Registrar, Alcohol and Gaming Commission of Ontario v. Maria Garcia o/a Classic Cocktails Bar & Grill, 2011 CanLII 64084

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-

Maria Garcia o/a Classic Cocktails Bar & Grill Licensee

DECISION ON FINDINGS

Panel: Patricia McQuaid, Vice-Chair Grace Kerr, Board Member

Decision Date: August 17, 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 ) Aviva Harari, Representative Maria Garcia, Licensee ) John Paul Evans, Representative

Allegations

1. A hearing into Amended Notice of Proposal number 18561, dated March 2, 2011 to suspend for 30 days liquor licence number 202416 (“the Licence”) issued to Maria Garcia (the “Licensee”), operating as CLASSIC COCKTAILS BAR & GRILL (the “establishment” or the “premises”), 1805 Wilson Ave., Unit 5, North York, ON M9M 1A2, on the basis of alleged violations of subsection 45(2), clause 50(c), and section 43 of Ontario Regulation 719/90 (the “O. Reg.”) made under the Liquor Licence Act (“LLA”), and on the basis of an alleged breach of a condition of the Licence, was held on May 3, 2011 in the City of Toronto.

Decision

2. After considering all the evidence and submissions the Board FINDS that the Licensee violated section 43 of the O. Reg. and also FINDS that on two separate occasions the Licensee breached the security provisions that are a condition of the Licence. The Board DISMISSES the allegations that the Licensee violated subsection 45(2) and clause 50(c) of the O. Reg. Reasons follow.

Preliminary Matters

3. An order excluding witnesses was made on consent.

4. The parties submitted an Agreed Statement of Facts, which was made Exhibit 1. A copy of that Exhibit is attached to this Decision.

5. In Exhibit 1, the Licensee admitted to violating section 43 of the O. Reg. and to breaching a security provision of the Licence on two separate occasions. Accordingly, the Board makes a finding with respect to each admission.

6. The ‘only’ issues remaining in contention, therefore, were whether the Licensee complied with clause 50(c) and/or breached subsection 45(2) of the O. Reg. The evidence was directed to helping the Board decide these two issues.

Registrar’s Evidence

7. Duane St. Jean has been with the Toronto Police Service for about 9½ years. He attended the establishment on July 17, 2010 at approximately 2:44 a.m. for a routine liquor licence inspection.

8. Police Constable (“PC”) Dominy, Detective Constables (“Det Cst”) Park and Morelli, and Alcohol and Gaming Commission of Ontario (“AGCO”) Inspectors Fernando and Hetherington accompanied PC St. Jean on the inspection.

9. Upon arrival, PC St. Jean noticed 4 security guards at the front door. None of them was female.

10. He asked the security guard how many people were inside and was told, 304 inside and 47 outside. The security guard’s wand appeared to be working.

11. PCs St. Jean and Dominy then went to the patio and were advised that there was a male to be arrested for “possession of marijuana under”. PC St. Jean arrested the man, a patron, by putting a hand on his arm.

12. The patron was escorted off the patio and PC St. Jean began to search the patio as well as the driveway/parking lot that goes to the back of the premises for evidence of the alleged offence, without success.

13. He continued searching, using a flashlight, and eventually found a small “joint” in a planter beside a door leading back into the premises. He testified that there were also the remains of a “joint” in the ashtray of the table where the arrested man was sitting. He could tell by the smell – it had been lit – that it was burnt, fresh marijuana.

14. PC St. Jean also found wrappers on the floor, little zip lock bags and the contents of cigar casings. He testified that these are all consistent with marijuana use.

15. Upon exiting the premises, PC St. Jean spoke with the patron who had been arrested, Mr. RM, who admitted to the officer that he had been smoking marijuana on the patio. He also told PC St. Jean that Ms Garcia had told him he was not welcome back.

16. PC St. Jean decided to “caution” Mr. RM because he had destroyed the drug that he had used. Also, he had rid himself of the drugs he had on him. As a result, at that time PC St. Jean could not positively say that the marijuana he found was Mr. RM’s.

17. On cross-examination, PC St. Jean clarified that he arrived on the patio just as the arrest was happening.

18. There were other patrons on the patio besides Mr. RM.

19. PC St. Jean knows the owner of, and most of the security guards, at the establishment.

20. He acknowledged that his notes, taken at or shortly after the time of the inspection, do not say that he noticed the smell of marijuana. The only marijuana he smelled was when he picked up the burnt joint.

21. Since mid-December 2010, the establishment has had a zero-tolerance policy in relation to drugs; PC St. Jean does not believe that this policy was in effect at the time of the alleged incident.

22. PC St. Jean said that the evidence he collected was tested, but he does not have the results of that testing.

23. PC St. Jean did not think that the paraphernalia he saw and collected could have related to something else, such as self-rolled cigarettes.

24. When AGCO Inspector Stephen Hetherington arrived at the establishment, together with AGCO Inspector Fernando and the detectives from Division 31, Toronto Police, Major Crimes Unit, he went to the patio after conducting a walk-through of the premises.

25. He noticed several “roaches” – ½ and ¾ smoked “blunts” as well as regular round paper joints – on the ground around the patio and in ashtrays. He did not collect these for testing purposes, although the Toronto police officers did.

26. He also noted that there were two separate exits from the patio. Specifically, the rear patio exit was chained shut with a padlock and the front exit was blocked completely by a barbecue and a folding table. Both of these exits opened onto the parking lot.

27. The barbecue was in use at the time of the inspection; staff members were cooking something on it. There were staff members and patrons on the patio at that time.

28. On cross-examination, Inspector Hetherington clarified that the word “roach” is a slang term, meaning half of a smoked marijuana cigarette. He testified that there is no doubt in his mind that what he saw was marijuana. He did not smell any marijuana being burned on the patio.

29. Inspector Hetherington said that neither exit was marked as a fire exit, though clearly they could be used in the event of a fire.

30. He acknowledged that patrons could still exit through the third exit (that is, the one that he and Inspector Fernando came through when they entered the patio) in the event of a fire.

31. He agreed that he would not be surprised if the padlocked door led onto the garbage collection area.

32. Inspector Hetherington spoke with the Licensee on the patio, and advised her of the alleged infractions.

33. AGCO Inspector Neline Fernando also conducted a walk-through inspection of the premises before going out to the patio. She noted that the Toronto Police Officers were dealing with a male there.

34. She noticed discarded marijuana cigarettes on the floor and brought these to the attention of the security officers that were posted on the patio.

35. Inspector Fernando also testified that the door at the rear of the patio, which exits onto a roadway leading to a parking lot, was locked with a padlock, while the one to the front was blocked by a barbecue and a table.

36. She spoke with the gentleman who was barbequing chicken and he co-operated in moving the barbecue so she could access the front exit.

37. On cross-examination, Inspector Fernando did not recall the security officer’s response, when she talked to him about the marijuana use.

38. She does not know how many exits are required in the establishment as per the fire regulations.

Licensee’s Evidence

39. Maria Garcia has been the sole owner and operator of the licensed establishment for 3½ years. She obtained a business licence to run “an entertainment establishment/nightclub”.

40. Ms Garcia presented the Board with eight photographs, marked as Exhibit 5 (A-H), that she said show how “things always are” at the establishment.

41. Specifically, she said that the doors to the parking lot are never locked. That said, the gate at the back of the patio is closed, but not locked. It leads to the establishment’s garbage bin.

42. The barbecue can be moved a bit to either side of where it is placed on the patio, but its leg is tied so that it is essentially stationary, according to Ms Garcia.

43. When the inspectors arrived on the night in question, they went straight to the patio; they did not even see her. Usually, they come in and go around.

44. Ms Garcia said that Mr. RM was arrested in the parking lot, and not while he was on the patio. One of her security guards came and told her what had happened; none of the inspectors or the police officers did.

45. The establishment has a policy: it does not accept narcotic use at all. Signs are posted, saying that narcotics use is not allowed. This policy has been in place since Ms Garcia started operations.

46. Since the weekend of September 24/25, 2010, Ms Garcia has hired paid duty officers to provide additional security to the establishment. They are there on Friday and Saturday nights – the establishment’s busiest nights – and stay until midnight.

47. The establishment’s capacities are: 222 persons on the inside and 72 persons on the patio. Ms Garcia admitted that she had erroneously been combining the figures (for a total of 294 persons) when monitoring her numbers. She now knows that the capacities cannot be combined.

48. This is nevertheless a difficult issue for her to monitor as all patrons come in through the same door. Her plan, now, is to keep track of the numbers at the front door, using counters, and to always count the patrons exiting as well as entering. She also intends to bring in less people so that she can keep the capacity in control.

49. Ms Garcia also acknowledged that a condition on her Licence requires her to have 10 security guards working: 4 by the front door, 2 at the washrooms, 2 on the patio and 2 walking the floor. Further, the condition requires that there be a male and a female security person posted at the washrooms and at least one female at the front door.

50. She further acknowledged that, on two occasions, she did not have proper security. At the last minute, the female security guard that normally is posted by the washrooms simply did not show up for work; on the other occasion, at the last minute she was unable to get a female security guard to work.

51. She is training female staff to fill in as security on an “as-needed” basis to avoid a similar problem in the future.

52. On cross-examination, Ms Garcia testified that before starting to operate the establishment she had worked in a smaller bar on a part-time basis. She was trained in Smart Serve about 10 years ago. She leases the premises. The patio was already there when she entered into the lease. Everything is at ground level; there are no stairs leading up or down.

53. If there is an emergency, patrons located on the patio would leave via the two doors, or come back inside and go out the front door.

54. The door to the garbage is never chained; it is fastened with a “hook-type” device, which does not lock the door.

55. People are not often arrested at the premises. Ms Garcia does not keep a record of such events, but there are 16 security cameras located around the establishment and she has given videotapes from those cameras to police before if there are people they are looking for. Two such cameras are located on the patio, facing each other. The video-security system runs a continuous tape, recorded onto a CD, which allows them to go back months, if necessary.

56. Ms Garcia was not certain she has the video for July 17, 2010.

57. If someone is found smoking marijuana on the premises, they are made to leave. She does not keep a log of when such expulsions have happened, but acknowledged that it was a good idea and that she should start keeping one.

58. Ms Garcia disagrees that Inspector Hetherington spoke to her on the night in question.

59. The security guards who work the front door of the establishment have been with Ms Garcia since she started the business. She testified that they remember (that is, by facial recognition) who has been ejected from the establishment and would not let them back in. She described them as being very tough and very strict.

60. She does not know if the man who was arrested has ever been back to the establishment.

61. Ms Garcia had been requesting paid duty officers to assist with security since 2007. She put in weekly requests, but was always denied the service. Exhibit 6 is an example of such a request, made on March 13, 2010.

62. PC St. Jean sometimes acts as a paid duty officer at the establishment, but did not do so before July 17, 2010. He has been there a few times since September 24/25, 2010, sometimes working in uniform and sometimes working in an under-cover capacity.

63. All of her security staff are licensed (under the provincial legislation).

64. A sign (prohibiting the use of narcotics) is posted on the door leading to the patio and there is one on the patio, too.

65. Every night, Ms Garcia walks through the establishment approximately every 15 minutes.

66. In response to a question from the Board, Ms Garcia said that she has never seen the paraphernalia described by PC St. Jean on the patio before.

67. Mr. Clint Hochoy Marshall also testified on the Licensee’s behalf. He is head of security for the establishment, has worked for Ms Garcia for four years, and has 20 years of experience (in total) working in security.

68. Capacity is monitored using two counters, taped together: one counts people exiting; the other one counts people entering the establishment.

69. 222 persons are allowed inside the establishment and 72 persons are allowed on the patio.

70. Mr. Marshall acknowledged that over-crowding has occurred in the past because the capacities were being combined. He now knows that this is not acceptable, and the problem has been rectified by putting less people inside.

71. The establishment has a policy regarding the use of narcotics: anyone found using it is put right out. This policy has been in place ever since he has worked at the establishment.

72. “Sometimes” he has had to escort some patrons out, but this has not happened often. It has been easier to deal with since the paid duty officers have been there; if someone is found using narcotics, the officers are immediately called to deal with it.

73. Mr. Marshall was working the night of July 17, 2010. He saw the officers come in, saw that there was a commotion on the patio, went over, and noticed that the police were trying to arrest a patron, whom, they said, had narcotics on him. The patron was arrested, but later released.

74. The two doors leading off the patio (see Exhibit photos 5A and 5F) are never locked. The back door leads to a garbage bin, located behind it.

75. Only once, one of the female security guards called in sick and no one could be found at the last minute to fill in. Mr. Marshall testified that some of the bartenders are being trained to be security officers, “in case somebody calls in like that again”.

76. On cross-examination, Mr. Marshall testified that, in addition to securing the front door, Mr. Marshall has the opportunity to walk about the premises “maybe twice” during the course of a night. Other security personnel normally patrol the patio.

77. He does not keep a log book of issues that come up while he is on duty as a security guard.

78. The names of the persons who are asked to leave the establishment are not recorded. These people are allowed back in, as long as they obey the rules.

79. Signs are posted advising patrons of the establishment’s “no narcotics” policy.

80. Mr. RM is not a regular patron; Mr. Marshall had seen him about twice.

81. PC St. Jean is one of the paid duty officers that comes to the establishment. Mr. Marshall trusts his abilities.

82. Mr. Marshall is the only person who counts patrons.

83. Mr. Pierre Cornacchia, who has been one of the patio’s two security guards for four years, testified next.

84. His primary duties are to patrol the patio, enforce the establishment’s ‘no narcotics’ policy, and maintain the peace.

85. Two security guards are posted to the patio each weekend.

86. He testified that, in the early morning hours of July 17th, he was on duty (on the patio) when he saw a patron approached by the police. The man was asked if he had any narcotics and answered that he did not. Mr. Cornacchia did not see anything on the person or smell anything. The police escorted the man off the patio, and Mr. Cornacchia remained on it.

87. Mr. Cornacchia said that there is a strict ‘zero tolerance’ policy regarding narcotics. If someone is witnessed breaching that policy, they are escorted out. If they give any resistance, they are turned over to the paid duty officers that have been in place for the last eight to nine months.

88. He confirmed that there is a gate leading off the patio and a door leading to the garbage bin. For as long as he has been working the patio, he has never seen the doors locked.

89. He stated that neither the gate nor the door was locked on July 17th.

90. According to Mr. Cornacchia, the barbecue that is on the patio is never placed in front of the gate and a point is made of not blocking that gate.

91. On cross-examination, Mr. Cornacchia confirmed that he has worked security for the past 16 years, mainly in bars and nightclubs.

92. One of the reasons there are two security guards on the patio is to enforce the ‘no narcotics’ policy “to a ‘tee’”.

93. He states that ‘notes’ (identifying the ‘no narcotics’ policy) were already posted on the window before July 17th.

94. The person who was arrested had been in the establishment only “once or twice” before and has not been there since.

95. Mr. Cornacchia agreed that it is possible to move the barbecue from its position as shown in Exhibit 5D, but he has never witnessed it.

96. He said that a folding table is sometimes placed next to the barbecue, but it is away from the door.

97. Mr. Cornacchia did not speak with either the inspectors or the police officers on the night in question.

98. In response to questions from the Board, Mr. Cornacchia said that initially the ‘no narcotics’ policy had to be enforced “quite often”; however, over time it has become less and less necessary, especially with the paid duty police officer at the front door.

99. Mr. Cornacchia did not see the police officers search for evidence, but he did notice them picking something up from the floor. He was unaware of the results of the testing by police.

Written Submissions

100. The Board requested, and the parties submitted written submissions, which are summarized below.

Registrar’s Submissions

i. Blocked Exits

101. The Registrar submits that the Licensee was in breach of the Fire Protection and Prevention Act (FPPA), and more particularly, was in breach of the Fire Code, which is a Regulation of the FPPA, which requires “means of egress” to be maintained in good repair and “free of obstruction”.

102. Specifically in this case, there were two “means of egress” from the patio and one was obstructed by a barbecue and folding table and the other by a chain and lock.

103. Both AGCO Inspectors testified that there were two gates leading off the patio to the parking lot. Inspector Hetherington testified that one gate was blocked by a barbecue as well as a by folding table, and that staff had to move both items to allow him to leave the patio through the gate. He also noted that the gate near the garbage bin was chained shut, with a padlock; this evidence was corroborated by Inspector Fernando.

104. Ms Garcia testified that a chain held the gate near the garbage bin shut, but that the barbecue could not have been blocking the gate since it is attached to a nearby bench. In contrast, Mr. Marshall testified that he has seen the barbecue in various places on the patio and that he was not aware of it being secured.

105. The Inspectors evidence should be preferred over Ms Garcia’s. There are inconsistencies between Ms Garcia’s testimony and that of her security guards.

ii. Use of a Controlled Substance

106. The Registrar submits that the Licensee permitted a controlled substance, that is, marijuana, to be possessed and consumed on the patio of the establishment.

107. The person, Mr. RM, whom PC St. Jean arrested, admitted to the officer that he had smoked marijuana on the patio. PC St. Jean also searched the patio and found what he believed was paraphernalia, consistent with marijuana use, there.

108. Mr. Cornacchia did not hear what Mr. RM said to the police officer, including his admission. Also, it is possible that Mr. Cornacchia did not see the marijuana use.

109. The Licensee must do more than post signs to deter the use of controlled substances at the premises: they must also take action when the policy is breached. The Licensee does not have any notes or recordings to prove that patrons have been removed for using illegal drugs at the establishment.

110. Clearly, the Licensee knew, or ought to have known that controlled substances were being used at the premises.

Licensee’s Submissions

i. Blocked Exits

111. The Licensee submits that the provisions of the Fire Code, referenced in the Registrar’s submissions, were not introduced as evidence at the hearing nor disclosed to the Licensee prior to the date of the hearing. Furthermore, subsection 2.71.7(1) was not specifically referenced in the NOP.

112. As regards the evidence on this issue, the Licensee submits that the evidence supports conclusions that:

a. the exit gate beside the barbecue is never locked;

b. the barbecue is never moved in front of that exit gate when the patio is open for business;

c. the other gate is never locked. However, there is a chain on it that is used to hold the gate open when the garbage is being accessed;

d. there is a third means of egress from the patio, that is, the door leading to the patio from the inside of the premises. This is the main access and exit doorway and provides another means of egress from the patio; and,

e. there were only two employees and no patrons on the patio when it was inspected so it is possible that the employees were cleaning up and moving tables, chairs, and perhaps the barbecue in the process of doing so.

ii. Use of a controlled substance

113. The Licensee submits that the officer who arrested the patron for alleged drug use did not testify at the hearing. Only PC St. Jean gave evidence, testifying that he heard Mr. RM admit that he had a small amount of marijuana on his person just prior to his arrest. The arresting officer let the patron go free and PC St. Jean speculated that this was because “no hard evidence of marijuana was found”. This was the result despite the “admission” being evidence.

114. The Licensee and her witnesses testified to the establishment’s ‘no drugs’ policy. Additionally, paid duty police are hired to patrol the exterior of the premises on busy nights and the Licence requires two security guards to be posted on the patio. The Licensee asks, what more can it be expected to do?

115. There is no evidence that, on July 17, 2010, the Licensee or her staff knew that Mr. RM had narcotics on his person.

116. There is no evidence that the material seized by police from the patio floor was marijuana: the test results were not produced.

117. There is no evidence that Mr. RM had marijuana on his person because none was found and the officer who arrested him did not give evidence at the hearing.

118. The Registrar has not proved that the Licensee “permitted” the use of a controlled substance on the patio.

Registrar’s Reply

119. The NOP clearly states that one of the alleged violations related to the FPPA, and particularizes the specific concerns. Further, the Licensee never requested further particulars.

120. There is no evidence that only two employees were on the patio when the Inspectors arrived. While there may have been employees there at the time, there was at least one patron there as well, Mr. RM.

121. Both AGCO Inspectors testified that the barbecue was in use at the time of the inspection.

Reasons and Analysis

122. The Board has carefully considered the evidence as well as the written submissions of the parties in coming to its decision, for the reasons as follow.

A. Agreed Issues – “Overcrowding” and “Breach of Conditions”

123. Relying upon Exhibit 1, the Agreed Statement of Facts, the Board makes the following findings of fact:

a. Maria Garcia, operating as Classic Cocktails Bar & Grill, is the holder of liquor licence number 202416, located at 1805 Wilson Ave., Unit 5, Toronto;

b. At all material times, Ms Garcia held a valid liquor licence. The liquor licence was subject to terms and conditions, which are set out in Exhibit 1, and as well, are on the Licence, filed as Exhibit 2;

c. At all material times the capacity of the licensed premises was 222 persons for the main floor West and North East Sections. The outdoor capacity for the Main Floor North East Section is 72;

d. On September 18, 2010, at approximately 1:25 a.m., there was only one security person on the patio and only 1 security person at the entrance to the washrooms. There were only seven security staff on duty, when nine security staff were required, in accordance with the conditions attached to the Licence;

e. On September 18, 2010, there were approximately 249 persons in the licensed premises.

f. On November 6, 2010, at approximately 1:02 a.m., there was no female security at the entrance to the women’s washroom as required by the conditions attached to the Licence;

g. On November 6, 2010, there were approximately 294 persons in the licensed premises;

h. On December 5, 2010, there were approximately 292 persons in the licensed premises;

i. On January 23, 2011, there were approximately 254 persons in the licensed premises.

124. Furthermore, relying upon Exhibit 1, the Board also finds as a fact that the Licence is subject to the following terms and conditions, amongst others:

… The following condition … is in effect from 9:00 p.m. Friday to 3:00 a.m. Saturday, and from 9:00 p.m. Saturday to 3:00 a.m. Sunday, …

2. There shall be security personnel wearing clothing that readily identifies them as security and the security personnel shall be stationed as follows:

(a) Three male and one female security at the front doors;

(b) Two security on the patio;

(c) One male and one female security at the entrances to the washrooms;

(d) Two security patrolling the interior licensed premises.

125. As a result of these findings of fact, the Board FINDS that on September 18, November 6, and December 5, 2010, as well as on January 23, 2011, the Licensee breached section 43 of the O. Reg.; on those dates, the number of persons on the premises to which the Licence applies, including employees of the Licence holder, exceeded the capacity of the licensed premises as stated on the Licence.

126. The Licensee, through counsel, advised the Board at the hearing that as of September 18, 2010, that she is (now) aware that the capacities of the premises, for the interior and for the patio, as set out on the Licence, cannot be combined.

127. Also, as a result of the findings of fact, the Board FINDS that on September 18 and November 6, 2010, the Licensee breached the security provisions of the Licence.

128. Two additional allegations are in contention. The first involves whether the Licensee “permitted a controlled substance” on the premises on July 17, 2010; the second involves whether the Licensee breached clause 50(c) of the O.Reg., which requires a Licensee to be compliant with the Fire Protection and Prevention Act, 1997 and, more particularly, to be compliant with the Fire Code. Each of these issues will be addressed in turn.

B. Breach of subsection 45(2) of the O. Reg (“permit controlled drug”)

129. Subsection 45(2) of the O. Reg provides as follows:

45(2) The licence holder shall not permit a person to hold, offer for sale, sell, distribute or consume a controlled substance as defined in the Controlled Drugs and Substances Act (Canada) on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

130. The Board must make a two-part inquiry for a finding under this subsection. First, the Board must determine that a person in the licensed premises held, offered for sale, sold, distributed or consumed a controlled substance as defined in the Controlled Drugs and Substances Act (Canada) (CDSA) on the date in question.

131. Next, it must determine if the Licensee “permitted” this to happen. To “permit”, the Licensee must have known or ought to have known that the individual was holding, offering, selling, distributing or consuming the controlled substance.

132. At the present time, “marijuana” is a controlled substance as defined by the CDSA.

133. In this case, PC St. Jean testified that the paraphernalia he removed from the establishment’s licensed patio was consistent with marijuana use. After an extensive search of the patio and surrounding areas, he also found a small “joint” in a planter beside the door leading back into the premises. He smelled it and to him it had the odour of burnt, fresh marijuana. PC St. Jean came to these conclusions based on his dealings as a police officer and through his training at the Alymer Police College.

134. He also told the Board that the items he collected were sent away for forensic testing; unfortunately however, he did not know or have a copy of the results.

135. While the best evidence in this case would have been the results of the forensic testing, the Board accepts PC St. Jean's evidence that the paraphernalia and the small joint he found was marijuana based on his experience and training as a police officer.

136. Thus, the first part of the test has been met.

137. However, the Board concludes that the second part of the test has not been proven. Specifically, the Board is not satisfied that the Licensee knew or ought to have known that the patron in question was consuming a controlled substance, that is, the marijuana which PC St. Jean found.

138. While PC St. Jean testified that Mr. RM was arrested, removed from the patio, and confessed to marijuana use, ultimately, the patron was released without charges. More important and relevant evidence to the issue for the Board to decide, however, is as follows.

139. First, neither the officer, Inspector Hetherington nor Inspector Fernando noticed, generally, a smell of marijuana on the patio either upon their respective arrivals or while they were based there. [PC St. Jean acknowledged on cross-examination that he only noticed the smell of marijuana when he sniffed the butt he found.]

140. Furthermore, it was only after PC St. Jean very carefully searched the patio, at length and using a flashlight, that he found indication of marijuana use, that is, the paraphernalia that the officer referred to in his evidence.

141. While PC St. Jean, appropriately relying upon his experience and training as a police officer, was certain that the paraphernalia he found is used for smoking marijuana, there was no evidence as to who used it for that purpose, or when.

142. Specifically, there was no evidence that anyone saw a patron, let alone Mr. RM, consuming the marijuana. Also, there was no evidence that it was consumed, if it was consumed there, while the establishment and/or the patio was even open.

143. The Board also accepts the testimony of the security officers, which speaks to the establishment's zero-tolerance policy for drug use and confirms that this policy was in place on the date in question. Their testimony seemed credible. It was given in a forthright, unembellished manner and was not shaken on cross-examination.

144. As a result, the Board cannot conclude that the Licensee knew or ought to have known that marijuana was being consumed on the patio on the night in question.

145. For these reasons, the Board cannot find that the Licensee violated subsection 45(2) of the O. Reg.

C. Breach Fire Protection and Prevention Act, 1997 (Fire Code)

145. Finally, the Board must determine whether the Licensee breached clause 50(c) of the O.Reg., which requires a Licensee to be compliant with the Fire Protection and Prevention Act, 1997 (the FPPA) and, more particularly, to be compliant with the Fire Code.

146. Specifically, clause 2.7.1.7 (1) of the FPPA provides: “Means of egress shall be maintained in good repair and free of obstructions.”

147. "Means of egress" is defined under the Fire Code, as follows: “Means of egress means a continuous path of travel provided for the escape of persons from any point in a building or contained open space to a separate building, an open public thoroughfare or an exterior open space protected from fire exposure from the building and having access to an open public thoroughfare. Means of egress includes both exits and access to exits.”

148. In this case, it is not contested that the doors in question, that is, the two patio doors leading to the driveway and the parking lot/garbage bins, respectively, constitute "means of egress" within the meaning of the Fire Code. The Board has reviewed the evidence and Board has concluded that neither one was obstructed on the night in question.

149. Specifically, what the Registrar alleged is that those means of egress were obstructed, in the first instance, by a barbecue and a folding table, and in the second instance, by a padlock.

150. To this end, the Board has considered the evidence of AGCO Inspectors Hetherington and Fernando on behalf of the Registrar, and that of Ms Garcia, Mr. Marshall and Mr. Cornacchia on behalf of the Licensee. All of them spoke to the issue in their testimonies.

151. The Board prefers the evidence of the Licensee on this issue, for several reasons.

152. First, Inspector Hetherington candidly admitted that at the time of the inspection his attention was focused on the marijuana arrest. Thus, less weight should be given to his observations about the alleged breach of the Fire Code provisions.

153. Further, in cross-examination he agreed that neither of the two exits in question was marked as fire exits and that in the event of a fire on the patio patrons could have exited through the door that he and Inspector Fernando went through.

154. Finally, he also candidly agreed that the rear door – the one that he stated was padlocked - lead onto the garbage collection area, which is consistent with the Licensee’s witnesses’ testimony.

155. Also, Inspector Fernando candidly acknowledged in cross-examination that she did not know how many exits are required on the patio for the Licensee to comply with the Fire Code.

156. In contrast, the Licensee as well as her employees testified that the rear door on the patio is held closed with a latching mechanism and is not padlocked as was alleged by the Inspectors. The Licensee further testified that the rear patio door provides access to the establishment’s garbage bin mainly, and to a public driveway secondarily, and also that it can be used as an emergency exit, if need be. As Ms Garcia reasoned, if that door were to lock, then her staff would have to go all the way around the patio to get back into the premises after taking out the garbage.

157. The Board accepts this evidence; it makes common sense that a door intended for these purposes would be latched with a hook-type device, but not locked.

158. Also, Ms Garcia testified that she circulates the establishment every 15 minutes; one of her reasons for doing so is to ensure that the emergency exits are never blocked. She agreed that it was possible that a table had been put in front of the side exit of the patio, but if so, a folding table would have been used to hold things related to the barbecue. According to Ms Garcia’s evidence, she did not see a folding table there when she made her rounds.

159. In a very similar vein, Mr. Cornacchia, who has been the establishment’s patio security guard for 4 years, testified that the barbecue has never been placed in front of the side exit. This is so that the door is never blocked in case it needs to be used as an exit. He also agreed that the barbecue cook sometimes uses a folding table to place things on and puts it beside the barbecue but away from the exit door.

160. An obstruction is an obstacle or hindrance that closes up and/or blocks something – in this case, the side exit door. If there was a folding table in front of the door, which is possible based on the Licensee’s and her employee’s testimony, it is not clear that it – and/or the barbecue, for that matter, “obstructed” the side exit. The AGCO Inspectors evidence was equivocal in that regard.

161. According to Inspector Hetherington, there was one to two men around the barbecue and he asked them to move the table which was “mainly blocking” the exit so he and Inspector Fernando could leave the patio. This was done, and he and Inspector Fernando left the patio without further ado. Similarly, while Inspector Fernando testified that “a barbecue and a table” blocked the side exit, in her evidence she made no mention of any difficulties leaving the patio by this exit.

162. In other words, the Board cannot conclude, on the balance of probabilities, that a barbecue and/or a folding table obstructed the side exit.

163. Therefore, the Registrar has not proven on the balance of probabilities that either the rear or the side exit doors on the patio were obstructed and the Board declines to make a finding under clause 50(c) of the O.Reg as regards the side and rear patio exit doors.

Conclusions

164. Therefore, for the reasons given, the Board FINDS that on September 18, November 6, and December 5, 2010, as well as on January 23, 2011, the Licensee breached section 43 of the O. Reg. The Board also FINDS that on September 18 and November 6, 2010, the Licensee breached the security provisions that are a condition of the Licence. The Board DISMISSES the allegations that the Licensee violated subsection 45(2) and clause 50(c) of the O. Reg.

165. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his 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 his written response. Registrar’s Representative may serve and file any reply within three (3) days of 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 17th DAY OF AUGUST, 2011

PATRICIA MCQUAID, VICE-CHAIR S. GRACE KERR, BOARD MEMBER