robinson indicated, no one was consuming.
January 4, 2009:
P.C. Soffie's evidence is uncorroborated, grossly exaggerated and self-serving. What he was doing there is based on nonsensical hearsay. There was no problem in Island Mix or outside. He may have responded to a crank call.
At 2:40 a.m., again the front doors were locked for security reasons with a doorman only several feet away. The few patrons remaining are let out the side door.
His "2 minutes" of banging on the front door was probably more like 10 seconds.
Glen Edwards, who does not work for Island Mix, and doesn't care where his security company puts him, was met with a hostile, negative, and aggressive attitude right off the bat. It makes sense that the officer would ask for the person in charge. To Mr. Edwards that meant one of the owners. Mr. Kemel Yusef and Mr. Edwards came out, into the cold where a very credible Mr. Edwards indicated that there were no issues, in or out, that night (as he was handling the door). A/Sgt. Soffie started to verbally abuse Mr. Yusef. One of the choice expletives were – "What kind of fucking idiot are you?" The officer also made it clear that he was "in charge" and stated, "I will tell you when to speak".
As Mr. Yusef indicated, the officer took the fact that he had one beer as an excuse to power trip on him and accuse him of being drunk. The fact that Ms Bobb-Robinson was managing is irrelevant as Mr. Yusef was not drunk, but also not subservient to the officer who was aggressive, abusive and talked to him like he was a child. Basically, there was no problem that night until A/Sgt. Soffie arrived. A/Sgt. Soffie's attitude and demeanour before the Board makes the evidence of Mr. Yusef credible which is corroborated by two witnesses, one who is not an employee of the establishment but of an outside company. Nor is Ms Bobb-Robinson still managing a problem, as the criticism of her the previous night is only justified by the technical failure. She thought it was a few minutes earlier than it was.
Mr. Kevin Yusef's evidence should not be disregarded. Like his brother and other partners he is an educated, responsible, licence holder that has created a unique restaurant that caters more to food than alcohol. It was his duty to investigate both incidents and he told us what his investigation revealed. Contrast his investigation with A/Sgt. Soffie's, who had a lot of allegations, but was too busy to continue his so-called investigations and has no corroborative evidence and seized nothing.
Proof on a balance of probabilities still requires proof. As the Supreme Court of Canada indicated years ago in R. v. Graat, because someone is a police officer, or a liquor inspector, does not as of right elevate their evidence above that of any other witnesses.
All the licence holder's witnesses have clean records in all respects, and were not shaken in cross-examination, although they were insulted and the blanket submissions of the Registrar's Counsel is that they are all liars and "my witnesses are all perfect little angels".
Although, no doubt, both Yusef's would have liked to make a complaint about the officer, one can well understands the dangers of doing so.
Finally, it is not about preferring witnesses. It is about proof when the Registrar's evidence in this case is strongly contradicted by credible witnesses.
Summary:
A technical breach of Section 29 on January 3, 2009, is conceded. The rest of the allegations are not proven to any reasonable standard.
Registrar's Reply Submissions
102In her written reply submissions, Ms Taylor submitted the following:
The Licensee's submissions on the evidence are largely unsupported by the evidence before the Board, and while replete with pejorative adjectives, they are short on facts that might warrant such inflammatory and derogatory language.
As the Board is well aware, liquor inspectors do not collect up the bottles, glasses or cups that they find when a licensee has failed to clear the signs of service by 2:45 a.m. If they did, or if the Board requires liquor inspectors to start doing so, the Registrar would then need a lot of very large storage rooms in which to place all of this evidence. There is no allegation of service of liquor after hours, and therefore, no need for anyone to take samples of anything.
There is no evidence, and nothing before the Board that would support the allegations that A/Sgt. Soffie's evidence was in any way "grossly exaggerated and self-serving". A/Sgt. Soffie has no interest in the outcome of this hearing, one way or the other, while all of the Licensee's witnesses have employment that is tied to the continual operation of the establishment. Furthermore, there is no need for A/Sgt. Soffie's evidence to be corroborated, as set out by the Divisional Court in the decision of Birchmount Restaurant v. Ontario (Liquor Licence Board), a copy of which is enclosed with these submissions.
Furthermore, given the evidence that A/Sgt. Soffie was the acting road sergeant that night, meaning that he was in charge of the officers on the road, and that he was short-handed that night, it would make absolutely no sense for him to use Mr. Yusef's drunkenness "as an excuse to power trip" when he testified that he already had a lot of other work waiting for him. A/Sgt. Soffie did not have the time to complete his inspection of the premises that night, let alone any time to make something out of nothing. It does make sense that A/Sgt. Soffie would take time to deal with Mr. Yusef's drunkenness when he is presented as the person in charge of the establishment that night, particularly in light of the call to the police about armed persons in the parking lot. A/Sgt. Soffie's account of what took place is far more credible and far less self-serving than Mr. Yusef's, Ms Bobb-Robinson's or Mr. Edwards', particularly given the discrepancies between their witness statements and their testimony.
Reasons and Analysis
103The Board has carefully reviewed the evidence and the submissions of counsel.
104The allegations are that on January 3, 2009, the licence holder failed to clear the signs of service and consumption in the licensed premises within 45 minutes of the time liquor may be sold under the licence. On this occasion, AGCO Inspector Chris Tassone attended at the licensed premises in company of Helen Giorgoudakis, a fellow inspector. They attended at the licensed premises at 3:02 a.m. The Inspectors had noted upon their arrival that the parking lot had several vehicles in it, the premises was lit up and there was a lit sign in the window which indicated "open". The Inspectors entered the kitchen area through an open side door, as the front door was locked. There were several women in the kitchen presumed to be staff. The Inspectors identified themselves and asked for the person in charge. No one came forward. At about this time a person later identified as Ms Bobb-Robinson broke away from the group and proceeded to the restaurant area and waved her arms to the patrons, indicating to cease what they were doing. She was ignored. The Inspectors followed her into the restaurant and noted at least 20 patrons, many of whom had bottles of Heineken beer in front of them and some were drinking liquid from glasses. There were several bottles of Heineken beer on the bar and on tables and near the pool table, where patrons were playing pool.
105Mr. Barrs, in submissions, stated that the evidence of the Inspectors was exaggerated, although he conceded to a technical contravention of section 29 of the O.Reg. In the view of the Board, the evidence was not exaggerated and the contravention was not "technical" in nature. The Inspectors gave clear and balanced evidence, sometimes in the face of intense cross-examination.
106Section 29 of the O.Reg. is clear. The licence holder shall [emphasis added] ensure that evidence of liquor served and consumed on the premises is removed within 45 minutes after the end of the period during which liquor may be sold and served under the licence. In this case, the time provided under the licence to sell alcohol was 2:00 a.m. It is clear from the evidence that the Licensee had not complied with section 29 of the O.Reg. There were copious signs of uncleared liquor and further, the Board is satisfied that this liquor was being consumed by patrons still in the licensed premise.
107Therefore, the Board FINDS that the Licensee breached section 29 of the O.Reg.
108Further, during the same inspection of January 3, 2009, it is alleged that the actions of Ms Bobb-Robinson, in failing to identify herself as the person in charge and by attempting to warn the patrons to cease what they were doing, constituted failure to facilitate an inspection under subsection 45(2) of the LLA and further, her actions obstructed a person carrying out an inspection under the LLA, contrary to subsection 45(1) of the LLA. Ms Taylor, in her submissions, stated that by rushing from the kitchen and into the licensed premises in an attempt to warn patrons to stop drinking, Ms Bobb-Robinson was obstructing and failing to facilitate an inspection.
109Subsection 45(1) of the LLA states that "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." Outside of this one small incident of waving her arms, an act that was virtually ignored, Ms Bobb-Robinson was more than cooperative with the inspectors. Information was given to them and she complied with their directions. Her initial actions, though perhaps not well thought out, in the view of the Board, does not constitute obstruction, as these actions in no way impeded, slowed down or otherwise hindered the inspection.
110Therefore the Board DISMISSES the allegation of obstruction under subsection 45(1) under the LLA.
111Further, the Board does not support the allegation that the actions of Ms Bobb-Robinson were such that they constituted failing to facilitate an inspection. She co-operated with the Inspectors, and she did not attempt to keep them away from the licensed premises. She answered their questions, provided a copy of the licence and generally did as she was required. She didn't argue or attempt to cause problems with patrons still in the licensed premises.
112For the above reasons, the Board DISMISSES the allegation of failing to facilitate an inspection under subsection 45(2) of the LLA.
113It is further alleged that on the night in question, the liquor licence was not posted in a conspicuous place, contrary to section 52 of the O.Reg. It is clear from the evidence, a fact not contested, that the licence was not posted as required under the regulation. The precise location of the licence on the night in question is unsure. Inspector Tassone stated that Ms Bobb-Robinson retrieved the licence from the kitchen and when she brought it to him it had no hanger. Ms Bobb-Robinson stated that the licence had fallen down and was amongst the bottles on the bar. It was never made clear as to when the licence came down off the wall. What is clear was that the liquor licence was not posted as required.
114The Board, therefore, FINDS the Licensee violated section 52 of the O.Reg. by not having the liquor licence posted in a conspicuous place.
115The Board will now turn its attention to the events of January 4, 2009 and the allegation of a breach of subsection 45(1) of the O.Reg. This event primarily involved A/Sgt. Soffi of the Durham Regional Police and Mr. Kemel Yusef, a part owner of the licensed establishment. A/Sgt. Soffie described Mr. Yusef as being intoxicated. Indicia of the intoxication were slurred speech, bloodshot eyes and an odour of alcohol on his breath. It was noted that this conversation between Kemel Yusef and A/Sgt. Soffie was taking place outside in cold weather and Mr. Yusef was under-dressed for the weather. Mr. Yusef stated to the police officer that he had consumed a beer which would account for the odour of alcohol on his breath.
116A/Sgt. Soffie stated that he raised his voice to Mr. Yusef telling him to "Shut up and listen". He denied using stronger language.
117In cross-examination, A/Sgt. Soffie admitted that Mr. Yusef was responsive to his inquiries.
118In their evidence, Kemel Yusef and his brother, Kevin Yusef, both gave clear and convincing evidence that Kemel Yusef does not have a drinking problem. Mr. Kemel Yusef himself denied being intoxicated that night but was clearly intimidated by A/Sgt. Soffie.
119Glen Edwards, in his evidence, stated that Kemel Yusef was not intoxicated. He further stated that A/Sgt. Soffie was agitated, confrontational, aggressive and used foul language while speaking to Mr. Yusef.
120A/Sgt. Soffie described the interior of the licensed premises and the patrons therein. He randomly described 10 intoxicated persons, but he made no written notes as to the specifics of his observations, but simply recalled generalities. There is no concrete evidence to support the allegations of A/Sgt. Soffie that he observed 10 intoxicated persons in the licensed premises.
121The Board has concerns with the evidence of that night as presented by A/Sgt. Soffie. He stated in his evidence that it was a busy night, too busy to concentrate on what he reported in his evidence as a licensed premises virtually out of control, with at least 10 intoxicated persons obvious upon entry; yet he spent two minutes pounding on the front door. Mr. Edwards stated he was just inside the door. In the view of the Board, two minutes is a long time considering conditions at the time, and the clatter two minutes pounding would have made. There were other methods the officer could have used to gain entry if such were the case that he felt it expedient to enter. Further, the Board is satisfied that Kemel Yusef was intimidated by A/Sgt. Soffie who was apparently agitated that night and in no mood to put up with what he perceived as problems from the Licensee. A/Sgt. Soffie's way of communicating to Kevin Yusef, by telling him in a loud voice to "Shut up and listen", is, in the view of the Board, intimidating and not the most professional approach that could have been taken by the police. In the view of the Board, Kemel Yusef did not want to see the situation deteriorate any further and hence he involved Ms Bobb-Robinson.
122The Board is satisfied that the cold that night may well have contributed to the alleged slurred speech of Mr. Kemel Yusef. The other two alleged indicia of intoxication (bloodshot eyes and odour of alcohol on his breath) are not, in and of themselves, sufficient evidence of intoxication.
123As such, the Board finds that there is inadequate evidence, on a balance of probabilities, to conclude that Kemel Yusef was intoxicated. Further, the Board does not accept the vague and unsupported evidence of 10 intoxicated persons inside the licensed premise as alleged by A/Sgt. Soffie.
124Therefore, the Board DISMISSES the allegation of subsection 45(1) of the O.Reg. that the licence holder permitted drunkenness.
Conclusion
125For the above reasons, the Board FINDS the Licensee contravened sections 29 and 52 of the O.Reg. and DISMISSES the allegation of violations of subsections 45(1) and 45(2) of the LLA and subsection 45(1) of the O.Reg.
126The Board invites written submissions on penalty from the respective parties. The Registrar's representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee's representative shall have seven (7) days to serve and file a written response. The Registrar's representative may serve and file a reply within three (3) days of the receipt of the Licensee's response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission, at the address on the front page of this decision in accordance with the Board's Rules of Practice.
DATED AT TORONTO THIS 26th DAY OF March , 2010
JACQUELINE CASTEL, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER