Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE:

2013-05-02

FILE:

7500/LLA

CASE NAME:

7500 v. Registrar of Alcohol and Gaming

Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 to Revoke a Licence.

Shooters Sports Bar Inc.

Applicant

-and-

Registrar of Alcohol and Gaming

Respondent

DECISION AND ORDER

ADJUDICATOR:

Laurie Sanford, Vice-Chair

APPEARANCES:

For the Applicant:

Clive Preddie, Agent

Ben Peterson, Agent

For the Respondent:

Aviva Harari, Counsel

Bryna Kaplan, Counsel

Heard in Toronto:

April 17 & 19, 2013

DECISION AND ORDER

The Applicant, Shooters Sports Bar Inc. (“Shooters”), has appealed to this Tribunal from a Notice of Proposal issued by the Deputy Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) dated January 17, 2013, which proposed to revoke a liquor licence.

FACTS

The Registrar has given two principal reasons for the Notice of Proposal to revoke the liquor licence of Shooters. First, the Registrar alleges that on four occasions in the summer of 2012, Shooters obstructed a person carrying out an inspection under the Act and failed to facilitate an inspection. Ancillary to this, the Registrar alleges one of the inspections revealed that Shooters was holding for sale liquor not purchased under the licence. The second principal allegation against Shooters is that the bar has failed to pay some or all of the costs awarded against it by the Divisional Court on three occasions: October 9, 2009; November 29, 2011 and June 21, 2012.

Three witnesses gave evidence concerning the inspections which occurred in the summer of 2012. Constable Rezek of the Peel Regional Police testified that he was on a team charged with conducting liquor licence inspections of bars in the summer of 2012. His evidence was that these inspections were done on a random basis and that the team made themselves known to the bartenders and advised that they would be inspecting regularly. On July 10, 2012 he and two other officers entered Shooters in uniform and the bartender let them inspect the bar area. Constable Rezek walked to the back of Shooters where he found an office and a cooler or fridge, both of which were locked. He returned to the bartender and asked for the keys. The bartender gave him the keys she had but none of them worked on the locks. The bartender said she didn’t know any other way to get into the office or cooler but she telephoned someone she said was the owner, Mr. Clive Preddie. The bartender told the police that Mr. Preddie had instructed her that the police were not allowed to go into the bar. Officer Rezek advised the bartender that the police were entitled to inspect the premises and did not require a warrant. Officer Rezek advised the bartender that there would be charges of failure to facilitate an inspection as a result of the evening and that the police would be returning on a weekly basis to check for access to the office and the cooler.

On July 30, 2012, Officer Rezek and other members of his team returned to Shooters. He went to the back of the bar and again noted that the office and the cooler were locked. He also inspected a storage room and noted five containers called “15 packs”. These beer containers contained some empty bottles of beer but no full bottles. Officer Rezek testified that 15 packs are promotional items and are not permitted to be purchased under licence.

Officer Rezek testified that there was another attempted inspection when the office and cooler were again locked. On August 9, 2012, Officer Rezek again inspected. On this occasion, he testified, the cooler was unlocked and he inspected it. The office remained locked. When he asked the bar tender for purchase receipts for the liquor, he was told the receipts were in the office.

Officer Trent Degenstein of the Peel Regional Police testified that he oversaw the program under which bars were being randomly inspected under the Act in the summer of 2012. On July 10, 2012, he was present at the inspection of Shooters. He was in uniform and went to the bartender to explain that the police were there for an inspection. Officer Dengenstein testified that the purposes of the inspection included inspecting receipts against inventory. He started to conduct the inspection and asked the bartender for the keys to the cooler and the office, both of which were locked. When none of the keys she provided opened the doors, the bartender made a telephone call. The bartender said she was calling Mr. Preddie and she advised that Mr. Preddie had told her that the police could only inspect the immediate area of the bar and the bathrooms. Mr. Preddie was not there and Officer Degenstein only heard the bartender’s side of the conversation. Officer Degenstein made no attempt to contact Mr. Preddie directly. The police did not get access to the cooler or the office on July 10, 2012, according to Officer Degenstein.

On July 19, 2012, Officer Degenstein returned to Shooters. Again the cooler and the office were locked. Officer Degenstein asked the bartender, a different woman from the one who had tended the bar on July 10^th, for the keys and for purchase receipts. The bartender said “under the owner, she is not to allow police to enter unless we have a warrant” according to Officer Degenstein. The officer advised the bartender that this was a liquor licence inspection and that the police don’t normally require a warrant. In further conversation with the bartender he was told that “Clive came in and told her that we were not to go into the back fridge or cooler area.” The bartender told Officer Degenstein that she had the keys for the office and cooler but that under Clive Preddie’s direction, the police were not allowed to enter those areas. The police left without being able to inspect either the cooler or the office and without receiving the purchase receipts Officer Degenstein requested. Officer Degenstein did not attend during the other two inspections of Shooters.

Stephen Durham, an Alcohol and Gaming Commission of Ontario Inspector also gave evidence. He regularly inspects Shooters and has never been denied access to any part of the bar he wanted to inspect. He doesn’t ordinarily inspect the office or the cooler. He has a recollection of being in the office and the cooler once but has no recollection of what was there. Mr. Preddie has told him that he is free to inspect any part of the premises he wishes.

Concerning the allegation of unpaid cost orders, the Registrar entered as exhibits the three decisions of the Divisional Court in which Shooters was ordered to pay costs in a total amount of $8,000. No testimony was offered by either party about the allegation of unpaid cost orders. After the testimony had been given, both parties entered exhibits relating to the payment of the cost orders and these were identified as Exhibits 5 and 6. However, these Exhibits were not identified by any witness or in any other way. The Exhibits were not connected to the matters before the Tribunal through testimony. Therefore the Tribunal did not consider them in reaching its decision.

DECISION

Sections 43 and 44 of the Act are the basis for the authority the Peel Regional Police had to conduct liquor licence inspections at Shooters in the summer of 2012. Subsection 45(1) of the Act provides that no one may obstruct a person carrying out the inspections under the Act. Subsection 45(2) makes it a condition of each liquor licence that the licensee facilitate an inspection relevant to the licence.

In two of the inspections, Constable Rezek testified only that he inspected the cooler and the office and found them locked. He did not testify that he had specifically requested the keys to those two areas or had been denied them. On his

August 9^th inspection, he was able to gain access to the cooler. He gave no evidence that he had requested access to the office and been denied that on August 9^th. He did testify that he had specifically requested a key to the cooler and the office on July 10^th and that, after a phone call to someone the bartender identified as the owner, was told that he was not to be given access to the bar.

Officer Degenstein gave evidence that on July 10^th he had requested the key to the cooler and office and that he witnessed the bartender telephone someone she identified as the owner. Following that telephone call, the police were advised that they could only inspect the bar area and the bathroom. It was Officer Degenstein’s evidence that on July 19^th, he was again denied access to the office and the cooler and also did not receive the requested purchase receipts.

Mr. Preddie in his closing submissions argued that the police could not know for sure that it was he who the bartenders were talking to before access was denied in July, 2012. However, for a violation of Section 45 of the Act to occur, it is not necessary that the owner of the bar obstruct or fail to facilitate an inspection. It is sufficient that the person in charge of the bar, in this case two different bartenders, denied officers access to the cooler and the office on July 10^th and July 19^th and failed to provide the purchase receipts on July 19^th. The Tribunal accepts the evidence of Officer Degenstein that the bartenders told him they were acting on instructions from Mr. Preddie, who was identified by them as the owner of the bar. Although this is hearsay evidence, the bar-tender who made the telephone call on July 10^th would have no reason to lie about the identity of the person to whom she was talking. It is more probable than not that she was talking to Mr. Preddie as she claimed. The fact that a second bartender on July 19^th also denied the police access, again claiming that she was acting on instructions of Mr. Preddie, does lend credence to the hearsay.

Mr. Preddie also asserted in his closing submissions that discrepancies between the evidence of the two Peel Police officers were sufficiently material as to undermine their credibility. This is not the case. It is true that one officer testified that the searches were directed at problematic bars and the other testified that they were random. However, the two officers in question had different roles in the program of searches and it is quite possible that they had different understandings of the focus of the searches. The officers were also confused as to the description and name of one of the bar-tenders in question but this was not material to their testimony. Officer Degenstein did request identification from each of the bartenders on the nights of both July 10^th and July 19^th and there is no dispute that the bartenders were the persons in charge of the bar on those two nights. Mr. Preddie also suggested discrepancies exist between the officers’ testimony and their notes. However, the notes were not in evidence before the Tribunal.

The Tribunal accepts the evidence of Officer Degenstein that he was denied access to the cooler and the office on July 10, 2012 and July 19, 2012 and that he was denied access to purchase receipts on July 19^th. The Tribunal accepts the evidence of Officer Rezek that he was denied access to the cooler and the office on July 10^th. The Tribunal finds that Shooters failed to facilitate a lawful inspection on the nights of July 10^th and 19^th. There is no evidence that the bartender on the night of July 10^th had the keys that would have opened the cooler and the office and denied the police access to them. The bartender granted the police access to the premises prior to her conversation with Mr. Preddie. Accordingly, the Tribunal finds that Shooters did not obstruct the police in an inspection on July 10^th. The situation is different regarding the attempted inspection on July 19^th. On that night, the bartender acknowledged having the keys to the cooler and office but refused to give the police access to those areas. This was clearly an obstruction of the inspection.

The Tribunal finds that, concerning the inspections which occurred on the other two dates, July 30 and August 9, 2012, the Registrar has not demonstrated that the police were denied access to the cooler and the office as there is no evidence that they specifically requested the keys to those parts of the premises.

Concerning the allegation that Shooters was holding in inventory liquor not purchased under licence, the Registrar has not proved this on a balance of probabilities. The Tribunal accepts the testimony of Officer Rezek that he found five cases of 15 packs and that these are promotional packaging not available to liquor licensees. However, Mr. Preddie submitted in closing that there is no law specifying how a licensee is to store empty bottles of beer. There were only empty bottles in the 15 pack cases and no evidence that the 15 packs had been purchased by Shooters. While this means that Shooters cannot be said to have purchased liquor not under licence, it also underscores the seriousness of Shooter’s failure to provide the police with the purchase receipts they requested on July 19^th.

The Registrar alleges that Shooters has not paid most of the cost orders outstanding against it and has not made payment arrangements with the Registrar. However, the Registrar produced no evidence that payment has not been made. Counsel for the Registrar invited the Tribunal to consider the Notice of Appeal as proof that full payment has not been made. There are several problems with this approach. First, the Notice of Appeal is a pleading and is not admissible as proof of the truth of its contents, any more than the Notice of Proposal is admissible as proof of the truth of its contents. Even if the Tribunal were inclined to accept the Notice of Appeal as an accurate summary of the payment, the Notice of Appeal refers to ongoing negotiations with the Registrar regarding payment and is dated about ten months ago. There is no evidence that Shooters continues to be in default. The Registrar has not met the onus of proof that Shooters has not paid the ordered costs.

It should be noted that Mr. Preddie in his submissions suggested that failure to pay a cost order is not evidence of financial irresponsibility. This is not correct. Continued failure to pay court ordered costs can be evidence of financial irresponsibility in the right circumstances. More frequently, refusal to comply with a court order, including a cost order, may be evidence of a disregard of lawful authority that may, in the right circumstances, be evidence that a licensee is ungovernable or incapable of complying with the law.

The remaining question is what sanction should apply for the two instances of Shooters’ failure to facilitate an inspection of its premises and the one instance of its obstruction of an inspection. It should be noted that subsection 45(2) of the Act makes it a condition of a licence that the licensee should facilitate lawful inspections of the premises. The Tribunal has considered whether the breach of this condition in this case should be grounds for revocation of the licence. The Tribunal is mindful of the fact that Mr. Preddie on more than one occasion has told Mr. Durham, the liquor licence inspector, that he may inspect any part of the premises at any time. The Tribunal regards this as a mitigating circumstance. It seems that Mr. Preddie is willing to facilitate at least some inspections. The Tribunal also notes that on August 19^th, the police did obtain access to the cooler which suggests that Mr. Preddie may have reconsidered his earlier position denying the police access. For both these reasons, the Tribunal concludes that revocation is not appropriate in this case. This is not to diminish the seriousness of the failure to facilitate the two inspections in July, 2012 and the obstruction of the attempted inspection on July 19, 2012. It is of fundamental importance for the proper enforcement of the Act that lawful inspections be not only permitted but facilitated. The failure of Shooters to do this raises concerns about the transparency with which the bar is being operated and the willingness of the owners to comply with the Act.

The Tribunal considers that a suspension of the licence for a period of 7 days for the failure to facilitate the inspection on July 10, 2012 and a further suspension of 14 days for the failure to facilitate and the obstruction of the inspection on July 19, 2012 will be an appropriate sanction, given the seriousness of the offenses.

ORDER

The Tribunal directs the Registrar not to carry out the Proposal dated January 17, 2013. The Tribunal directs the Registrar to suspend the liquor licence of Shooters Sports Bar Inc. for a period of 21 days.

LICENCE APPEAL TRIBUNAL

_________________________

Laurie Sanford, Vice-Chair

Released: May 02, 2013