Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
Appeal from Order of Monetary Penalty of the Registrar of Alcohol, Cannabis and Gaming under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, S.O. 1996, c. 26, section 14.1, Sch.
Between:
Arelsid Inc. o/a Belvedere Bar & Grill
Appellant
-and-
Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996
Respondent
DECISION AND ORDER
ADJUDICATOR: Patricia McQuaid, Vice-Chair
APPEARANCES: For the Appellant: Sean O’Connor, Paralegal For the Respondent: Rena Khan, Counsel
Heard by videoconference: January 11, 12 and 13, 2021
BACKGROUND
1This is an appeal by Arelsid Inc. o/a Belvedere Bar & Grill (the “appellant” or the “Belvedere”) of the Order of Monetary Penalty (the “Order”) issued by the Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 (the “Registrar”) on August 12, 2020. The Order imposed two monetary penalties on the appellant. The first, in the amount of $10,000, is for a violation of s.45(1) of Ontario Regulation 719/90 under the Liquor Licence Act (the ‘Regulation”) on August 3, 2019 when the appellant allegedly permitted drunkenness or riotous, quarrelsome, disorderly or violent conduct on the licensed premises. The second monetary penalty, in the amount of $15,000, alleges that the licensee, on the same date, failed to facilitate an inspection, in violation of s. 45(2) of the Liquor Licence Act, (the “Act”).
2The appellant denies the allegations, stating on the notice of appeal that the compliance officers chose to end the inspection, and further that they were at no time explicitly directed to leave the premises through his actions.
3Under s. 14.1(7) of the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, the Tribunal can confirm or set aside the monetary penalty. The Tribunal has no jurisdiction to vary the amount of the monetary penalty.
4Before addressing each of the allegations, I will note that this three-day hearing was punctuated by procedural skirmishes which lengthened the hearing. Central to these skirmishes were issues about disclosure - whether the Registrar, who bears the burden of proof, provided fulsome disclosure and the impact of the appellant failure to provide disclosure prior to the hearing, contrary to the Tribunal’s case conference order of October 12, 2020 which set a deadline for disclosure and witness statements of December 28, 2020. I determined that the Registrar did provide full disclosure, and although the appellant did not comply with the Tribunal’s order, it was permitted to introduce documents and call its witnesses to give evidence. Both representatives did attempt to introduce evidence which was outside the scope of the allegations before me and this was, for the most part, disallowed. In this decision, I will only address the evidence relevant to my analysis and the issues to be decided.
RESULT
5After carefully considering the evidence and submissions, and for the reasons set out below, I find that the Registrar has established, on a balance of probabilities, that the appellant did, on August 3, 2019, fail to facilitate an inspection in violation of s. 45(2) of the Act and therefore confirm the monetary penalty in the amount of $15,000. The Registrar has not established, on a balance of probabilities, that the appellant permitted drunkenness or riotous, quarrelsome, disorderly or violent conduct on the licensed premises in violation of s.45(1) of the Regulation and therefore I set aside the monetary penalty of $10,000.
EVIDENCE AND ANALYSIS
6I will address the allegation of a failure to facilitate the inspection first, as the allegation regarding the disorderly and quarrelsome conduct flows from the circumstances encountered by the compliance officials as they attempted to carry out an inspection at the Belvedere.
Did the appellant fail to facilitate an inspection on August 3, 2019, in violation of s. 45(2) of the Act?
7The Registrar called two witnesses, compliance officials Raman Sharma and Kameesha Peck. Both attended at the Belvedere on August 3, 2019, accompanied by their manager, Mr. Fernandes. Their intention was to conduct an “after hours” inspection. Ms. Peck is the compliance official for the area and had been at the Belvedere for inspections on prior occasions. Neither Mr. Sharma nor Mr. Fernandes had attended there before.
8They arrived at 4:25 a.m. Curtains covering the windows and the front door were closed. The front door was locked. Ms. Peck and Mr. Sharma testified that there were, at several spots, gaps in the curtains which allowed them a glimpse of the interior. They were able to see that there were people inside. Mr. Sharma stated that he saw a male and a female seated at a table near the front window; Ms. Peck testified that a female was seated by herself at a table and two males were at another table. Though where people were sitting, and when, is not particularly relevant, there was divergence among the witnesses, including the appellant’s witnesses, as to where people were seated. For example, Ms. Reale, the female in the premises, stated that she was sitting by herself at a table (though may have moved at some point to sit with the two males) whereas Mr. Fava, another of the appellant’s witnesses testified that he was seated at a table with another male and Ms. Reale. This inconsistency points to both the frailty of memory after 18 months and likely, as well, is the result of the brief time for the whole of the interaction on August 3, 2019.
9Ms. Reale saw Ms. Peck and Mr. Sharma outside and made a hand gesture to indicate that the bar was closed. Mr. Sharma knocked on the front door and, he stated, put his AGCO badge and ID against the glass door in order to identify himself as a compliance official. Mr. Sharma testified that he knocked again, several times, at which time Mr. Grabova (the principal of the appellant) came to the door. Mr. Sharma stated that he showed his badge and photo ID and explained to Mr. Grabova that they were there to do an inspection under the Act. At this point, Ms. Peck moved closer to the door and showed her badge and ID and assumed that Mr. Grabova recognized her as the compliance official for the area. Mr. Grabova allowed them to enter, which was approximately five minutes after their arrival at the front door.
10Both Ms. Peck and Mr. Sharma testified that they observed, while they were outside, Ms. Reale take a can of ginger ale and a water bottle to the service counter before they were allowed entry. They also testified that they saw Mr. Grabova hand Ms. Reale a white plastic bag which she placed behind the service counter as well. The inference appeared to be that these may have been indications of after-hours service of alcohol and the delay in opening the door allowed time for Mr. Grabova to remove signs of service. Whether or not this was the case, I note that there is no allegation of after-hours service before the Tribunal. And further, the fact that five minutes elapsed between the time the inspectors arrived and gained entry is not, on these facts, unreasonable. Mr. Grabova and Ms. Reale both testified that the door would be locked at that time and only Mr. Grabova is to unlock the door at that hour for security reasons. The evidence was that he was not in the front area of the bar when the compliance officials arrived. I accept their explanation. There was evidence put before me that the neighbourhood has had some issues with crime and a hesitancy in opening the door at 4:25 a.m. was not unreasonable.
11However, once inside, the compliance officials did seem to experience resistance from Mr. Grabova. Mr. Sharma testified that Mr. Grabova questioned who they were, why they were there and demanded a warrant, becoming increasingly agitated and aggressive in tone. Mr. Sharma stated that he was directed where to stand by Mr. Grabova and could not move beyond the front vestibule area. He asked to see the liquor licence, a routine request on an inspection, but was not permitted to. Ms Peck testified that she did move further into the bar area, but she did not interact or speak to Mr. Grabova even though he recognized her as the area compliance official, a fact which Mr. Grabova acknowledged.
12At some point during the seven minutes they were inside the premises, the compliance officials stated that Mr. Grabova moved to lock the front door, from their perspective, to lock them in, which they perceived to be a safety issue for them. Mr. Sharma protested this move to lock the door to which, he testified, Mr. Grabova responded that he was entitled to do so and became more verbally aggressive, yelling profanities at them. There was some difference in recollection between Mr. Sharma and Ms. Peck on whether the door was in fact locked, with Mr. Sharma stating it was and that he unlocked it and Ms Peck testifying that Mr. Grabova did not, in the end, lock the door.
13Both Ms Peck and Mr. Sharma testified that at about this time, the two males, who were both seated at a table, started yelling profanities at them as well. This, coupled with Mr. Grabova’s aggressive tone and lack of cooperation, caused them to leave the premises, citing safety concerns.
14Mr. Grabova has a different version of the events, as did the appellant’s witnesses. Mr. Fava, a regular patron of the Belvedere, testified that when he first saw Ms. Peck and Mr. Sharma, he thought they looked like AGCO officials. Mr. Grabova asked them for their identification when they were at the door and then allowed them in. He stated that they were allowed to move freely through the premises, and that they did look at the liquor licence. He did state that Mr. Grabova asked for identification several more times and that Mr. Sharma was aggressive in his tone with Mr. Grabova and both were getting louder as they spoke to each other. Mr. Grabova then asked the officials to leave the premises. Mr. Fava denied yelling anything to the officials. Ms. Reale also testified that it was Mr. Sharma who was most aggressive and rude and that Mr. Grabova twice asked to see his identification once they were inside.
15Mr. Grabova testified that when he went to the door, he did not recognize them as ACGCO officials. He was reluctant to open the door given recent crime in the neighbourhood. He stated that he asked for ID twice at which point Mr. Sharma showed his badge and he then recognized Ms Peck so let them enter. Mr. Grabova described himself as calm and quiet, inviting the officials to do their jobs. And at no time did he use harsh words or profanity. He believed that they did their inspection, and that he actually walked back into the hallway area with Mr. Sharma who, on his way out, told him, ‘you are clean”.
16While there are some inconsistencies in the evidence, both between the two compliance officials and among the appellant’s witnesses, no one but Mr. Grabova described the atmosphere inside the Belvedere as quiet or calm. Mr. Grabova stated he recognized Ms. Peck and allowed them in. It stands to reason that he would not have allowed them in at 4:30 a.m. otherwise. Yet, by all accounts other than his own, even though he knew who they were and thus why they would be there, he continued to insistently ask for identification. All witnesses but him described an increasingly loud, angry and aggressive tone though there may be some disagreement regarding who was louder- Mr. Sharma or Mr. Grabova. I therefore prefer the evidence of the compliance officials on the issue of the failure to facilitate the inspection.
17On this issue, I also note that Mr. Grabova, through his legal representative, responded to the AGCO regarding this allegation in July 2020. In that response, he noted that while he was “confused as to the legitimacy of the identification of the Inspectors; although it is beyond any doubt that the Inspectors identified themselves professionally and reasonably, the Licensee was utterly confused to the point of using unacceptable language.”1 This statement is in stark contrast to submissions made by the appellant at the hearing, and Mr. Grabova now asserts that the letter was not accurate, but rather, the statements made within it were an effort to resolve the matter. It may well be that the July 2020 was an overture to settlement, but the statements within it are more consistent with the descriptions offered by the other witnesses regarding the tenor of the interactions between the compliance officials and Mr. Grabova on August 3, 2019.
18Based on the evidence before me, I find that the compliance officials did not, and could not, complete the inspection. Their ability to do an inspection was made difficult by Mr. Grabova, and the escalation of his aggressive words and demeanour resulted in their departure from the premises. There is a positive duty on a licensee to facilitate an inspection under the Act. It is a condition of each and every liquor licence issued. Mr. Grabova has held a liquor licence since 2016 and ought to be well aware of his obligations under the Act. I therefore find, on a balance of probabilities, that the appellant failed to facilitate an inspection on August 3, 2019 in violation of s. 45(2) of the Act.
Did the appellant permit drunkenness or riotous, quarrelsome, disorderly or violent conduct on the licensed premises in violation of s.45(1) of the Regulation?
19The Registrar alleges that the appellant permitted quarrelsome and disorderly conduct by the two males in the premises. Specifically, the two males, one of whom was Mr. Fava, “mimicked’ Mr. Grabova’s behavior. Mr. Grabova was aggressive, yelling profanities at them which, Ms. Peck believed, caused the two males to join in, and furthermore, Mr. Grabova said and did nothing to discourage them. Both compliance officials did state that the two males swore at them but at no time left the table at which they were seated. Mr. Fava denied saying anything to the officials.
20It is possible that the two males yelled some profanities, adding to an escalating chorus of anger, but to make a finding under s. 45(1) of the Regulation, the jurisprudence is clear. The Registrar must establish, on a balance of probabilities, two components: that the individuals were, in this instance, quarrelsome or disorderly and that the licensee permitted the behavior. Permitting requires proof that the licensee knew or ought to have known of the disorderly conduct, a determination to be made in the context of all of the circumstances.2
21Even if I were to find, based on the compliance officials’ evidence that the yelling of profanities by the two seated males in the last couple of minutes before the officials left the premises was disorderly conduct, I cannot, based on the evidence, find that the licensee permitted the conduct. The factual context is important to that determination. The witnesses (again, but for Mr. Grabova) testified to an escalation in aggressive and loud exchanges, and in particular, most likely in the last couple of the seven minutes that Ms. Peck and Mr. Sharma were in the premises. There is also a temporal element to the concept of “permit” as the jurisprudence suggests. Given that Mr. Grabova was at the center of this interaction, and according to the compliance officials the loudest of them all, it is unlikely that he knew in those two minutes or so, or ought to have known of, his agency in respect of those around him.
22There is insufficient evidence before me to support a finding, in these circumstances, that the appellant knew or ought to have known of the quarrelsome or disorderly conduct. Therefore, the Tribunal dismisses this allegation.
ORDER
23Therefore, pursuant to s. 14.1(7) of the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, I confirm the monetary penalty in the amount of $15,000 issued to Arelsid Inc. o/a Belvedere Bar & Grill for a violation of s. 45(2) of the Liquor Licence Act and set aside the monetary penalty in the amount of $10,000 in respect of the alleged violation of s.45(1) of Ontario Regulation 719/90 under the Liquor Licence Act.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: February 12, 2021
Footnotes
- Exhibit 7 - Letter dated July 31, 2020
- 1213963 Ontario Limited (Sin City) v. Ontario (Alcohol and Gaming Commission of Ontario) 2009 ONCA 323