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-
1472650 Ontario Ltd. operating as Rumours Sports Lounge Licensee
DECISION ON FINDINGS
Panel: Alex McCauley, Board Member Eleanor Meslin, Board Member
Decision Date: October 21, 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 1472650 Ontario Ltd., Licensee ) Randall Barrs, Representative
Authorities
Club Paradise (Re) [2005] O.A.G.C.D. No. 346 200935 Ontario Inc. (c.o.b. Copperfields Restaurant)(Re)[2008] O.A.G.C.D. No. 316 1620306 Ontario Inc. (c.o.b. Jamaica’s Finest Restaurant & Bar)(Re) [2007] O. A. G. C. D. No. 319 Sweet Whisper Restaurant and Bar (Re)[1998] O.L.L.B.D. No. 33
Allegations
1A hearing into Notice of Proposal number 17787 (the “NOP”) dated January 19, 2010 to suspend liquor licence number 804900 (the “licence”) issued to 1472650 Ontario Inc. (the “Licensee”) operating as RUMOURS SPORTS LOUNGE, 2787 Eglinton Avenue East, Scarborough, Ontario, M1J 2E1 (the “establishment” or the “premises”), on the basis of alleged violations of subsections 19(1) and 45(2) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”), was held on June 8, 2010 in the City of Toronto.
Decision
2The Board FINDS that the Licensee contravened subsections 19(1) and 45(2) of the O.Reg. Reasons follow.
Preliminary Matters
3The Board ORDERED the exclusion of witnesses on consent of the parties.
Registrar’s Evidence
4Jeffrey Lafosse is a detective constable with the Toronto Police Service. He has been a police officer for 11 years. He is assigned to 43 division’s major crime unit.
5The witness is familiar with the licensed premises and attended there on duty, October 5, 2009. He along with other police officers and Inspectors from the Alcohol and Gaming Commission of Ontario (the “AGCO”) arrived at the licensed premise at 2:12 a.m. which was a Sunday night, Monday morning. His group entered the licensed premises together.
6Upon entry the witness noticed a powerful odour of cigarette tobacco smoke and also marijuana smoke. The interior of the licensed premises was dark and he could readily identify the burning tip of cigarettes and marijuana joints.
7The witness is very qualified to identify marijuana and the smell of burning marijuana. He has received specific training in identifying the odour of burning marijuana. In addition he has many years of field experience when he has seized marijuana in its various forms.
8The witness approached two persons by the service bar who were both smoking. On his approach the two persons dropped what they were smoking on the floor and crushed it out. At this time the disc jockey announced the police presence to the patrons. At that time patrons began dropping what they were smoking on to the floor and crushing it out. The floor of the licensed premises was literally covered in discarded cigarette butts, marijuana cigarettes and marijuana cigars (hand rolled in brown paper). In addition there were discarded “dime bags” (small baggies that contain a quantity of marijuana). He examined some of the “dime bags” and noticed traces of marijuana therein.
9Mr. Eminovski, the manager for the establishment, had arrived and the witness spoke to him about the blatant disregard for the smoking laws. This witness had never witnessed such blatant disregard for the laws prohibiting smoking in public places, including the criminal use of a controlled substance.
10The witness is very familiar with the licensed premises and has attended here before.
11He left the premises at 2:45 a.m.
12In cross-examination the witness stated that the police attend these premises in numbers because of officer safety concerns. The witness disagreed with the Licensee’s representative that in fact the area was not dangerous and that smoking was the only serious matter.
13The witness stated that these premises has come to the attention of police often and has been charged often. He described the offences as blatant. A lot of the offences in the past were of the same nature as that being investigated on the night in question.
14The witness could not state how many were in the licensed premises at the time police arrived. He conceded that the premises are licensed for 850 patrons inside and 80 patrons outside.
15The witness stated that a female bartender was present behind the service bar when he arrived and when he observed the two patrons smoking by the bar.
16The witness stated that no evidence was seized because they were not involved in a criminal prosecution.
17The witness conceded that most patrons of the licensed premises at the time were black.
