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-
1669518 Ontario Inc. operating as Sizzle Steakhouse
Licensee
DECISION
Panel: Jacqueline Castel, Board Member S. Grace Kerr, Board Member
Decision Date: February 23, 2011
Hearing Location: Hamilton, 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 ) Aviva Harari, Representative 1669518 Ontario Inc., Licensee ) Michael Puskas, Representative
Allegations
- A hearing into Notice of Proposal (“NOP”) number 18284, dated September 8, 2010, to suspend liquor licence number 202503 (the “licence”) issued to 1669581 Ontario Inc. (the “Licensee”) operating as Sizzle Steakhouse and Lounge (the “establishment” or the “premises”), 25 Hess Street South, Hamilton, Ontario, L8P 3M7, on the basis of an alleged violation of subsection 45(1) of the Liquor Licence Act (the “LLA”), was held in the City of Hamilton on January 31 and February 9, 2011.
Decision
- The Board GRANTS the Licensee’s motion for a non-suit. Reasons follow.
Preliminary Matters
- The Board ordered that witnesses be excluded on consent.
Registrar’s Opening Statement
Ms Harari stated that this case is different than most cases under subsection 45(1) of the LLA. There was an assault, and it is being alleged that the Licensee cleaned up the crime scene, thereby obstructing the police investigation.
Mr. Puskas declined to make an opening statement.
Registrar’s Evidence
Marko Pejic attended the establishment with a group of about six friends on November 20, 2009. They arrived at the establishment at approximately 10 p.m. and went to the bottle service area. They were celebrating his friend Daniel Doyle’s birthday.
At some point, while seated in the bottle service area, he noticed a commotion in the middle of the dance floor and that his friend Brian was involved.
The establishment was busy and by the time he got to the dance floor the bouncers had taken Brian outside. The bouncers directed him out back to where they took his friend. It looked as though Brian had been hit in the face with a sharp object. There was a lot of blood. The bouncers were using paper towels to help control the bleeding and someone called an ambulance.
He noticed that some of the blood had gotten on the walls.
There were about two or three bouncers helping Brian.
On cross-examination, Mr. Pejic stated that he and his friends had dinner at their friend Daniel’s house before arriving at the establishment. They had been drinking before they arrived. They arrived at Daniel’s at about 8 p.m. He acknowledged that it is possible they didn’t arrive at the establishment until closer to 11:30 p.m. He was not paying attention to the time.
He thinks Brian left their group, in the bottle service area of the establishment, to go to the washroom. He noticed the scuffle on the dance floor shortly after Brian left. He could not see what was going on because of all the people. Brian is tall, so he noticed his head and that he was involved in the commotion.
Brian looked dazed. He does not recall how much Brian had to drink. Brian was not looking for trouble and he wasn’t acting rowdy.
He did not see blood on the floor. He only saw blood on the walls, when the exit doors were opened.
The ambulance arrived about 10 minutes later. The police were also there, but did not speak to him.
He doesn’t recall whether he gave the police a statement.
The ambulance was at the premises for ten or fifteen minutes. The paramedics were wrapping Brian’s head with bandages to stop the bleeding.
He doesn’t remember whether the police left when the ambulance left.
Daniel Doyle was celebrating his birthday on the evening of November 20, 2009. He had invited his friends to his place for dinner and then they went to the establishment at about 11 or 11:30 p.m. They had arranged for bottle service.
While in the booth in the bottle service area, he noticed a commotion on the dance floor. He stood up on his chair and saw that his friend Brian was involved and that his head was split open and bleeding really badly.
The bouncers took him to a bathroom off the main floor.
He heard a friend of the guy who did this to Brian say, “Way to go. You messed him up good.” Daniel said, to the guy he thought did it, “You bottled my buddy.” At this point, one of the bouncers pulled him back.
The paramedics arrived about ten minutes later.
He went to speak to Brian, who was dazed. The bouncers were handing him paper towels.
The cops asked him if he saw who did it and told him to stay away.
On cross-examination, he said the guy who he thought bottled Brian had a shaved head and blood on his shirt.
He assumed someone hit Brian with a bottle because of the injury and all the bleeding.
Brian didn’t know what happened and looked dazed. He said he didn’t start anything.
Brian Fidani attended the establishment with his friends on November 20, 2009 at around 11 p.m.
He went to the washroom and then walked over to the bar. He remembers being knocked out around the bar area. He was hit on the side of his head. He thinks he was hit with a beer bottle.
He remembers a bouncer holding him up and taking him to the side door. The bouncers were giving him paper towels to stop the bleeding. He was covered with blood by the time the cops arrived.
At the hospital the doctor told him an artery was cut; he required 28 or 30 stitches. He lost movement in his left eyebrow, but he is getting some of it back now.
No one has ever been charged or found responsible for his injuries.
On cross-examination he stated that he doesn’t recall telling Detective Fazer that he arrived at the establishment at 11:30 p.m.
He doesn’t remember what he was doing right before receiving the blow to his head. He doesn’t recall a shouting match.
He thinks he was hit with a beer bottle because he was hit pretty hard and because of all the blood. No one told him they took glass out of his head.
He has had some memory loss because of the blow to his head.
He remembers speaking to the police at the hospital but not the specifics of the conversation.
He was released from hospital about 6 a.m. the following morning.
In November 2009 he weighted 235 to 240 lbs.
Police Constable (“P.C.”) Mario Rizzo has been employed by Hamilton Police Service since 2006. In 2005, he was employed as a security officer for the establishment.
At 1:33 a.m. on November 20, 2009, he was dispatched to assist an ambulance parked outside the establishment. Once on the scene, he learned that the person the paramedics were tending to, Brian Fidani, had been assaulted or was part of a disturbance at the establishment.
Brian Fidani was bleeding heavily from the left side of his head. It looked like he had been cut with glass or a knife.
He learned from the Head of Security at the establishment that Brian Fidani had been assaulted on the dance floor and that the assaulter had been evicted without incident by staff.
He obtained the names of seven staff members who observed what happened. He also obtained the names of three of Brian Fidani’s friends. One staff member told him the area where the assault took place has been cleaned up.
He didn’t go inside the establishment.
He didn’t obtain the bottle or knife used to assault Brian Fidani.
He followed the ambulance to the hospital and spoke to Brian Fidani who admitted to drinking about twelve bottles of beer that night.
Staff acted quickly in removing the victim and suspect. When he arrived, Brian Fidani was already strapped to a stretcher and being attended to by paramedics. He believes it was an assault rather than a fight. Brian Fidani told him he doesn’t recall whether or not he fought back.
He stayed with Brian Fidani until Officer Pilipovic arrived and then went to speak to the head of Security. He in turn sent everyone who saw anything to speak to him. He had worked with four of the seven security officers who spoke to him.
He doesn’t know whether any charges were laid in this case.
On cross-examination, he stated that he doesn’t recall which staff member told him that they instantly cleaned up the mess. He made his notes later on at the hospital so it might not have been a verbatim comment.
Staff gave him statements on scrap pieces of paper and on receipts. He gave them to the detective assigned to this case. He doesn’t recall whether he read them.
He didn’t enter the establishment to see the evidence because the premises was at or near capacity.
Brian Fidani’s friends did not give him any useful information regarding the assault, as they did not witness it.
He doesn’t know what Officer Pilipovic did at the premises.
He believes the injury occurred with a bottle because gashes of that nature had to have been caused by some form of sharp object.
He was not denied entry into the establishment.
He did not request any documents of the Licensee or its staff.
He did not try to inspect or remove anything from the establishment.
He didn’t feel the need to conduct any tests or to remove any substances for testing purposes.
He understood that he had power under the LLA to conduct an inspection. He denied that he was at the establishment to conduct an inspection. He didn’t find anything warranting it.
At that point, he did not think the establishment did anything wrong. They dealt with the situation swiftly.
No one was trying to interfere with the investigation.
He did not tell anyone to rope off the area or to try and protect the crime scene.
He did not make a notation of doctors finding any glass in Brian Fidani’s wound.
P.C. Milan Pilipovic has been employed by the Hamilton Police Service for approximately nine or ten months.
He was dispatched to the area of George and Hess streets in Hamilton on November 20, 2009. When he arrived, an ambulance was parked on George Street and the victim was in the ambulance where paramedics had bandaged his head. There was a lot of blood.
He spoke to a few of the security employees at the establishment. Security Officer Symon Sock told him there was a fight in the premises and that he removed the other person who had been fighting.
He spoke to the victim, Brian Fidani, in the ambulance. He was intoxicated at the time. Brian Fidani told him he was on his way for a cigarette when someone hit him with a bottle twice. Brian Fidani was at the establishment with a few friends but they were not with him when he was injured and didn’t see it happen.
He didn’t enter the establishment. As the younger of the two officers, he felt he should be the one to stay with the victim. He remained at the hospital with the victim until 3:43 a.m.
On cross-examination, he admitted that he doesn’t know if Brian Fidani sustained a concussion or was given any pain medication by the paramedics.
He concluded Brian Fidani was intoxicated because his speech was slurred and his eyes were blurry.
He admitted that Brian Fidani’s behavior and demeanour could have been the result of a concussion or sedatives.
He didn’t take any notes regarding his conversation with security staff at the establishment because he didn’t consider what they told him to be important. The same applies to the conversation he had with Brian Fidani’s friends.
Motion for Non-suit
Following the completion of the Registrar’s evidence, Mr. Puskas brought a motion for non-suit.
Ms Harari submitted that that if the Licensee is going to proceed with the non-suit motion, it must elect not to call evidence. Mr. Puskas objected. At Ms Harari’s request, the Board adjourned the hearing until the next scheduled hearing date, allowing counsel the opportunity to obtain case law and prepare oral submissions on whether a party bringing a motion for non-suit must elect not to call evidence.
At the beginning of the next scheduled hearing date, Mr. Puskas advised that after reviewing the Registrar’s case law, he would proceed with the Licensee’s motion for non-suit and elected not to call evidence. As such, it was not necessary for the Panel to decide on the issue of whether electing not to call evidence is mandatory on a non-suit motion, and counsel could go directly into submissions on the motion for non-suit.
Licensee’s Submissions
Mr. Puskas submitted that there is no case against the Licensee for obstructing an inspection under the Act.
Subsection 44(1) delineates what persons carrying out inspections under the Act may do. P.C. Rizzo stated that he was not at the premises for the purpose of conducting an inspection under the Act. On cross-examination, he answered that he did not do or attempt to do any of the actions, set out in paragraphs 44(1)(a) through (f), which persons carrying out inspections under the Act may do.
It is not possible for the Licensee to have interfered with or obstructed an inspection under the Act. The police officers were not conducting or attempting to conduct an inspection under the Act. Therefore, the Licensee does not have a case to meet.
Registrar’s Submissions
Ms Harari responded that although the police officers initially attended the premises to provide assistance with respect to a 911 call, P.C. Rizzo did initiate an investigation, as a result of what he discovered on arrival (i.e., an individual who was bleeding badly), by speaking to some of the security officers.
Ms Harari drew a comparison to when a police officer stops a car for speeding but ends up commencing a stolen car investigation. In this case, she submitted, what P.C. Rizzo was doing changed over the course of the evening and he was not able to complete his inspection because the crime-scene had already been cleaned up.
In cleaning up the crime-scene before the police officers arrived and completed their inspection, the Licensee obstructed the police officers’ inspection.
Ms Harari further submitted that the onus is on the Licensee, in this motion, to satisfy the Panel that there is no prima facie case. This is a lower threshold, for the purpose of the Registrar, than the balance of probabilities test which would still apply if the motion is denied. Ms Harari indicated that her submissions should not be construed as final arguments in this case and only relate to the motion for non-suit.
Licensee’s Reply Submissions
- Mr. Puskas stated that he agrees that an LLA inspection could evolve out of something else, but in this case it did not. P.C. Rizzo gave clear evidence that he did not, at any time, do or attempt to do any of the things in which inspectors are entitled to do, for the purpose of ensuring compliance with the Act, under subsection 44(1).
Reasons and Analysis
Subsection 45(1) of the LLA, which the Licensee is alleged in the NOP to have contravened, provides that, “No person shall obstruct a person carrying out an inspection under the Act or withhold, destroy, conceal or refuse to provide any relevant information or thing required for the purpose of the inspection.” Subsection 44(1), in turn, sets out the actions, a person conducting an inspection for the purpose of ensuring compliance with the Act, may perform.
The Registrar and the Licensee were agreed that the police officers did not attend the premises for the purpose of conducting an inspection under the Act. The police officers gave clear testimony that they attended to provide back up for an ambulance and assist with the 911 call.
It is the Registrar’s position, however, that the initial purpose for the police officers attending the premises changed, given what they found on arrival, and their inspection was obstructed because the Licensee had already cleaned up the crime scene. The Panel does not find the Registrar’s position to be supported by the evidence.
Neither P.C. Rizzo nor P.C. Pilipovic chose to enter the premises. P.C. Pilipovic testified that as the more junior of the two officers, he believed his role was to stay with the victim, which he did.
On cross-examination, P.C. Rizzo stated unequivocally that:
a. he was not denied entry into the establishment;
b. he did not request any documents of the Licensee or its staff;
c. he did not try to inspect or remove anything from the establishment;
d. he did not conduct or attempt to conduct any tests; and
e. he did remove or attempt to remove any substances for testing purposes.
f. he also readily acknowledged that he did not ask anyone to rope off or otherwise protect the crime scene.
Given that P.C. Rizzo did not do or attempt to do any of the actions set out in subsection 44(1), that inspectors may do for the purpose of ensuring compliance with the Act, there is no evidence to support Ms Harari’s argument that P.C. Rizzo, at some point during the course of the evening, initiated an inspection under the Act.
Also, P.C. Rizzo testified, again unequivocally, that he understood he had the authority to conduct inspections under the LLA and that he was not at the establishment for that purpose, not having found anything to warrant one.
Moreover, even if the Panel were to accept that P.C. Rizzo commenced an investigation under the Act, P.C. Rizzo also testified that no one tried to interfere with his investigation. There was only hearsay evidence that the Licensee in fact cleaned up the crime scene, but regardless, P.C. Rizzo spoke favorably about how swiftly the Licensee handled the incident and indicated that he did not believe the Licensee did anything wrong.
Accordingly, the Board finds that the Registrar has not shown a prima facie case that the Licensee obstructed the police officers’ inspection under the Act, contrary to subsection 45(1). Indeed, there was no evidence that the police officers were conducting an inspection under the Act, let alone that the Licensee in any way interfered with such an inspection.
Conclusion
- Therefore, for the above reasons, the Board grants the motion for non-suit, and the allegations under subsection 45(1) are DISMISSED.
DATED AT TORONTO THIS 23rd DAY OF February , 2011
JACQUELINE CASTEL, BOARD MEMBER S. GRACE KERR, BOARD MEMBER