LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: DEAN MARTINI’S
53- 63 Pitt Street East
Windsor, Ontario
N9A 2V3
Licensee: 1206623 Ontario Ltd.
Licence Number: 800603
Notice of Proposal: To SUSPEND a licence
Dated December 28, 2006
The Proposal alleges that contrary to section 43 of Ontario Regulation 719/90 (the “O. Reg.”) under the Liquor Licence Act (the “LLA”), the licence holder failed to ensure that the number of persons on the premises to which the licence applies, including employees of the licence holder, does not exceed the capacity of the licensed premises as stated on the licence.
Hearing: Alcohol & Gaming Commission of Ontario
Holiday Inn Select
1855 Huron Church Street
Windsor, Ontario
March 22, 2007
Presiding
Board Members: David C. Gavsie, Chair
Bruce Monteith, Member
Counsel for the
Registrar: Brad Alton
Attendance: Michael Soleski, on behalf of the corporate licensee
Exhibits: #1 – Letter dated June 22, 1999, from the City of Windsor Building Department
#2 – Floor plan of Dean Martini’s dated June 25, 1999
#3 – Letter dated June 22, 1999, from City of Windsor, Fire and Rescue Services
#4 – AGCO Liquor Inspection report dated June 28, 1999
#5 – Letter dated November 2, 2001, from Dean Martini’s
#6 – Letter dated January 19, 2007, from City of Windsor Building and Development Department
#7 – Letter dated January 22, 2007, from Dean Martini’s
A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in Windsor, Ontario on March 22, 2007, regarding a Notice of Proposal issued December 28, 2006, (the “NOP”) concerning the liquor licence of 1206623 Ontario Ltd. operating as DEAN MARTINI’S (the “Licensee”), 53- 63 Pitt Street East, Upper Floor, Windsor (the “Premises”), licence number 800603 (the “licence”).
1. PRELIMINARY MATTER
Michael Soleski, a director, officer and shareholder of the Licensee, represented the Licensee, waiving its right to be represented by legal counsel at the hearing.
2. REGISTRAR’S EVIDENCE
AGCO Inspector Kevin Holman
Inspector Holman has been with the AGCO since January 3, 2006, and before that, was an officer with Windsor Police Services for 34 years. He knows the Premises.
On October 22, 2006, he was not in the Premises but was behind the establishment on Chatham Street East, between Ouellette Avenue and Goyeau Avenue. He was observing the 2nd floor patio of the Licensee. He was about 100 feet away from the patio and had a clear, unobstructed view across a park. It was well lit from lights coming from a city parking lot. He had made notes and, on consent, was allowed to use them to refresh his memory.
At 12:30 a.m., Inspector Holman conducted a count. There were 29 people on the patio which is licensed for a capacity of 20. There was free movement in and out of the patio and to and from the inside. There were no controls at the patio doors. While he was observing the patio, Inspector Holman said the number of people on it never went under 29.
A couple of days later on October 30, Inspector Holman said he or Inspector Dimoff told the owners of the inspection.
The Licensee had been warned before on September 15 as the result of an attendance at the Premises by Inspector Dimoff and the witness. Two counts were taken on the patio, the first being 50 persons and the second being 35 persons. That information was conveyed that night to Dario Silvaggi, the other director, officer and shareholder of the Licensee.
Through Inspector Holman, the following documents were introduced into evidence:
a) A letter dated June 22, 1999 from the City of Windsor, Building Department to the Licensee (Exhibit 1);
b) A floor plan of the Premises showing the inside of the patio (Exhibit 2)
c) A letter dated June 22, 1999 from the City of Windsor Fire and Rescue Services to Mr. Soleski (Exhibit 3);
d) An AGCO Licensing inspection report regarding the Premises, signed by a licensing manager on June 28, 1999 (Exhibit 4).
Inspector Holman stated that capacity according to the licence is 395 inside and 20 on the patio. He then used the floor plan (Exhibit 2) to identify the patio area, of which he had a clear view on October 22, 2006. He referred to the letter filed as Exhibit 3 stating the occupancy load was 387 for the main area and 28 on the patio. He also indicated that the AGCO licensing inspection report (Exhibit 4) showed the second floor outdoor area – the patio – to have a capacity of 32, but immediately below that was a handwritten note stating, “* bldg dept 20 persons (patio)”. Exhibit 4 was signed by several people including AGCO Inspector Harold Puyda who is now retired. Inspector Holman did not know who had written the note.
Inspector Holman stated that the final capacity settled in 1999 was 20 for the patio. That is what the Licence provides and that is what the capacity of the patio was on October 22, 2006.
3. LICENSEE’S EVIDENCE
Michael Soleski
Mr. Soleski has been in the entrainment industry for 20 years, 15 of which have been as an owner and licensee. He has launched 5 establishments. He has good experience in dealing with Windsor and AGCO inspectors. He has a good relationship with all of them. He has, through his business, assisted charities with fundraising.
The Premises has been opened since 1999. There have been no infractions, all payments are made on time, and there are no patron issues, no law suits. They use electronic pouring equipment. They have diligent staff, experienced doormen, identification scanners, and even told the inspectors where they could get them.
Mr. Soleski referred to Exhibit 3 and pointed out the patio capacity was 28. When he renewed the Licence in 1999, it said patio capacity was 20. He spoke to Inspector Puyda at the time, told him the area of the patio and of the apparent mistake – the licence should have read 28, not 20. Inspector Puyda told Mr. Soleski that he could look into it and have the matter corrected. It was not done but it was never an issue because at that time smoking was allowed inside.
Around November 1, 2001, the Licensee submitted an application to the AGCO for expansion. The AGCO asked the Licensee to advertise because of an increase to capacity on the patio. Mr. Soleski referred to a letter he had sent to the AGCO dated November 2, 2001 (Exhibit 5). He did not receive a reply. Because of the events around September 11, 2001, they did not need to expand, so the matter was just dropped.
Then the Ontario smoking ban hit, and the patio capacity is now material.
Mr. Soleski was not aware that Inspector Holman was in the Premises on October 15. All of the managers have always been managing the patio capacity at 28. When he found out about the violation on October 22, he set up a meeting with the Windsor building department who said they would issue a letter. He received the NOP in the mail, and called Richard Kulis at the AGCO. Mr. Kulis asked Mr. Soleski to get a letter from the City of Windsor, which he did. Mr. Soleski put into evidence a letter to the Licensee from the Windsor, Building and Development Department dated January 19, 2007 (Exhibit 6). He sent this letter on to Mr. Kulis by letter dated January 22, 2007 (Exhibit 7). Mr. Soleski has not received a reply.
Mr. Soleski said he has seen an exit count which is accurate. He stated there are 2 doormen at each doorway, but no one is on the patio. The whole Premises are on the second floor. The stairs are used for an emergency exit. The middle doors between the patio and the inside are not open. They are used for emergency only. The floormen have radios. The doormen at the main front door keeps the count of people inside the entire establishment including the patio. The 2 doormen at the back maintain the patio count.
On cross-examination, Mr. Soleski said the capacity on the Licence for the patio was 20. The original Licence issued in 1999 said the same thing. He stated that he let the 2001 application expansion expire.
Regarding his conversation with Mr. Kulis, Mr. Soleski said Mr. Kulis told him that if there had been an error, with the letter from the City, the Licence would be amended. If the letter showed what the patio capacity should have been in 1999, Mr. Soleski would receive a call from Mr. Baxter of the AGCO Licensing department. Mr. Soleski stated an error had been made in 1999 regarding the patio capacity and had never been corrected.
4. REGISTRAR’S SUBMISSIONS
Mr. Alton indicated that the evidence before the Board is clear, namely that on October 22, 2006, Inspector Holman saw 29 people on the Licensee’s patio, an area licensed for 20. The Licence when issued in 1999 had a permitted capacity on the patio of 20. This is a clear violation of section 43 of the O. Reg. The AGCO went with the lower number based on Exhibit 1, the June 22, 1999 letter from the Windsor Building Department. To increase it the Licensee has to submit an application which it has not done. The Licensee had always operated as if the patio has had a capacity of 28, not 20. Mr. Soleski was not happy with the capacity of 20, so he has ignored it. He admitted he and his managers operate on the basis of the patio capacity being 28, a clear breach of section 43 of the O. Reg.
5. LICENSEE’S SUBMISSIONS
Mr. Soleski said than in 1999, he tried to rectify the matter with Inspector Puyda. He relied on their relationship. Inspector Puyda did not charge the Licensee for being over capacity on the patio. It was not a material issue for him. When Inspector Puyda retired, Mr. Soleski tried to rectify and again when the smoking ban came into effect.
6. REGISTRAR’S REPLY
Mr. Alton said the Board should not read anything into Inspector Puyda’s behaviour before he retired. Mr. Alton also said that the Licensee had been warned about a month before the violation.
7. FINDINGS
The unrefuted evidence of Inspector Holman is that on October 22, 2007, from an unobstructed distance of 100 feet, there were 29 people on the Licensee’s patio, and that number never decreased with people moving in and out.
Notwithstanding Mr. Soleski’s explanation that an error had been made in 1999, and that the patio capacity should have been licensed for 28, the facts do not bear this out.
The Licence, issued in 1999, clearly states that the patio capacity was 20. Although there is an inconsistency between the 1999 dated letters and material regarding the capacity – Exhibit 1 says 395 inside and 20 outside; Exhibit 3 says 387 inside (main) and 28 outside (patio); Exhibit 4 says 285 second floor north section and 32 second floor outdoor area, written down to 20 (with no explanation or evidence provided at the hearing about this handwriting) – the Licence issued by the AGCO must be the final authority regarding capacity. Section 43 of the O. Reg. reads:
“43. The licence holder shall ensure that the number of persons on the premises to which the licence applies, including employees of the licence holder, does not exceed the capacity of the licensed premises as stated on the licence” (underline added).
There was unrefuted evidence from Mr. Soleski that the former Inspector, now retired, never cited the Licensee for a violation of the 20 person capacity on the patio. That may be true, but why this happened is unknown. Mr. Soleski’s conclusion as to why this happened – it was an error to be rectified – was not substantiated by any evidence.
Mr. Soleski tried to explain why the “error” was never rectified, but in the Board’s view, his explanation rang hollow. He never really pursued correcting the “error” until the NOP was issued. Had the original Licence in 1999 been incorrect, the Board would have expected the Licensee to take some action other than speaking to the then Inspector, and leaving the issue be at that time.
Again, the Licence sets the capacity and the Licence since issuance, has always provided that the patio capacity is 20.
Accordingly, the Board FINDS there has been a violation by the Licensee of section 43 of the O. Reg.
Having made the above findings, the Board invites written submissions on disposition from the respective parties. The submissions are to be provided to the Hearings Section of the Alcohol & Gaming Commission of Ontario, 90 Sheppard Avenue East, Suite 200, Toronto, Ontario, M2N 0A4, and fax: (416) 326-5566. Registrar’s counsel shall serve and file his written submissions in seven (7) days from the date of this decision. Mr. Soleski, for the Licensee shall have seven (7) days thereafter to serve and file a written response. Registrar’s counsel shall have an additional three (3) days to serve and file a reply, if any.
DATED AT TORONTO THIS 5th DAY OF APRIL, 2007.
DAVID C. GAVSIE, CHAIR BRUCE MONTEITH, BOARD MEMBER
DCG/rb