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-
1772883 Ontario Inc. operating as Home Nightclub
Licensee
DECISION
Panel: Eleanor Meslin, Board Member Alex McCauley, Board Member
Decision Date: January 6, 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 1772883 Ontario Inc., Licensee ) Randall Barrs, Representative
Authorities
1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553
Allegations
- A hearing into Notice of Proposal number 17307 dated June 22, 2009 to suspend liquor licence number 802451 issued to 1772883 Ontario Inc. operating as HOME NIGHTCLUB, 117 Peter Street, Main Floor, Toronto, Ontario, M5V 2G9, on the basis of an alleged violation of subsection 45(2) of Ontario Revised Regulation (the “O.Reg”) 719/90 made pursuant to the Liquor Licence Act (the “LLA”), was held on November 6, 2009 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board DISMISSES the Registrar’s allegation of a violation of subsection 45(2) of the O.Reg. Reasons follow.
Registrar’s Evidence
Brian O’Halloran is a Staff Sergeant (“S/Sgt.”) with the Ontario Provincial Police (“O.P.P.”). He is currently seconded to the Alcohol and Gaming Commission of Ontario (“AGCO”) overseeing the O.P.P. officers and AGCO inspectors throughout the GTA. The witness has been a police officer for 21 years.
S/Sgt. O’Halloran is familiar with the Home Nightclub and attended there in an official capacity early Sunday morning February 1, 2009. S/Sgt. O’Halloran arrived at the licensed premises at 2:05 a.m. He was accompanied by Sgt. Sonya Siebert of the O.P.P., and AGCO Inspectors Lyn Sandiland and Adam Strongman.
The group entered the licensed establishment through the main entrance facing Richmond Street. Upon entering, it was noted that male and female security were on duty and he observed patrons being “patted down” by security. In addition, he stated there was a large metal screening device that patrons walked through, similar to devices in use at airports, to screen for metal objects.
S/Sgt. O’Halloran and the other officers identified themselves to security at the door and entered the premises. Upon entering, he and Sgt. Siebert walked through the premises and then they took up observations at the southeast corner of one of the long service bars which is situated along the south side, close to the washroom area. S/Sgt. O’Halloran stated there were at least two bartenders on duty at that particular bar.
After five or six minutes, the witness noted a male person with two females, one on each side, about half way down the bar. This male was rolling what appeared to be a marijuana cigarette. S/Sgt. O’Halloran stated he was about ten to 12 feet from this patron.
He stated that the cigarette was a marijuana cigarette because in his opinion it was longer than a normal cigarette and, in addition, he hasn’t seen anyone roll a tobacco cigarette in five years.
S/Sgt. O’Halloran stated from their vantage point they were looking down the bar watching the patron. S/Sgt. O’Halloran stated that there was a security person standing a couple of feet from the patron watching the crowd. The patron at this time was leaning back against the bar calmly rolling the cigarette, not concerned about being observed.
S/Sgt. O’Halloran observed a second security person walking west to east in front of the service bar. The witness stated that this security person observed the patron rolling the cigarette. In fact, he stopped and looked directly at the patron then continued walking.
The patron at this point brought the cigarette to his lips and licked the paper.
At this point S/Sgt. O’Halloran and Sgt. Siebert approached this male person and identified themselves as police officers. S/Sgt. O’Halloran stated he asked the patron what the cigarette was and he replied “marijuana.” The patron was taken to a quiet part of the bar where he was patted down. The patron stated he had no more contraband of any type. The patron was identified as S.H., date of birth is January 6, 1985. A CPIC check was conducted and it was ascertained that charges against this person for possession of marijuana were currently pending before the courts.
The patron was taken outside where he, upon instructions from the witness, destroyed the cigarette. He was not charged but simply cautioned and released. S/Sgt. O’Halloran stated he used his discretion in not charging the subject. His reasoning in not proceeding with charges against the patron was that there were more pressing matters to deal with that night.
In cross-examination, S/Sgt. O’Halloran admitted that the exhibit was destroyed and was never retained or analyzed.
S/Sgt. O’Halloran stated he did not get the names of the security officials he had observed in the area because he did not feel it was necessary at the time.
The witness admitted that persons may have obstructed the view of the first security guard to the patron rolling the cigarette.
In cross-examination, S/Sgt. O’Halloran was challenged as to the inconsistency of his notes as it related to his recollection of events from the night in question at the hearing. Nowhere in S/Sgt. O’Halloran’s notes did it mention that the patron brought the cigarette to his lips and licked the paper. In addition, in regard to the second security person, there is no reference in the witness’ notes that the security person stopped and looked at the patron, simply that he walked by. S/Sgt. O’Halloran countered that at the hearing he was recalling these details from memory.
S/Sgt. O’Halloran stated that when he and Sgt. Siebert approached the patron and identified themselves the patron stated words to the effect “You got me”, but made no reference to marijuana.
S/Sgt. O’Halloran stated his notes were written up on Monday morning, February, 2, 2009.
S/Sgt. O’Halloran stated that S.H. was not credible.
S/Sgt. O’Halloran reiterated that they let the patron go without charge because they had more important matters to deal with.
In redirect, S/Sgt. O’Halloran stated that the patron did not say it was tobacco or object to destroying the cigarette.
Lyn Sandiland has been an AGCO Liquor Inspector for 16 years. She is familiar with Home Nightclub and attended there February 1, 2009 with the previous witness, Sgt. Siebert and AGCO Inspector Strongman. Upon entering the licensed premises via the front entrance, the witness detected an odour of marijuana smoke inside the front foyer. She did a walk through and stationed herself by the D.J. booth located close to the northeast exit that leads out to the smoking area. Here she detected an odour of marijuana as well.
Inspector Sandiland was about 25 feet from S/Sgt. O’Halloran and did observe him speaking to a male patron. She stated that S/Sgt. O’Halloran and Sgt. Siebert brought the patron to her area because it was quieter. She later learned that S/Sgt. O’Halloran had observed the patron rolling and smoking a marijuana cigarette.
She exited the establishment. She described the area as very busy. She saw Mr. Luzar, the principal of the licensee, outside. She advised him, then, of S/Sgt. O’Halloran’s observations inside the licensed premises.
In cross examination, the witness stated she detected the odour of marijuana in the foyer area upon entering.
In reply, the witness stated that the Licensee was outside when S/Sgt. O’Halloran was dealing with the patron and at that time she advised the Licensee as to what the officers had uncovered in the establishment.
In answer to questions from the Board, Inspector Sandiland stated she could see no other evidence of marijuana in the licensed premises, just an odour in the two locations she testified to.
Sonja Siebert is an O.P.P. Sergeant (“Sgt.”) and is currently seconded to the AGCO in charge of police officers and liquor inspectors in Team #1.
Sgt. Siebert has been a police officer for 20 years and seconded to the AGCO for five years.
Sgt. Siebert stated she is familiar with the licensed premises and arrived there in an official capacity on February 1, 2009 at 2:05 a.m. in the company of the previous two witnesses and Inspector Strongman.
Sgt. Siebert, after a walk through, took up a position at the end of the long bar with S/Sgt. O’Halloran. She saw a male leaning on the bar and another male who was beside him roll a joint and lick the paper. She stated she was 10 feet away from the patron rolling the cigarette. She believed it was a joint the patron was rolling because today very few people roll cigarettes. She stated the patron was holding the cigarette out in front of him and was making no attempt to conceal it. She, along with S/Sgt. O’Halloran, approached this patron and S/Sgt. O’Halloran spoke to the patron. The witness did not hear this conversation.
She, along with S/Sgt. O’Halloran, escorted the patron outside. S/Sgt. O’Halloran dealt with the patron, she did not.
Sgt. Siebert did not notice what staff were doing inside the licensed premises at the time of the incident.
In cross-examination, Sgt. Siebert stated she wrote up her notes before she went off duty that night.
In cross-examination, she stated that as the supervisor she had signed off on the liquor report that night as submitted by Inspector Sandiland. She did not write a report.
Sgt. Siebert stated that the patron was facing the service bar when rolling the cigarette, not with his back to it as described by S/Sgt. O’Halloran.
Sgt. Siebert stated that all members of the team entered the licensed premises together and at the same time.
Licensee’s Evidence
Michael Luzar is the principal of Home Nightclub. He was on duty February 1, 2009 when the liquor inspectors and the police came to his club. The night and time in question was not very busy, about four to five hundred patrons. They have a capacity limit of 1,040 patrons.
At 2:05 a.m., they were in the process of closing up.
Mr. Luzar employs paid duty officers of the Toronto Police Service. There are usually four officers who maintain vigilance outside the premises. They are on duty from 10:30 p.m. until 2:30 a.m. and serve primarily as a deterrent to trouble at his premises.
Mr. Luzar stated that their physical searches of patrons are very aggressive. They search the crotch area and do bra searches of female patrons.
They do not allow patrons to bring in any contraband which includes cigars or cigarette papers.
They have signage regarding a prohibition against smoking, drugs or weapons.
They have a loose dress code.
If patrons bring in prescription drugs or narcotics legitimately in their possession, the club will secure these items until the patron leaves.
Mr. Luzar stated it is not uncommon to detect the odour of marijuana in the areas described by Inspector Sandiland. He stated the odour wafts on the wind at the front of his premises and the rear smoking area is surrounded from above by other smoking areas from other licensed premises.
Mr. Luzar states he employs 15 to 20 security personnel.
Mr. Luzar described the bar where the police officers made their observations as being 50 feet long. He stated the officers would have been looking west. Close to the area where the officers were standing and out in front of them is a pillar with a large speaker on it. He stated he has a security person in that area at all times to protect the open area of the bar. That area is often congested and between the pillar and the speaker, one’s view of patrons along the bar can be obstructed.
Mr. Luzar stated that when he spoke to his security personnel at the end of the night, one mentioned he saw a patron rolling something. Mr. Luzar stated they had no idea what was being rolled and would only be able to ascertain that once the cigarette was lit.
Mr. Luzar stated he has detected marijuana smoke in his establishment but often locating the source is very difficult because invariably the patron attempts to conceal the fact they are smoking illegally.
On the night in question he does not recall seeing any marijuana smoked in his establishment nor smelling the odour of marijuana.
Mr. Luzar has 20 years of experience in the liquor business. He has a no tolerance policy on drug use.
Mr. Luzar is extensively involved in his community at large.
In cross examination, Mr. Luzar stated he does not want patrons rolling cigarettes in the establishment. If they are seen, they are asked not to smoke in the premises.
Mr. Luzar did not agree that if someone is rolling a cigarette in the establishment, it is probably marijuana.
Mr. Luzar stated that security, if they observe someone rolling a cigarette, are not required to ask if it’s marijuana. Mr. Luzar went on to say that at 2:05 a.m., their priority is keeping the premises safe.
Mr. Luzar stated that he was advised that someone was rolling a cigarette in the establishment and was taken outside. He wasn’t told it was marijuana and did not find out that is what was alleged until he received the Notice of Proposal.
The pillar in question in the area where the officers stood observing is three to four feet out in front of the bar. Persons could look down the bar unobstructed.
Registrar’s Submissions
Mr. Morris submits that the Licensee breached subsection 45(2) of the O.Reg in that the patron had possession of marijuana in the licensed premise and the Licensee permitted it.
Mr. Morris pointed to the observational evidence of the police officers, regarding the length of the cigarette and that the patron rolled it and licked it, and the evidence of the police that the rolling of cigarettes is not a common practice anymore. Further, the patron admitted it was marijuana. As a result, the patron was investigated and willingly destroyed the cigarette. If it was simply tobacco why would he destroy it?
Mr. Morris submits this is not a criminal trial, this is an administrative tribunal, and hearsay evidence is accepted. In this case, the material being rolled was clearly marijuana.
In regard to the issue of permit, there are several points that illustrate that management ought to have known marijuana use was going on. The first is that the club should be on notice that it has to deal with marijuana issues. It is a 1000 patron club; there has been evidence of marijuana use in the past, as mentioned by the Licensee. Inspector Sandiland stated she detected an odour of marijuana, not outside the club but inside. This goes to the issue of “knew or ought to have known.”
The patron was comfortable rolling this cigarette out in the open. He submits, we have the smell of marijuana and openness about it.
The issue is what staff members saw and what they did about it. It is admitted that the police evidence diverged as to which way the patron was standing at the bar.
The second security person looks down at what the patron is rolling and walks on. S/Sgt. O’Halloran’s notes were not fully detailed on that point, but they were only being used to refresh his memory.
The issue of S/Sgt. O’Halloran’s credibility being an issue has no foundation. He has no ownership of the case therefore no reason to not be truthful. The timing as to when he made his notes is of no consequence.
Mr. Morris submits that the Licensee’s evidence was not given in a forthright manner. His answers around permitting or not permitting patrons to roll cigarettes made no sense.
Mr. Morris questioned why the security person was not here today to speak of what he observed.
Further, the Licensee let on he was not aware of what was happening the morning of February 1, 2009. Inspector Sandiland testified she told him what had occurred and what the police had found.
Putting it all together, it is clear security knew what was happening and took no action. There is no basis to conclude that the substance was anything but marijuana.
Licensee’s Submissions
Mr. Barrs, on behalf of the Licensee, submitted that the Registrar has not proven on a balance of probabilities the substance in question was marijuana.
Mr. Barrs submitted that there is a clear duty on the part of the Registrar to prove the substance referred to on the night in question was indeed marijuana. He submitted that in a civil court, the standard of proof is based on the balance of probabilities. Mr. Barrs submitted that there was no evidence tendered as to the experience of the police witnesses in regards to the identification of marijuana. The substance being rolled by the patron was never described by the police in their evidence. S/Sgt. O’Halloran believes it was marijuana based on his belief that no one rolls tobacco cigarettes any more. A fact refuted by the Licensee.
The patron allegedly said it was marijuana, clearly hearsay, and although it is acceptable to admit hearsay evidence, it must be credible and reliable. The patron was not deemed to be reliable.
He submitted that Mr. Morris was critical of the Licensee for not calling the security persons to give evidence, yet the Registrar did not call the patron. The patron is far more important to establish the truth of the statement alleged.
The police should have retained the evidence and not allowed it to be destroyed, especially in light of the knowledge that this proceeding may take place. In all of this, the Registrar has fallen short in establishing that the substance being rolled by the patron on the night in question was marijuana.
Mr. Barrs submitted that the Licensee does not permit the patrons to smoke marijuana. The Licensee has taken great steps to deter the importation of banned substances into the licensed premises. The Licensee does not condone rolling of cigarettes in the establishment and if persons are discovered doing that, they are deterred and sent outside.
The evidence of the two senior police officers was conflicting as to the location of the patron in the premises and to what they observed. They failed the credibility test and their evidence should not be relied upon.
The first security officer who was stationary, according to S/Sgt. O’Halloran, may not have observed the patron rolling the cigarette. As for the second security person walking by, we cannot be sure what he saw.
All the police officers and the inspectors entered the premises at the same time and at the same point, yet only Inspector Sandiland stated she detected the odour of marijuana, but did not see any smoke inside. The marijuana smells could have come from the patios above the club. There was no investigation by the police of whether it was marijuana in the cigarette.
There should be no finding against the Licensee by the Board.
Registrar’s Reply Submissions
In reply, Mr. Morris pointed out that the statement by the patron is no different than if the Board received evidence that the patron said he consumed six beers. It is a credibility issue. It defies logic that the patron would say the cigarette was marijuana if it was not.
If security fails in its duty, the corporation is responsible for the action of its employees. It is irrelevant if the Licensee was personally aware. The Licensee’s evidence was confusing about what security does if they see someone rolling a cigarette. No one should be allowed to do so.
Decision
The Board has carefully reviewed the evidence. The first matter the Board will deal with Mr. Barr’s submission that the Registrar has not established, on a balance of probabilities, that the material in the possession of the patron was indeed marijuana. Mr. Barrs submitted that the only clear evidence as to what the substance was comes from hearsay evidence from the patron, who allegedly said to the police it was marijuana. Mr. Barrs further submitted that the patron, according to the evidence of S/Sgt. O’Halloran, is not reliable.
Mr. Barrs goes on to say that the police never made any effort to describe the substance or to identify its differences from that of tobacco, nor do they keep the cigarette for evidence or have the substance analyzed. Mr. Barrs submitted that there is no evidence from the police that they have any knowledge of marijuana or have the ability to identify marijuana. Mr. Barrs stated that to accept only the hearsay evidence of the patron as to what the substance was, under the circumstances, is very dangerous. Mr. Barrs submitted that, at the least, the alleged marijuana cigarette should have been preserved as evidence. Ideally the material should have been analyzed and the patron called to give evidence. Mr. Morris countered that it defies logic that the patron would state the substance was marijuana if it was not. He further pointed out that this evidence is no different than when hearsay evidence is received in the circumstances where evidence is led from Inspectors or police in relation to utterances from patrons who are involved in liquor licence infractions and admit to Inspectors that they have consumed “X” amount of beer or other alcoholic beverages.
Mr. Barrs was critical of S/Sgt. O’Halloran’s evidence where his recollection of events is far more complete than his notes, notes which were made a day after the events in question. Mr. Barrs was also critical of and concerned about the inconsistencies between the police officers evidence as to their recollection of events. Mr. Barrs stated that the evidence of the police officers should be disregarded as not being credible.
First, dealing with the matter of the hearsay evidence. The Board is aware that it is acceptable to receive hearsay evidence, but when it does, it must always be mindful of the weight given to such evidence. The Board must be especially cautious when such statements are allowed to stand on their own as proof of their truth. In this case, the Board had heard no corroborating evidence that the substance being rolled inside the licensed premise on the night in question by the patron S.H. was marijuana. The assertion that no one rolls tobacco cigarettes today by S/Sgt. O’Halloran in support of his position that the substance being rolled by S.H. was marijuana is based solely on his opinion. This opinion falls far short of identifying the substance in question as marijuana. The Board heard unrefuted evidence from the Licensee that he has personal knowledge of a person who still smokes “roll your own” cigarettes. It is common knowledge that these types of tobacco products are still available for sale to those who want them.
There is no corroboration as to what the patron actually said when apprehended by the police in the premises. Sgt. Siebert stated she did not hear any of the discussion between S/Sgt. O’Halloran and the patron, S.H., even though she was standing in close proximity to them. In fact, Sgt. Siebert cannot even give evidence as to the material destroyed outside the premises because she did not see that action.
The Board is concerned about the discrepancies in the evidence between the two police officers as to what they did or did not see inside the licensed premises on the night in question. The officers cannot agree on which way the patron was standing at the bar, facing the server or facing away from the bar. This evidence is be critical when the key component of the Registrar’s evidence is based on observations and as to who saw what and weakens the assertion of S/Sgt. O’Halloran that the second security person stopped and watched the patron roll the cigarette. That, in the view of the Board, would have been nearly impossible if the patron was turned away from this security person. The two police officers were standing together and should have observed the same thing. In addition, Sgt. Siebert, when asked, had no observations of staff as to what they were doing at the time the police observed the patron rolling the cigarette, yet S/Sgt. O’Halloran’s observations were very detailed on that point. In addition, Sgt. Siebert signed a report from Inspector Sandiland in which Inspector Sandiland had indicated that the patron was “rolling and smoking (our emphasis) a marijuana cigarette”. There was never any evidence that this patron was smoking a marijuana cigarette, a fact Sgt. Siebert was aware of, yet she signed the report in any event.
As a result, it begs the question as to what weight to give the notes of S/Sgt. O’Halloran, and the evidence of the police officers in general? S/Sgt. O’Halloran’s notes were not made contemporaneously to the events of the night in question, they were made more than a full day later. There was a clear recollection of critical events at the hearing such as the security person stopping and looking at the patron rolling the cigarette, which were not reflected in the officer’s notes and one would think they should have been. S/Sgt. O’Halloran further, in his evidence-in-chief, stated it was a busy night. If that were the case, it might be possible to confuse events. Sgt. Siebert, for her part, has a half page of notes for the entire incident and her memory of certain events contradicts that of S/Sgt. O’Halloran. This credibility issue makes the accepting of hearsay evidence, as the only proof of what the substance in question was, even more dubious.
There is also a different assertion as to what the patron stated when apprehended by the officers. In direct-examination, S/Sgt. O’Halloran stated that the patron said the material was marijuana, yet in cross-examination he thought the patron said words to the effect “you got me”. Under the circumstances, we are left to guess what the meaning of that phrase was. Did the patron have other contraband that he was concerned about? One doesn’t know. The pat down search by the police did not reveal any other contraband but the speed at which matters were conducted that night leaves one suspicious as to how thorough the search of the patron was conducted..
The Board questions why no effort was made to retain the exhibit. S/Sgt. O’Halloran is an experienced police officer who is familiar with the need to preserve and protect evidence. As well, he should be very familiar with the processes of the AGCO. It is a reasonable assumption that S/Sgt. O’Halloran would be aware of the possibility of further action against the Licensee by the AGCO based on this incident, but he took no steps to retain the exhibit, or to fully describe the exhibit, leaving the Board to rely on the hearsay evidence of the patron, a person whom S/Sgt. O’Halloran described in cross-examination as being unreliable.
Mr. Morris had stated that to accept this hearsay evidence is no different than the many times hearsay evidence is accepted in other matters. An example cited was when patrons state to a person in authority how many drinks they have consumed and this evidence is given as hearsay evidence by the liquor inspector. In the Board’s view, there is a marked difference. The evidence in the example cited by Mr. Morris is generally always given in a corroborative fashion with other evidence given independent of the hearsay in support of the Inspectors’ observations. It is seldom offered on its own to prove a matter in question.
S/Sgt. O’Halloran stated he took the action he did with the patron and the exhibit that night because they were very busy, yet there was never any evidence adduced to corroborate how busy they were that night. They were on liquor detail and the bars were closed. They were not responding to trouble calls. That excuse, in the view of the Board, does not support the inaction of S/Sgt. O’Halloran in failing to properly retain and document the evidence. It is the view of the Board, that inaction on the part of S/Sgt. O’Halloran was clearly prejudicial to the Licensee.
The Board gives no weight to the uncorroborated hearsay evidence of the patron, S.H.
Further, the comment by a security person, as recounted by Mr. Luzar, that he observed someone rolling something in the club that night does not offer any insight into the matter before us. It does not help identify the alleged marijuana held by patron, S.H., on the night in question in the licensed premises.
Counsel had referred the Board to the Sin City decision. The Board did not refer to this decision as it was not relevant to the Board’s decision in this matter.
Therefore, the Board FINDS that the Registrar has failed, on a balance of probabilities, to identify the alleged substance being rolled in the licensed premise by the patron, S.H., to be in fact a controlled substance, namely marijuana.
Conclusion
- Therefore, the Board DISMISSES the allegation of a violation under subsection 45(2) of the O.Reg.
DATED AT TORONTO THIS DAY OF , 2010.
ALEX MCCAULEY, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER