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-
1767861 Ontario Inc. operating as O’Grady’s Tap & Grill
Licensee
DECISION ON FINDINGS
Panel: Brian J. Ford, Board Member Joan Lougheed, Board Member
Decision Date: November 8, 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 ) Rena Khan, Representative 1767861 Ontario Inc., Licensee ) Jerry Levitan, Representative
Allegations
- A hearing into Notice of Proposal number 17910 dated March 2, 2010 to suspend liquor licence number 91994 (the “licence”) issued to 1767861 Ontario Inc. (the “Licensee”) operating as O’GRADY’S TAP & GRILL, 171 College Street, Toronto, Ontario, M5T 1P7 (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” or the “Act” ) and subsections 41(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on June 24, 2010 in the City of Toronto.
Decision
- The Board DISMISSES the allegations of violations of subsections 45(1) and 45(2) of the LLA and subsection 45(1) of the “O.Reg”. The Board accepts the withdrawal of the allegation under subsection 41(1) of the O.Reg. Reasons follow.
Preliminary Matters
- As a preliminary matter and on consent of all parties, the Board ORDERED the exclusion of witnesses.
Registrar’s Evidence
Jade Leadbetter, an Inspector with the Alcohol and Gaming Commission of Ontario (the “AGCO”) since 2004, arrived at the premises on November 14, 2009, at 11:30 p.m. The Inspector attended with Inspectors N. Fernando and A. Higuera for a routine inspection.
Entering the main door, identifications were checked for youthful patrons sitting at tables inside the front door.
Proceeding to the rear of the establishment at the end of the bar, Ms Leadbetter observed a table of six patrons, one female and five males. The patrons appeared youthful in appearance and dress. The witness noted that this bar is close to a university.
The witness stated she and the other inspectors split up the table to request identification of the patrons, first showing their ID’s. She stated that the patrons became very belligerent, aggressive in speech, agitated. She stated they had a “poor attitude in dealing with us and with our request”. The patrons were using verbally abusive language.
She noted that at no point did staff attend the table. Two bartenders were behind the bar and Inspector Fernandez asked one of them to attend with them.
She stated she saw a male at the end of the row of tables. This male made no attempt to approach. He was approached and identified himself as Ariel Myrazi and the witness stated she assumed he was there acting on behalf of the restaurant. When asked, he said he was not in charge, but did work there.
Ms Leadbetter stated that he made no effort to speak to the patrons, to calm them down or take control.
She stated that she observed Inspector Higuera with Mr. Myrazi, motioning him to assist her. She observed Mr. Myrazi take a male patron’s passport, hold it to his chest telling Inspector Higuera that he was not showing it at the request of the patron, but stated the patron was over 19 years of age.
She stated that the male patron grabbed his passport from Mr. Myrazi, slammed it down on the table and was obviously angry that Mr. Myrazi had attempted to show his personal information.
The witness stated that the disorderly behaviour continued, staff did not try to calm down the patrons and they decided to remove themselves from the table and go outside, after requesting that Mr. Myrazi call someone who was in charge, since he was not responsible.
The witness indicated that moments later Mr. Hyka, the Manager, arrived. He was advised of the situation and the concerns. Mr. Hyka was apologetic and stated he would speak to Mr. Myrazi. He was advised that a report would be made before leaving at approximately midnight.
On questioning, the witness stated that Mr. Myrazi did have an accent but there was no difficulty understanding him.
She stated that Mr. Hyka made it seem that Mr. Myrazi was in charge, saying that he should have known.
On cross-examination, the witness confirmed they were at the table five to ten minutes getting identification (ID) and spent the other twenty-five minutes waiting for Mr. Hyka.
In answer to questions, the witness stated they did not raise their voices, were not in uniform, but did have identification around the neck. She indicated that she did not ID herself to Mr. Myrazi and did not know how long Mr. Myrazi was standing at the end of the table. Once asked, she indicated that the bartenders did ask Mr. Myrazi to come. She did not specifically call out to them to call a Manager.
She stated that no one ID’d was underage and only one person was without ID. The patrons acted as though we had no right to ask questions. She stated it was the fault of the establishment if they did not control behaviour in the ten minutes the Inspectors were at the table.
In answer to further questions she stated that she did not know what the bartenders were doing at the time and did not recall how loud it was in the establishment and did not know if there was music.
When asked who approached Mr. Myrazi first, she stated she thought it was Inspector Fernando.
Ms Leadbetter stated that she asked Mr. Myrazi if he was smart served and if he was in charge. Mr. Myrazi told her he was not in charge and Ms Leadbetter stated that in her opinion no one was in charge.
When asked about the passport, the witness stated that Mr. Myrazi got the passport when the Inspector could not. He spoke to the patron, looked at the passport, but indicated that he did not study it for long. At this time the patron was yelling at Mr. Myrazi not to give the Inspector his passport.
When asked if the patrons calmed down when they left, she replied that she did not know. The patrons did not have a problem showing ID to staff, but were unwilling to participate with Inspectors. They were not drunk and she stated she did not know why they did not like them. She felt it was a group mentality.
She indicated that Mr. Hyka did cooperate.
In Reply, the witness stated that she did not recall how long they waited for Mr. Hyka.
In response to questions from the panel, the witness indicated that no one was at the door and confirmed that it was not a requirement to have a door person and not an offence or obstruction if ID is not given.
Neline Fernando, an AGCO Inspector, attended the establishment with Inspectors Higuera and Leadbetter. She noted that the establishment was busy and did not recall any empty tables. She stated that it was relaxed and quiet and did not recall there being any music.
She stated that the business is a sit-down restaurant/pub with a casual atmosphere.
At a table near the rear of the establishment she noted youthful looking patrons, with pitchers of beer and glasses of beer on the table. One male did not have ID, but provided his name, date of birth and address. The Inspector was satisfied with this information.
She noted that a patron speaking with Inspector Leadbetter was becoming irate about the request for ID, stating that the Inspectors were ruining a good time. She stated that the patrons were upset with the presence of the Inspectors, were becoming louder and more vocal as other patrons in the bar were turning to see what the commotion was about.
Another male denied showing Inspector Fernando ID. She did not recall his exact words. He did agree to show ID to staff. She approached staff at the bar, two bartenders and a female server.
Referring to Exhibit #1, showing the interior of the premises, the witness indicated where the Inspectors were standing at the time she approached the bartender and asked to speak with the Manager. The bartender came back with a male who said he was not in charge. The male left for a couple of minutes, coming back saying someone was coming. She did not ask what position he held.
The witness stated that when told of the concern of patrons not showing ID, Mr. Myrazi went to the customer and checked his ID. The patron was yelling, saying he did not want the Inspectors to see his passport. Mr. Myrazi denied the request of Inspector Higrera to see the passport. The patron was now standing, gesturing, yelling and calling names. The witness stated that Inspector Higuera was able to observe the passport but did not physically have the passport.
She stated that Mr. Myrazi did not do anything to calm the patrons. At this time the Inspectors decided to leave to converse with Mr. Myrazi outside. Mr. Myrazi came out within a minute or two. At this point some patrons came outside to apologise for the behaviour of their friends, stating they were out to celebrate a birthday and did not understand why they were doing an inspection. After the apology, the patrons went back inside. No one was asked to leave.
On questioning, the witness stated that they were at the table for about 10 minutes and she had dealt with two patrons in that time.
On cross-examination the witness stated that the atmosphere was relaxed and quiet until they approached and a scene was created. In the first five minutes nothing happened and then patrons started getting upset.
On questioning from the panel, Ms Fernando stated that Mr. Myrazi had checked the ID of the one patron and told her that the patron was of age. She confirmed that there was no pushing or shoving, only yelling.
Ms Fernando confirmed that she did not tell Mr. Myrazi what was expected of him. When asked if a person shows an ID but does not want to give it, she stated that it is not an offence.
Amanda Higuera, an AGCO Inspector attended the premises with two other Inspectors at 11:30 p.m. She noted that the business was busy and most of the tables were occupied. After checking some ID’s at the front of premises, they went to a second table with nine persons, a group of six and a group of three. The patrons looked underage and stood out from the rest of the crowd. She sat down at the table with three males. After identifying herself, they provided their ID. She stayed for three or four minutes.
Ms Higuera stated that the other two Inspectors went to the group of six. When she heard voices being raised, Inspector Fernando advised her that one male was refusing to show his ID. She stated that the six patrons were agitated, swearing, and raising their voices.
When a female staff person walked by, both Inspectors Fernando and Higuera asked her to have a manager attend. A few minutes later, Mr. Myrazi arrived and said he worked there but was not the Manager.
Ms Higuera told him they needed to see the ID of the male patron. Mr. Myrazi asked the patron for his ID and was given a Canadian passport. Mr. Myrazi looked at it and said the male was over 19 years of age. Ms Higuera stated she had to see the proof of age and the male patron started swearing and yelling, telling Mr. Myrazi that he did not want the Inspector to see his ID. She told Mr. Myrazi that the bar would be cited for obstruction if he did not show the relevant information for inspection. As he flashed the passport at the Inspector, the patron grabbed it and slammed it on the table.
Ms Higuera advised the other Inspectors she wanted to leave, as the group was getting out of control. She asked Mr. Myrazi to follow them outside to the patio.
She stated that Mr. Myrazi seemed unsure what to do with the yelling patron, as though he was between a rock and a hard place.
When outside, she told him that they needed to speak to the manager. A few minutes later John Hyka came out. When told the events, Mr. Hyka was apologetic and asked them to come inside to identify the patrons. They did not go back inside as he requested. He was told that staff needed to cooperate, not conceal evidence and not permit disorderly conduct.
On questioning she confirmed that the passport that Mr. Myrazi was holding was held within a few inches of her face, when the patron grabbed it.
She stated that legally she did not have to touch the ID but she does have to inspect it.
On cross-examination she stated that there was music playing, Mr. Myrazi did not leave the Inspectors while they were at the table but indicated she felt he did not do enough. She stated that even if the patron was uncooperative, Mr. Myrazi had to be able to prove that the patron was of age. She stated that the patron indicated that he would show Mr. Myrazi the ID but not the Inspector. Mr. Myrazi told her that the patron was of age, but was told that she needed proof and to see it.
Licensee’s Evidence
Grace Sweeney, a bartender at the premises stated that Ariel Myrazi is the supervisor and John Hyka is the manager.
She stated that she did not know the Inspectors when they arrived. She was told that they wanted to see a customer ID after they went to a table of six patrons. She indicated she was behind the bar, near the table when they asked for the ID and were “kind of being rude”. She told them that the patrons had already been ID’d. She went to get Mr. Myrazi and stated she went back to her duties while he was trying to resolve the situation.
She was about ten feet away, with the music playing, she could hear the Inspectors yelling. She heard Mr. Myrazi telling one Inspector to calm down but she seemed angry with the customer and Mr. Myrazi and did not calm down.
She stated that the Inspectors went outside. Mr. Myrazi asked them to leave at the end. The patrons were cooperative.
On cross-examination she stated that the patrons were in the bar about one hour.
Ariel Myrazi confirmed his position and responsibilities at O’Grady’s. He was upstairs when the Inspectors arrived. Grace Sweeney came to get him. He stated the blonde Inspector wanted him to get a patron’s ID and was angry that he did not show her the ID. He stated he was trying to cooperate with both the patron and Inspector, telling the patron he would just show it to the Inspectors. The patron gave him the passport. He gave the Inspector the ID and she showed it to the other Inspectors before he returned it to the patron.
He stated he did not hear swearing at the table, but noted that the patrons were talking loud.
On cross-examination, the witness stated that the Inspectors asked for his ID and were shouting. He stated he tried to keep it down so that the patrons would not get upset. He went downstairs to get his driver’s license and smart serve certificate. When he came back, the Inspectors were waiting at the door. After seeing his ID, the Inspectors left.
He saw the manager outside with them.
Fatlinda (John) Hyka, manager and son of the owner, stated that at the time of the arrival of the Inspectors he was in the basement dealing with a broken pipe.
He met with the Inspectors outside and dealt with Inspector Higuera, who was shouting and upset about an issue with a male patron. She told him that an underage person was being served inside. She refused to show him the patron, stating the patron had failed to show ID and that there was an infraction for underage service and not checking ID’s.
Mr. Hyka indicated that he felt under stress and English is his second language. He was asked for ID and showed his driver’s licence.
When he went inside, Mr. Myrazi was asking the patrons to leave. Since the incident he contacted Inspector Leadbetter and a staff session was arranged for March 2010.
Mr. Myrazi told the patrons they would have to leave and they left together.
Registrar’s Submissions
Registrar’s Counsel, Ms Khan, stated that all the allegations have been proven on a balance of probabilities. She sited the hostility of the patrons at one table and the extreme hostility of one particular male patron. No staff came to assist or find out what was occurring even though two staff were close enough to hear the conversation and see the commotion.
When staff were approached, the roles of staff were not clear and indications were that there was no one in charge.
When a patron was asked for ID, all three Inspectors stated that Mr. D refused to show it to any of the Inspectors. The evidence of the Inspectors indicated a failure of Mr. Myrazi to facilitate the inspection and obstructing a person carrying out an inspection.
As a result, the behaviours became increasingly worse and Mr. Myrazi did not calm them down nor ask them to leave as the situation deteriorated. Ms Khan stated that Mr. Myrazi did not have control nor did he take control.
The Registrar is not seeking a finding under subsection 41(1) of the O.Reg because the Inspectors were unable to confirm the age of Mr. D., but highlighted that it is an aggravating factor.
Licensee’s Submissions
Mr. Levitan stated that the Inspectors’ evidence contained inconsistencies but had confirmed the age of the patron, Mr. D. verbally and were satisfied. There is no allegation of over-service or mention of intoxication.
Licensee’s Counsel stated that Mr. Myrazi had imperfect English and said he was not in charge and would get the Manager. Everyone testified indicated that Mr. Myrazi did go to get the manager. The manager spoke to the Inspectors outside, he cooperated and the patrons left the premises when asked.
In referring to Mr. Myrazi having the patron’s passport, Mr. Levitan indicated that it would have been unlawful for Mr. Myrazi to use force to compel a citizen to give up property and if he had done so, the situation may have erupted into violence. The Act does not require a patron to hand over identification and it is not the Licensee’s responsibility to prove anything to the Inspector and the Licensee did cooperate as required under the Act.
Mr. Levitan indicated that the Licensee actually facilitated the inspection when the inspectors could not and did not obstruct.
Registrar’s Reply Submissions
Ms. Khan pointed out that Mr. D. did not provide verbal particulars relating to his age and did not cooperate with the Inspectors. The verbal identification was with another patron.
She pointed out that that the Inspectors stated they had no problems with Mr. Myrazi’s English and felt he understood them, indicating there were no language issues.
On the night of the inspection, Mr. Hyka did not tell the Inspectors of the plumbing repairs and Ms Khan asked the Board to infer from this that Mr. Hyka was not on the premises when the inspection occurred.
The Licensee did not call any patrons to testify and the patrons were still on the premises when they left.
Ms Khan stated that Mr. Myrazi concealed the identification of Mr. D., even after he was advised of his obligation to facilitate the inspection. The fact that Mr. Myrazi saw the identification does not satisfy the requirement that he satisfy the inspectors that the patron was of legal drinking age.
Ms. Khan stated that there was no evidence of the inspectors taking Mr. D’s passport or using force to retrieve it.
Reasons and Analysis
- The Board has carefully reviewed and considered the evidence, and written submissions of both parties in this matter. The Board found all the witnesses to have given their evidence in a clear and direct manner. but also notes a number of inconsistencies in the evidence of the Registrar’s witnesses and the Licensee’s witnesses but also notes the consistencies in the areas critical to making a decision on the allegations.
Decision regarding Section 41(1) of the O.Reg
In written submissions, the Registrar stated that she is not seeking a finding under subsection 41(1) of the O.Reg.
The Board accepts the withdrawal of the allegation under subsection 41(1) of the O.Reg.
The remaining allegations relate to subsections 45(1) and 45(2) of the LLA and subsection 45(1) of the O.Reg.
Decision regarding Subsection 45(1) of the O.Reg and [Subsections 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html#sec45subsec1_smooth) and [45(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html#sec45subsec2_smooth) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)
The Board declines to make findings under either subsections 45(1) and 45(2) of the LLA and subsection 45(1) of the O.Reg for the following reasons.
The Board heard from all witnesses that all three inspectors attended at a table of six plus three patrons. After completing her inspection of the three patrons at one table, Inspector Fernando joined her two colleagues at the adjoining table of six.
The evidence from all the witnesses consistently indicates that over approximately ten minutes the situation deteriorated, with the patrons yelling, some using expletives, which finally resulted in the Inspectors removing themselves from the inside of the premises and meeting the manager on the patio.
The Board accepts all the evidence given that indicates that the behaviour of the patrons, during the inspection was becoming disorderly, with yelling and there was use of expletives by the patrons. However, the Board finds that there is insufficient evidence to make a determination that the Licensee permitted the behaviour and obstructed the inspection.
During the testimony of Inspector Leadbetter, she stated that they were at the table five minutes before getting any staff attention and in total were there about 10 minutes. She admitted that this is “a fair bit of time to get identification”.
The Board notes that testimony from the inspectors consistently indicated that the premises was quiet and busy on the arrival of the inspectors. The Board is concerned that the attendance of three inspectors, standing around a table of six patrons for approximately 10 minutes may have been a catalyst for the escalating negative behaviours of the patrons.
All the inspectors gave evidence that although they had provided their identification to patrons at the table, they had not identified themselves to the staff until the patrons’ behaviour required them to ask for assistance. The board accepts the evidence of all the witnesses that staff, initially, had not been approached by the inspectors to let them know they were on the premises.
With the lack of cooperation of one patron at the table of six, and with the patrons becoming upset, consistent evidence from all the inspectors confirms that the staff were then approached for assistance. The evidence of all the witnesses confirm the order of events and the Board is satisfied that staff did take steps to comply with the inspection, once the identity of the inspectors was known.
As the situation escalated, Inspector Higuera gave evidence that she spoke to Mr. Myrazi, who said he was not the manager, but said he would get him. Mr. Myrazi, when the inspectors pointed out the uncooperative customer, approached the patron who was refusing to show identification to the inspectors.
Mr. Myrazi took steps to approach this patron at the table. He was able to obtain the patron’s passport, checked it and told the inspectors that the patron was of legal drinking age. The situation escalated when the patron objected to the request of the inspectors to hold and view the passport.
The Board accepts the evidence of Inspector Higuera. She stated at this time Mr. Myrazi seemed unsure of what to do with the yelling patron. She admitted, in her words that he was “between a rock and a hard place.” She stated that he did hold out the passport to her and the male patron grabbed it. She stated that Mr. Myrazi attempted to comply with her request.
In response to questions she indicated they were at the table about five minutes before approaching staff and another 25 minutes were spent outside waiting for Mr. Hyka, the manager. The board is concerned that the inspectors’ reports of the time it took for the Licensee to go outside to speak to the inspectors varied from two to three minutes up to twenty-five minutes.
The Board acknowledges the testimony from the Manager, Mr. Hyka, was that he was on the premises, doing a plumbing repair in the basement. He did join the inspectors outside. Although there was conflicting evidence about the length of time the inspectors waited, the evidence was consistent that he was cooperative.
The Board notes that the inspectors declined to enter the premises again to point out to him the patrons who were disorderly.
It is the Board’s view that the evidence consistently indicated that the staff did respond to assist when approached by the inspectors, and the Manager, when called to the floor, did meet with the inspectors on the patio within a reasonable time.
The interventions of Mr. Myrazi were not effective in satisfying the need for the inspector to hold and assess the passport information nor the irate patron who did not want an inspector holding his passport. The Board acknowledges that Mr. Myrazi was in a difficult position as the situation escalated, of trying to comply with the inspector’s request, controlling the behaviour of an angry patron and minimizing the disruption that occurred on the premises upon the arrival of the inspectors.
The Board notes the appropriate actions of the inspectors, leaving the establishment before the situation escalated further and speaking with the Manager outside.
After considering all the circumstances, the Board is not able to make a determination that an inspection was obstructed by the Licensee or that the Licensee failed to facilitate an inspection.
To qualify as “disorderly” the conduct in question must be against the law, or if not against the law, extreme, with the intent to cause public inconvenience, a fight or create a risk.
It is the view of this Board that the situation does not reflect any of the above. The premises were busy and yet calm on the arrival of the inspectors. Although expletives were used and the use of foul language was distressing; this is a situation that experienced inspectors would likely encounter from time to time in the course of their duties.
Conclusion
For the above noted reasons the Board does not find that the Licensee permitted quarrelsome or disorderly conduct or obstructed or failed to facilitate an inspection.
The Board therefore DISMISSES the allegations of subsections 45(1) and 45(2) of the LLA and subsection 45(1) of the O.Reg.
DATED AT TORONTO THIS 8th DAY OF November , 2010
BRIAN J. FORD, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER