Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-06-24
FILE:
9296/LLA
CASE NAME:
9296/LLA 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
2372964 Ontario Inc. o/a Zak’s
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
DECISION AND ORDER
ADJUDICATOR:
Alex McCauley, Member
APPEARANCES:
For the Appellant:
Zlatko Horvatic, Agent
For the Respondent:
Aviva Harari, Counsel
Heard in Hamilton:
June 8, 2015
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, dated December 10, 2014, which proposed to Revoke a licence. 2372964 Ontario Inc. o/a Zak’s (the "Appellant") appealed this Notice of Proposal to the Licence Appeal Tribunal.
BACKGROUND
The licensee has the following condition attached to his licence: “The License Holder shall not be present in the licensed premises at any time unless in the presence of a manager employed by the establishment”. On May 30, 2014, it is alleged that the licence holder was present in the licensed establishment without the presence of a manager employed by the establishment.
On September 7, 2014, at approximately 3 a.m, the police attended that the premises in response to a disturbance. There, they observed patrons exiting the premises with liquor, and intoxicated and disorderly patrons on the premises.
The police were initially denied entry to the license premises. Once inside, they noted that signs of service and consumption of alcohol were still evident. As a result of the police attendance and investigation, the Registrar alleges several violations of the Act and its regulations occurred. Specifically, the Registrar alleges the following:
Contrary to subsection 45(1) of the Act, the Appellant obstructed a person carrying out an inspection under the Act.
Contrary to subsection 45(2) of the Act, the Appellant failed to facilitate an inspection relevant to the licence.
Contrary to subsection 45(1) of Ontario Regulation 719/90 (the “OReg”) the Appellant permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the license premises or in the areas under the control of the licence holder.
Contrary to section 45.2 of the OReg, the Appellant failed to maintain control over the premises, including exercising control over who was permitted to enter the premises or remain on the premises and the activities that were permitted to occur on the premises.
Contrary to section 45.1 of the OReg, the Appellant failed to ensure that reasonable measures were in place and reasonable efforts were made to deter disorderly conduct on property adjacent to and in the vicinity of the premises
Contrary to section 34 of the OReg, the Appellant permitted a patron to remove liquor from the premises to which the license applies.
Contrary to section 29 of the OReg, the Appellant failed to clear the signs of service and consumption in the license premises within 45 minutes at the end of the period during which liquor may be sold and served under the licence.
Contrary to subsection 25(1) of the OReg, liquor was sold and served in the license premises outside of prescribed hours.
In addition to the foregoing, the Registrar asserts that the Appellant is in breach of section 6 (2)(d) of the Act.
The present/past conduct of the licence holder, or of its officers or directors, or of a shareholder who owns or controls 10% or more of its equity shares, or of a person having a beneficial interest in the business of the licence holder, or of a person having responsibility for the management or operation of the business of the licence holder affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty.
EVIDENCE
Registrar’s Evidence
Sgt. Jacquie Leishman, Hamilton Police Service gave evidence. She has 24 years of service with the Hamilton police.
On September 7, 2014, she attended at Zak’s as the result of a 911 call regarding a disturbance. She was on scene to back-up other uniform officers who were already there. She arrived at approximately 3:07 a.m. Upon arrival, she observed a number of people outside the licensed premises speaking in a language that she did not understand. She described the scene as extremely volatile. Two males were fighting and, with the exception of one person, everyone appeared to be intoxicated.
The two combatants were pushing and shoving and the police managed to get them apart and put one of the combatants in a taxi. An ambulance had been called and was on scene to treat the other person involved in this dispute, but he declined any medical intervention.
It was Sgt. Leishman’s opinion that they were unable to control the scene. She kept observations to ensure that matters did not deteriorate further.
Sgt. Leishman, in describing the situation outside of the bar, stated that there may have been 10 to 15 persons out and around the premises. These persons were highly intoxicated and there was no cooperation from anyone in this crowd. Her prime concern was for officer safety
The police were offered no assistance from bar personnel or management. At no time did she observe the bar owner, Mr. Horvatic, on scene. The female bartender offered no assistance to the police nor did she attempt to calm the crowd.
Sgt. Leishman observed her two officers at the front of the bar attempting to gain entry. They were being obstructed by a female person and it was clear from her body language that she was acting as a barrier to keep the officers from entering.
Constable Mario Rizzo attended Zak’s with Sgt Leishman on September 7, 2014. Upon his arrival, he observed an aggressive disturbance in front of the licensed premise. Patrons were walking in and out of the establishment and he observed them carrying alcohol out of the premises.
He estimated that at least 40 persons were acting in a disorderly fashion around the premises. They were speaking in a Slavic language that he did not understand. The group seemed to turn their attention to the police. The police became surrounded by the crowd and called for additional units to back them up. He described the crowd as very hostile towards the police and that they appeared highly intoxicated. It was his opinion that the crowd was attempting to surround and isolate the police. The police backed off and stayed on the perimeter and attempted to shepherd people out of the area.
When he was able to approach the front door of the licensed premise, a female person closed the door and refused him entry telling him he needed a warrant.
The two females at the door were later identified as Enisa Mulic who described herself as an employee of Zak’s, but who wasn’t on duty at that time. The second female was Carmen Pusten who was the bartender on duty and in charge that evening.
Constable Rizzo described Ms Mulic as very hostile and belligerent. The police were finally able to force their way in. Once inside, they observed 10 to 15 people, some consuming beer and alcoholic drinks. The beer bottles in front of the patrons were cold to the touch and it was clear to him that beer was being consumed by the patrons in the establishment.
The lights were not turned on for the police. Ms Pusten stated she didn’t know how to turn the lights on. The police were forced to use their flashlights in order to complete their inspection.
Ms Mulic was the main protagonist; she was clearly not sober. She spoke to a group of men who then stood up and obstructed the police from getting to the bar area. At that point, Ms Mulic ran behind the bar, picked something up and ran out the back door. On her way out, she shouted to the men who then seemed to relax their blockade.
In the opinion of the police, it was clear that patrons had been consuming beer and alcoholic drinks up until the time the police entered the premises. The premises started to empty out once the police were on scene.
Ms Pusten was the bartender and the only employee on duty. She stated that she had no control over the crowd and that she had not been able to get the patrons to leave. She stated that the bar was technically closed for a private party.
She left the premises to go home when the police left, even though at the time, there were still rowdy patrons out in the parking lot. When she left, Ms Pusten locked the bar.
Constable Rizzo stated that there are no other bars in that particular strip mall. After leaving the bar, the police officers kept observation on the crowd from their police vehicles.
Constable Rizzo later returned to Zak’s and laid a number of charges pursuant to the Act.
In cross examination, Constable Rizzo, in answer to a question as to whether or the bar was closed when he arrived, stated that there were persons inside the bar and that the bar was providing alcohol to these patrons.
Constable Sam Khalil has seven years’ service with the Hamilton Police. On September 7, 2014, he attended Zak’s as back-up to other officers who had earlier responded to a 911 call of a disturbance. He arrived on scene at approximately 3:22 a.m.
Upon arrival, he observed a large crowd of males outside the licensed premise. As well, he noted that there was an ambulance on scene. He went to assist his colleagues.
He corroborated the evidence of Constable Rizzo as it pertained to the size of the crowd and the aggressive actions of the crowd. Constable Khalil stated that in his opinion the area was very unsafe for the police.
All of this activity was taking place in the parking area directly in front of Zak’s which is located in a strip plaza fronting on Barton Street.
Constable Khalil, with Constable Rizzo, attended at the front door of the bar and attempted to enter. The door was closed and locked, but he could observe through the glass window on the door that patrons were still inside. The bartender, Carmen Pusten, came to the door, but refused police entry, stating that the bar was closed. She was joined by another female who stated that it was a private party and that the police needed a warrant to gain entry.
After he and his colleague entered the bar, he spoke to Ms Pusten and at that time he asked her why there were still patrons inside; she stated that she couldn’t get them to leave.
The bar was primarily in darkness, with only nightlights in the bar area. Ms Pusten advised the police that she couldn’t turn the lights on because she didn’t know how.
Constable Khalil observed males standing around. He also observed fresh glasses with alcohol and bar shots on the bar and fresh beer bottles in the area where the males were standing. It was his opinion that alcohol had been served and was being consumed by the patrons he observed in the bar. This was well after the prescribed closing time.
Mark Hall is a Senior Inspector with the AGCO, based in Hamilton. His duties include conducting inspections of licensed premises. He has conducted inspections at Zak’s in the past.
On May 30, 2014, he attended for an inspection. Mr. Horvatic was present. On duty with Mr. Horvatic was a female bartender who was asked if she was a manager and she stated that she was not. Condition number two on the liquor sales licence states: “The License Holder shall not be present in the licensed premises at any time unless in the presence of a manager employed by the licensed establishment.” As a result, his conclusion was that this condition had been breached.
There had been a previous breach of this condition by Mr. Horvatic on October 26, 2013. This matter was resolved through an agreement with the Registrar on December 11, 2013. This agreement, which dealt with the matter of the breach of condition and other matters, resulted in a 21 day suspension of the liquor license.
Appellant’s Evidence
Enisa Mulic stated that on the early morning hours of September 7, 2014 she and three friends attended at Zak’s. They had arrived at approximately 1:30 a.m. They were there to assist with closing the bar. According to her, no one had anything to drink at the bar.
She stated she was not sure what was happening outside.
After the closing the bar, she left to go home with her boyfriend and this was shortly after 2 a.m.
In cross-examination, she confirmed that she works at Zak’s. Approximately six months ago, she was appointed as manager. Her duties entail primarily supporting Zlatko Horvatic, the owner. She stated that she had had some drinks at the wedding before she attended Zak’s. Upon arrival at the bar, there were no patrons there; everyone had left the bar at 2 a.m.
In further cross-examination, she could not answer why there were persons still in the bar at 3 a.m.
She had no idea why the police were at the bar that night or why they wanted to speak to Ms Pusten. She said she spoke briefly with the police that night only to advise them that she was not working. She also added that she was a little drunk.
When asked if she knew any of the people outside and if any of them had been at the wedding that she had been attending, her answer was she didn’t know.
She stated that Mr. Horvatic was at the bar when the police entered but that he was in his office because he was not feeling well.
Then, in response to a further question, she said that she could not be sure what time she left the bar; it may have been as late as 3 a.m.
Carmen Pusten was on duty at Zak’s on September 7, 2014. For the most part, the evening had been quiet as most of the regular patrons were attending a wedding.
The music ended at 1:30 a.m. Around this time, a group of people were attempting to gain access to the bar; she told them that they were closing.
The persons trying to come in were intoxicated and she advised them that she was not serving alcohol as they were in the process of cleaning up the bar.
The crowd outside of the bar was very aggressive. She was concerned and so she locked the door. She called 911 and asked for the police to attend. She was advised by the 911 operator that police were on scene. A short time later, she heard banging on the door and presumed it was someone from the crowd outside. Her reasoning was that if it was the police they would have called and asked for entry.
She finally let the police in. She stated that no one was drinking in the bar at the time and that there were only five people in the bar, including her.
The police had asked her to direct the crowd out in front of the bar to leave but she declined to do that; in her mind that was the job of the police.
Mr. Horvatic had dropped by earlier to check on the bar and then left. Ms Mulic had dropped by shortly before she closed. She had come by to pick something up.
At 3 a.m. Ms Pusten called her husband to come and get her. She left the bar, and arrived home at 3:30 a.m.
In cross-examination, she said Mr. Horvatic had come to the bar and went into his office. She was not sure how long he was at the bar.
She called the police to move the crowd from outside of the bar. She did not know when the police arrived. She had no idea where Mr. Horvatic was when she called the police.
She denied the police evidence that there were persons observed going in and out of the bar carrying alcoholic beverages.
In cross-examination, she also stated that the persons in the bar left after the police entered the bar. She disagreed with the police evidence that they entered the bar initially after 3 a.m. In her opinion, it was 2 a.m.
She also disagreed with the police evidence that they had found fresh bottles of beer on the bar. She did state that in her opinion, Ms Mulic looked a little drunk.
BG stated that on September 7, 2014, at approximately 1:30 a.m., he attended at Zak’s with three other persons all of whom had been at a wedding. He stated he had arrived at the bar with Ms Mulic. Mr. Horvatic showed up shortly after and retired to his office because he wasn’t feeling well.
The music ended around 1:30 a.m. At approximately 2 a.m, he heard persons knocking on the front door. Ms Pusten wouldn’t let them in. He knew some of the people in the crowd outside.
He is good friends with Ms Mulic and admittedly was worried about her. He was ready to go home around 2 a.m. but was concerned about the disturbance out in the parking lot.
In cross-examination, he stated that there were some patrons in the bar when they had arrived from the wedding.
Mr. Horvatic was at the bar when the police arrived, but BG never observed him speaking with the police.
He was vague when asked whether or not Ms Pusten and Ms Mulic attempted to obstruct the police from entering the premises. He said Ms Mulic told the police that they were closed.
At 3:20 a.m. he and Ms Mulic left the bar. At that time, Ms Pusten was still at the bar.
Zlatko Horvatic is the principal owner and operator of Zak’s. On September 7, 2014, he arrived at the bar at approximately 1:30 a.m. At that time, he observed the police on the street.
He knew the guys outside that were fighting and he had intervened with them, trying to convince them not to continue the disturbance.
He said that Ms Mulic and everyone remained inside the bar, to assist Ms Pusten.
He said the police left the bar at approximately 3:30 a.m. and he left then as well, through the back door.
In cross-examination, he admitted that the conditions are still in effect on his liquor license and that he has made no attempts to apply to have them removed or altered.
He admitted that he knew that the police were in his bar and that he was in his office, but he didn’t come out because he wasn’t feeling well. He had come out of his office a few times and went out the back door to view what was happening in the parking lot.
He denied that the patrons in the parking lot had been in his bar earlier. Asked how he knew this, he stated that he had cameras. It was his contention that the crowd had gathered from the street, not his bar.
He admitted that the cameras did not show the police at the front door attempting to gain entry.
He knew things were happening in his bar and that the police were there, yet he made no attempt to come out of his office and identify himself to the police or inquire as to why they were there.
Submissions
In closing submissions, the Registrar’s Counsel described the Appellant as being out of control. There is a past history of suspension and in the opinion of Counsel this is evidence of a breach of section 6(2)(d) of the Act, showing that there are reasonable grounds for belief that the business will not be carried on in accordance with the law and with integrity and honesty.
Based on the evidence of the police, there is clear and convincing evidence that the officers were obstructed from carrying out an inspection under the Act and further that the licence holder failed to facilitate an inspection relevant to the licence.
The lack of action by anyone in charge of the licensed premise to maintain control over the premises, as admitted by Ms Pusten, is a clear violation of 45.2 of the OReg.
There was no effort made on the part of the licensee to deter the disorderly conduct on the property adjacent to and in the vicinity of the premises as was evidenced by Carmen Pusten’s reluctance to intercede with the crowd at the behest of the police.
The police, in their evidence, clearly observed patrons entering and leaving the licenced premises carrying what they believed to be alcoholic beverages.
Further, the police stated they entered the bar after 3 a.m. and signs of service had not been cleared and were still evident. The evidence of the police strongly suggests that at the time of their entry into the bar, alcoholic beverages were still being consumed by patrons.
The Registrar requests findings against the Appellant for all of the allegations contained within the Notice of Proposal.
In his submissions, Mr. Horvatic stated that the police version of events is not correct.
There was no serious fight in the parking lot. He went on to say that had there been a serious fight he would have intervened even though he was sick. It is his contention that the fight in question started on the street and moved into the parking lot and had nothing to do with his bar.
APPLICATION OF LAW TO FACTS
Credibility of the parties is a critical component in the matter before this Tribunal.
The Appellant and its witnesses did not present as credible. Their evidence was self-serving, and at times contradictory. For example, Ms Mulic stated that she went to Zak’s after the wedding, at about 1:30 a.m., to help Ms Pusten close the bar. Ms Pusten gave no indication of this; she stated that Ms Mulic dropped by to pick something up. Ms Mulic stated first that there were no patrons in the bar, when she arrived, yet BG acknowledged that there were patrons there when they arrived. Ms Pusten stated that Mr. Horvatic had been to the bar, but had left whereas Mr. Horvatic stated that he was there until 3:30 a.m. The evidence presented by the Appellant through its witnesses was totally inconsistent with evidence as presented by the police officers on scene.
Ms. Pusten, the only person on duty that night, would have the Tribunal believe that the police did not arrive at 3 a.m. but instead arrived at 2 a.m. The clear evidence of three police officers was that they arrived at 3 a.m. or shortly after. . Ms. Pusten stated in her evidence that the bar was clear of patrons by 2:00 a.m. yet the police, who arrived at 3 a.m. observed patrons inside then.
The events of that evening, as noted by the police are carefully documented and in the view of this Tribunal credible. There was no evidence given to contradict the evidence of the police in any meaningful way nor was there any contradictory evidence in regard to the May 30 attendance by Inspector Hall and the breach of condition on the liquor licence.
Where the evidence of the police and the evidence of the Appellant’s witnesses differ, the Tribunal accepts the evidence of the police over that of the Appellant.
The police were consistent in their evidence. They stated they arrived at approximately 3 a.m. in the morning of September 7, 2014 to an extremely volatile situation outside of Zak’s. These were three seasoned officers who felt that the situation before them was out of control and that officer safety was a serious concern.
The two constables are consistent in their evidence that they were obstructed from gaining entry into the licensed premise by Carmen Pusten, and Enisa Mulic an off-duty manager at Zak’s. Ms Mulic admittedly had been drinking prior to her arrival at Zak’s and was according to Ms Pusten, probably ‘a little drunk”. Ms Mulic was very vocal in her obstruction of the police, demanding that they produce a warrant and stating that what was happening at the bar was a private party and not of their concern. Ms Pusten subsequently opened the door enough so that the police were able to force their way inside.
Inside, the police described several patrons who appeared to be consuming alcoholic beverages. There was evidence of service on the bar and fresh beer bottles open amongst a group of males that were standing in the bar.
While inside, there was no cooperation given to the police. The lights were turned off and in response to a request by the police to have the lights turned on, Ms Pusten stated that she did not know how to do this. Given her role, and the fact that she was responsible for closing the bar at the end of the night hat statement is not credible. The police were forced to resort to the use of their flashlights in order to carry out their inspection, making that inspection more difficult.
Ms Mulic, in a language unknown to the police, appeared to direct a group of males to obstruct the police from moving freely inside the bar. She then dashed behind the bar, grabbed an item from behind the bar and fled out of the bar. On her way out, she yelled to the men in the same language, after which the men relaxed their obstruction of the police.
The Appellant’s witnesses throughout their evidence would have the Tribunal believe that aside from a disturbance outside of the bar, there was no concern about any breaches of the Act. Ms Pusten would have the Tribunal believe that all signs of service had been cleared by 2 a.m., clearly contradicting the evidence of the police, who did not attend at the licensed premises until after 3:00 a.m. Further, her excuse for not allowing the police in is that she felt that these were more of the unruly patrons trying to get back in (this in contradiction to Mr. Horvatic’s suggestion that the crowd had no connection to his bar). She failed to give any reason why, once she did realize that it was the police, that she didn’t immediately open the door and allow them entry instead of trying to keep them out and advising them that the premises were closed.
Mr. Horvatic would have the Tribunal believe that he was too ill to meet with the police. He is an owner with clear responsibilities under the Act which he chose to abdicate in a very serious circumstance. From his evidence, it is clear that he left his office several times while the police were in the parking lot and close to his bar. He snuck out the rear door to make observations as to what was taking place in the parking lot, yet he made no attempt to resolve the situation in the parking lot or to assist the police. The situation in the parking lot, as described by three veteran police officers, was extremely volatile yet no assistance was offered to them.
There is clear evidence of drunkenness, and disorderly and quarrelsome behavior both inside and outside the licensed premises. There was no plan or procedures in place to deter the disorderly conduct on the property outside of the licensed premise.
Mr. Horvatic, in his evidence, spoke of cameras in the premises. There was no evidence presented as to where these cameras were set up and what they were expected to record. There is some doubt in the mind of the Tribunal as to whether or not cameras actually existed in the licensed premises on the night in question.
Mr. Horvatic would have the Tribunal believe that the problems in front of the bar emanated from people off the street. The Tribunal finds that highly unlikely. His was the only bar open at the time and secondly he was familiar with the combatants outside, which would lead one to reasonably infer they in fact were patrons of his bar.
The Tribunal finds that on the night in question, matters had gotten out of control at Zak’s; Ms Pusten admitted that she could not control the crowd inside or outside the licensed premise.
Mr. Horvatic stated that he knew the two men involved in the altercation outside his bar. He could have interceded and probably greatly reduced the tension outside but he chose not to. By failing to assist, he exacerbated an already tense situation and this, with the facts set out above leads to findings that the Appellant breached sections 45(1) – permitting disorderly conduct, and 45.1 and 45.2 of the OReg.
Mr. Horvatic left the premises at approximately 3:30 a.m. the same time that the police are leaving, yet he left by the back door avoiding any contact the police.
On September 7, 2014, the police were obstructed throughout their efforts to conduct a lawful liquor inspection of the licensed premises. They had an issue gaining entry and then, when inside, little assistance was offered and in fact, actions seem to have been taken to make their inspection more difficult. The Tribunal finds that the Appellant breached Sec. 45(1) and 45(2) of the Act.
The police gave evidence that they saw signs of service and consumption when they entered Zak’s after 3:00 a.m. This evidence was not contradicted by the Appellant’s witnesses. The police officers observed beer bottles, cold to the touch, in front of male patrons as well as glasses of liquor. The Tribunal finds, on a balance of probabilities, that the Appellant was in breach of sections 25(1) and Section 29 of the OReg.
The police officers in their evidence are clear that they observed patrons coming out of Zak’s carrying alcoholic beverages. On the evidence, and as found by the Tribunal, patrons were still consuming alcohol at this time. Further, Ms Pusten had no control over the patrons at this point. The Tribunal accepts the evidence of the police officers and finds a breach of section 34 of the OReg.
The Tribunal also accepts the evidence of Inspector Hall regarding the breach of the condition on the licence on May 30, 2014. The evidence of the inspector was not contested by the Appellant.
The Tribunal declines to make a finding under section 6 2(d) of the Act. There has been some evidence of previous negative conduct on the part of the licensee, and the events on the night of September 7, 2014 have given rise to findings against the Appellant, but the evidence is not sufficient in the mind of the Tribunal to initiate the broader implications of a finding under this section.
ORDER
Pursuant to the authority vested in it under the Act, and for the reasons stated above, the Tribunal finds 2372964 Ontario Inc. o/a Zak’s to be in breach of s. 45(1) and 45(2) of the Act and sections 25(1), 29, 34, 45(1), 45.1 and 45.2 of Ontario Regulation 719/90 under the Act. The Tribunal also finds that there was a breach of the following condition on the liquor licence: “The License Holder shall not be present in the licensed premises at any time unless in the presence of a manager employed by the establishment”. The Tribunal dismisses the allegation that the Appellant is in violation of s. 6(2)(d) of the Act.
In regard to sanction, the Registrar’s representative shall serve and file written submission within seven (7) days of the date of this decision and the Appellant 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 Appellant’s response. All submissions are to be filed with the Tribunal.
LICENCE APPEAL TRIBUNAL
_________________________
Alex McCauley, Member
Released: June 24, 2015