18The witness was asked if he was aware of a substance called CAT, which African people use on occasion. The witness stated he had heard of it, but his understanding of the product was that it was usually chewed not smoked.
19The witness acknowledged that there was a smoke machine in use, but he disagreed that it had any effect on his observations. What he observed was tobacco smoke and marijuana smoke.
20The witness stated that the AGCO inspectors examined the liquor behind the bar.
21The witness did not recall attending behind the bar with AGCO Inspector Steve Hetherington.
22The witness was asked if he had attended in the stairwell area and rummaged through back packs belonging to staff. He responded that he didn’t recall. In further probing by the Licencee’s Representative, the witness stated he may have examined the back packs but could not specifically recall if he did or not.
23The Licensee's Representative suggested to the witness that he had not spoken to Mr. Eminovski about smoking in the premises on that night. The witness reiterated that he had in fact spoken to Mr. Eminovski about the smoking that night.
24In redirect the witness stated that Mr. Eminovski did not mention anyone smoking CAT.
25The witness provided information on other charges faced previously by this Licensee that were not specifically smoking related.
26Sean Quinn is a police officer with the Toronto Police Service and has been a police officer since 2002. On the night in question, October 5, 2009, the witness was assigned to the major crimes unit as a Detective Constable (“D/Cst”) .
27On October 5, 2009, at 2:10 a.m., the witness along with other members of the police service and two AGCO inspectors entered the Rumours bar.
28The witness testified that he detected a strong odour of burnt marijuana immediately upon entering the premises. He stated there was foggy smoke in the air making it difficult to see.
29The witness stated that he is able to identify marijuana both in burnt form and to visually identify it. He has been specifically trained in the identification of burnt marijuana and to recognize it visually. In addition, in his experience as a police officer he has had many opportunities to smell burnt marijuana and has been involved in the seizure of marijuana.
30The witness stated that shortly after their entrance to the licensed premises the D.J. announced that police officers were in the premises and told everyone to put out all smoking material.
31The witness went to the kitchen and had a staff member get Mr. Eminovski. When Mr. Eminovski arrived the witness served a number of provincial offences tickets on him for previous offences.
32The witness stated that even while in the kitchen with the door closed the smell of burnt marijuana was strong.
33Upon leaving the kitchen the witness observed a black male person standing in a railed off area. He observed that this individual had a marijuana cigarette tucked behind his ear. The witness approached this individual but when he got to where that person was the cigarette was nowhere to be found. The witness described the cigarette he observed as thin, white, rolled and closed at both ends.
34The witness observed remnants of unsmoked marijuana at a high table by the D.J. booth. The witness observed on the floor marijuana cigarette butts and cigar butts which he stated were blunt wraps, a flavored cigar wrap which is used to roll marijuana in. The witness also observed discarded “dime bags” on the floor.
35The witness left the premises at 2:43 a.m.
36In cross-examination the witness stated that possibly there was 70 patrons in the premises when they were there.
37The witness stated he has been to Rumours a number of times. In answer to a question about violence on the premises, the witness stated in 2007, or 2008 he had personally escorted a female patron out of the premises who had been stabbed with a beer bottle.
38The witness stated he did not see any members of their team going through the liquor cabinets, fridges or back packs.
39Anthony Forchione is a detective with the Toronto Police Service. He has been a police officer for 25 years and is currently assigned to the major crimes division.
40He is familiar with Rumours and attended there with the previous witnesses and another officer and two inspectors from the AGCO.
41He is very qualified in the identification of burnt marijuana, and regular marijuana. He is federally certified and over the years he has encountered marijuana in its various forms countless times.
42Their purpose on attending was to do an inspection as well as serve the provincial offence notices.
43The witness corroborated the evidence of the previous two witnesses regarding the odour of burnt marijuana and the abundance of evidence on the floor of cigarette and marijuana butts along with discarded “dime bags”.
44The witness stated that many patrons left after the DJ’s announcement about the police presence. At one point he counted 50 patrons.
45The witness stated that officer safety is a concern at this establishment, due to crowd size.
46In cross-examination the witness stated he did not speak to Mr. Eminovski that night about the use of marijuana in the licensed premises, but that he has often in the past.
47Stephen Hetherington is an inspector with the AGCO and has been employed there for four years.
48The witness attended at the licensed premises on October 5, 2009 at 2:12 a.m., along with AGCO Inspector Baird and members of the Toronto Police Service.
49Upon entering the premises the witness stated that the odour of burnt marijuana was overpowering.
50The witness is familiar with the odour of burnt marijuana. He has experienced this odour in training and from his experience.
51The witness did a walk through and approached the bar where he observed a black male person with his back to the bar looking out toward the dance floor. This person was smoking a marijuana “blunt” (Marijuana wrapped in a flavored cigar wrap). This person made no attempt to conceal what he was smoking. The witness saw a security person named Sean patrolling the perimeter of the dance floor. He stated Sean was about four feet from the male at the bar. The witness identified himself to the security person and advised him of the patron smoking the marijuana “Blunt”. The security person approached the patron and had a conversation after which the patron extinguished his smoke by crushing it on the railing. The security person then left and the patron remained to finish his beer.
52The witness then attended behind the bar. He noted that the odour of burnt marijuana was prevalent throughout the establishment. The witness examined the liquor bottles behind the bar and noted that a part bottle of “Crème de Banana” had three or four dead fruit flies in the bottle. He took the bottle to the kitchen and advised Mr. Eminovski. He further advised Mr. Eminovski of the marijuana use in the licensed premises. Mr. Eminovski did not dispute that marijuana was being used in the licensed premises.
53The witness left the premises at 2:43 a.m.
54In cross-examination, the witness admitted that this form of liquor was notorious for fruit flies.
55The witness reiterated that he had advised Mr. Eminovski of the marijuana use even though this was not part of his notes from that evening. He further advised that he had spoken to Mr. Eminovski about the security person Sean but this was also not in his notes.
56Ryan Baird is an inspector with the AGCO and has been for six years. He is familiar with the establishment called Rumours and attended there October 5, 2009, with Inspector Hetherington and members of the Toronto Police Service.
57The witness is trained in the identification of the odour of burnt marijuana.
58The witness corroborated the evidence of the previous witnesses regarding the odour of burnt marijuana in the premises.
59The witness was shown the part bottle of liquor containing the fruit flies by Inspector Hetherington.
60He left the premises at 2:43 a.m.
61There was no cross-examination.
Licensee’s Evidence
62Dean Eminovski is the general manager of Rumours. His mother is the owner.
63The licensed premises are open 11 a.m. until 2 a.m. Monday through Sunday.
64The bar caters to a sporting crowd. It has a full kitchen.
65The bar is busiest Friday through Sunday. They feature special “pay per view” sporting events.
66Friday and Saturday nights are club nights with two to three hundred patrons. Mostly local people.
67The neighbourhood where the bar is located is a rough neighbourhood.
68The witness stated that the bar is safe inside. They employ security. They are observant for intoxicated patrons, and persons who have previously been denied admittance.
69The premises is licensed for 850 patrons inside and 62 patrons on the patio.
70There are several signs referencing no smoking and the staff is aware of the policies regarding smoking.
71The witness keeps a log of police and AGCO visits to his establishment.
72The witness stated that AGCO Inspector Hetherington has complimented him on how he manages the establishment.
73On the night in question there were approximately 70 patrons. He had six security, one searcher and five roamers.
74The witness stated that patrons were smoking cigarettes on the patio. He further stated that the smoke machine was operating and that there was a laser light show.
75On the night in question the witness met the police and AGCO Inspectors at the entrance to the establishment.
76The witness stated that he observed D/Cst. Lafosse going through staff persons’ jackets and back packs in the hallway leading to an upstairs motel. The witness stated when D/Cst. Lafosse saw the witness observing him he stopped and walked away.
77The witness stated that no one would have been behind the service bar after 2:00 a.m. because the tills shut down and bar staff take the cash downstairs to cash out.
78The witness stated that inspections of refrigerators in the establishment are not common.
79The witness stated he saw the fruit fly in a new bottle of Crème de Banana. It had a matrix sticker around the top and a pourer. He did not know how a fruit fly could get in there.
80The witness stated that no one spoke to him about marijuana use that night.
81His policies around cigarette smoking are that offending patrons are told to put it out. In the case of marijuana use the offending patron is ejected. On the night in question not one staff member spoke to him regarding smoking or any paraphernalia.
82The establishment has video inside and out that is kept for 30 days. No one requested the video.
83The witness stated he was not told of the offence of the marijuana smoking and only found out about it when he received the letter advising him of the NOP.
84In cross-examination the witness stated that Sunday night, although a club night, is not as busy as Friday or Saturday.
85The witness stated that there were no more than 70 patrons in the establishment all night.
86The witness stated he has no concerns working at the establishment or enforcing the regulations and stated there should be no reason for repeated infractions to take place.
87The witness admitted being aware of repeated police concerns about marijuana use in the licensed premise.
88The witness admitted that the liquor licence for the establishment had been suspended because of several instances of marijuana use in the licensed premises.
89The statement of Mr. Eminovski became Exhibit # 1 in the proceedings. In that statement he makes no mention of marijuana use. In the statement there is no reference to denying the use of marijuana in the licensed premises.
90The witness admitted that the smoke machine in use does not smell like burning marijuana or cigarette smoke, although it does give off an odour.
91The witness admitted to not liking D/Cst. Lafosse. He denied making up the story of D/Cst. Lafosse’s search of the jackets and back packs.
92The witness admitted he couldn’t say with certainty that there was not a female bartender behind the bar when the police and inspectors were there.
93The witness denied that there were cigarette and marijuana butts on the floor of the establishment or any empty “dime bags” as reported by the Registrar’s witnesses.
94In redirect the witness stated that they have taken measures to deter smoking by installing close circuit cameras, posting signs and adjusting lighting to light up dark corners.
Registrar’s Submissions
95The incident at the bar occurred after 2:12 a.m. on a Sunday night/Monday morning. At that time, the establishment is a club catering to young adults, club night as Mr. Eminovski called it. The Licensee uses security to do pat downs. From its past experience, the Licensee was well aware not only that use of marijuana in licensed premises was not permitted by law but also that its clientele was a risk to use marijuana in the licensed premises. On September 11, 2007, the Board suspended the licence for 40 days, in part for patrons smoking marijuana on numerous dates in 2006. In January, 2009, the Board suspended the licence for 30 days, in part for patrons smoking marijuana on numerous dates in 2007 and 2008.
96On October 5, 2009, inspectors and police entered the establishment at 2:12 a.m. They were immediately greeted with a powerful odour of marijuana and cigarette smoke, notwithstanding that neither cigarettes nor marijuana can be legally smoked inside licensed premises. Cst. Quinn almost couldn’t see the back of the bar. Inspector Hetherington smelled it in the vestibule even with the doors to the main licensed area closed. Inspector Baird agreed.
97The odour of burning marijuana is instantly recognizable and distinguishable from cigarette smoke, as Mr. Eminovski admitted. Smoke was everywhere inside the premises. Cst. Quinn and Detective Forchione agreed. Cst. Lafosse saw the lit tips of cigarettes and joints all over the place.
98Cst. Lafosse saw hundreds of cigarette butts, blunt wraps (marijuana butts) and dime bags (for marijuana) on the floor. Blunt wraps are marijuana wrapped in coarse brown flavoured rolling paper. They are larger than cigarettes. In 11 years as a police officer, he has never seen them used for tobacco cigarettes. The other police officers and AGCO inspectors agreed. Constable Quinn made identical observations.
99Dime bags are small clear zip lock baggies which hold $10 of marijuana. Cst. Lafosse examined several and observed traces of ground up marijuana, a green leafy substance, inside. He couldn’t think of another place he attended socially or professionally where smoking of marijuana and tobacco was this blatant. Cst. Forchione observed a dime bag on the patio.
100Cst. Quinn could even smell the marijuana smoke in the kitchen behind closed doors.
101Nor was the smoke from CAT. CAT is not smoked and Mr. Eminovski led no evidence to the contrary. Nor was the smoke the result of a smoke machine, which does not smell like cigarette smoke or marijuana smoke. Mr. Eminovski admitted this.
102Cst. Quinn saw an individual near the upper bar railing with an unsmoked cigarette behind his ear. This is not illegal. When the officer approached him, the cigarette disappeared. Clearly it had been a marijuana cigarette.
103On a round cruiser table near the DJ booth, Cst. Quinn and Detective Forchione observed a folded promotional card with the remnants of unsmoked marijuana scattered all around.
104Inspector Hetherington observed a patron standing at the railing overlooking the dance floor smoking a marijuana blunt. He was doing so openly with no attempt to hide it. The security guard Sean had to be asked by Inspector Hetherington to do something about it or he would simply have walked away. The male put out the joint but still was allowed to remain in the bar and finish his beer. Mr. Eminovski’s ejection policy either doesn’t exist or is ineffective.
105It is inconceivable that staff were unaware of the smoking of marijuana in the establishment. More likely they either couldn’t or wouldn’t control their patrons’ behaviour. As Detective Forchione testified, he had discussed the problem with Mr. Eminovski many times before. It was like beating your head against the wall.
106In fact, Inspector Hetherington told Mr. Eminovski about the infraction that night and Mr. Eminovski didn’t deny it. Mr. Eminovski is not credible when he says the odd person smokes marijuana, when he says Inspector Hetherington (who he likes) didn’t tell him about the rampant pot smoking, or when he says he didn’t hear the DJ announcement everyone else heard. He was lying when he said there was no marijuana smoke, no marijuana blunts and no dime bags in the licensed premises that night. He made no such comment in his pre-hearing disclosure statement. He is generally not to be believed.
107Indeed it is instructive of the attitude of this Licensee that the DJ announced to patrons that police were on the scene and to put out all smoking (Lafosse, Quinn). There was no legitimate reason for the DJ to do this, as Mr. Eminovski admitted. As soon as the police entered and the DJ made the unwarranted announcement, patrons started leaving (Forchione).
108Nor is it necessary to sweep up blunts and file them with the Board as an exhibit, or to photograph them, or to test them. The Board is entitled to hear sworn testimony about the police officers’ and inspectors’ observations and to make findings of credibility. Hearsay is permitted and the standard of proof is less in a regulatory proceeding than in criminal matters.
109In Copperfields, Board Decision on findings dated October 1, 2008, at paragraph 53, the Board made findings without marijuana being seized or tested. The Board made a similar finding in Club Paradise, [2005] O.A.G.C.D. No. 346, at paragraph 40. In Sweet Whisper [1998] O.L.L.B.D. No. 33, at paragraphs 21- 27, the Board made similar findings. In Jamaica’s Finest, [2007] O. A. G. C. D. No. 319 at 56, the Board made similar findings. The Board has routinely been comfortable making findings based on the smell of marijuana and other observations, without the need to seize and test the marijuana, never mind bringing a bag of filthy garbage or a photograph to show to the Board.
110There is ample evidence upon which to conclude that the Licensee permitted the open and rampant smoking of marijuana in the licensed premises, contrary to subsection 45(2) of the O.Reg.
Licensee’s Submissions
111Mr. Eminovski operates a bar in a very high crime environment. The area in which the bar is situated is predominantly non-white and this is reflected in his clientele.
112A large percentage of the clientele is Caribbean or African. Marijuana and CAT smoking is common in their homes and on the streets. When Mr. Eminovski had paid duty officers, people in the parking lots would smoke openly in front of uniformed officers, who did nothing about it. Police do not arrest people for possession of pot, except in the rare case. It is usually a “Cheech and Chong” driving situation. When people are brought to court, they are “diverted” to the Salvation Army, to make a donation.
113This entire case has to be considered in the real world, where Rumours is located. He should be credited with the fact that the club is probably the safest environment within five square miles.
114Mr. Eminovski knows that his clientele is “at risk” to use marijuana on his premises and at the strip club next door and everywhere else in the area.
115As a result everyone is physically searched on entry. These invasive searches prevent guns and weapons that have flooded the area from coming into his sports bar. It seems the local police are so busy trying to ferret out pot smokers at Rumours, that they do not have time to police the local streets where violence and gun play are almost daily occurrences.
116These searches cannot always find small amounts of marijuana secreted in very personal areas. Cigarettes are allowed in because Mr. Eminovski has a large patio where cigarette smoking is lawful.
117On occasion, people try to walk inside with their cigarettes. They are directed back outside or they have to put it out.
118On occasion, people will pull out a joint from their underwear and light up, inside or outside. This takes a second or two and when they are spotted, they are asked to leave. Mr. Eminovski does not permit the smoking of anything inside or pot outside. He is in the food and beverage business only.
119The evidence of the inspectors and the police is grossly exaggerated. One has to only picture this army of Caucasians invading this club at 2:12 a.m., after service has by all accounts ended. This was a “slow night” with less than 80 patrons. If Quinn couldn’t see the back of the bar, he was looking through the smoke machine. It doesn’t take too many marijuana or CAT cigarettes to create an odour.
120The evidence of “hundreds of butts, wraps and dime bags” on the floor is not supported by “the best evidence”. How does one get “100s” on an 80 patron night? There is absolutely no reason the Board should continue to be “comfortable” with the total failure to put the “real” evidence before the Board. Routinely, photographs are taken and “drug evidence” seized (with the use of plastic gloves) for testing.
121If police officers, who were supposed to “investigate” and bring the evidence before the courts (and tribunals) did their jobs, the number of protracted hearings would be reduced.
122Although Mr. Eminovski would concede that no permissible security system will stop a few random locals from pulling out a well secreted joint, he adamantly denies permitting use on his premises and that it was rampant or that there were signs of same everywhere. He is entitled as a businessman, employer and taxpayer to have such allegations proved by the “best evidence”.
123If not, we ended up with comments that we see in paragraph 8 of the Registrar’s submissions that a “disappearing cigarette”, had to be pot. Patently absurd.
124Frankly, after the Registrar’s counsel complained that police should not have to pick evidence up off the floor, it is shocking to see the reference in paragraph 9. What excuse in the world do these “investigators” have for not seizing the folded promotional card with alleged marijuana. Hearsay is permitted in criminal proceedings as well, but not where it is second best evidence. Mr. Eminovski made it clear, that there are clear warning signs and if you are caught with marijuana, you are ejected. “Sean” acted no doubt when the problem is spotted. Because he gave this guy a break does not reflect on policy, or its effectiveness.
125It is very unlikely a DJ hired for that one night would announce the police. As stated, the police presence was more than obvious. Patrons were no doubt leaving as there was no more service, it was late and this “raid” would no doubt be very poorly received by the locals.
126What is interesting is that there are no drunks, no minors, no weapons, no fights, just a peaceful crowd enjoying Bob Marley music. Nor was there open and rampant “marijuana smoking”. The odd individual pulling out a secreted joint and lighting up (time frame approximately five seconds) is less problematic than the abuse of taxpayers’ dollars on this raid and the searching of employees’ back packs by the apparent officer in charge, who came to the Board with nothing more than his questionable opinions and perspectives, as opposed to any physical evidence.
Registrar’s Reply Submissions
127The issue is not whether “on occasion people try to walk inside with cigarettes”, nor whether “searches cannot always find small amounts of marijuana secreted in very personal areas”. The issue is whether the licensee has permitted open and rampant smoking of marijuana in the licensed premises.
128The issue is not whether the Licensee has succeeded in not permitting violence in the licensed premises but whether he has failed to meet the standards set in the LLA in respect to the illegal use of a controlled substance in licensed premises. The Licensee has chosen to operate a nightclub in a particular area of the city. He must control his clientele.
129The Licensee’s concerns about the waste of taxpayers’ dollars might play better if this wasn’t the third time he was in front of the Board. It is clear from his submissions that he simply does not take his subsection 45(2) of the O.Reg obligations seriously.
130The Licensee’s “best evidence” argument is nothing more than a desperate attempt to raise the evidentiary bar in LLA proceedings in respect to marijuana use to a level which is impractical in the “real world”.
Reasons and Analysis
131The Board has carefully reviewed the evidence as presented at the hearing and the written submissions of counsel.
132Firstly the Board accepts the submissions of Mr. Morris that the evidence based on the observations of witnesses and given in sworn testimony is acceptable, subject to issues of credibility. The Board is aware of the cases cited where hearsay evidence has often been accepted and this matter will be treated no differently. In deference to the submissions of Mr. Barrs, the “best evidence” is preferred and in some instances can be obtained with little need to encumber the investigation. In such instances the Board has a clearer sense of the matters being described. The example in this case being the abundance of paraphernalia in the licensed premises, where a photograph may have been helpful.
133The Board has found that the evidence of the Registrar’s witnesses was credible. The police officers and AGCO inspectors gave their evidence in a straightforward manner. The witnesses were clear in their descriptions of the scene and in what they saw and smelled. The Board is satisfied all of the Registrar’s witnesses could identify the smell of burned marijuana and were able to discern the odours of burnt marijuana from that of cigarette smoke or stage smoke. The Board is satisfied that the Registrar’s witnesses were able to identify marijuana product and that the police witnesses were qualified when they described the “Dime” bags as baggies used to carry amounts of marijuana.
134All of the witnesses were familiar with the licensed premises.
135The Board accepts the evidence of the Registrar’s witnesses when they describe the scene upon entering the licensed premises, including the fact that there was an abundance of marijuana smoke and cigarette smoke. So much so that Cst. Quinn had difficulty seeing across the room.
136The Board accepts the evidence of the police and inspectors when they described the amount of discarded smoking paraphernalia on the floor, both tobacco products and marijuana. The Board prefers their evidence to that of Mr. Eminovski. He has an interest in the outcome of the hearing. His evidence is not corroborated. While there is no legal requirement for testimony to be corroborated, his testimony is contrary to the testimony of the various police officers and the AGCO inspectors which the Board find credible. His assertion of not being aware of the marijuana use in the licensed premises on October 5, 2009, is surely not credible, based on the extensive and credible evidence to the contrary. The Board accepts, based on the evidence, that patrons were openly smoking both tobacco and marijuana products even after the police and inspectors were on site.
137The Board accepts the evidence that the DJ announced the police arrival.
138The Board does not accept the position taken by the Licensee that the odd cigarette or marijuana cigarette might get smoked, but there is no violence or other offences. A licensee’s lack of action on a breach of the LLA or its regulations cannot be mitigated because seemingly, more serious offences are avoided as a result.
139In the view of the Board this Licensee knew or ought to have known and chose to permit this unlawful activity within the licensed premises. Obviously there was no attempt to deter this unlawful activity. It wasn’t just occasional, and it was clearly rampant.
140The overall conduct of this Licensee both present and past is of concern to the Board. This Licensee simply permits the illegal smoking of tobacco and marijuana to occur in his establishment, in spite of his duty and responsibility to prevent this unlawful activity. This Licensee has been sanctioned in the past and warned but still permits this type of activity to occur.
141The actions taken by the Licensee to deter this type of activity with cameras and signs is, in the view of the Board, woefully inadequate in the face of his obvious reluctance to deal with the offences when they are observed.
142The Board finds that the Licensee has breached subsection 45(2) of the O.Reg by permitting persons to hold and consume a controlled drug or substance as defined in the Controlled Drugs and Substances Act on the premises.
143In regards to subsection 19(1) of the O.Reg the Board accepts the evidence of AGCO Inspector Heatherington, that he observed fruit flies in a part bottle of Crème De Banana located behind the bar. The presence of at least one fruit fly in the bottle was admitted to by Mr. Eminovski, the general manager.
144The Board finds that the Licensee has breached subsection 19(1) of the O.Reg by keeping for sale adulterated liquor.
Conclusion
145For the above reasons, the Board FINDS that the Licensee contravened subsections 19(1) and 45(2) of the O.Reg.
146The 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 21st DAY OF October, 2010
ALEX MCCAULEY, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER