LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: NAZARET BAR
969 Bloor Street West
Toronto, Ontario
M6H 1L7
Licensee: Nazret Abraham
Licence Number: 803863
Notice of Proposal: To SUSPEND a licence and to add a CONDITION to the Licence
Dated November 24, 2006
The Proposal alleges that:
(a) Contrary to section 29 of Ontario Regulation 719/90 under the Liquor Licence Act, ("O.Reg") the licence holder failed to clear the signs of service and consumption in the licensed premises within 45 minutes after the end of the period during which liquor may be sold and served under the licence; and
(b) To add a condition that the sale and service of liquor in the licensed premises cease at 1:00 a.m. and that the signs of the service and consumption of liquor in the licensed premises be cleared by 1:45 a.m.
Hearing: Alcohol and Gaming Commission of Ontario
90 Sheppard Avenue East, 3rd Floor
Toronto, Ontario
M2N 0A4
March 27, 2007
Presiding
Board Members: David C. Gavsie, Chair of the AGCO
Allan Higdon, Board Member and Chair of the Hearing
Counsel for the
Registrar: Richard Kulis
Counsel for the
Licensee: Jerry Levitan
Exhibits: #1 – AGCO Board decision dated November 14, 2004 re Licensee
#2 – AGCO Board decision dated October 13, 2005 re Licensee #3 – AGCO Inspector report dated May 31, 2006 and notes
Witnesses: Devin Sookdeo, AGCO Inspector
Lyn Sandiland, AGCO Inspector
Nazret Abraham, Licensee
A hearing of the Alcohol and Gaming Commission of Ontario ("AGCO") was held on Tuesday, March 27, 2007 at 90 Sheppard Street East, 3rd floor regarding a Notice of Proposal to Suspend and to add a condition to the licence of Nazret Abraham (the "Licensee") operating as NAZARET BAR, 969 Bloor Street West, Toronto, M6H 1L7 ("the Premises"), licence number 803863 (the "Licensee").
A. REGISTRAR'S EVIDENCE
Devin Sookdeo
Inspector Sookdeo is an inspector with the AGCO. He is familiar with the Premises. He was there on August 25, 2006. He made notes, and on the consent, he was allowed to use them to refresh his memory.
Inspector Sookdeo entered the Premises at 3:22 a.m. He observed 2 males at the rear of the Premises with 2 glasses of beer and 2 empty beer bottles in front of them. One bottle was a Coors Light and the other a Heineken. Inspector Sookdeo also noticed a male at the rear bar consuming a Heineken. Inspector Sookdeo spoke to the Licensee who was in the Premises. He asked her for the time. She was not sure. She was watching a DVD. Inspector Sookdeo advised the Licensee it was 3:22 a.m. and that all signs of service must be cleared by 2:45 a.m. The Licensee responded by saying that she had lost track of time. Inspector Sookdeo told the Licensee he would be sending a report to his superior, and left the Premises at 3:33 a.m.
B. LICENSEE'S EVIDENCE
Nazret Abraham
The Licensee has owned the Premises for 12 years. It is primarily an Ethiopian restaurant with the capacity of 22. The Licensee is in the Premises everyday. In the early morning of August 25, 2007, there were flowers on the counter. The Licensee was watching a DVD showing her home country of Ethiopia. She could not see the people at the back of the Premises as they were behind the flowers. The Licensee stated that she had been in Ethiopia last year for the mother's funeral. She further stated that the bottles were covered by flowers.
The Licensee said that she knew that she has to clear signs of service of alcohol by 2:45 a.m., and that it will never happen again. The AGCO Inspector has been back every week and there has been no further problem.
In answer to question on cross-examination, the Licensee said that the glasses referred to by the Inspector were close to the flowers and also an empty bottle, a Coors Light, was there. She did not see the Heineken bottle. She did not see anyone drinking. She was very close to the DVD. The Licensee was behind the bar. The TV was near the bar.
A friend had brought the Licensee the DVD she was watching. It ran for an hour and a half, finishing at 3:30 a.m. She stopped watching it when the inspector came in. She had started watching it around 2: 30 a.m. She was also cleaning up while watching.
C. REGISTRAR'S SUBMISSIONS AS TO FINDINGS
Mr. Kulis asked the Board to make a finding under section 29 of the O.Reg. He stated that there was no dispute that the beer bottles and glasses were out at 3:22 a.m. There was no attempt to clear the signs of service. The Licensee's explanation as to why she did not clear strains credibility. Her story changed from not being able to see the bottles and glasses, to watching a DVD.
D. LICENSEE'S SUBMISSIONS AS TO FINDING
Mr. Levitan said that he would not say that these things did not happen. There were visible signs of service. The Licensee was distracted. Her testimony was geared to mitigate the sanction.
E. FINDING BY THE BOARD
Based on the evidence of Inspector Sookdeo and in essence, the admission in the evidence of the Licensee, the Board FOUND that there had been a violation by the Licensee of section 29 of the O.Reg.
F. REGISTRAR'S EVIDENCE AS TO SANCTION
Mr. Kulis produced 2 prior decisions of the Board against the Licensee, one dated November 12, 2004 (Ex.1) and the other dated September 13, 2005 (Ex.2).
Inspector Sookdeo was recalled. Inspector Sookdeo stated he was at the Premises after September 13, 2005, namely on April 29 and May 26, 2006. He was accompanied by Inspector Sandiland. No discipline action was taken, just a warning was issued. He referred to his notes. An inspection report dated May 26, 2006 which was produced as an exhibit (Ex. 3). On May 26, he spoke to the Licensee. At 2:50 a.m. there were 6 patrons in the establishment – 1 female, 5 males and the owner. The Licensee was walking to the front door as the Inspector entered. The female patron was drinking a glass of beer. 3 males were sitting at the bar. There was 1 empty Heineken beer bottle in front of 1 male and behind the bottle was a full glass. The 2 other males had glasses of beer in front of them, about a 1/3rd full. Inspector Sookdeo touched the full glass. It was cold, meaning it has been poured recently.
The Licensee turned on the TV to Pulse 24. The time on the picture from Pulse 24 said 2:51 a.m. Inspector Sookdeo advised the Licensee that this was the second time he had come in, and told her all signs of service had to be cleared by 2:45 a.m. He advised the Licensee of the infraction and left at 2:59 a.m. The Licensee said nothing to the Inspector.
On cross-examination, Inspector Sookdeo said that he has been in the Premises after the alleged event in the NOP on August 25, 2006. There have not been any further problems re signs of service not being cleared by 2:45 a.m. The Licensee now heeds the rule.
Inspector Lyn Sandiland has been with the AGCO for 14 years. She is familiar with the Premises and was there on April 29, 2006. She was permitted to use her notes to refresh her memory. That evening – on April 28 and 29 – she was working with Inspector Sookdeo. They attended the Premises at 2:52 a.m. as the result of a complaint to the AGCO regarding after hours service. There were 6 patrons near the centre-west area of the Premises. They had 2 Moosehead and 1 Heineken beer near them. There were 3 patrons at the south bar area.
Inspector Sandiland introduced herself and her fellow inspector to the Licensee. They had a brief conversation. They told the Licensee all signs of service had to be cleared by 2:45 a.m. They noticed a clock on the wall that showed the time as being 2:50 a.m. which they pointed out to the Licensee. She said she thought it was 2:45 a.m. The inspectors requested the Licensee turn on a television set in the Premises and get station Pulse 24. She did so and the time on the screen matched that on the wall clock. They left at 3:13 a.m.
G. LICENSEE'S EVIDENCE AS TO SANCTION
The Licensee in answer to question said she has changed the clock because the old one was difficult to read. She thought the clock on April 29 was 5 or 6 minutes off the correct time.
H. REGISTRAR'S SUBMISSIONS AS TO SANCTION
Mr. Kulis stated that the Registrar is seeking both a 30 day suspension and an early closing condition. The Licensee has had 2 prior suspensions including one for failure to clear on time being the Board decision dated November 12 , 2004 (Ex. 1) The second suspension was contained in the Board decision dated October 13, 2005 was also for failure to clear on time and meted out a 14 day suspensions to the Licensee.
The Licensee was warned on 2 further occasions. Suggestions were made to her about getting a new clock which she could read easily, and about leaving the TV on to station CP24 so she could see the time.
Mr. Kulis stated that after 2 suspensions and 2 further warnings, all about failure to clear on time, the Licensee needs very firm disciplinary action.
I. LICENSEE'S SUBMISSIONS AS TO DISPOSITION
Mr. Levitan stated that the first Board decision (Ex.1) related to an incident which occurred in March, 2004 and the second Board decision (Ex.2) related to an event in October, 2004.
While there was a clear breach here, the Licensee was distracted by a DVD of her homeland. Granted she should have paid attention to the time, but she was distracted. Other attendance by AGCO inspectors were within a few minutes of 2:45 a.m. The inspectors have been back on a regular basis after August 25, 2006, and there have been no issues. It seems that the Licensee now understands her obligation to clear all signs of service by 2:45 a.m.
Mr. Levitan continued that the Licensee conducts a small operation, and to impose the condition being sought by the Registrar would push her out of business. The 30 day suspension being sought would be oppressive. A 2 week suspension would be sufficient.
J. DECISION
The Registrar is seeking a 30 day suspension of the Licensee and the addition of a condition attached to the Licensee that Liquor sales cease at 1 a.m. and signs of service be cleared at 1:45 a.m.
This is the third time the Board has been asked to impose a penalty against the Licensee for a breach of the same section of the O.Reg, namely section 29. The last time, a 14 day suspension was imposed. The inspection giving rise to their present violation occurred on August 25, 2006. Since then, no further violation has occurred.
Decisions of the Board, after a finding, should serve in general as a deterrent to other licensees but must also take into account in specific cases that a licensee has learned from a discipline experience, if in fact a licensee shows it has, and is trying not to repeat the same violation.
In the present instance, the Board has determined that a 14 day suspension of the licence combined with the imposition of a temporary condition is appropriate. Accordingly, the following condition ("the Condition") shall be added to the Liquor Licence:
"The sale and service of liquor in the licenced premises shall cease at 1:00 a.m. and the signs of service and consumption of liquor in the licenced premises shall be cleared by 1:45 a.m."
The condition will be removed from the licence 60 days following the completion of the suspension period provided no further violations of section 29 of the O.Reg are alleged by the Registrar during that 60 day period. In the event any such further violations are alleged, the Condition will continue in force until the allegations are resolved by the parties or decided by the Board.
The reason for the imposition of the Condition in addition to the suspension is that the Board in its decision of November 12, 2004 (Ex.1) previously imposed a 14 day suspension of the Licence for the same violation, so an additional sanction is appropriate under the circumstances. However, it appears that the Licensee has had only 1 further violation since November 12, 2004 to the date of the hearing and appears to finally understand her obligation under the LLA and O.Reg. The 60 day Condition is meant to give the Licensee the opportunity to further demonstrate her commitment to compliance with the LLA and O.Reg. If so, it is not necessary for the Condition to be made permanent.
The proposed suspension dates are to be submitted in writing to the Manager of Hearings Section of the Alcohol & Gaming Commission of Ontario, 90 Sheppard Avenue East, 3rd Floor, Toronto, Ontario, M2N 0A4, facsimile 416-326-5566 within seven (7) days of today's date, failing which the Board shall set the dates for suspension without further notice to the licence holder. The suspension shall not commence for at least 20 days after the date of this decision, shall be completed within 90 days of the date of this decision, and shall be completed on days that the establishment is normally operating.
DATED AT TORONTO THIS 19TH DAY OF APRIL 2007.
__________________________________ _______________________________________
DAVID C GAVSIE, CHAIR OF AGCO ALLAN HIGDON, CHAIR OF THE HEARING
DCG/sm