Sanctions and Decisions

DATE OF HEARING:

HEARING PANEL:

HEARING BEFORE A PANEL OF THE BOARD OF ALBERTA GAMING, LIQUOR AND CANNABIS COMMISSION

IN THE MATTER OF the Gaming, Liquor and Cannabis Act Revised Statutes of Alberta 2000, Chapter G-1, as amended and the Regulation

APPLICANT / REPRESENTATIVE:

and

Wazema Bar & Restaurant Corp. o/a Bar Impero (Applicant) 12430 118 Avenue NW Edmonton, AB T5L 2K4

REGULATORY SERVICES DIVISION:

July 2, 2024

Len Rhodes, Presiding Member Wayne Drysdale, Panel Member

Freminatos Misghina, Owner/Operator

Petrina Nash, Hearing Officer

DECISION OF THE HEARING PANEL The Panel finds that Bar Impero contravened sections 69(1)(a) and 71(2) of the Gaming, Liquor and Cannabis Act (the Act).

For the contravention of section 69(1)(a) of the Act, in accordance with section 94(7)(a) of the Act, the Panel confirms the original administrative sanction imposed by the Regulatory Services Division of a warning.

For the contravention of section 71(2) of the Act, in accordance with section 94(7)(a) of the Act, the Panel confirms the original administrative sanction imposed by the Regulatory Services Division of a $1,000 fine or a 4-day suspension of the Class A-Minors Prohibited Liquor licence numbered 785868-1. The Panel acknowledges that the Licensee chose to pay the $1,000 fine to the Regulatory Services Division on April 2, 2024.

Further, in accordance with section 91(2)(b) of the Act, the Panel imposes the following conditions on the Class A-Minors Prohibited Liquor licence numbered 785868-1, effective as of September 20, 2024:

(1) The premises must install and satisfactorily maintain a digital camera security system covering the entirety of the premises that is operational at all times, excluding washrooms. The digital camera security system must be of sufficient quality to clearly identify individuals in the premises. The

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monitor and recording system shall be in a locked, secure area within the premises that only staff members have access to.

(2) The cameras and lighting must be positioned to clearly capture 24-hour coverage of activity identifying all individuals entering/exiting the premises, including staff areas, and all individuals within the premises. The digital camera security system must have on premises 28-day minimum recording retention in a common format that is easily accessible and contains an accurate time/date stamp not obscuring the image.

(3) The digital camera security system must be tested weekly to ensure all cameras and recording equipment are functioning properly. When requested by an inspector, a log of the test results must be kept on the premises in an easily accessible format that contains an accurate time/date stamp.

(4) When requested by an inspector, footage from the recording system must be provided in an easily accessible format that contains an accurate time/date stamp.

(5) Both the log of the test results and any footage from the recording system must not be obscured by a date/timestamp or any other image on the recording.

(6) The licensee, an employee of the licensee, or a contracted person must have the ability/skill to provide the digital camera recording or a log of test results to AGLC within a reasonable period of time.

(7) Any malfunctions of the digital camera security system must be immediately reported to the AGLC, via the e-mail address inspections.mailbox@aglc.ca. A plan identifying system compliance must be submitted to AGLC for approval. Any changes made to the approved plan must be approved by AGLC.

If the digital camera security system is not installed and in alignment with the licence conditions noted above by September 20, 2024, the Class A-Minors Prohibited Liquor licence numbered 785868-1 shall be suspended until all of the licence conditions are fully met.

Further, Freminatos Misghina and all employees of Bar Impero are directed to participate in a mandatory staff training seminar conducted by the Regulatory Services Division on or before August 21, 2024.

I. Jurisdiction and Preliminary Matters [1] By letter dated March 7, 2024, the Regulatory Services Division (Regulatory Services) of Alberta Gaming, Liquor and Cannabis Commission (AGLC) advised Wazema Bar & Restaurant Corp., operating as Bar Impero (the Licensee), that the Licensee contravened: • section 69(1)(a) of the Act: No liquor licensee or employee or agent of a liquor licensee may permit any activity in the licensed premises that is contrary to any municipal bylaw or any Act or regulation of Alberta or Canada; and • section 71(2) of the Act: Except as provided in the regulations, no liquor licensee or employee or agent of a liquor licensee may permit any person to be in licensed premises

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when the sale and consumption of liquor in those premises are prohibited under the regulations or stadium bylaws.

[2] For the alleged contravention of section 69(1)(a) of the Act, Regulatory Services imposed an administrative sanction of a warning.

[3] For the alleged contravention of section 71(2) of the Act, Regulatory Services imposed an administrative sanction of a fine of $1,000 or, in the alternative, a 4-day suspension of the Licensee’s Class A-Minors Prohibited Liquor licence numbered 785868-1 (the Licence).

[4] The Licensee subsequently paid the $1,000 fine and applied for a hearing before a Panel of the Board of AGLC pursuant to section 94(1) of the Gaming, Liquor and Cannabis Act (the Act).

[5] In accordance with section 11 of the Act, the Board Chair designated two members of the Board to sit as a Panel to conduct the hearing and make a decision – Len Rhodes (Presiding Member) and Wayne Drysdale.

[6] At the outset of the hearing, Hearing Officer Petrina Nash advised the Panel that the Notice of Administrative Sanction that is Tab 1 of the Hearing Record (Exhibit 1) contains clerical errors. On page one of the Notice of Administrative Sanction, the section numbers of the Act listed in the contraventions section are transposed. Freminatos Misghina confirmed that he understood the clerical errors and accepted the clarification.

[7] The parties and the Hearing Panel were provided with a record containing various documents pertaining to the issues before the panel. The Licensee confirmed receipt of the Notice of Hearing dated June 4, 2024 and the attached hearing record. The following documents were entered into evidence: • Exhibit 1 Hearing Record, including Tabs 1 to 3 • Exhibit 2 Additional documents provided by Regulatory Services, including Tabs 1 to 5

II. Issues [8] Did the Licensee contravene section 69(1)(a) of the Act and/or section 71(2) of the Act? If so, should the administrative sanctions imposed by Regulatory Services be confirmed, replaced, or cancelled?

III.

Regulatory Services Submissions

[9] Regulatory Services called two witnesses: AGLC Inspectors Henrik Hale and Carla Hamilton. Inspector Hale has been an inspector with AGLC for over a year and Inspector Hamilton has been an inspector with AGLC for almost 10 years. They co-authored an Incident Report, which details an incident that occurred at Bar Impero on February 10, 2024 (Exhibit 1, Tab 2).

[10]

The following is a summary of the evidence provided by Inspectors Hale and Hamilton.

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[11] Inspector Hale confirmed that Bar Impero has a Class A-Minors Prohibited Liquor licence, which requires all liquor service to cease at 2:00 AM and all patrons to be cleared from the licensed premises by 3:00 AM.

[12] Inspector Hale stated that Bar Impero has a history of operating outside of authorized hours and allowing shisha tobacco smoking inside of the licensed premises. Regarding past instances of shisha smoking in Bar Impero, Inspector Hale stated that: • the topic was covered when they went over the operating procedures with the Licensee; • an AGLC inspector spoke with the approved manager of Bar Impero, K.A. (Mr. A), on September 11, 2023; • on November 4, 2023, Inspector Hale gave the Licensee a caution for allowing shisha smoking in the licensed premises; • Owner/operator Freminatos Misghina was present at Bar Impero on November 4, 2023 and acknowledged that he knew that shisha smoking was prohibited under the municipal bylaw; • on November 20, 2023, the Public Safety Compliance Team met with Mr. A and Mr. Misghina to discuss shisha smoking; • on January 19, 2024, the Licensee was spoken to about after hours and the prohibition of shisha smoking; • on February 7, 2024, the Licensee was issued a caution for allowing shisha smoking in the licensed premises and after hours.

[13] Inspectors Hale and Hamilton advised that the City of Edmonton has had a bylaw in place prohibiting shisha tobacco smoking in a licensed premises since July 2020.

[14] When asked by the Panel to clarify what AGLC’s role is in enforcing the City of Edmonton’s bylaw prohibiting shisha tobacco smoking in a licensed premises, Inspector Hale explained that: • the Act gives Regulatory Services the authority to enforce municipal bylaws in a licensed premises; and • the City of Edmonton has an enforcement unit that deals with these issues and communicates with Regulatory Services; and • a municipal bylaw enforcement officer previously issued a caution to the Licensee.

[15] Inspectors Hale and Hamilton conducted an operating check at Bar Impero on February 10, 2024 to ensure that the Licensee was complying with AGLC’s requirements. Inspector Hamilton stated that Regulatory Services had recently received complaints about after hours and shisha smoking at the licensed premises.

[16] Inspector Hale said that he and Inspector Hamilton arrived at Bar Impero at approximately 2:47 AM and conducted outside observations in the parking lot. They made the following observations which indicated that Bar Impero was still operating: • A male patron exited the licensed premises at 3:08 AM to smoke a cigarette. • The roller shutter that goes down over the front door was open, and it is typically down when Bar Impero is closed.

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[17] At 3:10 AM, Inspectors Hale and Hamilton entered Bar Impero. The inspectors made the following observations during their operating check: • There was a noticeable haze of smoke in the air with the smell of shisha tobacco. • The lights were off, and music was playing. • There were approximately 20 patrons inside who were comfortably socializing and drinking, and nothing indicated that they were getting ready to leave. • None of the patrons attempted to hide their activities. • There were jackets on the backs of chairs. • Four or five patrons were playing pool in the back of Bar Impero and consuming alcohol. • Staff members were working and socializing with patrons, and there was no indication that the staff members were trying to settle bills, remove patrons, and conduct closing duties such as bussing tables and turning on lights. • A male patron seated at the bar pointed to the fridge behind the bar, and the female staff member moved towards the fridge and stopped when she saw the inspectors. • Some patrons had a dozen or more empty or partially filled Corona beer bottles in front of them. • Two male patrons were at the bar actively consuming from open Corona beer bottles. • Three booths were occupied by patrons who were consuming from Corona beer bottles. • A male patron at a booth and a patron at a table were smoking from hookah pipes.

[18] Inspector Hamilton said that she proceeded to the back of Bar Impero and found a crate of hookah pipes, the rocks that are placed on top of the hookah pipes, and boxes of shisha tobacco (Exhibit 1, Tab 2, Attachment 5).

[19] Inspector Hale and Hamilton took photographs during their operating check, and Inspector Hale described the following photographs that were presented during the hearing: • Three patrons seated around a pool table with jackets on the backs of their chairs, with one patron holding a Corona beer bottle and one patron actively using a hookah pipe that has a yellow liquid inside of it (Exhibit 1, Tab 2, Attachment 1). • Patrons seated at a booth with numerous Corona beer bottles and a hookah pipe in front of them (Exhibit 1, Tab 2, Attachment 2). • Two patrons actively engaged in a conversation at the service bar with four Corona beer bottles in front of them and a jacket on the back of one patron’s chair (Exhibit 1, Tab 2, Attachment 3). • A male patron actively using a hookah pipe to smoke shisha tobacco (Exhibit 1, Tab 2, Attachment 4). • A crate of hookah pipes located in the back of Bar Impero (Exhibit 1, Tab 2, Attachment 5). • Three hookah pipes beside a pool table with hot rocks on top indicating that they were actively being used (Exhibit 1, Tab 2, Attachment 6). • A crate of hookah pipes located in the back of Bar Impero with numerous pipes on the floor and a table used for putting hot rocks on the pipes (Exhibit 1, Tab 2, Attachment 7). • Containers of shisha tobacco (Exhibit 1, Tab 2, Attachment 11).

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[20] Inspectors Hale and Hamilton stated that Mr. Misghina was present at Bar Impero on February 10, 2024, and Inspector Hale said that he advised Mr. Misghina that the patrons should have been cleared out by 3:00 AM. The inspectors said that Mr. Misghina apologized and said the violations were his fault. Inspector Hale further stated that Mr. Misghina: • provided instructions to his staff, who then asked the patrons to leave; • turned off the music; and • retrieved the payment terminal and began settling patrons’ bills and clearing tables of bottles.

[21] When Inspectors Hale and Hamilton questioned Mr. Misghina about the shisha tobacco and hookah pipes, Mr. Misghina stated that those items were left there by the previous owner and that the shisha tobacco was not being smoked in the hookah pipes. The inspectors advised him to remove hookah pipes and the shisha tobacco from Bar Impero.

[22] Inspectors Hale and Hamilton advised Mr. Misghina that they would be submitting the details of their operating check to their supervisor and would be in contact. Once they were sure that Bar Impero was clear of patrons, they left at 3:28 AM.

[23] Inspector Hale stated that he contacted Mr. Misghina on February 14, 2024 to advise that the inspectors submitted an incident report for the violations of sections 69(1)(a) and 71(2) of the Act. Mr. Misghina said that he was new to having a liquor licence and was not aware of the authorized hours for liquor service. Inspector Hale reminded Mr. Misghina that: • the operating procedures that had been discussed with him and Mr. A on September 11, 2023; • he signed off on the operating procedures indicating that he understood the policies and legislation, which includes the authorized hours for liquor service; • he and Mr. A attended a meeting with the Public Safety Compliance Team in November 2023 where the topic of after hours and other best practices were discussed in detail; and • he was contacted in January 2024 by an AGLC inspector who reviewed after hours with the Licensee.

[24] Inspector Hale advised that the Licensee has been offered a staff training seminar on two occasions and has not requested the training.

IV. Bar Impero Submissions [25] The Representative for the Licensee, Freminatos Misghina, gave evidence on behalf of Bar Impero.

[26] When asked by Regulatory Services how long he has been operating Bar Impero, Mr. Misghina said approximately seven to eight months.

[27] Mr. Misghina advised the Panel that Bar Impero’s business licence is currently registered in his name and was at the time of the incident on February 10, 2024.

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[28]

On February 10, 2024, Mr. Misghina stated that he: • was in Fort Saskatchewan driving a taxi when he received a call at 2:30 AM from an employee of Bar Impero advising that their payment system was not functioning and patrons were not able to pay their bills; • proceeded to Bar Impero to deal with the payment system issues and advised Inspectors Hale and Hamilton about the issues when he arrived at the licensed premises two or three minutes after them;

[29] Mr. Misghina said that he knows patrons must leave Bar Impero by 3:00 AM and allowing them to remain inside of the licensed premises during unauthorized hours and smoke shisha tobacco was wrong, but there were payment system issues and no liquor was served to the patrons after 2:00 AM.

[30] When Regulatory Services asked Mr. Misghina whether an AGLC inspector discussed operating procedures with him, Mr. Misghina confirmed that he met with an inspector who went over the operating procedures, including the hours of operation, and that understood the hours he was permitted to sell liquor and allow patrons in the licensed premises.

[31] Regulatory Services referred to an Operational Report detailing an operating check that was conducted at Bar Impero on November 4, 2023 (Exhibit 2, Tab 2), and Mr. Misghina confirmed that: • he was present at Bar Impero during the operating check; • he advised the inspectors that he was aware that shisha tobacco smoking was not permitted; • the Licensee was issued a caution; and • Mr. A was contacted by Regulatory Services after the incident and was warned that a fine may be issued if the Licensee continued to allow shisha tobacco smoking in Bar Impero.

[32] When asked by Regulatory Services what steps the Licensee has taken since receiving the caution to ensure that shisha tobacco would not be smoked in Bar Impero again, Mr. Misghina stated he and Mr. A operated the business together, they had an argument, they separated the business, and Mr. A is no longer a shareholder. He further confirmed that he did not provide his staff with any training, the manager left, and he fired the bartender who was selling shisha to patrons on February 10, 2024.

[33] When asked by Regulatory Services whether he was aware that the Public Safety Compliance Team met with Mr. A on November 20, 2023, Mr. Misghina said that he was also present for that meeting and confirmed that after hours and hookah pipes were discussed.

[34] Regulatory Services referred to Inspector Hale’s testimony that he immediately noticed a smokey haze and saw patrons smoking shisha when he entered Bar Impero on February 10, 2024 and asked Mr. Misghina to explain why there were hookah pipes in the licensed premises if he was aware that shisha smoking was not permitted. Mr. Misghina stated that it was a mistake, and he had nowhere to store the hookah pipes, and the hookah pipes have since been removed from Bar Impero.

[35] When asked by Regulatory Services to explain why staff members were not in the process of closing Bar Impero and none of the patrons were in the process of getting ready to leave when Inspectors Hale and Hamilton arrived at 3:08 AM on February 10, 2024, Mr. Misghina said that the

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bartender told him that nobody came into Bar Impero after 2:00 AM and the patrons were waiting there to make payment.

[36] When asked by Regulatory Services to explain what steps the staff members take at night to ensure Bar Impero is closed on time, Mr. Misghina stated that they do not allow patrons to enter after 2:00 AM and usually close by 2:30 AM.

[37] When asked by Regulatory Services why he has not arranged a staff training seminar for himself and his staff members, Mr. Misghina stated that he has had trouble with his business partner, and they have not yet decided who will take over Bar Impero.

[38] When asked by Regulatory Services what steps he has taken to ensure that shisha smoking and after hours will not happen again at Bar Impero, Mr. Misghina stated that liquor is not being served after 2:00 AM and all patrons leave at 3:00 AM.

[39] When asked by the Panel to explain why patrons were willing to wait around to pay their bills and why he did not ask the patrons to come back the following day to pay, Mr. Misghina stated that his staff asked the patrons to remain at the bar until payment could be made and that nobody would show up the next day. He further stated that some patrons left and never came back to settle their bills.

[40] When the Panel asked what time the payment system broke down at, Mr. Misghina said that he received a call from the bartender at around 2:30 AM and she called him again when Inspectors Hale and Hamilton arrived. He further stated that he is not allowed to receive phone calls while he is driving his taxi.

[41] When the Panel asked Mr. Misghina why he did not get rid of the hookah pipes immediately if he was aware that shish smoking was prohibited under a municipal bylaw, Mr. Misghina stated that: • hookah pipes are very expensive; • he wanted to hang onto them in case the City of Edmonton decided to allow shisha smoking in the future; and • he had nowhere else to store them.

[42] When asked by the Panel why he permitted patrons to smoke shisha in Bar Impero on February 10, 2024, Mr. Misghina said that it is not permitted and the bartender gave the patrons shisha and allowed them to smoke it.

[43] Mr. Misghina advised the Panel that he is aware that he is ultimately responsible for his business.

V. Summation Regulatory Services [44] Regulatory Services submits that there are two matters before the panel: a contravention of section 71(2) of the Act and a contravention of section 69(1)(a) of the Act.

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[45] With respect to section 71(2) of the Act, Inspector Hale testified that the inspectors attended the premises at 2:47 AM on February 10, 2024 and kept the premises under surveillance from the parking lot until 3:08 AM when a patron came outside to smoke a cigarette.

[46] Regulatory Services submits that no patrons were observed leaving the licensed premises between 2:47 AM and the required closing of 3:00 AM.

[47] Inspectors Hale and Hamilton found Bar Impero unlocked, and once inside, they found that the lights were off and music was still playing.

[48] The inspectors noted approximately 20 patrons inside, and many were still seated, consuming alcohol, smoking shisha, playing pool and socializing with staff.

[49] Regulatory Services takes the position that there was no indication that the staff members were taking any action to close the premises.

[50] Mr. Misghina was present in Bar Impero, and while he has used the excuse that the payment terminal was not working, this does not explain why there were 20 patrons scattered throughout the premises partaking in activities indicative of an open and operating premises.