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-
1713957 Ontario Inc. operating as McGradies Tap & Grill
Licensee
DECISION ON FINDINGS
Panel: Joan Lougheed, Former Board Member Bruce Miller, Board Member
Decision Date: August 8, 2011
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 1713957 Ontario Inc., Licensee ) Melissa Lee Harris, Representative
Allegations
- A hearing into Notice of Proposal (“NOP”) number 18309, dated November 2, 2010 to suspend liquor licence number 22801 (the “licence”) issued to 1713957 Ontario Inc. (the “Licensee”) operating as MCGRADIES TAP & GRILL, 2167 Victoria Park Avenue, Toronto, Ontario, M1R 1V6, on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (the “LLA”) was held on February 10 and April 11, 2011 in the City of Toronto.
Decision
- The Board FINDS the Licensee contravened subsection 45(1) of the LLA and DISMISSES the allegation of a violation of subsection 45(2) of the LLA. Reasons follow.
Preliminary Matters
As a preliminary matter and on consent of all parties, the Board ORDERED the exclusion of witnesses.
Translator, Ganesparan Jeevahan, was present and sworn in at the time that the owner, Mr. Sinnathurai gave evidence.
Ms Melissa Harris confirmed that she is acting as agent for the Licensee.
Registrar’s Evidence
Police Constable (“PC”) Robert Astolfo, a police officer since 2001, started his shift at 11:00 p.m. on April 11, 2010. He was in uniform and responded in his police car to a radio call at 11:22 p.m. The call was for an assault in progress in the area of Victoria Park and Ellesmere. The suspect was described as a white male approximately 30-years-old. The victim was in a wheelchair.
On arrival he observed a white male standing by the main entrance to the bar. This area was enclosed by a wrought iron fence. The male was seen running to a pedestrian walkway.
A second male was seen at the patio door. This male went inside the bar.
The officer knocked on the bar door, but there was no response. Putting his car near the fence, he was going to use it to jump over and try to gain access to the patio door.
The Licensee, Mr. Sinnathurai, came to the door, telling the officer that they were closed and there was no one inside. The person seen on the patio was his employee, who was cleaning up.
PC Astolfo told the Licensee of the assault call and was told that nothing had happened at the bar. There were no fights or problems and only employees were inside.
PC Astolfo stated that he asked for the door to be opened and the owner went inside, shrugging, walking slowly. The officer stated it was as though he did not want to open the door.
On entering the building, PC Astolfo noted a bartender and approximately fifteen people in the bar, some playing pool and some by the bar. When asked why he lied, Mr. Sinnathurai stated that he had misunderstood the officer.
When he received a radio call about the suspect being in the bar, and after he advised the owner that he would be back, PC Astolfo went to interview the victim. He spoke to the patrons and the bartender. His partner spoke to the owner.
At this time the owner stated that this person (Mr. Fetterly) had been in the establishment earlier and threatened him with an AK47. He did not respond to the officer when asked what this person looked like and why he had not reported this before.
During the interview with the male in a wheelchair, Paul Fetterly told police that the assault occurred in the bar, just before police were called. He said that there had been an argument in the bar. Mr. Fetterly told the police officer that he talked with a white male in the establishment telling him that he had not threatened the owner.
Mr. Fetterly told police that he was sucker punched in the face; his wheelchair was pushed out of the establishment and he was chased by the suspect, with the owner following in a car. During the conversation, PC Astolfo felt that Mr. Fetterly was a regular at the bar, knowing the owner and Bonnie, the bartender. PC Astolfo asked Mr. Fetterly to stay until photos were taken of the injuries. Mr. Fetterly told the officer that he would call the next day to get photos done.
PC Astolfo went back to the bar, stating that he knocked on the front door and there was no response. He used his vehicle to hop over the patio fence and looked in the window noting about six people inside. He stated that inside he saw a white male, wearing a white t-shirt, matching the description he had received of the suspect.
He started banging on the window, yelling for the owner to let him in. The owner told him to go away. After calling for additional units to assist, PC Astolfo went to the back of the establishment. He saw five patrons exiting the back door. One white male in a white t-shirt refused to answer questions and at approximately 12:05 a.m. was handcuffed and placed in investigative detention. Mr. Fetterly was asked to identify this male but could not and the male was released after telling the officer that the owner had directed patrons out the back door when police were seen arriving at the establishment the second time.
PC Astolfo knocked on the back door. It was opened slightly and he asked that the door be opened, advising that he was conducting an investigation about an assault that took place in the bar. The owner was cautioned about obstructing police and failing to assist with an inspection under the LLA.
At 12:11 a.m., the door was opened and the owner was arrested for obstruction.
When asked about the video surveillance cameras, the Licensee stated that they were not working and then apologised for lying, stating that he did not know how the cameras tapes worked and was unable to aid in the investigation. The son confirmed that his father could not operate the cameras. The Licensee was released at 12:25 a.m.
PC Astolfo spoke with Bonnie, the bartender, who stated that Mr. Fetterly had been threatening to kill everyone in the bar with an AK47. She did not recall any further details.
The officer stated that he did not lay any charges, but the major crime unit did charge the bar with liquor licence offences.
On cross-examination, PC Astolfo confirmed that the outside door was locked and that the Licensee let him in through the main door, not the patio door. He could not confirm the time he gained entrance to the establishment, how long he questioned the alleged victim nor if his partner was with him when he returned to the establishment.
Paul Fetterly stated he has been at the bar several times. On April 11, 2010, he was outside in the smoking area most of the time. He was talking about guns and hunting with several patrons and said he had an AK47. He stated that this was said jokingly.
When he came inside to order a beer, he was told to leave by the Licensee. He told the owner he had not done anything wrong and was not leaving. The owner’s son punched him and pulled his scooter outside while he was sitting on a chair. He stated that patrons in the bar refused to call 9-1-1.
On leaving the establishment, he flagged down a motorist, asking them to call 9-1-1. At this time he saw the owner and his son in a small beige car driving by.
Mr Fetterly stated he went back toward the bar and flagged down an approaching police car. After telling police what happened, he saw the police going to the front and back doors of the establishment and banging on the door for five or ten minutes. It looked like all the lights were off. He thought Bonnie came to the door.
That evening he drank three shots of Baileys and about four beers while in the bar for about two hours. He takes pain pills for chronic pain. Mr. Fetterly stated he was feeling good but was “not wasted or drunk.” He stated that he did not threaten anyone. A young male was behind the bar; someone told him that this person was the owner’s son. He did not remember him that night but remembered later.
On cross-examination, Mr. Fetterly stated that he had been at the establishment six or eight times before and knew the bartender, Bonnie. He thought he saw the son twice before. Mr. Fetterly stated that four or five people saw his attack and the Licensee never said a word. He stated that the son came out and followed him on his bike.
Sergeant (“Sgt.”) Kane Worth was working in uniform on April 12, 2010. When he arrived, just after midnight, at the establishment, several officers were already there. At the front door, he knocked several times and announced he was a police officer. He remained at the front of the building while PC Astolfo went to the back door.
After a few minutes, an officer let him in the front door. On entering he did not see any patrons. The premises was in darkness. The female bartender was asked to turn on the lights, and she said she did not know where the light switches were located. She had worked there for 13 months.
Ms Bonnie Harrison stated that the bar closed at midnight. Three tall cans of Budweiser beer were seen on the bar. The cans were still cold and about 3/4 full. Bonnie stated that she had been in the kitchen while the owner was in the front of the business. She did not know why he did not open the door. She did not indicate that she heard knocking.
PC Angela Taborski stated that her partner, PC Astolfo received a call about an assault at the bar. They arrived in the area shortly before midnight, looking for the victim and the complainant. These people could not be located, so they went to the establishment. Prior to arriving, they observed a male leaving the bar and running across the street.
At the establishment, the door was locked. They knocked on the front door and saw a male come to the screen door at the patio. The patio is gated. The male said he was the owner, the bar was closed and they were just cleaning up. He refused to let them inside.
PC Taborski stated that her partner told the owner they needed to get inside and the owner, very reluctantly, eventually opened the door.
Inside the establishment there were about 15 patrons and one female bartender. When asked if a fight had occurred inside, the owner said “no, nothing happened.”
The owner stated he did not know the male seen by police running from the establishment.
At this time, PC Taborski was advised over the radio that the victim had been located and that the suspect was still in the bar. The owner then said that he had been threatened with an AK47. The owner did not respond when asked why he had not shared this earlier.
At this time the owner was advised that they would be returning shortly and then left to speak to the victim.
The victim was in a motorized scooter and stated he had been assaulted in the bar. He had been on the premises since 10:00 p.m. While there a male with a white t-shirt told him to get out of the bar and this male told the bartender that Mr. Fetterly had threatened the owner with an AK47.
The victim stated that he was hit inside, his scooter was pulled outside and then he was hit again. Outside, the victim stopped a vehicle for help.
PC Taborski stated that they went back to the establishment with the victim. PC Astolfo went to the patio doors to try to gain access while she waited in the car.
PC Taborski stated that she saw her partner coming from the rear of the building with a male in custody. The victim told them that this was not the person who assaulted him and the male was released.
PC Taborski and her partner went to the back door. It was locked and PC Astolfo knocked twice. The door opened slightly. PC Taborski stated that she could tell it was the owner of the bar on the other side of the door. The owner was told that the police needed access, and was cautioned about the delay in letting police in. The owner refused, swearing and saying they were closed. After being cautioned again, he did open the door and was placed under arrest for obstruction.
PC Taborksi stated that the owner told them the video was not working, but when downstairs, they saw that it was working. The owner said his son operated the equipment and agreed to provide the video. The owner was released.
At this point, PC Taborski left to get a victim statement from Mr. Fetterly and sent him home in a taxi.
On cross-examination, she stated that they did not go directly to the bar after receiving the radio call. They searched the area and then went to the bar door together. It took about five to 10 minutes for the door to be opened and then they entered together.
When asked who let her in the front door, she stated that she was uncertain of whom, but recalled the person being the owner. She had observed PC Astolfo jumping over the patio fence to knock on the patio doors, when they returned to the bar after interviewing the victim.
On questioning she stated that when they first arrived she noted that the owner’s shirt was ripped, she did not recall if the door to the video room was locked.
Licensee’s Evidence
Kashif Veerani, a regular patron at the establishment, attends the bar three or four times a week. He arrived around 8:00 p.m. and left two hours later, after three pints of beer.
He heard a patron getting loud, yelling that he was going to pull out a weapon and blow up the place. He was not sure if he had seen this male before. The male patron was in a wheelchair. The male patron was asked to leave by the bar owner, but insisted on staying.
Mr. Veerani stated that he did not see any physical altercation, that it was verbal exchange. When he went outside for a smoke, Mr. Veerani saw the male patron waving down cars that were passing by.
On cross-examination, Mr. Veerani stated that the owner told the male patron to leave, and that he had too much to drink. The male patron refused to leave even when asked two or three times. He left in his wheelchair. The owner opened the door to let him out.
Mr. Veerani stated that he went outside for a smoke when he saw the male patron trying to stop a car. He left the bar about seven minutes later and did not see police arrive.
Melissa Dodson has worked at the establishment for the past three and one-half years. She was at the bar on April 11 but was not working.
Ms Dodson witnessed a male on a scooter yelling and swearing at the waitress. The male was asked to leave after yelling for about 10 or 15 minutes. She did not know him and had not seen him before.
Ms Dodson saw two officers come through the front door, but did not see who let them in. She stated that the front doors were not locked and knows this because she came and left by this door. She stated that the police were inside for a couple of minutes and not more than five minutes.
On cross-examination, Ms Dodson stated she saw the male patron, who was yelling, leave by the front door, but did not see anyone leave with him and did not know how he got out. She assumes he did it himself.
She saw the two police officers in the establishment and left about 10 minutes after they left, around 11:30 p.m.
Ms Dodson went to work four days later and stated that there was no discussion about the police incident. Bonnie told her that the police had come back and were banging on the back door. She was told that the owner was put up against the wall and handcuffed.
Bonnie Lee Harrison has worked at the establishment as a waitress for three years. On April 11, 2010 there was a problem with a patron at the bar. The patron had arrived at 8:45 p.m. on a scooter. This patron became belligerent and she asked him to leave. He threatened to shoot them with an AK47, but did finally leave.
Ms Harrison stated that there was no altercation in the bar. Police arrived and entered the front door on their own, and were not escorted. The police did not approach her and did not speak to the owner the first time they came in for about 15 minutes.
She stated that the bar closed at 11:30 p.m. since they were not busy. She was in the kitchen, counting cash, when she heard knocking at the back door. Ms. Harrison did not open the door, since the bar is located in a bad area. She was not able to use the peep hole to see out, since it was located too high on the door.
When she heard the banging, Ms Harrison thought the owner must have been coming upstairs. She did not hear the police identify themselves.
Ms Harrison stated that when the owner opened the back door, he was taken outside and handcuffed. A male police officer came in, yelling about being angry and telling her to go open the front door to let other officers inside. These officers came in searching with flashlights. She stated that police told her they were going to close the bar and told her to leave. She did not leave. The owner was taken downstairs and when they came up, the officers left. She did have the names of the officers and drove the owner home that night.
On cross-examination, Ms Harrison stated that on April 11there were about three or four patrons on the premises. The son of the owner was not present and only comes in the odd time to help and to look after the computer.
Ms Harrison stated that she had not seen the male on the scooter before. She had served him three beers and two Baileys. This patron was in the bar about 1 hour and 45 minutes, leaving around 10:45 p.m. She stated that he seemed to know some of the patrons but did not see him talking to anyone.
The witness stated that the male patron was acting weird and getting belligerent. She asked him to leave when he started swearing and cursing, saying he was coming back to shoot the owner. She stated that no one had provoked him. She did not call the police, not taking it seriously since people drink and often say things they should not. She did not note any other signs of intoxication.
Ms Harrison stated that she told the owner she had asked the male patron to leave. Police arrived about 15 or 20 minutes later.
She stated that the doors were not locked, she was trying to close up. She did not observe the owner locking the doors before the police arrived and did not hear knocking on the windows.
When police came in, they strolled to the three patrons by the dance floor. They did not speak to the owner, only the three patrons. She saw the owner speak to the patrons as they were leaving. She stated that police come in quite often and usually ask to see the liquor licence and talk to patrons.
Police arrived 25 or 30 minutes later when she was in the kitchen counting cash. The owner was in the basement.
Ms Harrison heard strong banging on the back door. The owner came upstairs and went to open the door. He did not speak to her.
She stated that the owner had locked the front door and when she opened it, four police officers came in. When approaching the front door, she saw police standing and waiting for her to open the door. They appeared to be chatting.
When she returned to work, three days later, they talked about how rude the police were. She stated that she was frightened by the officer screaming at her because they could not get in.
Sinthujan Sinnathurai, is the son of the owner. He usually works mornings but was not on the premises on April 11, 2010. On that evening he did receive a call from his father and spoke with a police officer.
The witness stated that the officer was asking for the video surveillance and was aggressive.
He stated that the system has been broken. The system is not able to store as the computer is old. The bar has signs posted to deter robbers.
Suntharalingram Sinnathurai, through a translator, stated that he is the Licensee and has owned the business for four years. He has never been charged with AGCO offences.
He was in the bar on April 11, 2010. The patron in a wheelchair was screaming at him, telling him he was going to blow up the place. The Licensee stated that he did not know this person and this was the first time the male was at the premises.
Mr. Sinnathurai stated that there was no physical altercation. He asked the patron to leave and he did, at approximately 10:00 or 10:30 p.m. About 20 minutes later the police came in.
He stated that the patio gate was locked, but the main door was open. Police tried to jump over the fence, stepping on the police car and were told to come in the main door as it was open. He stated the police officers came in on their own. The officers did not speak to him or his staff, but did talk to some of the customers.
Mr. Sinnathurai stated that around 11:30 p.m. or midnight he was in the basement locking up bills and cash when he heard someone banging on the door. He came upstairs and opened the door. This is a distance of about 60 or 70 feet. Two officers were at the door and handcuffed him. They forced him on the door, ripping his t-shirt. He stated he was not resisting and that prior to opening the door, the police did not talk to him. Police did not check identification and did not lay any charges.
The Licensee stated that he has never sworn at police, and never stopped an inspection. He stated that his son controls the cameras, as he does not know much about this.
On cross-examination, the Licensee stated that he did not speak to police when they first entered the bar. On the second police visit that evening, after taking off his handcuffs, the officers took identification details.
The Licensee stated that he first saw police around 10:30 to 11:00 p.m. He saw police trying to step on a car to come inside the patio. He stated that the gate was locked but that the main door was open. He indicated with his hands, for the police to come into the establishment by that door.
Mr. Sinnathurai stated that he had not seen the male on the scooter before. After the patron said he would blow up the place and had an AK47, the owner told him to leave. No one had complained to him about Mr. Fetterly.
When police came back 20 or 30 minutes later, there were no patrons in the bar and he was in the basement. He was coming up the stairs when he heard banging on the back door. He did not know police were at the door and did not hear anything before opening the door. He stated that he was not afraid to open the door, even though he did not know who was banging.
On the second visit four or five police officers came inside.
In response to questions from the panel, the Licensee stated that he could not see through the small peephole, since it was blurred. He has not had any problems with police, but did complain to Mr Kelly, the Councillor for Ward 40.
Registrar’s Submissions
Mr Kulis, counsel for the Registrar, stated that the NOP deals with what happened after the incident with Mr. Fetterly. The issue is obstruction, with police being refused entry twice. The tapes from surveillance cameras were not provided and the Licensee did not answer questions in a truthful manner.
Mr. Fetterly initiated police involvement and his evidence differs from the Licensee.
The only evidence agreed on was the mention of an AK47. Police respond to an assault call. PC Astolfo goes to the Grill where he is told the assault occurs and sees someone running. When he goes to the front door it is locked. He knocks and there is no answer. The officer attempts to enter through the patio. The Licensee comes to the patio and refuses to open the door saying that the establishment is closed and no one is inside.
The Licensee still denies when told by police that they are investigating an assault. The Licensee has failed to assist.
When he does open the door, the police see 15 patrons inside and interview the patrons.
The officers leave to speak with the victim, telling the owner to have information ready when they get back. On their return, they again find the front door locked. PC Astolfo jumps over the fence to look through the patio windows. It is dark inside and he uses a flashlight, seeing about six people inside. The Licensee tells the police to go away.
At this time, five people are seen exiting the back door. One male tells police that he was directed by the owner to leave by the back door.
PC Astolfo goes to the back door, knocks, calls out and is told by the owner that the bar is closed. After more pounding on the door, the owner opens the door and is arrested for obstruct.
While checking out the video, the owner becomes apologetic. On the phone his son says that he will have the video ready for police and there is no information about the video being broken.
Mr. Fetterly says he has been to the bar six to eight times before. The bartender, Bonnie, says he did not talk with her or other staff.
Sgt. Worth witnessed other officers on site. He knocked several times on the front door and called out. The officer saw PC Astolfo go to the back door.
Ms Dobson heard Mr. Fetterly yelling at the bartender but did not see the owner during this exchange.
There is concern for credibility relating to the arrival and interaction with police. The police and Mr. Fetterly provided the most consistent evidence. The owner said he heard the comment about the AK47 and told Mr. Fetterly to leave, but others said that the owner was not involved.
At the back door, the Licensee says he cannot see outside, he does not send Ms Harrison away for her safety and says he did not know who was there.
The Registrar submitted that the Licensee knew police were there and for some reason, did not want to help them.
There is evidence of obstruct, fail to facilitate and failure to answer questions about the tapes, truthfully.
Licensee’s Submissions
Ms Harris stated that Mr. Fetterly is not a credible witness. He was taking pain medication and was drinking. He thought the owner’s son was the suspect and that he was a white guy. If he was assaulted, a reasonable person would follow up with police for photos. Although he said he had been to the bar before, others said otherwise.
Ms Harris submitted that PC Astolfo told the panel that on his first attempt to enter the bar, he used his car to access the patio. His partner told us they were at the door. PC Astolfo said that his partner had left to talk with the victim and he did not know where she was. However PC Taborski said they were together the whole time and another officer was with the victim. She remained in the police car when PC Astolfo went to the back door.
She said that the panel heard that there was a delay of about six minutes before police gained entry at the door. This may be related to the Licensee having language difficulty in conversing in English.
The waitress and bartender said the police did not talk to them the first time. The Licensee has been open for four years with no problems and is known to be a good person in the community. There was no reason for him not to co-operate. Except for his reluctance to give keys to his office, to the officer, the Licensee did co-operate.
In relation to the video equipment, Ms. Harris submitted that the evidence was that the TV was working but was not recording. The Licensee said that he could not afford to fix it and his son stated signage was posted to discourage break-ins.
Ms Harris submitted that there has been no contravention. The door was not opened fast enough to satisfy police. When the Licensee did open the door, he was handcuffed. He did willingly take the police downstairs, and may not have fully understood their questions. The second allegation is not well established and should be dismissed.
Reply Submissions
The police went to the premises to start their investigation. The violation occurs when the Licensee told police the bar was closed and no one was inside. This is when the obstruction starts. When the police entered, there were patrons having liquor. The bar was operating and the Licensee had lied.
Mr. Kulis submitted that the Licensee did not want the police to find out there had been an assault.
Reasons and Analysis
The Board has carefully reviewed and considered the evidence, exhibits and the written submissions of both parties in this matter.
The Board found all the witnesses to have given their evidence in a direct manner but also notes a significant number of inconsistencies in the evidence of both the Registrar’s witnesses and the Licensee’s witnesses.
For a finding under subsection 45(1), the Board must make a determination that the Licensee obstructed a person carrying out the inspection or withheld, destroyed, concealed or refused to provide relevant information required for the purposes of the inspection. Together with that of subsection 45(2), which states that the Licensee failed to facilitate an inspection, are very serious allegations against the Licensee.
With police following up on a radio call about a possible assault, the Board recognises the sense of urgency to their investigation and their concern for the victim.
It is reasonable for police to include a local bar in their sphere of investigation when an assault has occurred and a suspect has not yet been located. It should also be noted that police saw a male run from the area of the bar.
Re: Subsection 45(1) of the LLA
Mr. Fetterly had stated that the person who assaulted him was a white male and the son of the Licensee. The Board finds that the evidence is more credible from the Licensee and his son, Mr. Sinthujan Sinnathurai. That evidence states that the son was not present on April 11, 2010. This was further corroborated in evidence when the Board learned that the Licensee and the two police officers spoke to the son on the phone that night.
As well, during the course of the hearing, the Board heard evidence from the son, when he appeared as a witness and it was clear that he is not white. This information raises concern about the accuracy of the evidence presented by Mr. Fetterly, who had told the Board that he had been to the premises six to eight times before and had met the son on two other occasions. The Board heard evidence from several witnesses that Mr. Fetterly was not seen at the premises before.
As well, Mr. Fetterly admitted that he was drinking while taking pain medication. In evidence Mr. Fetterly said he had three shots of Baileys and about four beers while at the bar.
Mr. Fetterly did not comply with the police request for photos of his injuries, leaving their investigation incomplete. Given all the factors and evidence, the board finds that his testimony lacked credibility.
Mr. Fetterly stated that he was only discussing guns and had indicated that he owned an AK47. The Licensee indicated that he and his staff understood that the patron had threatened to “blow up the place” and was coming back with an AK47.
The board heard consistent evidence relating to Mr. Fetterly talking about an AK47. Ms Harrision said that Mr Fetterly threatened to shoot them with an AK47, but did finally leave. Mr. Veerani stated that he heard him yelling saying that he was going to pull out a weapon and blow up the place.
The Board is unsure of what exactly transpired with Mr. Fetterly. The fact is that police were called as a result of the incident and the police officers commenced an investigation. The key question is whether they were obstructed by the Licensee.
The Board accepts the evidence of the police officers, that the Licensee may have appeared reluctant to open the front door at the time of the first visit, but notes that the Licensee did open the door. Although the Licensee appeared to be slow opening the door to the police officers, this does not indicate that the Licensee obstructed their entry nor was there any indication of interference with their investigation when they entered the premises.
The Board does not find that there was a breach on this first entry to the premises.
On the second entry to the premises, according to evidence given by PC Taborski, PC Astolfo knocked on the front door. Then, using the hood of his car, he jumped over the patio fence to access the patio door. When other officers arrived they went to the rear door while other police units were arriving on the scene at the front of the premises.
PC Astolfo had indicated that he saw patrons leaving by this door. With a description of a white male suspect, he handcuffed a person fitting this description. This person was released when Mr. Fetterly indicated that this male did not assault him. He returned to the back door to gain entry.
The Board considered the evidence of the Licensee and his staff, which indicated he was just coming up the stairs at the time the knocking started. It is possible that Ms. Bonnie Harrison, was reluctant to open the door, not being able to see through the peephole, hearing loud voices and preferring to wait for the Licensee.
The officer indicated he was pounding on the door and calling out. With the distance to the door from the staircase, it is reasonable to suggest that the owner was delayed opening the door. As well, the Board notes that PC Astolfo stated he was at the back door and had handcuffed a possible suspect at 12:05 a.m. He had presented the male to Mr. Fetterly, who was at the front of the bar with PC Taborski and then the male was released. In evidence he stated that he gained entry into the premises at 12:11a.m. It is worth noting that the time frame is only a matter of six minutes for all the above events to take place as described to the Board.
Although the Licensee did eventually open the back door for the police officers, the Board finds it was clear from the evidence of the police officers that when they tried to gain entrance at the front door and patio door, at the time of the second visit to the premises, the Licensee told the officers to go away. The officers had to search for another entranceway at the back and were forced to call for additional backup units. The officer saw five males exit the back door when he arrived at the back door. The Licensee had been told by the police officers they would be returning and clearly did not allow them in. This sequence of events presents an obstruction to carrying out an inspection.
The Board, therefore, FINDS that the Licensee breached subsection 45(1) under the LLA.
Re: Subsection 45(2) of the LLA
The Board now turns its attention to events in relation to the allegation of a breach of subsection 45(2). The board finds that the language barrier and conflicting evidence registers doubt about the order of events and the interaction between the Licensee and police.
Twice the police entered the premises as part of their assault investigation.
On the first occasion, the Licensee told PC Astolfo that there was no one inside, but on entering, the police observed 15 patrons inside. Although the Licensee did not tell the truth about the patrons inside the premises, this does not in itself demonstrate a failure to facilitate an inspection. On the first visit, interviews were conducted with patrons and the Licensee. There was no evidence of concealing, destroying or refusing any information relevant to the LLA.
On the return visit by police, once the handcuffs were removed from the Licensee, after he opened the door, the Licensee co-operated, taking the officers downstairs to the computer monitor as he was asked and calling his son for assistance. From the evidence presented by the officers and the Licensee, it appears that the computer monitor was registering views from the cameras on site. Further, evidence from the son suggests that the computer was monitoring but not recording.
The Board accepts the evidence that the Licensee was not familiar with the system. This was further confirmed when the Licensee and police spoke on the phone to the Licensee’s son, Mr. Sinthujan Sinnathurai. He stated that he was the operator of the system and on the phone, indicated he would get the tapes to police. At the hearing the Licensee’s son indicated that the monitor was working but the computer was not recording.
There was no evidence provided by the police that they had followed up on the request for tapes prior to the allegations being made or prior to the hearing, which may have supported the indication that the Licensee was deliberately withholding information.
In fact, in evidence, PC Astolfo did not provide any additional information in relation to efforts to procure the tapes or take photos of Mr. Fetterly’s injuries. He did state that he did not lay any charges and that the allegations were laid later by the Major Crimes Unit.
Given the unusual circumstances surrounding the allegations which include the assault investigation, a possible physical or verbal altercation, possible threats to the Licensee, the language barrier and the conflicting evidence received, the Board is not satisfied and finds that there is not adequate, clear evidence to conclude that there has been a breach of subsection 45(2).
Therefore, the Board DISMISSES the allegation of subsection 45(2) of the LLA that the licence holder failed to facilitate an inspection.
Conclusion
For the above reasons, the Board FINDS the Licensee contravened subsection 45(1) of the LLA and DISMISSES the allegation of a violation of subsection 45(2) of the LLA.
The 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 8th DAY OF August , 2011
JOAN LOUGHEED, BOARD MEMBER BRUCE S. MILLER, BOARD MEMBER