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-
Tariq Mahmood Mian operating as Mounties’ Restaurant
Licensee
DECISION
Panel: Brian J. Ford, Board Member Joan Lougheed, Board Member
Decision Date: April 1, 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 ) Phillip Morris, Representative
Tariq Mahood Mian, Licensee ) Paul Dineen and Eric Gerestein, ) Representatives
Allegations
- A hearing into Notice of Proposal number 17119 dated March 19, 2009 to suspend liquor licence number 24687, issued to Tariq Mahmood Mian (the “Licensee”), operating as MOUNTIES’ RESTAURANT, 149 Dundas Street East, Toronto, Ontario, M5B 1E4, (the premises”), on the basis of alleged violations of subsection 45(2) of the Liquor Licence Act (the “LLA”) and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on February 25, 2010 in the City of Toronto.
Decision
- The Board DISMISSES the allegations of violations of subsection 45(2) of the LLA and subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
- The Board ORDERED the exclusion of witness on consent of the parties.
Registrar’s Evidence
Kevin Cote is a Detective Constable (“D/Cst.”) with the Toronto Police Service and has been a member since 2002. D/Cst. Cote and his partner D/Cst. Angela Kahnt attended at Mounties’ Restaurant, on October 3, 2008 at 10:47 p.m.
D/Cst. has attended at Mounties’ approximately 30 to 40 times in the time that he was assigned to the plain clothes section at 51 Division. The primary focus of the plain clothes section was liquor licensed establishments. D/Cst. Cote noted that he is now a member of the Homicide Squad with the Toronto Police Service.
D/Cst. Cote was asked if he recognized the owner of the restaurant, Mr. Tariq Mian, who was sitting beside his counsel, Mr. Dineen. D/Cst. Cote said he did not recognize him as Tariq Mian. The person he knew as Tariq Mian was a person who was out in the lobby of the hearing waiting room.
Mr. Javid Mian was asked to enter the hearing room and D/Cst. Cote identified him as the person whom he believed was Tariq Mian. D/Cst. Cote stated Mr. Javid Mian was known to him as Tariq Mian, having personally identified himself to D/Cst. Mian as such on several occasions.
D/Cst. Cote and his partner, D/Cst. Kahnt, arrived at Mounties’ before 11:00 p.m. D/Cst. Cote explained the entrance is in an alcove that faces north and you have to walk (south) and up two or three steps to get to the alcove. A doorway straight ahead leads up to apartments and you turn to the east for the door to Mounties’. The front window of Mounties’ faces north onto Dundas Street East.
D/Cst. Cote also noted the door leading into Mounties’ is glass with bars on it. The bars on the door are horizontal and vertical. You can see inside the restaurant through the door and he noted people inside drinking pints of beer at the bar. He also noted a female bartender behind the bar.
When D/Cst. Cote tried to get into the restaurant he found that the door was locked. He knocked on the door and held his badge up to the window in door so that the bartender could see he was a police officer.
D/Cst. Cote stated that the bartender looked at him and made a motion with her hand to go away. The bartender, an Asian female, lifted her arm and moved her hand in a dismissive manner. He pointed to the badge and motioned for the bartender to open the door.
D/Cst. Cote stated a male customer came towards the door. He put his badge in his pocket and motioned for the male to open the door. The male customer was described as unkempt and walked unsteadily.
The male customer, on arriving at the door, was told to open the door. The male customer asked to see identification if it was the police. D/Cst. Cote stated that he reluctantly took his badge out again and showed it and then the male opened the door. D/Cst. Cote stated that the male had difficulty opening the door. He described the man’s hands as shaky.
Once inside D/Cst. Cote talked with the male customer. He stated the patron was belligerent and argued with him. D/Cst. Cote stated the bartender told the male patron to “shut up”.
D/Cst. Cote described the male as being in his late 50's to early 60's with facial hair, he was slovenly dressed and had an unsteady gait when he walked. He believed the male was intoxicated.
D/Cst Cote went to the bar to look at the licence and speak with the bartender. He asked the bartender why the door was locked and she stated the door was locked because they were closing soon.
D/Cst. Cote stated there were three customers in the bar at the time they entered. The male who opened the door, another male who sat beside him at the bar and a third male seated at a table at the end of the bar. The male at the table had four full pints of beer (in glasses) in front of him.
When asked about the size of the glasses of beer in front of the patron, D/Cst. Cote stated he believed they were 12 to 16 ounce glasses, not eight ounce glasses.
While D/Cst. Cote was speaking to the bartender, a male who he knew as Tariq Mian (now known to be Javid Mian) came up to him and tried to usher him towards the door. He told him about the man with the four beers and was told that they were not all that patron’s beers. He also said that the male who opened the door was a regular and was harmless.
D/Cst. Cote stated when he told Javid Mian that there would be charges, he became upset and less pleasant to deal with. Up to that point, Mr. Mian had tried to be friendly.
D/Cst. Cote and his partner left the premises at 11:00 p.m.
D/Cst. Cote, when asked about the male patron who opened the door, said his speech was slurred, he walked unsteadily and he had lazy eyes or glassy eyes. When asked if he saw that person outside the hearing room, he stated he did. He said that the male walked with the aid of a cane and what he heard of his speech, it was fine, no slur.
Under cross-examination, D/Cst. Cote stated that the light in the premises was dim. The bartender was at the end of the bar near the door and was only six to eight feet away from the door. He held up his badge to the door window. The door window was clear glass. He and his partner were visible to those in the bar as the alcove is lighted. He also noted that they were in plain clothes.
D/Cst. Cote stated when the patron came towards the door, he put his badge away in anticipation he would open the door. The patron came to the door and swore at him. D/Cst. Cote told the man to open the door. The patron told him to show his badge, if he was the police. D/Cst. Cote showed his badge again.
D/Cst. Cote admitted it was reasonable to be asked to show his badge again and that it might have been difficult to see from six to eight feet away.
D/Cst. Cote stated that the door was not supposed to be locked during business hours. Mr. Dineen asked the officer if he was aware that a number of robberies had occurred in the area around Mounties’ at that time. He replied that he was not aware of the robberies.
D/Cst. was asked if he felt it was reasonable to take precautions if there were a number of robberies in the area, and he replied that it was reasonable, but that he was not familiar with the number of robberies.
D/Cst. Cote had been to Mounties’ on previous occasions and that the door had not been locked. He noted the area in which the establishment is located is a rough area and that the door should not be locked.
In reply, D/Cst. Cote stated that he put his badge away for officer safety reasons, so both his hands would be free.
In response to a question from the Board, D/Cst Cote stated Mr. Javid Mian was introduced to him when he first began in the plain clothes unit, as Tariq Mian. He had met with this person on a number of occasions and has seen him in court answering to this name. D/Cst Cote has served documents on this individual who signed for them as Tariq Mian.
D/Cst. Cote was asked what the entrance way to the establishment looked like. He stated when you approached the building there is a doorway straight ahead leading to apartments upstairs. A person would turn left to face the entrance to Mounties’. There is a space of six feet between the two doorways. The wall between the apartment doorway and the Mounties’ doorway is brick.
Angela Kahnt is a D/Cst. with the Toronto Police Service and has been a police officer since 2001.
D/Cst. Kahnt was asked if she recognized the male person sitting next to Mr. Dineen and she stated she did not. She was then asked if she knew a Tariq Mian and she stated she did. The person that she knew as Tariq Mian was in the lobby of the hearing room. The person that D/Cst. Kahnt identified is known to be Javid Mian. The person sitting beside Mr. Dineen is Tariq Mian.
D/Cst/ Kahnt stated she and D/Cst. Cote attended Mounties’ at 10:47 p.m. and they were both in plain clothes.
D/Ct. Kahnt said they walked up to the front door of Mounties’. She noted that the door to Mounties’ was in an alcove and that you had to turn to the left to get to the door leading into Mounties’. The door that was directly ahead led to apartments above Mounties’.
D/Cst. Kahnt stated that the front of the establishment has large tinted glass with bars behind. You could still see into the premises and the people inside could see out. The distance between the door leading to the apartments and the door to Mounties’ was approximately three to four feet. In the space between was a window that looked into Mounties’. The window was next to the bar. She stated that the door to the bar is glass and she did not remember if it had bars.
D/Cst. Kahnt stated that D/Cst. Cote was in front of her, he tried to open the door and found it was locked. D/Cst. Cote then removed his badge and held it up to the glass door and knocked on the door.
D/Cst. Kahnt stated that a female behind the bar waved her hand in a manner that looked like “go away”. D/Cst. Cote knocked on the door once? more, indicated he wanted to gain entrance and was holding his badge up to the door.
D/Cst. Kahnt stated a male person seated at the bar approximately six to eight feet from the door, got up and came to the door. She stated that D/Cst. Cote yelled at the patron to come open the door. The male refused to open the door until he saw police identification. The badge was shown and the male opened the door.
D/Cst. Kahnt stated D/Cst. Cote and the male patron exchanged words. The male who opened the door had been drinking at the bar.
D/Cst. Kahnt stated it took approximately one minute from the time they knocked on the door to the time the door was opened.
D/Cst. Kahnt stated the female bartender was Asian and made no attempt to open the door. Once inside D/Cst. Cote proceeded to the bar to speak with the bartender and she stood by the door. The male who opened the door was intoxicated. She noted his speech was slurred, eyes were glassy and bloodshot, his breath smelled of alcohol and he was aggressive, belligerent and verbally abusive.
D/Cst. Kahnt stated that normally when we go in, we both walk around however there were only four or five patrons so she just stood by the door and watched. She also noted during this time that the male person who opened the door was belligerent and swearing at her. She said at one point another male patron at the bar told him to be quiet and sit down.
D/Cst. Kahnt also told the male that he would go to jail if he persisted and did not sit down. The bartender also told the male to be quiet and sit down.
D/Cst. Kahnt noticed a male person sitting at a table at the far end of the bar and noted that he had four glasses of beer in front of him. She described the glasses as not big, but ones you could pour a full beer into. She tried to speak to this person but he would not speak to her. She also noted that he did not appear to be intoxicated.
D/Cst. Kahnt spoke to the bartender pointing out that the bar was closing in 12 to 13 minutes and it was unacceptable for someone to have four beers in front of them and that would lead to immoderate consumption. The bartender apologised and removed two of the beer from the table.
At this point a male known to her as Tariq Mian (Javid Mian) came from downstairs, greeted her and shook her hand. At that time she pointed out the intoxicated person. Mr. Mian apologized for the patron's behaviour and not letting them in, stating the patron was a regular and harmless.
D/Cst. Kahnt saw the male patron in question in the lobby of the hearing room. He wished her a good morning and was pleasant. She noted that he had no slurred speech and was sober.
Under cross-examination, D/Cst. Kahnt stated D/Cst. Cote showed his badge for approximately one minute. It took approximately three to four minutes from the time the badge was shown to the bartender until the door was opened by the male patron. The male was fidgeting with the door and appeared to be having difficulty opening it.
D/Cst. Kahnt reiterated the bartender made a “go away” motion with her hand when they were knocking at the door. She then stated "that is how I interpreted it."
Licensee’s Evidence
Mr. W.T.W. was a patron of Mounties’ on October 3, 2008. He arrived at Mounties’ at approximately 10:00 p.m. and when he entered he was asked to lock the door for safety reasons as there had been a string of robberies in the area.
Mr. W. said that on the night in question he only had one beer. He also said he had been going to the bar since he had a stroke in January 2008. The stroke had left his speech slurred and he had difficulty walking. Mr. W. came into the hearing room using a cane.
Mr. W. stated he cannot drink as much as before, maybe two draughts. He goes to Mounties’ once every three days. When there, he orders a draught, which is 8 ounces.
When Mr. W. was asked if he remembered the night of October 3, 2008, he stated he remembered it clearly. He went to the door and told the male at the door to show his identification. He stated that the officer screamed at him and was belligerent with him, commenting on his walk. When he went to the door he did not use his cane.
Mr. W. was not intoxicated and that he had nothing to drink prior to going to the bar. It took him approximately one minute to open the door.
Under cross-examination, Mr. W. stated when the officer produced his identification (badge) he opened the door.
When asked how he remembered the night, he stated it was on a Sunday and that October 3rd was a Sunday. He was going on his memory and he did not take notes at the time.
When asked about the size of the draught glasses, he stated they are 8 ounces. He also said, when asked about his speech, that it was the same as it was on the night in question.
Mr. W. did not speak to the officer disrespectfully until they talked about his disability. He reiterated that he was not belligerent and did not swear at the police officers.
Mr. W. stated that there were two male officers that night and that he did not deal with a female officer that night.
When asked why the bartender did not open the door, Mr. W. stated she was busy. He was asked by the bartender to go to the door. Prior to that he was not paying attention to the door and did not see a badge until he asked for it.
I.R. was to be a witness for the licensee, however he could not speak English very well and would not have been able to comprehend the questions put to him. In the absence of an interpreter, both counsels agreed that he could not testify.
Javid Mian is the manager of Mounties’ and brother of the owner, Tariq Mian. Mr. Mian has been the manager of Mounties’ since 1984. He was at the establishment on October 3, 2008. He is there almost every night, and his brother works in the daytime.
Mr. Mian stated he has never introduced himself as Tariq Mian. He shows his identification which is in the name of Javid Mian. He did not recall meeting either D/Cst. Cole or D/Cst. Kahnt before October 3, 2008.
Mr. Mian stated there have been different groups of officers who have come to his establishment since 2004.
Mr. Mian stated it is the establishment’s policy to make last call at 10:00 p.m. On the date in question he had taken precautions and had the door locked because of a rash of robberies in the area.
Mr. Mian stated that they never give so much beer to clients that they cannot finish. The glasses they use for draught beer are 8 ounce glasses. They also serve beer in 32 ounce pitchers.
Mr. Mian stated on October 3, 2008, he, Mr. W., Mr. I. and a cleaner were in the establishment when the officers came in. Mr. Mian stated Mr. I. was a regular customer and has been for a number of years. He comes in most evenings and has a couple of 8 ounce draughts.
Mr. Mian stated in reference to the door being locked, that it was not the normal practice to lock the door but due to the rash of robberies in the area it was locked as a precaution. Mr. Mian produced a newspaper article (Exhibit #1) from October 14, 2008 that reported robberies in the area. The article noted that the robberies had begun earlier in the month.
Mr. Mian was there when Mr. W. came to the bar and he only had one draught of beer while on the premises. He talked to Mr. W. and said he was not intoxicated. He knows Mr. W. well, noting he comes into the establishment every second or third day
Under cross-examination, Mr. Mian stated he had not dealt with the two officers before that night. He stated they may have addressed me as Tariq assuming that was my name but I am not him.
It was pointed out to Mr. Mian that there was nothing in the will-say about Mr. W. being intoxicated. He stated Mr. W. was not an issue to me. He was not intoxicated.
When questioned about the newspaper article, he stated it refers to robberies at the Hasty Market near his establishment. When it was pointed out that the article was dated October 14/08, he responded that it also talked about robberies earlier in the month.
Mr. Mian stated it was the policy of the establishment to make last call at 10:00 p.m. and that before the robberies, the door was always open. It was locked on October 3, 2008 as a precaution.
Mr. Mian was asked why a staff member did not open the door. He stated the patron was closest and that he was on his way to open the door. Before he got to the door the patron was at the door.
Mr. Mian stated the male officer used unprofessional language towards Mr. W. The officer said open the “f-----” door.
Registrar's counsel recalled D/Cst. Angela Kahnt.
D/Cst. Kahnt was asked where she was sitting in the area outside the hearing room if she could see Mr. W. walking and she stated she did.
D/Cst. Kahnt was asked to compare Mr. W.'s walk with that of October 3, 2008. She stated that it was not as unsteady as on October 3, 2008. He was swaying more on October 3, 2008. She also noted that his speech was somewhat slurred but not as much as on October 3, 2008.
Registrar's Submissions
Mr. Morris stated with regard to permit drunkenness, subsection 45(1) of the O. Reg, the evidence is clear that the patron looked and acted drunk. He pointed out that his walk, which was described as stumbling and swaying, his slurred speech, glassy eyes and dishevelled look, and belligerence toward the officers were all signs of drunkenness. Mr. Morris noted that he had difficulty opening the door for the officers as well.
Mr. Morris noted Mr. W. was not in the same condition on the day of the hearing as he was on October 3, 2008 according to both officers who saw him on both occasions. The officers stated that his speech was barely slurred today and his walk was better.
It is Mr. Morris's submission that Mr. W. was not just disabled but was drunk that night. He also noted there is no corroborating evidence to the claim that Mr. W. had only one beer. He noted Mr. Mian did not see Mr. W. arrive and cannot credibly give evidence to the fact that he only had one beer.
As evidence of over-service, Mr. Morris pointed out that there was a patron who had four beer in front of him within 12 minutes of closing time. The four beer using 8 ounce glasses would amount to 32 ounces of beer 10 to 12 minutes before closing
Mr. Morris submitted that there was ample evidence to make a finding of breach of subsection 45(1) of the O. Reg.
With respect to subsection 45(2) of the LLA, Mr. Morris stated D/Cst. Cote clearly showed his identification and the establishment is well aware of police inspections. He pointed out the police, and in particular D/Cst. Cote, have been there on a number of occasions. He noted the badge put up to clear glass window is bright and obvious.
Mr. Morris stated it was clear that the bartender could see the badge as she asked one of the patrons to open the door. The patron that was asked to open the door was drunk and was abusive toward the police and thought that they were two male officers.
Mr. Morris noted that it took three to four minutes to have the door opened.
Mr. Morris submitted that there is clear evidence to make a finding of breach of subsection 45(2) of the LLA.
Licensee’s Submission
Mr. Dineen stated with respect to subsection 45(2) of the LLA, there is a huge discrepancy between the testimony of the two police officers. D/Cst. Cote gave evidence that it took one minute and D/Cst. Kahnt gave evidence of three to four minutes to open the door.
Mr. Dineen stated the bartender appeared to be waving D/Cst. Cote away as they were closed not realizing he was a police officer.
Mr. Dineen noted that the patron and Mr. Mian were walking towards the door and the patron arrived first. As soon as D/Cst. Cote showed his badge the door was opened. Mr. Dineen stated that the evidence is conflicting. He also noted that the door was opened within one minute.
Mr. Dineen contended Mr. W. was not drunk and if he was, why did D/Cst. Kahnt not arrest him for public drunkenness if he was as intoxicated as she testified.
Mr. Dineen noted that the only evidence is that Mr. W. had one beer, an 8 ounce glass. Neither police officer could state what size the glasses were. The bar only serves draught beer in 8 ounce glasses.
Mr. Dineen submitted that there is not enough evidence to say for certain that Mr. W. was drunk and there are many factors in relation to his physical condition which should be considered. He also submitted that there is no evidence of failing to facilitate an inspection as the door was opened in one minute.
Registrar’s Reply Submissions
Mr. Morris stated the fact that someone was not arrested for drunkenness is not an indication they were not drunk. An arrest for drunkenness is only made for the safety of the public and the drunk person.
Whether it was one minute or three minutes, either one is a large amount of time which can be used to conceal drugs or other evidence. The door should have been opened immediately. The evidence suggests the bartender did know who was there.
Decision
The Board has carefully considered the evidence of both the Registrar and the Licensee in the matter of Mounties’ Restaurant.
With respect to the allegation of breach of subsection 45(1) of the O. Reg, the evidence of the Registrar is that Mr. W. was intoxicated and was drinking when the police entered Mounties’ on October 3, 2008. Both D/Cst. Cote and D/Cst. Kahnt testified that Mr. W. was intoxicated.
D/Cst. Kahnt testified that Mr. W. was unsteady on his feet, his eyes were glassy, his speech was slurred, and he had the smell of alcohol on his breath and that he was dishevelled. D/Cst. Cote testified that Mr. W’s speech was slurred and he was unsteady on his feet and his eyes were glassy. Both officers stated that Mr. W. was belligerent with them.
D/Cst. Kahnt testified that the Mr. W she saw at the hearing was not the same as the one she saw on October 3, 2008 at Mounties’. She stated that Mr. W. at the hearing was sober and pleasant and walked better than he had at Mounties’. She was confident that he was intoxicated when she was at Mounties’.
The testimony of Mr. W. was that he only had one beer that night and did not drink prior to going to Mounties’. He also stated that ten months prior to that night he had had a stroke which left him with slurred speech and problems with walking. He needed a cane to assist him in his walking. He also testified that he did not use the cane when he went to the door that night and that he was not drunk. He did have words with the officer but only after they made snide references to his disability.
Mr. Javid Mian, manager for the Licensee, also testified that Mr. W. had only one beer that night and that he was not intoxicated.
The testimony before the Board revealed that D/Cst. Cote was not happy with Mr. W. and had words with him over his asking to produce his badge a second time. He also admitted that it was a reasonable thing to do, which may be in part, responsible for his belligerence towards D/Cst. Cote.
The Board notes that Mr. W.’s speech was slightly slurred, his walking was not steady and he did use a cane for assistance. The Board also noted that the appearance of Mr. W., while he was dressed neatly, it was not hard to see that under other circumstances he could appear dishevelled.
The evidence as to the drunkenness of Mr. W. is strongest from the point of view of D/Cst. Kahnt. However the Board saw a man who clearly had a speech impediment brought on by a stroke. His speech was slurred and he also had difficulty walking even with a cane. The Board also notes that this male person on the night in question went to the door without his cane which would have pronounced his difficulty walking.
The Board is not convinced that Mr. W. was in fact intoxicated on October 3, 2008. There are circumstances related to his disability that were not known on the night in question and this might have led the officers to believe he was intoxicated.
Therefore, the Board does not find that there was a breach of subsection 45(1) of the O. Reg.
With respect to the allegation of breach of subsection 45(2) of the LLA, evidence presented by the Registrar is that D/Cst. Cote and D/Cst. Kahnt went to conduct an inspection at Mounties’ on October 3, 2008 and when they got there the door was locked.
Both officers testified that D/Cst. Cote held up his badge to the glass door and knocked asking for admittance. Both testified that the bartender waved them away. D/Cst. Cote continued knocking and shouting that he was the police and to let him in. A patron came to the door and let the officers in. The patron however demanded to see D/Cst. Cote’s badge before he would open the door.
Once the badge was shown the door was opened. The patron testified that he had been asked by the bartender to go to the door as she was busy. He did and asked to see the officer’s badge.
Evidence at the hearing by the Licensee was that the door was locked as it was close to closing time and that there had been a rash of robberies in the area around that time. The door was locked for safety reasons. D/Cst. Cote, under cross-examination, admitted that this was a safe thing to do.
Other than the locked door there was no other evidence of failing to facilitate. The evidence is that it took approximately one minute for the door to be opened.
The Board heard evidence and Exhibit #1 confirmed that there had indeed been robberies in the area at the time.
Was the door locked to interfere with an inspection or was it locked for reasons of safety? The Board is of the belief that it was locked for reasons of safety as all who were present in the bar were visible to the officers and there is no evidence that any one was trying to cover anything up.
The Board heard testimony from the officers that the bartender waved to them in a fashion that seemed to indicate for them to go away. It was explained that this was because the establishment was closed. There is no evidence that the bartender knew they were police as the officers were in plain clothes. Also the bartender at one point, did ask the patron to go to the door.
Having considered all the evidence the Board is not satisfied that the Licensee failed to facilitate an inspection.
Therefore the Board does not find that there was a breach of subsection 45(2) of the LLA.
Conclusion
- For the above reasons, the Board DISMISSES the allegations of violations of subsection 45(2) of the LLA and subsection 45(1) of the O.Reg.
DATED AT TORONTO THIS 1^st^ DAY OF April , 2010
BRIAN J. FORD, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER